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IN the UNITED STATES DISTRICT COURT for the DISTRICT of COLUMBIA ______) VIRGINIA, Et Al., ) ) Plaintiffs, ) ) Case No

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IN the UNITED STATES DISTRICT COURT for the DISTRICT of COLUMBIA ______) VIRGINIA, Et Al., ) ) Plaintiffs, ) ) Case No Case 1:20-cv-00242-RC Document 31 Filed 05/14/20 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) VIRGINIA, et al., ) ) Plaintiffs, ) ) Case No. 1:20-cv-242-RC v. ) ) DAVID S. FERRIERO, in his official capacity ) as Archivist of the United States ) ) Defendant. ) __________________________________________) CONSENT MOTION OF EAGLE FORUM, EAGLE FORUM FOUNDATION, PUBLIC ADVOCATE OF THE UNITED STATES, CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND, CALIFORNIA CONSTITUTIONAL RIGHTS FOUNDATION, U.S. CONSTITUTIONAL RIGHTS LEGAL DEFENSE FUND, CLARE BOOTHE LUCE CENTER FOR CONSERVATIVE WOMEN, POLICY ANALYSIS CENTER, RESTORING LIBERTY ACTION COMMITTEE, VIRGINIA DELEGATE DAVID LAROCK, AND FORMER VIRGINIA DELEGATE ROBERT G. MARSHALL FOR LEAVE TO FILE BRIEF AMICUS CURIAE IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS On the grounds and for the reasons set forth below, movants, through undersigned counsel, pursuant to F.R.Civ.P. 7 and Rule 7(o) of the local rules of this Court, move this Court for leave to file a brief amicus curiae in support of Defendant’s Motion to Dismiss. Counsel for Plaintiffs and Defendants have consented to this Motion and to the filing of the attached brief amicus curiae. This brief is being filed timely within seven days of the Plaintiffs’ Motion, the same amount of time allowed for an amicus curiae brief under the Federal Rules of Appellate Procedure, F.R.App.P. Rule 29(a)(6), and will not unduly delay this Court’s ability to rule on the motion to dismiss. Case 1:20-cv-00242-RC Document 31 Filed 05/14/20 Page 2 of 5 2 Movants Eagle Forum Foundation, Conservative Legal Defense and Education Fund, California Constitutional Rights Foundation, U.S. Constitutional Rights Legal Defense Fund, Clare Boothe Luce Center for Conservative Women, and Policy Analysis Center are exempt from federal income taxation under Section 501(c)(3) of the Internal Revenue Code (“IRC”). Movants Eagle Forum (formerly known as “STOP ERA”) and Public Advocate of the United States are exempt from federal income taxation under IRC Section 501(c)(4). Restoring Liberty Action Committee is an educational organization. Each organization participates actively in the public policy process, and has filed numerous amicus curiae briefs in federal and state courts. Organizational movants defend U.S. citizens’ rights against government overreach, and support the proper interpretation of the United States Constitution as the charter for our Nation. Movants have a concern that the Constitution not be improperly amended except by the express methods outlined in the Constitution by the Framers. Delegate David LaRock is a member of the Virginia House of Delegates, representing the 33rd House District (which includes parts of Loudoun County, Clark County, Frederick County, and the City of Winchester) since 2014. He voted in the House of Delegates in opposition to the resolution purporting to “ratify” the Equal Rights Amendment. Former Virginia Delegate Robert G. Marshall served in the Virginia House of Delegates for 26 years and is author of the forthcoming book “The Equal Rights Amendment: A Study in Deception.” Case 1:20-cv-00242-RC Document 31 Filed 05/14/20 Page 3 of 5 3 I. THIS CASE PRESENTS A CONSTITUTIONAL MATTER OF GREAT IMPORTANCE. Article V of the U.S. Constitution specifies the method in which the Constitution may be amended. Plaintiff States claim that a sufficient number of states have ratified a proposed constitutional amendment, but there are several significant problems with their claim. This case raises the questions of whether states may withdraw or otherwise rescind a previous ratification of a proposed constitutional amendment, whether ratification may occur after the expiration date in the congressional resolution approving a proposed amendment, and whether states may obtain a judicial resolution of those two issues. Movants believe that the ERA resolution expired decades ago without the ratification as required by Article V, and are concerned that the plaintiff States are attempting a Dr. Frankenstein-like revival of the ERA by cobbling together the pieces of old state ratifications, hoping the judiciary provides the spark to give their creation life. Such an effort to amend the Constitution is dangerous and violates the text of Article V. The Framers authorized that the Constitution to be amended by the reasonably contemporaneous act of a supermajority in Congress and of state legislators to ensure that there was a clear desire to amend the Constitution, before a change would become binding on all of the states. II. THE AMICUS CURIAE BRIEF RAISES RELEVANT ISSUES NOT ADDRESSED ADEQUATELY IN THE GOVERNMENT’S SUPPLEMENTAL RESPONSE. The