The Washington PostDemocracy Dies in Darkness

U.S. Justice Department says Virginia action would come too late to ratify ERA

Supporters of the ERA amendment wave to arrivals at the start of the Virginia General Assembly session on Wednesday. (Bill O'Leary/The Washington Post)
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The U.S. Justice Department says the Equal Rights Amendment can no longer be ratified because its deadline expired decades ago, throwing a barrier in the path of activists who want the amendment enacted if ­Virginia’s new, majority Democratic legislature approves it.

The opinion from the Office of Legal Counsel was dated Monday and made public Wednesday, the first day of Virginia’s legislative session.

“We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States,” Assistant Attorney General Steven A. Engel wrote. “Congress may not revive a proposed amendment after the deadline has expired.”

Thirty-eight states are required to pass a constitutional amendment, and only 35 had approved it before the 1979 deadline and a subsequent extension to 1982.

Since 2017, legislatures in Nevada and Illinois have ratified the ERA, and Virginia is poised to follow suit.

But five of the original 35 states have rescinded their ratifications: Idaho, Kentucky, Nebraska, Tennessee and South Dakota.

The 38-page opinion, which defines the position of the executive branch on legal issues, came as a result of an inquiry by the National Archivist, who ­administers the ratification process and was sued in December by the attorneys general of Alabama, Louisiana and South Dakota.

“The people had seven years to consider the ERA, and they rejected it,” the attorneys general said in a statement accompanying their lawsuit. “To sneak it into the Constitution through this illegal process would undermine the very basis of our constitutional order.”

Advocates contend that since the text of the amendment did not include a deadline, it is eligible for ratification indefinitely. Bills have been introduced in the House of Representatives to remove the deadline and to restart the ratification process.

Julie C. Suk, a professor at the City University of New York who is writing a book about the ERA, said the legal opinion does not stop Virginia or any state legislature from going forward, or prevent Congress from removing or revising the ERA deadline.

“Once you have 38 states ratifying plus action from Congress on the deadline, it’s very clear that the amendment is effective, in my opinion,” she said.

Nevertheless, ERA opponents declared victory, even as demonstrators on both sides of the issue tried to rally lawmakers in Richmond.

“The narrative that the ERA is on the verge of ratification is pure political theater,” said Douglas D. Johnson, senior ­policy adviser to National Right to Life. “This is not a close call. . . . They really do have to start over.”

The ERA Coalition said it “strongly disagrees” with the memo. “This OLC opinion is not binding on Congress, the courts, or the states that have expressed their ongoing will to give women constitutional equality,” it said in a statement.

“This is one opinion, one memo,” said Kati Hornung, coordinator for the VaRatifyERA campaign, who was outside the Virginia Capitol building. “The Constitution is enduring.”

Several members of Congress who are trying to either extend or remove the deadline also pushed back at the opinion.

“If this opinion is meant to slow down the momentum toward women’s equality, it will not be successful,” said Rep. Carolyn B. Maloney (D-N.Y.). “I do not believe that the OLC has the final word to dictate how Congress or the states proceed in amending the Constitution.”

Virginia Attorney General Mark R. Herring (D) accused the Trump administration of opposing women’s equality and called the lawsuit by the Republican attorneys general “repugnant.”

“I think what you’re going to see is a continued commitment to see this through,” Herring said. “We are ready to anything we need to do.”

Virginia House of Delegates kills last-ditch ERA effort in 2019

Virginia’s hopes of ERA ratification go down in flames in 2018

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