Three Republican senators are calling on the Archivist of the United States David Ferriero to commit to not certifying the Equal Rights Amendment as part of the Constitution, as ERA advocates demand Ferriero publish the amendment before he retires.
In a letter dated February 8, Sens. Rob Portman of Ohio, Ron Johnson of Wisconsin and Mitt Romney of Utah wrote to Ferriero, seeking his “reassurance” that he won’t act on the ERA “until it has been properly ratified and legal questions regarding such ratification have been resolved.”
Backers of the ERA have been pressuring Ferriero, who’s set to leave office in April, to publish the ERA as the 28th Amendment to the Constitution as part of his ministerial duties, arguing that it has satisfied all the necessary constitutional requirements and in fact took effect last month. However, key legal questions remain unresolved such as whether states can rescind ratifications of an amendment and if Congress has the power to lift a deadline retroactively.
“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,” the Republican senators wrote to Ferriero, arguing that the ERA has “failed to achieve ratification by the states and is no longer pending before them.”
CNN has reached out to the National Archives and Records Administration for comment about the letter. The Archives declined to comment to CNN on Thursday when asked whether Ferriero plans to certify the ERA, citing pending litigation.
All three GOP senators sit on the Senate Committee on Homeland Security and Governmental Affairs, with Portman as its top Republican, which will consider the nomination of the next archivist and is one of the panels with oversight of the Archives.
The three Republicans’ stance on this issue contrasts with their colleagues, GOP Sens. Lisa Murkowski of Alaska and Susan Collins of Maine, who cosponsoring a bill that would remove the ERA deadline.
Under Article V of the Constitution, three-fourths of the states – or 38 states – are required to ratify constitutional amendments.
Congress passed the ERA in 1972, sending it to the states with a seven-year deadline for them to ratify the amendment. It later extended the deadline to 1982.
But by then, only 35 states had signed off on the ERA – and five of those states rescinded their support of the ERA within that time.
In recent years, Virginia, Illinois and Nevada approved the ERA, with Virginia claiming to be the 38th – and thus final necessary – state to ratify the amendment in 2020.
Advocates argue that states cannot rescind amendment ratifications and that the ERA’s deadline had not lapsed since it was not included in the ERA’s body text.
Opponents say the three states’ ratifications are invalid and point to the five states’ rescissions as part of why the ERA is not ratified. They also say Congress cannot change or remove its deadline after it expired.
They also note an opinion from an Obama-appointed federal district judge in March 2021 that the deadline to ratify the ERA “expired long ago.”
The Department of Justice’s Office of Legal Counsel also issued a legal opinion, under the Trump administration in 2020, that said the deadline to ratify the ERA expired and that the archivist cannot certify it.
The OLC said in a new opinion released last month that its 2020 memo is “not an obstacle either to Congress’s ability to act with respect to ratification of the ERA or to judicial consideration of questions regarding the constitutional status of the ERA.” The office did not withdraw the 2020 memo nor instruct the archivist to publish the ERA.
House Democrats passed their version of the bill to remove the ERA deadline last year, and are trying to pass a resolution that recognizes ratification of the ERA. It currently has 155 Democratic cosponsors – including House Speaker Nancy Pelosi – and was referred to the Judiciary Committee.
House Oversight Chairwoman Carolyn Maloney, a longtime advocate for the ERA, also wrote to Ferriero in October, urging him to “carry out your statutory duties to certify and publish the ERA without further delay.”
This story has been updated with further developments Thursday.
CNN’s Devan Cole contributed to this report.