Virginia withdraws from Equal Rights Amendment appeal; says court was right to reject lawsuit

Virginia Attorney General Jason Miyares moved last week to withdraw from a lawsuit trying to force the Equal Rights Amendment into the Constitution, saying the state now believes the lower court got it right by ruling against the amendment.

The move doesn’t end the case, with two other states — Illinois and Nevada — still fighting to try to force the National Archives to accept the women’s rights amendment.

Virginia had been the lead plaintiff and the state’s withdrawal, and particularly Mr. Miyares’ conclusion Friday that the state’s previous arguments were wrong, are symbolic blows to ERA backers.

“Following the change in Administration on January 15, 2022, the Attorney General has reconsidered Virginia’s position in this case. 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,” Virginia Solicitor General Andrew N. Ferguson wrote.

He said none of the other parties objected to the withdrawal, though the appeals court must give final approval.

Mr. Miyares, a Republican, defeated Mark Herring, a Democrat, in last year’s elections and took office last month, promising a review of the state’s legal positions.

The ERA is one of the most prominent switches so far.

Democrats in Virginia rushed to ratify the ERA in January 2020 after winning control of both chambers of the state’s General Assembly in elections in 2019. The state became the 38th to vote to ratify — putting the ERA over the two-thirds threshold the Constitution requires for a new amendment to be added to the founding document.

But that vote, as well as votes by Illinois and Nevada, came decades after the 1979 deadline Congress set for ratification. And to further complicate matters, at least five states have since voted to revoke their ratifications.

Some ERA backers insist the deadline was never valid, and argue only ratifications, not revocations, can be counted — which would indeed mean the amendment has the 38 states necessary to become the 28th Amendment to the Constitution.

Mr. Herring, along with Nevada and Illinois, took that case to court in Washington.

A district judge shot down their case last year, ruling that the congressional deadline was indeed valid. The judge did not reach the issues of revocations, nor whether Congress could act now to erase the deadline after the fact.

Mr. Herring and the other states appeal to the U.S. Circuit Court of Appeals for the District of Columbia, which is gathering briefs.

Mr. Miyares’ move drew praise from conservatives last week.

“Virginia made the right decision to withdraw from this unsuccessful lawsuit that disrespects our nation’s constitutional amendment process and threatens women’s rights and opportunities,” Kristen Waggoner, general counsel at the Alliance Defending Freedom, said Friday.

But Virginia’s Democratic Party accused Mr. Miyares of “sabotaging” the party’s efforts.

“What part of the word equality does he not believe in?” party Chairwoman Susan Swecker said.

The Equal Rights Amendment’s key text reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

Congress mustered the two-thirds majorities needed to submit the amendment to the states in 1972, setting the 1979 ratification deadline. Only 35 states had ratified at that point.

Congress, acting by majority vote, then passed a law to extend the deadline to 1982, but no new states joined.

The National Archives, which claims the power to decide when the ratification threshold has been met, has been blocked from recognizing the ERA under a Justice Department opinion issued in the Trump administration, and, for the most part, reaffirmed in a Biden-era update last month.