March 2021 dismissal of their suit<\/a>, which had included Virginia before the state dropped out of the litigation, at the U.S. Court of Appeals. The states argued that the publication of the law would have \u201cmeaningful practical consequences,\u201d even though both sides agree the archivist\u2019s certification wouldn\u2019t determine if the amendment was legally valid. Jane Notz, the plaintiffs\u2019 attorney, said that if the amendment is published, certified and consequently officially added to the Constitution and statutes at large, it will then be admissible in court as evidence.<\/p>\n\u201cPeople will be more likely to take advantage of the right that our states have sought to secure for them,\u201d Notz argued. \u201cAnd in addition, that other states and the federal government that may not have brought their laws into compliance with the amendment will be encouraged to do so.\u201d<\/p>\n
The District Court in March 2021 had dismissed the plaintiffs\u2019 case on the grounds that the states had missed Congress\u2019 deadline for ratification, but also because they failed to show the archivist\u2019s refusal to certify the amendment had caused them any concrete injury, specifically since the archivist\u2019s publication has no legal effect. Notz argued on Wednesday that the injury the states suffer is that \u201cour ratifications are not being given their intended effect.\u201d<\/p>\n
\u201cThe harm from the lack of publication is the fact that our states ratified the amendment in anticipation that it would be recognized as legitimate. And due to the archivist’s inaction, our purpose in ratifying the amendment is not being served,\u201d Notz said.<\/p>\n
The plaintiffs also argued that the 1979 deadline Congress set for ratification was \u201cunconstitutional,\u201d since it was written in the proposing clause of the amendment and not the actual text. Notz said that Article V of the Constitution supports the argument that \u201cCongress is free to propose amendments without interfering with the states\u2019 ability to ratify amendments,\u201d and therefore the deadline in the proposing clause of the amendment is unenforceable against the states.<\/p>\n
\u201cThe framers intended that the states and Congress would be co-equal participants,\u201d Notz said.<\/p>\n
The defense for former Archivist David Ferriero, who had declined to publish the amendment, on Wednesday urged the Appeals Court to dismiss the case, arguing that the certification is \u201ca ministerial act that has no substantive application.\u201d Representing the defense, Sarah Harrington \u2014 the deputy assistant attorney general for civil appellate \u2014 also denied that the states had any injury that would be redressed by the archivist\u2019s proclamation.<\/p>\n
\u201cThey talk about practical effects, they don\u2019t really talk about what those practical effects are,\u201d Harrington said. \u201cThey just sort of vaguely wave at practical consequences that might follow from a certification. But nothing legal follows from a certification.\u201d<\/p>\n