Virginia v Ferriero

“Isn’t there a court case about the 28th Amendment (ERA)?”

  • Yes! Back in 2012, the National Archivist, David Ferriero, sent a letter to Representative Carolyn Maloney outlining the process for amending the Constitution. In this letter Mr. Ferriero indicated he would record the remaining three ratifications and certify the 28th Amendment (ERA). Unfortunately, in 2020 the National Archivist recorded Virginia’s ratification as promised but did not certify and publish the 28th Amendment upon the instruction of his lawyer, the US Department of Justice.
  • Virginia v Ferriero is the case brought by the Attorneys General in the last three states to ratify (Virginia, Illinois, and Nevada) to compel the National Archivist (David Ferriero) to recognize the 28th Amendment (ERA) in the U.S. Constitution. This case was filed in the U.S. District Court for the District of Columbia in 2020.
  • In a nutshell, the central question is about Article V of the Constitution, which outlines the amending process.
  • On March 5, 2021, the DC Circuit denied the plaintiffs writ of mandamus because there was no “injury”. The Attorneys General appealed.
  • On January 10, 2022, 13 amicus briefs were filed in the DC Circuit.
  • On January 26, 2022, the Office of Legal Counsel (OLC) updated its advice to the Archivist. But, the net-net is that DOJ opposes publication.
  • On March 4, 2022, the Government’s brief was filed.

Below are all the court filings in this case, which make for fascinating reading. If your reading time is limited, we believe these amicus briefs are particularly compelling:

COURT DOCUMENTS

Pleadings are listed in chronological order starting from most recent and ending with the original complaint.

Virginia v Ferriero is, generally speaking, a writ of mandamus which is a fancy way of saying the plaintiff states are suing to compel the National Archivist to do his job. The National Archivist is the nation’s librarian, and his duty is purely administrative / ministerial. The plaintiff states seek to compel him to publish the U.S. Constitution with the 28th Amendment.

APPELLATE AMICUS BRIEFS

…in support of defendant/intervenor states (est. mid-March)

…in support of appellant/plaintiff states (1/10/2022)

1. Business Perspective for Ratification filed by 86 Business and Corporate Entities

2. Constitutional Accountability Center

3. Constitutional Law Professors (Erwin Chemerinsky, Noah Feldman, David Pozen, and Julie C. Suk) in Support of Neither Party

4. Constitutional Law Scholars (Catharine A. MacKinnon, Paul Brest, Rebecca Brown, Kimberle Crenshaw, Martha Field, Lawrence Lessig, Deborah Jones Merritt, Martha Minow, Jessica Neuwirth, Margaret Jane Radin, Dorothy Roberts, Diane Rosenfeld, Jane S. Schacter, Geoffrey R. Stone, Gerald Torres, and Laurence H. Tribe; filed by Kathleen Sullivan) in Support of Ratification

5. International Law Brief Equality Now et al (Equality Now, The World Policy Analysis Center, The Latin American and Caribbean Committee for the Defense of Women’s Rights (CLADEM), The Equal Rights Trust, The European Women’s Lobby, FEMNET, The Arab Women Organization, and The Sisterhood is Global Institute)

6. National Organizations Brief filed by Advocates for Equality and Women’s Rights (50+ organizations, including VoteEqualityUS)

7. Former State Legislators in Illinois, Nevada, and Virginia (Hon. Steven Andersson, Hon. Jennifer Carroll Foy, Hon. Amber Joiner, Hon. Lou Lang, Hon. Karen McConnaughay, Hon. David R. Parks, Hon. Julia Ratti, Hon. Ellen B. Spiegel, Hon. Heather Steans, Hon. Heidi Swank, and Hon. Joyce Woodhouse)

8. Youth Amici Generation Ratify et al (Generation Ratify, Gen-Z for Change, iFeminist, InnovateX, Montgomery County Students for Change, Pride Liberation Project, The Feminist Front, The Greater Good Initiative, The Homegirl Project, The Pad Project, and Youth Against Sexual Violence)

