Virginia Attorney General Mark Herring

Virginia Attorney General Mark Herring

Virginia’s Attorney General Mark Herring announced on Thursday morning, that he will partner with attorneys general from Illinois and Nevada to file a civil rights lawsuit for the ratification of the Equal Rights Amendment. Earlier this week, Virginia became the 38th state to ratify the ERA — meeting the constitutional requirement for ratification by three-quarters of the states.

The National Archives and Records Administration confirmed it had received Virginia’s ratification documents, but announced on Tuesday that it would not take any further action to certify the adoption of the ERA.

So what’s next? Will a battle in the courts finally make the ERA a reality? We’ll ask Virginia Attorney General Mark Herring.

Produced by Monna Kashfi and Richard Cunningham



  • 12:00:03

    SASHA-ANN SIMONSYou're tuned in to The Kojo Nnamdi Show. I'm Sasha-Ann Simons, sitting in for Kojo. Welcome. Earlier this week, Virginia became the critical 38th state to ratify the Equal Rights Amendment, meaning the constitutional requirement for the amendment that would ban discrimination on the basis of gender. But the ERA is not a done deal. Congress enacted a 1982 deadline for ratification decades ago, and we're obviously past that. Legal experts have long predicted that the fate of the amendment will have to be determined in the courts.

  • 12:00:35

    SASHA-ANN SIMONSAnd now we're one step closer to that legal battle. This morning, Virginia Attorney General Mark Herring announced he and the Attorneys General of Illinois and Nevada are teaming up to file a landmark civil rights lawsuit to push for the enactment of the Equal Rights Amendment. Mark Herring joins me now by phone. General Herring, welcome back to The Kojo Nnamdi Show.

  • 12:00:54

    MARK HERRINGWell, thank you and it's great to be back on the show.

  • 12:00:58

    SIMONSCan you tell us, what made you decide to file this lawsuit?

  • 12:01:03

    HERRINGWell, this morning, I filed suit to ensure that the Equal Rights Amendment is recognized as the 28th Amendment to the United States Constitution, and that the foundational document of our nation recognizes that we are all equal. Earlier this week, as you mentioned, Virginia made history as the 38th and final state needed to ratify the Equal Rights Amendment. So, the work is done.

  • 12:01:27

    HERRINGEvery constitutional requirement has been fulfilled. The ERA is now the 28th Amendment to the Constitution. I'm proud Virginia was the state to put us over the top. But there are still some forces out there that have tried to deny women the equal protection of the law for centuries, and that they haven't been fully vanquished. And the Trump administration has concocted a scheme to try to nullify the will of millions of Americans who have said, through their representatives, that this needs to be added to the Constitution.

  • 12:01:57

    HERRINGSo, the archivist of the United States is not doing his duty of certifying that it has been made a part of the Constitution. So, this morning, I have filed suit with my colleagues -- Attorney General Raoul from Illinois and Attorney General Aaron Ford in Nevada, the 37th and 36th states to ratify -- to make sure that the will of the people is recognized, and that the Equal Rights Amendment is recognized, for all intents and purposes, as an Amendment to the United States Constitution. And that women equality is finally expressly guaranteed in the Constitution.

  • 12:02:39

    SIMONSSo, you mentioned, of course, partnering with the Attorneys General in Illinois and Nevada. Now, two federal lawsuits on ratification of the ERA have already been filed. One opposes ratification, but the other one, which was filed in Massachusetts, it argues that among other things that Congress doesn't have the power to set a deadline for passage of a constitutional amendment. Can you tell us, what is your lawsuit arguing? How's it different from that existing one?

  • 12:03:06

    HERRINGYou know, we'll have to wait and see whether those cases move forward at all. Certainly, I don't think they'll be dispositive. I think this will be the case that decides it. Article 5 of the Constitution is what sets out how the Constitution is amended. And our framers went to great lengths to balance power and authority of the national government and power and authority of states. And Article 5 of the Constitution gives Congress two roles in this.

