New Opinion from Attorney General Mark Herring Says Virginia Can *NOT* Rescind Ratification of Equal Rights Amendment

Attorney General Herring, along with Illinois Attorney General Kwame Raoul and Nevada Attorney General Aaron Ford, has been fighting in court to ensure the federal government properly recognizes that the ERA has been ratified and is now part of the United States Constitution.

“Virginia made history when we became the 38^th state to ratify the Equal Rights Amendment, finally adding gender equality to the U.S. Constitution,” said Attorney General Herring. “The Constitution gives no mechanism to withdraw the ratification of an amendment and, throughout history, various states’ attempts to rescind such legislation have been unsuccessful. Women have waited more than 200 years to be given equal protections under the law and we cannot go back now.”

In the opinion, Attorney General Herring notes that four other states have unconstitutionally rescinded their ratification of the ERA, saying “[t]hese rescissions are inconsistent with the text of Article V and with longstanding historical practice. Article V addresses the ratification of proposed amendments in exclusively positive terms. Nowhere does the constitutional text provide that a State may void its ratification. Thus, under the plain language of Article V, when a State has ratified a proposed amendment, the State’s constitutional authority is exhausted and its role in the ratification process has come to an end.” He adds that, “[a]s the United States Supreme Court has recognized, ‘Article V, speaking solely of ratification, contains no provision as to rejection. Nor has the Congress enacted a statute relating to rejections.’ In accordance with this principle, previous purported rescissions of ratifications of constitutional amendments have not been given effect.”

Attorney General Herring concludes his opinion by saying, “[t]here is thus no federal authority from which I could conclude that a state may rescind its ratification of a constitutional amendment, after such ratification vote has occurred. This conclusion is supported by Virginia law, which speaks only to ratifications, and does not confer any method by which to rescind them. The same conclusion has been reached by other states confronting the question of whether ratification may be withdrawn.  I agree that ‘a ratification once given cannot be withdrawn.’”

Attorney General Herring’s Work on the Equal Rights Amendment
On January 30, 2020, Attorney General Herring sued to ensure that the Equal Rights Amendment was recognized as the 28^th Amendment to the U.S. Constitution, following Virginia’s ratification of the ERA. In May 2020, 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 and moved for summary judgment in his landmark civil rights lawsuit, as well as filed a brief opposing the intervening states’ (Alabama, Louisiana, Nebraska, South Dakota, and Tennessee) motion for summary judgment. In March 2021, a district court judge granted a request by the Trump Administration and Republican Attorneys General to dismiss this lawsuit because of a supposed lack of standing by ratifying states, prompting an appeal to the DC Circuit. In January 2022, Attorney General Herring and his colleagues filed their opening brief in the Court of Appeals for the District of Columbia Circuit.