9. Brief by Kentucky Advocates Marie Abrams, Dolores Delahanty, Barbara Hadley Smith, David Karen, and Virginia Woodward

10. Organizations that Advocated for ERA Ratification in VA, IL, NV (Nevada Coalition to End Domestic and Sexual Violence, Nevada Women’s Lobby, ERA Illinois, Illinois Coalition Against Domestic Violence, Illinois Coalition Against Sexual Assault, League of Women Voters of Illinois, YWCA Elgin, YWCA McLean County, YWCA of University of Illinois, VA Ratify ERA, Chicago Bar Association, Illinois Bar Association, AAUUIL, Center for Common Ground)

11. The State of Michigan

12. The States of NY, CO, CT, DE, HI, ME, MD, MA, MN, NJ, NM, OR, PA, RI, VT, WA, and WI; Governor of Kansas; and the District of Columbia

13. The United Conference of Mayors, Equal Means ERA, 38 Agree for Georgia, and LARatifyERA

COURT OF APPEALS

Brief of Archivist/Government Filed 03/04/2022

Intervenor’s Brief Filed 03/04/2022

Brief of Appellants/Plaintiff States Filed 01/03/2022

Notice of Appeal filed by Virginia, Illinois and Nevada Filed 05/03/21

DISTRICT COURT

Order Filed 3/5/2021
Motion to Dismiss is Motion for Summary Judgment granted and case dismissed. Plaintiffs can appeal this decision.

INTERVENORS’ ANSWER TO THE COMPLAINT

AL, LA, NE, SD, TN answer to the plaintiff’s complaint
Link to the memo

PLAINTIFF STATES’ MOTION FOR SUMMARY JUDGMENT

NV, IL, VA motion for summary judgment
Link to motion
Link to statement of undisputed material facts
Link to declaration of Michelle Kallen (lead counsel)
Link to exhibits

DECISION (March 5, 2021): DENIED

MOTIONS FOR SUMMARY JUDGMENT

AL, LA, NE, SD, TN motion for summary judgment
Link to memorandum
Link to statement of material facts


Plaintiff states’ motion in opposition of motion for summary judgment
Link to memorandum
Link to statement of material facts

DECISION (March 5, 2021): GRANTED

AMICUS BRIEFS FILED IN DISTRICT COURT

…in support of plaintiff states

NV, IL and VA equality advocacy groupsLink to brief Filed 06/29/20
Summary: Plaintiff states have Article III standing to compel the archivist to add the 28th Amendment; Article V mandates inclusion of the 28th Amendment; Article V does not grant authority to rescind a ratification

Equality Now and other international equality advocacy groupsLink to brief Filed 06/29/20
Summary: International norms include express constitutional guarantees of gender equality; the US is required to adopt the ERA to comply with treaty requirements; the US should adopt the ERA to comply with international law and human rights standards

ERA CoalitionLink to brief Filed 07/01/20
Summary: Fight for equality has been long and hard, as advocates have struggled to correct the Framers’ intentional exclusion of women; women today face persistent inequality in nearly every sphere – inequality that reflects a continued and acute need for the ERA

GenRatify + other youth oriented equality advocatesLink to brief Filed 06/29/20
Summary: Young advocates have played a central role in the ERA; the ERA has the potential to advance broader rights of gender equality for young people

Corporate America (108 companies)Link to brief Filed 07/28/20
Summary: As corporate citizens, Amici are strongly committed to the ERA as a means to advance the goal of gender equality; ERA would enable women’s full participation in the labor force and provide consistency in the enforcement of laws affecting women

17 ratified states, 1 unratified state, Governor of Kansas, District of ColumbiaLink to brief Filed 06/29/20
Summary: Congress lacked authority to impose a seven-year deadline; the attempts by five states to rescind a ratification are ineffective

