Over 120 House Democrats call on Biden to have Equal Rights Amendment ratified

More than 120 House Democrats have signed a letter asking President Joe Biden to urge the nation’s archivist to recognize the ratification of the Equal Rights Amendment by publishing the amendment first proposed 101 years ago – a move they believe would finally enshrine sex equality into the Constitution.

If the president does as the Democrats ask, the publication of the ERA would probably spark legal challenges over the validity of the amendment, which, despite having met all the constitutional requirements, has not been added to the Constitution because not enough states ratified it in time to meet a Congress-mandated deadline.

The push is led by outgoing Rep. Cori Bush, D-Mo., and Rep. Ayanna Pressley, D-Mass., co-chairs of the Congressional Caucus for the Equal Rights Amendment. Coming in the final weeks of the Biden administration, it is the latest and largest effort by a group of congressional Democrats seeking to make sex equality a legal reality.

The Democratic signees – who span the party’s spectrum, from some of its most conservative members to some of its most liberal – argue that Biden could solidify his legacy by paving the way for the ERA to “establish an unambiguous guarantee that sex-based discrimination is unconstitutional.”

In an interview with the Washington Post, Bush said the House members who signed the letter believe the country needs the amendment ratified to prepare for “what’s to come” during the next Trump administration.

“We were hoping to be able to be progressing forward as it comes to gender equality and women’s rights, but we are going backwards, and at this point we (have) an avalanche of destruction coming our way,” Bush said.

Pressley, in a statement to the Post, said that, “with a hostile administration on its way to strip us of our freedoms, we must do everything to address this injustice and enshrine” the ERA.

“The Equal Rights Amendment was introduced to ensure constitutional gender equality as the law of the land,” Pressley said. “Yet over a century later, we’re still fighting to codify the ERA.”

In the letter, the Democrats say the ERA met all the requirements to become an amendment to the Constitution once it was passed by both chambers of Congress and ratified by three-fourths of states.

The House passed the ERA in 1971 by a broad margin – 354-24 – and the Senate passed it in 1972, 84-8.

But it took nearly five decades for three-fourths of the states – a total of 38 – to ratify the amendment. In the wake of Donald Trump’s first election, Nevada ratified the amendment in 2017, the first state in decades to do so. Illinois followed in 2018. Then in January 2020, Virginia became the 38th state to ratify the amendment – well past the 1982 deadline Congress had set when it approved the legislation.

ERA supporters argue that the proposal must be certified and published by the nation’s archivist – the head of the National Archives and Records Administration – to serve as official notice that the amendment process has been completed.

Per the Office of the Federal Register, once an amendment is ratified by three-fourths of the states, the office verifies the count and drafts an official proclamation for the archivist to certify.

This final certification step was never taken with the ERA. After Virginia ratified it, archivist David Ferriero declined to certify it based on a memo by the Trump Justice Department’s Office of Legal Counsel (OLC) that said because the ERA did not meet that 1982 deadline, it had “expired and is no longer pending before the states.” The OLC also said Congress could not short-circuit the amendment process by trying to retroactively extend the deadline, and instead the whole process would need to start over. (There was also a question over whether five states’ attempts to rescind their ratifications were valid.)

Since then, efforts to certify the amendment have come to court repeatedly. Notably, U.S. District Judge Rudolph Contreras, who was appointed by Barack Obama, heard a lawsuit filed by Nevada, Illinois and Virginia over the failed certification of the ERA.

Contreras dismissed the case in 2021, ruling that the states lacked the standing to sue and that “Congress set deadlines for ratifying the ERA that expired long ago.” Contreras rejected the idea that the archivist’s certification of the ERA had any legal effect, and said the ratification deadline was valid and it would be “absurd” to ignore it.

In January 2022, the OLC under Biden stated in a memo that it would maintain the Trump OLC’s position in court, arguing that the archivist “may not” certify the ERA as part of the Constitution. However, the Biden OLC said that “nothing in the opinion stands as an obstacle to Congress’ ability to act” on its own.

Still, in their letter to Biden on Sunday, the Democrats insist that because the ERA has met all the requirements for adoption outlined by the Constitution, the president must now issue a mandate for certification and publication to the National Archives and Records Administration to have the current archivist, Colleen Shogan, publish the amendment. Bush said that would kick off a legal fight that would tackle constitutional and legal theory over the amendment’s validity that hasn’t been tested yet.

“I’m one to believe that we shouldn’t worry about what could happen if we do the right thing,” Bush said. “Let’s just do the right thing, and then we’ll fight.”

Proponents of the amendment have argued that the 1982 deadline is not valid, noting that the most recent addition to the Constitution – the 27th Amendment – was certified over 202 years after it was first introduced.

Kate Kelly, senior director for the women’s initiative at the Center for American Progress, said that Article V of the Constitution, which governs the amendment process, has no deadline for ratifying amendments. She argued that the push to have the archivist publish the ERA will probably not mean the end of the fight to have it be enforced, but rather kick off a legal fight over questions regarding the constitutionality of amendment ratification deadlines – legal questions she noted have never been resolved.

“This has never happened before, where a deadline was put in for amendment and … the deadline lapsed,” she said. ” … These are procedural arguments that they’re always going to try to put procedural hurdles in the way of equality.”

The White House did not immediately respond to a request for comment Sunday.

While Biden has previously voiced support for the amendment, he has insisted that Congress must take action to finalize its ratification.

Bush noted that the ERA is widely popular nationwide – a 2020 Pew Research Center poll found that 78% of Americans believe that the ERA should be a part of the Constitution – which is why members of Congress have repeatedly tried to find ways to have it be implemented in the wake of the first Trump administration.

“The majority of the country is saying, ‘This is what we want,’” she said. “So I think that Democrats … will get a lot further if we would just unify in this way and say that.”