  • 12:03:44

    HERRINGFirst, whether an amendment should be put to the states for consideration, and second, the mode of ratification, whether it should be done by state conventions or state legislatures. And that's it. Article 5 does not limit when a state can consider an amendment or ratify it. Nor does it empower Congress to set a limit. And so all of the constitutional requirements have been met, and it is a part of our Constitution now.

  • 12:04:16

    SIMONSWhat will the ratification of the ERA do for Virginians, specifically? And can you tell us, does it extend protection to transgender individuals?

  • 12:04:25

    HERRINGYou know, this is so important for millions and millions of Americans and for Virginians. For most of our nation's history, you know, after 231 years, the Constitution, our foundational document finally declares that once and for all women in America have equal rights. And for 150 years, our nation's foundational document didn't even acknowledge the existence of women. In 1920, the concept of equality among sexes first appeared in the Constitution, but only in the limited context of expanding the right to vote. And while we have made a lot of progress towards gender equality in this country, we know that women are still discriminated against every single day.

  • 12:05:11

    HERRINGAnd so what the ERA will do is put protections for women's equality and gender equality on par with other fundamental rights of the Constitution. Right now, it gets a lower level of review. And it will also make sure that laws that -- you know, a lot of the protections that are in place now are statutory protections which can change. And so, making it a part of the Constitution will guarantee gender equality.

  • 12:05:44

    HERRINGAnd then, lastly, for our children, our grandchildren and future generations in Virginia and across the country, it really will mean so much that they can see in the nation's foundational document, our Constitution, that their rights are protected, that their rights are guaranteed. And so it matters a lot, in a practical sense, and it matters a lot to moving towards a more fair or just, more equal America.

  • 12:06:19

    SIMONSThank you for that. Now, if you were to win the lawsuit, does that mean Congress will have no choice but to enact the ERA, or are there other legal or legislative tools that can be used to block it?

  • 12:06:32

    HERRINGYou know, our view is it's a part of the Constitution now. And the problem is the archivist is not doing his duty because the Trump administration has injected itself into a matter that really -- it has no basis to interject itself in. The Constitution gives the Executive Branch no role whatsoever in the process of amending our Constitution.

  • 12:07:01

    HERRINGAnd so they've tried to direct that the archivist not to his duty to certify that the ratification documents that Virginia delivered count. That is thwarting the will of Virginians and their duly elected representative. It's thwarting the will of those Americans in other states whose duly elected representatives ratified the Amendment. It's contrary to what the vast majority of Americans want to have happen.

  • 12:07:34

    HERRINGSo, what this will do is confirm in the courts that it is now a part of the Constitution. And when we win this, and we are going to win, there's nothing more that needs to be done. Congress doesn't need to take any further action. It is a part of the Constitution now, but there are some out there who are naysayers and opponents of women's equality who are just trying to throw more roadblocks in the way. And women have shown, time and again, they will go around, over or right through any roadblocks that the naysayers want to throw out.

  • 12:08:10

    SIMONSSo, just to be clear, and I know you're pretty confident that this will go through, but are there other ways to pass the ERA if this method was to fail?

  • 12:08:18

    HERRINGThe process to amend the Constitution is really clear. It's laid out in Article 5, this is the way that it is done. Congress decides whether to put an amendment to the state and whether to do it by state convention or by the state legislatures. We have gotten the required 38 states. It is part of the Constitution now. And this is the process that our founders laid out for us.

  • 12:08:45

    SIMONSGeneral Herring, what happens next? Can you just lay that out for us?

  • 12:08:49

    HERRINGWell, based on statements from the archivist and other actions of the Trump administration, we expect that they will resist the lawsuit. We're going to proceed as expeditiously as possible, because it's so important and it matters to so many people to make sure that gender equality is finally a part of our Constitution.

  • 12:09:12

    SIMONSMark Herring is the Attorney General for Virginia. General Herring, thank you so much for joining us this morning.

  • 12:09:18

    HERRINGThanks for having me.

  • 12:09:20

    SIMONSWe'll return after a short break.

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