D.C. Circuit Refuses to Order Archivist to Certify Ratification of Equal Rights Amendment
From today’s D.C. Circuit opinion in Illinois v. Ferriero, written by Judge David Wilkins and joined by Judges Neomi Rao and Michelle Childs:
The States of Illinois and Nevada … filed this mandamus action in the district court, seeking to compel the Archivist of the United States to certify and publish the Equal Rights Amendment (“ERA”) as part of the Constitution of the United States. The States argued that the Archivist had a duty to certify and publish the ERA because it was ratified by the requisite three-fourths of the States of the Union as required by Article V of the Constitution.
Alabama, Louisiana, Nebraska, South Dakota, and Tennessee … joined the litigation as intervenor-defendants. Both Intervenors and the Archivist moved the District Court to dismiss the States’ case as a matter of law….
The District Court … ruled the States did not show that the Archivist’s failure to certify and publish the ERA caused “a concrete injury that could be remedied by ordering him to act,” and that his decision to certify and publish amendments “has no legal effect.” The District Court also ruled that Plaintiffs had not established that the Archivist had a clear duty to certify and publish the ERA or that their right to relief was clear and indisputable. The District Court did not reach Intervenors’ arguments that the ERA had expired under Article V of the Constitution and that five states had validly rescinded their ratifications. …
The grounds on which a district court may grant mandamus relief are narrow, and the demands are austere. Because we agree that the States fail to show their right to relief is “clear and indisputable,” we affirm….
The States’ first argument is that neither Article V of the Constitution nor 1 U.S.C. § 106b (the relevant statute) permits the Archivist to consider anything other than whether the requisite number of states have ratified the proposed constitutional amendment. Under this view, once the Archivist was provided notice that thirty-eight states (three-fourths of the states of the Union) had ratified the ERA, then pursuant to Article V and § 106b, the Archivist had a clear duty to certify and publish the ERA in the Statutes at Large as a part of the Constitution. In
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