Three Republican senators have asked Archivist of the United States David Ferriero to commit to not certifying the Equal Rights Amendment as part of the Constitution, as ERA supporters demand that Ferriero publish the amendment before retiring.
Senators Rob Portman of Ohio, Ron Johnson of Wisconsin, and Mitt Romney of Utah wrote to Ferriero on February 8 to seek his “assurance” that he will not act on the ERA “until it has been properly ratified and legal questions regarding such ratification have been resolved.”
Supporters of the ERA have been putting pressure on Ferriero, who is set to leave office in April, to publish the ERA as the 28th Amendment to the Constitution as part of his ministerial duties, claiming that it meets all constitutional requirements and took effect last month. However, key legal issues remain unresolved, such as whether states can revoke amendment ratifications and whether Congress has the authority to extend a deadline retroactively.
“In light of the calls for you to ignore your duty and certify the ERA, we write to ask for your commitment that you, and the acting Archivist who will take over in April, will not certify or publish the ERA,” the Republican senators wrote to Ferriero, arguing that the ERA “failed to achieve ratification by the states and is no longer pending before them.”
The three Republicans’ stance on this issue contrasts with that of their colleagues, Republican Sens. Lisa Murkowski of Alaska and Susan Collins of Maine, who are cosponsoring legislation to repeal the ERA deadline.
Article V of the Constitution requires three-fourths of the states, or 38 states, to ratify constitutional amendments.
The ERA was passed by Congress in 1972 and sent to the states with a seven-year deadline for ratification. The deadline was later pushed back to 1982.
However, only 35 states had signed off on the ERA at the time, and five of those states had withdrawn their support for the ERA within that time frame.
In recent years, Virginia, Illinois, and Nevada have all ratified the ERA, with Virginia claiming to be the 38th – and thus final necessary – state to do so in 2020.
Advocates contend that states cannot revoke amendment ratifications and that the ERA’s deadline did not expire because it was not included in the ERA’s body text. Opponents argue that the three states’ ratifications are invalid and that the five states’ rescissions are one of the reasons the ERA has not been ratified. They also claim that Congress cannot change or remove a deadline that has already passed.
They also point to a March 2021 ruling by an Obama-appointed federal district judge that the deadline for ratifying the ERA “expired long ago.”
Under the Trump administration, the Department of Justice’s Office of Legal Counsel also issued a legal opinion in 2020, stating that the deadline for ratifying the ERA had passed and that the archivist could not certify it.
In a new opinion issued last month, the OLC stated that its 2020 memo “does not obstruct Congress’s ability to act with respect to ratification of the ERA or judicial consideration of questions regarding the constitutional status of the ERA.” The office neither rescinded the 2020 memo nor directed the archivist to publish the ERA.
Last year, House Democrats passed their version of the bill to repeal the ERA deadline, and they are now attempting to pass a resolution recognizing ratification of the ERA. It has 155 Democratic cosponsors, including House Speaker Nancy Pelosi, and has been referred to the Judiciary Committee. Carolyn Maloney, a longtime supporter of the ERA, also wrote to Ferriero in October, urging him to “carry out your statutory duties to certify and publish the ERA without further delay.”