MichiganLink to brief Filed 07/02/20
Summary: The Equal Rights Amendment must be enshrined in the U.S. Constitution

Governor of MontanaLink to brief Filed 07/08/20
Summary: Justiciable; ratifying states will suffer real injury if the 28th Amendment is not added

US Conference of Mayors and equality advocacy groups from 3 unratified statesLink to brief Filed 06/29/20
Summary: The ERA will join the US with other countries in guaranteeing women’s equality; strict scrutiny; constitutional basis for claims of sex discrimination / gender-based violence; helpful appendix of international constitution references to gender equality

VoteERA.orgLink to brief Filed 07/06/20
Summary: SCOTUS commentary on deadlines is not binding precedent; Framers chose not to allow deadlines; 19th Century Congressional action supports a textualist reading of Article V; Plain text of Article V does not allow Congress to limit amendments, does not allow states to rescind nor make ratifications contingent upon additional events

…in support of neither party

Constitutional law professorsLink to brief Filed 06/29/20
Summary: Judicial review of the validity of the ERA’s ratification is precluded; only Congress is constitutionally authorized to resolve the ratification of a constitutional amendment; there is no role in the Constitution for the archivist or executive branch in amending the Constitution

…in support of defendant

Eagle Forum and other national anti-equality advocacy groupsLink to brief Filed 05/14/20
Summary: Plaintiffs did not meet their burden of proof; deadlines on constitutional amendments; complaint based on false predicates; 28th Amendment legally not equivalent to 27th Amendment

Concerned Women for America and Susan B. Anthony ListLink to brief Filed 07/24/20
Summary: Congressional deadline; Supreme Court dismissed litigation as moot

DECISION (March 5, 2021): GRANTED

…in support of intervenors

Independent Women’s Law CenterLink to brief Filed 07/15/20
Summary: Unnecessary; deadline; changed Constitutional landscape; change in language; voter participation in process

MOTION TO DISMISS

Defendant’s motion to dismissLink to motion
Summary: Plaintiffs lack Article III standing; rescission of a ratification is not ripe for review; Plaintiffs’ claims would require the court to answer a political question; Plaintiffs do not meet legal requirements for mandamus jurisdiction

Plaintiff states’ opposition to the motion to dismissLink to opposition to motion to dismiss
Summary: This court has the power to review and rectify the Archivist’s overreach; the purported deadline in the congressional resolution does not invalidate the Plaintiff States’ ratifications of the Equal Rights Amendment; the Plaintiff States have satisfied other requirements for mandamus relief

Defendant’s reply in motion to dismissLink to reply
Plaintiffs fail to demonstrate a concrete injury; rescissions are not ripe for review; issue is political; failure to satisfy the required elements for mandamus relief

DECISION (March 5, 2021): GRANTED

MOTION TO INTERVENE

AL, LA, NE, SD and TN request to join the defense
Link to motion

Plaintiff states’ motion to deny intervention
Link to memorandum

AL, LA, NE, SD and TN response to the motion to deny their intervention
Link to reply memorandum

DECISION (June 12, 2020): GRANTEDLink to memo order
Alabama, Louisiana, Nebraska, South Dakota, and Tennessee were approved as interveners.
NOTE: Should the Department of Justice withdraw in the future, these five states may continue their defense of the case without the DOJ.

ORIGINAL COMPLAINT

This case is, generally speaking, a writ of mandamus which is a fancy way of saying the plaintiff states are suing to compel the National Archivist to do his job. The National Archivist is the nation’s librarian, and his duty is purely administrative / ministerial. The plaintiff states seek to compel him to publish the U.S. Constitution with the 28th Amendment.
Link to complaint

ADDITIONAL FAQs


Contracts

“Won’t women contractors lose enhanced status for contract bids?”

COVID-19

“What kind of impact is COVID-19 having on gender equality?”

Draft

“Does constitutional equality mean women will be drafted?”

History

“What is the history of the 28th Amendment (Equal Rights)?”