Republicans press archivist against certifying Equal Rights Amendment

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Sen. Mitt Romney (R-Utah) speaks during a Senate Health, Education, Labor, and Pensions Committee hearing on Jan. 11, 2022.
Sen. Mitt Romney (R-Utah) speaks during a Senate Health, Education, Labor, and Pensions Committee hearing on Jan. 11, 2022.


Three Republicans senators are urging the U.S. Archivist not to certify the Equal Rights Amendment (ERA) amid a campaign by Democrats, who are calling for the decades-old statute to be added to the Constitution.

Sens. Rob Portman (R-Ohio), Ron Johnson (R-Wis.) and Mitt Romney (R-Utah) penned a letter to U.S. Archivist David Ferriero on Tuesday, asking for his "commitment" that he will not certify the ERA.

The letter comes as Democrats and advocacy groups are encouraging Ferriero to add the ERA to the Constitution as the 28th Amendment before he retires from his post in April.

"In light of the calls for you to disregard your duty and certify the ERA, we write to ask for your commitment that you, and the acting Archivist who will take over in April, will not certify or publish the ERA, which failed to achieve ratification by the states and is no longer pending before them," the senators wrote.

The ERA, if ratified and added to the Constitution, would provide equal protection under the law by banning discrimination on the basis of sex. Some supporters of the amendment see it as a way of giving Congress the authority to guarantee equal pay or strengthen efforts combating domestic violence and sexual harassment.

Some Republicans, however, have argued that women are already afforded protections under the Constitution and therefore do not need the ERA, which could also lead to the weakening of anti-abortion regulations.

Congress approved the ERA in 1972, giving states the ability to weigh in on the measure and decide whether or not it should be added to the U.S. Constitution. Potential amendments must receive support from three-fourths of states in the country - or 38, to be exact - to be added to the Constitution.

When the ERA passed in 1972, states were given seven years to decide whether or not to ratify the measure, a deadline that was later pushed to 1982. At that point, only 35 states had come out in support for the measure, five of which had revoked their support within that time frame.

In recent years, however, three additional states - Virginia, Illinois and Nevada - have voted in favor of the ERA, leading some advocates to argue that the measure has enough support to be codified into the Constitution, according to CNN. Supporters also believe that states are unable to revoke their support of amendments, and that the deadline for approving the measure has not expired because it was not mentioned in the amendment's text.

Opponents of the amendment, however, argue the three latest state approvals are invalid and that the five other states took back their ratification. Some are also contending that the deadline to approve such a measure cannot be extended once it passes.

The three GOP senators referenced a January 2020 opinion from the Department of Justice's (DOJ) Office of Legal Counsel (OLC) that said the ERA sent to state legislatures in 1972 had expired, and was therefore no longer pending among states. They also pointed to a January 2020 statement from the National Archives and Records Administration that said the agency "refers to DOJ on this issue and will abide by the OLC opinion, unless otherwise directed by a final court order."

Additionally, the senators cited a second opinion from the OLC on the matter that said Congress is allowed to take a different view on questions presented, suggesting that the OLC and National Archives are "properly awaiting resolution of disputed ratification issued by the federal courts."

Tuesday's letter cited previous comments from Rep. Carolyn Maloney (D-N.Y.) , who reportedly said Ferriero "told us how much he believed in the ERA, that he wanted to be the Archivist that would make it happen, to deliver it and do his ceremonial job and ratify it."

"So that's exactly what he should do. It is ridiculous he's holding this up," Maloney reportedly added.

The GOP senators, however, said Ferriero's handling of the ERA from 2020 to now "has conformed to this expectation by making clear that you would respect the formal DOJ opinions on the matter."

The Hill reached out to National Archives for comment.

Some lawmakers are using new legislation in their push for the Equal Rights Amendment. Republican Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine) are co-sponsors of a bill that seeks to remove the deadline on ratifying the amendment.

The House adopted a resolution in March that seeks to remove the deadline from the amendment and just last month, Democrats in the lower chamber introduced a new resolution that would formally recognize the ERA as part of the Constitution.