Washington, D.C.- On January 27, 2020, Virginia became the 38th US State to ratify the Equal Rights Amendment(ERA).
The ERA was approved by Congress for ratification in 1972, with a seven-year deadline for ratification. In 1978, Congress extended the deadline to 1982. By 1973, 35 states had ratified the ERA. Between 1973 and 1979, five of those states purported to rescind their ratifications.
In 2017, a 36th state ratified the ERA, and in May 2018, a 37th state did so. It was the understanding that several other states were considering ratification of the ERA, which would have lead to 38 or more states have ratified it.
In 1991, when it appeared that a 38th state would ratify the Congressional Pay Amendment, NARA contacted the Office of Legal Counsel (OLC) with respect to the Archivist’s role under 1 U.S.C. § 106b, and in 1992, the Office of Legal Counsel issued an opinion on what became the 27th Amendment to the Constitution. They requested that OLC provides the Archivist with guidance on his role under 1 U.S.C. § 106b in the event that 38 or more states ratify the Equal Rights Amendment.
Section 106b of Title I, United States Code, establishes ce1iain responsibilities of the Archivist of the United States with respect to the publication and ce1iification of amendments to the Constitution, as follows:
Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.
In its January 6, 2020, opinion, the OLC has concluded: “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.” (OLC Opinion, at p.2.) Accordingly, the OLC opinion goes on to state that “the ERA’s adoption could not be certified under 1 U.S.C. § 106b.” (OLC Opinion, at p.37.)
These issues are currently presented in two federal lawsuits against the Archivist of the United States, one filed in the U.S. District Court for the Northern District of Alabama by the states of Alabama, Louisiana, and South Dakota and the other filed in the U.S. District Court for the District of Massachusetts by Equal Means Equal, The Yellow Roses, and Katherine Weitbrecht.
As of now, the ERA is ratified by the 38 required states but hangs in limbo until either certified or possible even Congress giving a new deadline to satisfy the certification by the Archivist under 1 U.S.C. § 106b.