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AG Mark Herring Moves for Summary Judgment in Landmark ERA Lawsuit

"[T]he Archivist has a non-discretionary duty under federal law to publish and certify the Equal Rights Amendment is valid"


From AG Mark Herring’s office:


~ Herring files briefs further arguing that the ERA should be recognized as part of the Constitution as well as opposing intervening states’ attempt to dismiss his lawsuit arguing that states’ rescissions of the ERA are invalid ~

RICHMOND (August 19, 2020) – Today, Attorney General Mark R. Herring moved for summary judgment in his landmark civil rights lawsuit that seeks to ensure that the Equal Rights Amendment is recognized as the 28th Amendment to the United States Constitution following Virginia’s ratification in January 2020. In the brief, Attorney General Herring again explains why the Equal Rights Amendment should be recognized as part of the U.S. Constitution.

For more than six months, the Trump Administration has refused to recognize Virginia’s valid ratification of the ERA and is trying to keep the courts from reviewing its obstruction. Joining Attorney General Herring in filing today’s motion arguing that a state cannot rescind the ratification of a constitutional amendment are Illinois Attorney General Kwame Raoul and Nevada Attorney General Aaron Ford.

“Donald Trump and these Republican attorneys general have clearly shown that they do not believe women should be guaranteed equality in this country,” said Attorney General Herring. “It is just plain wrong to force women to wait even a day longer for equal rights under the U.S. Constitution let alone indefinitely. I am proud to stand alongside the brave women and men who are dedicated to ensuring women’s equality in this country and I will not stop until the Equal Rights Amendment is recognized as part of the Constitution.”

As Attorney General Herring has argued throughout this lawsuit, and argues again in today’s motion for summary judgment, “the Equal Rights Amendment has satisfied the constitutional requirements to be added to the United States Constitution, and the Archivist has a non-discretionary duty under federal law to publish and certify the Equal Rights Amendment is valid.” Attorney General Herring further explains that “The Equal Rights Amendment has met all of Article V’s requirements,” “the timeframe in the congressional resolution did not prevent Plaintiff States from ratifying,” and “ratification is a one-time event that may not be ‘rescinded’.”

The motion for summary judgment concludes by asking the court to:

  • Declare that the Equal Rights Amendment is valid and part of the constitution
  • Declare that the Archivist’s refusal to publish and certify the Equal Rights Amendment violates federal law
  • Order the Archivist to execute his duties and publish the Equal Rights Amendment as part of the Constitution

Additionally, Attorney General Herring filed a brief opposing the intervening states’ (Alabama, Louisiana, Nebraska, South Dakota and Tennessee) motion for summary judgment that argued states have the ability to rescind their ratification of the ERA, which would remove five states from the number that have ratified the amendment. Only three of the five intervening states have even purported to have rescinded the Equal Rights Amendment – legislatures in Louisiana and Alabama have not even ratified the amendment.

Five states – Nebraska, Tennessee, Kentucky, Idaho and South Dakota – have purported to have rescinded their ratification of the Equal Rights Amendment, but Attorney General Herring and his colleagues argue that these rescissions are not valid and, therefore, should not affect the Equal Rights Amendment being added to the U.S. Constitution when Virginia became the 38th and final state needed to ratify it in January 2020.

The Intervenors argue that, because Congress put an arbitrary deadline on ratifications of the Equal Rights Amendment, the states’ purported rescissions of the amendment are valid. As Attorney General Herring argued in his complaint, the resolution proposing the ERA did not impose a binding time limit on the States to ratify, and “nothing in Article V suggests – much less clearly requires – that States take action on proposed constitutional amendments within any particular amount of time”, thus nullifying their argument.

Attorney General Herring argues in his brief that nowhere in the U.S. Constitution does it say that an amendment that has already been ratified can be rescinded saying, “Article V provides no contextual basis for rescission,” adding that “State ratification is a one-time event. [And] Intervenors’ insistence that States need not stand by their decision to ratify a Constitutional amendment would call into question ratification of no fewer than three constitutional amendments and generate constitutional chaos.” He also notes that “the purported rescissions of prior ratifications on which Intervenors rely are not authorized under Article V and thus have no effect on the adoption of the Equal Rights Amendment upon ratification by three-fourths of the States.”

Attorney General Herring further highlights in his brief that never before have any amendment rescissions been recognized saying, “purported rescissions of constitutional amendments have never before been recognized” and “historical practice confirms that ‘rescissions’ are without effect.”

Attorney General Herring concludes his opposing brief by saying, “To accept Intervenors’ arguments about deadlines, contemporaneity, and rescission not only would create additional requirements not found in Article V, but also would unnecessarily call into question the 14th, 15th, 19th, and 27th Amendments.”

On January 27, 2020, the Virginia General Assembly voted to pass and ratify the Equal Rights Amendment, making it the 38th and final state needed to immediately make it part of the Constitution. On January 30, Attorney General Herring filed suit to ensure that Virginia’s ratification was recognized, and to ensure that the Equal Rights amendment has been added to the U.S. Constitution, enshrining equal rights for women. In May, the Trump Administration filed a motion to dismiss Attorney General Herring’s lawsuit, seeking to block gender equality from being added to the Constitution. In June, Attorney General Herring filed a brief opposing the Trump Administration’s motion to dismiss his lawsuit.


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