movants’ amicus curiae brief submitted with this Motion supports the position of Defendant. However, they provide relevant history and make arguments that are not fully developed by Defendant’s Memorandum in support of the Motion to Dismiss. First, the amicus brief argues that plaintiffs have failed to allege adequate facts that are the predicate for Case 1:20-cv-00242-RC Document 31 Filed 05/14/20 Page 4 of 5 4 this Court to be able even to rule on the merits, in addition to the points raised by defendant in Section I of his memorandum in support of his motion to dismiss. Second, the amicus brief amplifies defendant’s mention of the requirement of contemporaneous ratification. This principle is established by Supreme Court precedent, as explained in the amicus brief. Third, the amicus brief explains the false predicates claimed by plaintiffs’ complaint, and how those false predicates, both factual and legal, require dismissal of the complaint. Finally, the amicus brief addresses why the ratification of the Twenty-Seventh Amendment provides no precedent for ratification of the ERA. The ERA would make revolutionary changes in broad areas of the law, transferring power to decide important political issues from the political branches to the courts. This issue was not addressed at all by the government. III. THE ACCEPTANCE OF BRIEFS AMICUS CURIAE HAS BEEN FOUND USEFUL IN CASES SUCH AS THIS. District courts have inherent power to grant leave to file briefs amicus curiae, as they often “provide helpful analysis of the law[,] they have a special interest in the subject matter of the suit[,] or existing counsel is in need of assistance.” Bryant v. Better Business Bureau of Greater Maryland, Inc., 923 F.Supp. 720, 728 (D. Md. 1996). See also Independence Institute v. FEC, Minute Order of June 28, 2016 granting motion for leave to file Brief Amicus Curiae, Docket No. 1:14-cv-01500 (D.D.C. 2016). For the reasons stated above, it is believed, particularly in bringing to the attention of the Court important principles and binding Case 1:20-cv-00242-RC Document 31 Filed 05/14/20 Page 5 of 5 5 authorities not fully addressed by the parties, that this amicus brief will inform the Court’s effort to resolve the question before it. Given the nationwide significance of this case, and its profound implications for all Americans, movants respectfully request leave to file the accompanying brief amicus curiae in support of Defendant’s Motion to Dismiss. Respectfully submitted, /s William J. Olson William J. Olson (D.C. Bar No. 233833) Herbert W. Titus Jeremiah L. Morgan (D.C. Bar No. 1012943) Robert J. Olson (D.C. Bar No. 1029318) William J. Olson, P.C. 370 Maple Ave. W., Ste. 4 Vienna, VA 22180-5615 (703) 356-5070 Counsel for Amici Curiae Dated: May 14, 2020 Case 1:20-cv-00242-RC Document 31-1 Filed 05/14/20 Page 1 of 25 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) COMMONWEALTH OF VIRGINIA, STATE ) OF ILLINOIS, and STATE OF NEVADA, ) ) Plaintiffs, ) ) Case No. 1:20-cv-242-RC v. ) ) DAVID S. FERRIERO, in his official capacity ) as Archivist of the United States, ) ) Defendant. ) __________________________________________) BRIEF AMICUS CURIAE OF EAGLE FORUM, EAGLE FORUM FOUNDATION, PUBLIC ADVOCATE OF THE UNITED STATES, CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND, CALIFORNIA CONSTITUTIONAL RIGHTS FOUNDATION, U.S. CONSTITUTIONAL RIGHTS LEGAL DEFENSE FUND, CLARE BOOTHE LUCE CENTER FOR CONSERVATIVE WOMEN, POLICY ANALYSIS CENTER, RESTORING LIBERTY ACTION COMMITTEE, VIRGINIA DELEGATE DAVID LAROCK, AND FORMER VIRGINIA DELEGATE ROBERT G. MARSHALL IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS Joseph W. Miller William J. Olson (D.C. Bar No. 233833) Law Offices of Jeremiah L. Morgan (D.C. Bar No. 1012943) Joseph Miller, L.L.C. Herbert W. Titus P.O. Box 83440 Robert J. Olson (D.C. Bar No. 1029318) Fairbanks, AK 99708 William J. Olson, P.C. Co-Counsel for Amici Curiae 370 Maple Ave. W., Ste. 4 Restoring Liberty Action Committee Vienna, VA 22180-5615 (703) 356-5070 Counsel for Amici Curiae Dated: May 14, 2020 Case 1:20-cv-00242-RC Document 31-1 Filed 05/14/20 Page 2 of 25 TABLE OF CONTENTS Page TABLE OF AUTHORITIES . ii INTEREST OF THE AMICI CURIAE . 1 STATEMENT OF THE CASE . 2 ARGUMENT I. Plaintiffs Have Not Met Their Burden to Sufficiently Allege, and Certainly Have Not Demonstrated, Any of the Predicates Required to Have the Court Rule on the Merits of Their Claim . 5 II. The Requirement that Constitutional Amendments with Deadlines for Ratification Be Proposed and Ratified in Contemporaneous Fashion Has Been Established by the U.S. Supreme Court . 8 III. The Complaint Is Based on False Predicates . 12 A. The False Factual Predicates . 12 B. Article V: The Text Disregarded . 14 IV. The Equal Rights Amendment Is neither Narrow nor Uncontested, Totally Unlike the Twenty-Seventh Amendment. 16 CONCLUSION . 21 Case 1:20-cv-00242-RC Document 31-1 Filed 05/14/20 Page 3 of 25 ii TABLE OF AUTHORITIES Page HOLY BIBLE Genesis 5:1-2.
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