Civil and Human Rights

Virginia v. Ferriero

In Virginia v. Ferriero, the D.C Circuit considered whether a lawsuit seeking to compel the National Archivist to certify the Equal Rights Amendment may move forward.

Case Summary

In January 2020, Virginia became the thirty-eighth state to vote to ratify the Equal Rights Amendment (“ERA”), explicitly guaranteeing sex equality in the United States Constitution. But the Archivist—the federal official charged by Congress with announcing and certifying new amendments—has not published or certified the amendment.

Virginia, Illinois, and Nevada, the three states to most recently vote to ratify the ERA, alleged that Virginia’s vote to ratify the ERA completed the amendment process outlined in Article V of the Constitution and that the Archivist’s refusal to certify the amendment has caused “widespread confusion regarding the effect of their ratification.” They sought a writ of mandamus in the D.C. District Court to compel the Archivist to certify and publish the amendment. The Archivist filed a motion to dismiss the lawsuit, and the district court granted the motion, concluding that because “the certification [the states] demand from the Archivist has no legal effect,” the states suffered no “concrete injury.” The states subsequently appealed that ruling to the D.C. Circuit.

On January 10, 2022, CAC filed an amicus brief in support of the plaintiff states.  Our brief took no position on whether the ratification process outlined in Article V has been successfully completed, and instead demonstrated the errors in the district court’s standing analysis, accepting the plaintiff states’ legal and factual allegations as true.

First, our brief explained that the publication and certification role given to the Archivist was created to eliminate doubt about whether constitutional amendments have been adopted. Although this role does not itself determine an amendment’s constitutional validity, history demonstrates that certification provides notice to members of our society when our most fundamental rules change and helps ensure consensus about when our national charter has been amended. Indeed, before the creation of the certification and publication role more than two centuries ago, confusion around the amendment process abounded. The Eleventh Amendment was left unrecognized for years after it was adopted, and at least one proposed amendment that had not been ratified by the requisite number of states was for a time mistakenly believed to be part of the Constitution.

Second, our brief showed how the certification requirement has proved crucial to the wide-spread recognition of the Fifteenth and Twenty-Seventh Amendments. As our brief recounts, it was only after the Secretary of State certified the Fifteenth Amendment that the House of Representatives formally recognized that it had been adopted. To this day, scholars point to the date of certification in 1870 as the day the states recognized that the Amendment took force. Over a century later, certification again proved crucial in ensuring broad recognition of a constitutional amendment with an unusual path to adoption: the Twenty-Seventh Amendment.  Because it was originally passed by Congress in 1789, but was not ratified for nearly 200 years, its passage was met with wide-spread confusion and doubt concerning its legitimacy.  But once the Archivist announced his plans to certify the Amendment, all doubts about its validity dissipated, as lawmakers, scholars, and the public alike recognized that the Twenty-Seventh Amendment was now part of the Constitution.

Finally, our brief argued that the Archivist’s decision to certify an amendment triggers important processes that record, publicize, and commemorate the successful amendment of our Constitution—and provide the nation with the text of its newly revised national charter. Simply put, the Archivist’s certification and publication decision plays a critical role—sometimes the decisive role—in determining whether the nation treats a new amendment as having become part of the Constitution. The Archivist’s certification decision, therefore, has palpable effects. Because the district court’s ruling rested on a contrary assumption, it incorrectly concluded that the states lack standing to sue.

In February 2023, the D.C. Circuit affirmed the dismissal of the states’ lawsuit, but on different grounds than the district court. The D.C. Circuit did not resolve whether the states had standing to sue, which it called “a close and complex question,” and the Circuit therefore did not endorse the district court’s flawed reasoning on that issue. Instead, the Circuit held that the states failed to meet the standard for obtaining a writ of mandamus compelling the Archivist to act—a “stringent” standard that requires showing “a clear and indisputable right to relief.” The Circuit drew upon our brief in describing the history of the Archivist’s role in the constitutional amendment process.

Case Timeline

  • January 10, 2022

    CAC files amicus brief in D.C. Circuit

    D.C. Cir. Amicus Br.
  • September 28, 2022

    D.C. Circuit hears oral arguments

  • February 28, 2023

    D.C. Circuit issues its decision

More from Civil and Human Rights

Civil and Human Rights
June 14, 2025

Debate over transgender rights grows more fraught in new Trump era

The Christian Science Monitor
Actions by the Trump administration have been pushing back on transgender inclusion, amid sharp public...
Civil and Human Rights
March 19, 2025

Viewpoint: The North Dakota Constitution’s protections include reproductive autonomy

North Dakota's Grand Forks Herald
The Court should live up to North Dakota’s history as a state with some of...
By: Nargis Aslami
Civil and Human Rights
February 27, 2025

What You Should Know About the Right to Protection in the Trump Era

Washington Monthly
The 14th Amendment was meant to enforce the laws equally, not put vulnerable populations in...
By: David H. Gans
Civil and Human Rights
U.S. District Court for the Western District of Washington

Shilling v. Trump

In Shilling v. Trump, the United States District Court for the Western District of Washington considered whether Trump’s Executive Order categorically barring transgender persons from serving in the military is unconstitutional.
Civil and Human Rights
February 19, 2025

History of the North Dakota Constitution Amicus Brief in Access Independent Health Services Inc., d/b/a Red River Women’s Clinic v. Wrigley

Center for Reproductive Rights
Amicus is the Constitutional Accountability Center, a think tank and public interest law firm dedicated...
Civil and Human Rights
U.S. District Court for the District of Columbia

Talbott v. Trump

In Talbott v. Trump, the United States District Court for the District of Columbia considered whether Trump’s Executive Order categorically barring transgender persons from serving in the military is unconstitutional.