Biden’s pick for U.S. archivist shoots down ERA backers’ hopes of shortcut to ratifying amendment


Colleen Shogan told lawmakers that if she is installed as the next head of the National Archives, she will not short-circuit the process to add the Equal Rights Amendment to the Constitution.

Ms. Shogan said it is up to Congress and the courts to decide whether the ERA, which Democrats have tried to revive from the legislative scrap heap, is valid.

“I think who will decide the fate of the ERA is the federal judiciary and/or Congress,” she said Wednesday under questioning by Sen. Rob Portman, Ohio Republican.

She also agreed to be bound by a 2020 Justice Department opinion that concluded the ERA, at least the version Congress submitted to the states in the 1970s, is a dead letter and cannot be resuscitated.

Her comments came during a hearing before a Senate committee.

She must be confirmed by the Senate before she takes the Archives job.

Under the law, the archivist is in charge of collecting documents related to amendments to the Constitution, and is usually the one who certifies that the requisite three-fourths of states have ratified a new amendment, which adds it to the founding document.

But the ERA’s path to ratification has stymied easy certification.

It was proposed by Congress to the states in 1972, with lawmakers putting a seven-year limit on ratification. As the 1979 deadline approached, just 35 states had ratified, or three shy of the number needed.

Congress then approved legislation purporting to extend the deadline for three more years, but no new states ratified by 1982, and the amendment was generally thought dead.

In the last decade, though, backers convinced state legislatures that the amendment could be revived, and got Nevada, Illinois and Virginia — all original holdouts — to hold ratification votes. The backers then submitted those votes to the Archives and demanded certification, saying both the 1979 deadline and the 1982 deadline were invalid. They also said five states that had voted to revoke their ratifications in the 1970s should be ignored.

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.”

Analysts say it might make it easier to sue for sex-based discrimination, and could possibly be used to enforce abortion rights, though those claims are heatedly debated.

A federal judge has ruled Congress’s ERA deadline was valid, and the amendment is dead.

ERA backers have appealed that decision, and oral argument is scheduled for Sept. 28 in the U.S. Circuit Court of Appeals for the District of Columbia.

The amendment’s supporters are also trying to press Senate Democrats to hold a vote on a measure that would retroactively remove the ratification deadline. Backers say that would remove the hurdle to the Archives’ certification.

The measure has already passed the Democratic-controlled House.


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