525 F.Supp.3d 36
D.D.C.2021Background
- In 1972 Congress proposed the Equal Rights Amendment (ERA) with a seven‑year ratification deadline in the joint resolution; 35 states ratified by the original deadline and Congress later passed a resolution extending the deadline to 1982.
- The Archivist of the United States is statutorily required to publish and certify amendments upon receiving official notice of adoption (1 U.S.C. § 106b); historically publication is treated as ministerial.
- After Nevada (2017), Illinois (2018), and Virginia (2020) ratified, plaintiffs (three states) claimed the ERA had reached three‑fourths of the states and asked the Archivist to publish/certify it.
- The Archivist, relying on a DOJ OLC opinion, refused to publish absent a court order; five states intervened opposing plaintiffs and asserting rescissions and other defenses.
- Plaintiffs sued for mandamus to compel certification; the Archivist and intervenors moved to dismiss on jurisdictional and merits grounds.
Issues
| Issue | Plaintiffs' Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing — whether plaintiffs suffered a concrete injury from Archivist's refusal to publish | Archivist’s refusal interferes with states’ sovereign Article V role and creates harmful confusion | Publication is a formalism with no legal effect; refusing to publish causes no redressable injury | Dismissed for lack of standing: plaintiffs cannot show injury, causation, or redress because certification is ministerial and does not change the amendment’s legal status |
| Political question — whether courts may adjudicate the effect of an amendment deadline | Courts can adjudicate procedural Article V questions | Deadline questions are committed to political branches (Coleman) and thus nonjusticiable | Not a political question; Baker factors do not bar review and judicial standards exist for interpreting Article V |
| Scope of Archivist's duty under §106b — must Archivist certify upon receiving ratifications without inquiry (Colby) | Section 106b requires ministerial certification once three‑quarters of states notify; Archivist cannot inquire into validity | Archivist may ensure a proposed amendment was adopted "according to the provisions of the Constitution," including compliance with congressional deadlines | Archivist may consider deadline compliance before certifying; Colby is distinguishable and does not compel blind certification |
| Effectiveness of a ratification deadline placed in a proposing resolution's preamble | Deadline in the preamble is not part of the amendment text and thus ineffective | Congress may place ratification conditions (mode/deadline) in the proposing resolution; historical practice and precedent make such deadlines effective | Deadline is effective even if located in the resolution’s prefatory language; plaintiffs’ later ratifications came after the deadline and therefore do not obligate certification |
Key Cases Cited
- Dillon v. Gloss, 256 U.S. 368 (1921) (upheld Congress’s authority to set ratification time limits as incident to Article V)
- Coleman v. Miller, 307 U.S. 433 (1939) (held certain amendment‑process disputes nonjusticiable in the case’s circumstances; discussed in political‑question analysis)
- United States ex rel. Widenmann v. Colby, 265 F. 998 (D.C. Cir. 1920) (Secretary’s proclamation was treated as ministerial; court refused to cancel certification where notices were received)
- National Organization for Women v. Idaho, 459 U.S. 809 (1982) (Supreme Court dismissed as moot after ERA extension lapsed, treated deadline question as consequential in procedural disposition)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (standing requires concrete injury; relevant for Article III analysis)
- Massachusetts v. EPA, 549 U.S. 497 (2007) (states may receive "special solicitude" in standing analysis but must still allege concrete, particularized injury)