Late last night, the Trump Administration filed a motion to dismiss Attorney General Mark R. Herring’s landmark civil rights lawsuit that seeks to ensure that the Equal Rights Amendment is recognized as the 28th Amendment to the United States Constitution following Virginia’s ratification in January 2020.
For more than three months, the Trump Administration has refused to recognize Virginia’s valid ratification of the ERA, and it is now trying to keep the courts from reviewing its obstruction.
“Donald Trump is telling the women of America that, after 231 years, they should just sit down and wait even longer for equal treatment under the Constitution. It’s wrong, it’s offensive, and it’s shameful,” said Attorney General Herring. “If the Trump Administration opposes a Constitutional guarantee of equality for women then they should just say so rather than hiding behind process and trying to throw the issue into Mitch McConnell’s hands. No matter what schemes the Trump Administration may concoct to try to stand in the way of progress, this movement has shown time and again that it will not be deterred and it will not be defeated.”
On January 27, 2020, the Virginia General Assembly voted to pass and ratify the Equal Rights Amendment, making it the 38th and final state needed to immediately make it part of the Constitution. On January 30, Attorney General Herring filed suit to ensure that Virginia’s ratification was recognized, and to ensure that the Equal Rights amendment has been added to the U.S. Constitution, enshrining equal rights for women. Joining him in the suit are Illinois Attorney General Kwame Raoul and Nevada Attorney General Aaron Ford, the attorneys general of ratifying states number 36 and 37.
In the complaint, Attorney General Herring and his colleagues argue that “under Article V, a proposed constitutional amendment automatically becomes ‘valid to all intents and purposes, as part of th[e] Constitution’ as soon as it is ‘ratified by the legislatures of three fourths of the several states’. The complaint further argues that the U.S. Archivist does not have any discretionary authority over which amendments are added to the Constitution and which are not, and must therefore certify the amendment as part of the Constitution.
The complaint also explains why the Equal Rights Amendment remains valid for several reasons. As the Complaint states, “Article V does not empower Congress to dictate when a state may consider – much less ratify – a proposed amendment” and “nothing in Article V suggests – much less clearly requires – that States take action on proposed constitutional amendments within any particular amount of time”. The complaint also explains that “States have no power to rescind prior ratifications”.
Attorney General Herring and his partners in Nevada and Illinois anticipated filing briefs in the coming weeks opposing the Trump Administration’s efforts to kill the ERA.