Virginia’s new Republican attorney general on Friday withdrew his state from a legal effort to have the Equal Rights Amendment recognized as the 28th Amendment to the Constitution.
The move by Attorney General Jason Miyares marks a significant shift in the commonwealth’s stance and is a setback to supporters of the ERA. Virginia had ratified the ERA in 2020 under Democratic leadership and is seen by supporters as the final necessary state that put the ERA into effect – despite legal questions.
Miyares, in court documents on Friday, had Virginia dismissed as a party to an appeals case brought by then-Democratic Attorney General Mark Herring that seeks to have the ERA published.
“Following the change in Administration on January 15, 2022, the Attorney General has reconsidered Virginia’s position in this case,” the court filing read.
Shortly after Virginia’s ratification of the ERA in 2020, Herring had sued US Archivist David Ferriero to compel him to publish and certify the ERA. Illinois and Nevada, who had also ratified the ERA in recent years, joined the suit.
The three attorneys general appealed to the US Court of Appeals in the DC Circuit after a federal judge, an Obama appointee, dismissed that case in March.
Miyares’ spokeswoman Victoria LaCivita told CNN in a statement Friday that Virginia will no longer participate in the lawsuit “considering that a Democrat appointed judge, and the Biden administration all concluded that the deadline to ratify the ERA passed decades ago.”
“Any further participation in this lawsuit would undermine the U.S. Constitution and its amendment process,” she added.
Nevada Attorney General Aaron Ford’s office confirmed to CNN that it will continue its appeal. CNN has reached out to Illinois Attorney General Kwame Raoul for comment.
“America must live up to its principles of equality, and this amendment is a necessary and essential step toward the future we deserve. This fight continues,” Ford said in a statement.
The US Congress passed the ERA in 1972, sending it to the states for ratification with a seven-year deadline that was later extended to 1982. But by then, only 35 states had ratified the ERA – and five of those states rescinded their support of the ERA within that time, raising significant constitutional questions that remain unanswered today.
With ERA supporters arguing that state cannot rescind an amendment it has ratified, Nevada, Illinois and Virginia approved the amendment in recent years.
Advocates say that the ERA has been in effect since last month, arguing that the deadline can be removed by Congress, and are pushing the archivist to publish the amendment.
Opponents, who in part object to the ERA over how it might expand access to abortion, say the amendment is dead, arguing that the deadline for ratification has expired and the five states’ rescissions are valid.
The Department of Justice Office of Legal Counsel, under the Trump administration, and Judge Rudolph Contreras, who dismissed Virginia’s lawsuit against the archivist, have both opined that the deadline for the ERA has expired.
In his opinion, Contreras wrote that the archivist publishing and certifying an amendment “are formalities with no legal effect” and so not publishing the ERA does not harm Virginia, Illinois and Nevada. The judge also said that the archivist cannot ignore a deadline Congress created.
“After careful review of the filings and pertinent precedents, Virginia is now of the view that the district court correctly held that mandamus relief does not lie against the Archivist in this suit,” Friday’s court filing from Miyares’ solicitor general read.
Douglas Johnson, a senior policy adviser of National Right to Life, a group opposed to the ERA, called Virginia’s withdrawal from the appeal “the latest in a very long chain of legal and political setbacks for the ERA-revival cult.”
But the ERA Coalition said the move from Miyares was expected and insisted that it does not change much legally.
“It was not a surprise,” ERA Coalition President Carol Jenkins told CNN, adding, “There has been a plan in place for this already. This is not unexpected at all. It’s tragic, however, because it is an affront to the people of Virginia who who overwhelming support the ERA.”
Jenkins said the coalition had anticipated that Virginia would eventually drop from the case after Miyares and Youngkin won office. Miyares was a Virginia House delegate when he voted in 2020 against adoption of the joint resolutions ratifying the ERA.
The Virginia Democratic Party slammed Miyares’ move and said state Democrats would remain “steadfast in our opposition to Republican attempts to undermine the certification of the ERA.”
“Attorney General Miyares is now sabotaging two years of work by the Commonwealth to ensure federal certification (of the ERA), another truly sickening effort to drive his discriminatory, far-right and out-of-touch agenda,” party chairwoman Susan Swecker said in a statement.