SPRINGFIELD — Attorney General Kwame Raoul wants a U.S. court to compel a federal official to formally acknowledge that the Equal Rights Amendment received enough state support to be added to the U.S. Constitution – a largely procedural step that has thus far blocked the amendment from ratification.
Raoul is doing this as he works from home, recovering from a coronavirus infection his office announced last month. In a June 29 Sun-Times op-ed, he urged Illinoisans to take the seriously and curb its spread, describing frustration from self-isolated confinement in his Drexel Square home, exhaustion during phone calls or Zoom meetings, and mild symptoms that were albeit "extremely uncomfortable at times."
The Equal Rights Amendment case centers on a decision by U.S. National Archivist David Ferriero, who was effectively ordered by the U.S. Department of Justice to deem passage of the Equal Rights Amendment — which would add protections for women as the 28th Amendment to the nation’s governing document — unsuccessful because multiple states missed a key congressional deadline.
Ferriero, who was appointed archivist by former President Barack Obama, Raoul’s predecessor in the Illinois Senate, in 2009, has since insisted that, unless a judge orders him to acknowledge the amendment’s passage, he will not do so.
When Congress introduced and passed the initiative in 1972, it set a seven-year deadline for state ratification, which was later extended to 1982. By then, only 35 states formally approved the language, five of which — South Dakota, Idaho, Kentucky, Nebraska and Tennessee — withdrew their backing in the 1970s. In the last three years, Nevada, Illinois and Virginia became the last three states to approve the proposal.
In response to Ferriero’s insistence he would not officially certify the Equal Rights Amendment without a judge’s order, Raoul, joined by his counterparts in Nevada and Virginia, filed a lawsuit in late January.
The archivist later asked a judge to dismiss the case. The attorneys general argued in a document filed Monday that if that request is granted, the “careful balance our founders” established in the constitution between states and the federal government would be “upended.”
And “accepting the Archivist’s arguments...would do much more than simply allow an unelected Executive official to disregard his ministerial duty,” they wrote. “It would tell the women of America that, after 231 years, they must wait even longer for equal treatment under the Constitution. And it would nullify the (three states’) sovereign prerogative to ratify amendments that make our Union more perfect.”
The amendment process outlined in the constitution was drafted to “ensure federal power had limits,” according to the court document. Congress’s only role is to propose changes and choose one of two methods by which it can be ratified, not to ultimately determine whether requirements were met.
Once 38 states, or three-fourths of the union, approve an amendment, it “shall be valid … as part of the Constitution,” according to the governing document.
That “arrangement,” the attorneys general wrote, “is a critical piece of the constitutional design to which the states agreed when they ratified the constitution and consented to be bound by its terms.”
By not approving the Equal Rights Amendment’s inclusion in the constitution, Ferriero “improperly interferes” with states’ rights, according to the court filing.
Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation. Staff of the Herald, a member of the Illinois Press Association, contributed from Chicago.