ILLINOIS v. FERRIERO

No. 21-5096.

60 F.4th 704 (2023)

State of ILLINOIS and State of Nevada, Appellants v. David FERRIERO, in his official Capacity as Archivist of the United States, et al., Appellees.

United States Court of Appeals, District of Columbia Circuit.

Decided February 28, 2023.


Attorney(s) appearing for the Case

Jane Elinor Notz , Deputy Corporation Counsel, Office of the Attorney General for the State of Illinois, argued the cause for appellants. With her on the briefs were Kwame Raoul , Attorney General, Alex Hemmer , Deputy Solicitor General, Priyanka Gupta , Assistant Attorney General, Kathryn Hunt Muse , Public Interest Division Deputy Chief, Mark R. Herring , Attorney General, Office of the Attorney General for the Commonwealth of Virginia, Michelle S. Kallen , Solicitor General, Rohiniyurie Tashima , John Marshall Fellow , Aaron D. Ford , Attorney General, Office of the Attorney General for the State of Nevada, and Heidi Parry Stern , Solicitor.

Loretta E. Lynch , Liza M. Velazquez , Andrew G. Gordon , Daniela Lorenzo , Jeannie S. Rhee , Amanda Valerio , and Rebecca S. LeGrand were on the brief for amici curiae Business and Corporate Entities in support of appellants.

Jesse Solomon and Amelia T.R. Starr were on the brief for amici curiae Equality Now, et al. in support of appellants.

Ryan B. Witte was on the brief for amicus curiae Organizations that Advocated for ERA Ratification in Virginia, Illinois, & Nevada in support of appellants.

Beth S. Brinkmann , Laura Dolbow , and Nicole Antoine were on the brief for amici curiae Generation Ratify and Ten Other Youth-Led Organizations in support of appellants.

Ellyde R. Thompson , Kathleen M. Sullivan , and Rachel G. Frank were on the brief for amici curiae Constitutional Law Scholars in support of appellants.

Elizabeth B. Wydra , Brianne J. Gorod , and Brian R. Frazelle were on the brief for amicus curiae Constitutional Accountability Center in support of appellants.

Letitia James , Attorney General, Office of the Attorney General for the State of New York, Barbara D. Underwood , Solicitor General, Sarah L. Rosenbluth , Assistant Solicitor General of Counsel, Philip J. Weiser , Attorney General, Office of the Attorney General for the State of Colorado, William Tong , Attorney General, Office of the Attorney General for the State of Connecticut, Kathleen Jennings , Attorney General, Office of the Attorney General for the State of Delaware, Holly T. Shikada , Attorney General, Office of the Attorney General for the State of Hawaii, Aaron M. Frey , Attorney General, Office of the Attorney General for the State of Maine, Brian E. Frosh , Attorney General, Office of the Attorney General for the State of Maryland, Maura Healey , Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Keith Ellison , Attorney General, Office of the Attorney General for the State of Minnesota, Andrew J. Bruck , Acting Attorney General, Office of the Attorney General for the State of New Jersey, at the time the brief was filed, Hector Balderas , Attorney General, Office of the Attorney General for the State of New Mexico, Ellen F. Rosenblum , Attorney General, Office of the Attorney General for the State of Oregon, Josh Shapiro , Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, Peter F. Neronha , Attorney General, Office of the Attorney General for the State of Rhode Island, Thomas J. Donovan, Jr. , Attorney General, Office of the Attorney General for the State of Vermont, at the time the brief was filed, Robert W. Ferguson , Attorney General, Office of the Attorney General for the State of Washington, Joshua L. Kaul , Attorney General, Office of the Attorney General for the State of Wisconsin, and Karl A. Racine , Attorney General, Office of the Attorney General for the District of Columbia, were on the brief for amici curiae State of New York, et al. in support of appellants.

Dana Nessel , Attorney General, Office of the Attorney General for the State of Michigan, and Fadwa A. Hammoud , Solicitor General, were on the brief for amicus curiae State of Michigan in support of appellants.

Katherine I. Funk was on the brief for amici curiae United States Conference of Mayors, et al. in support of appellants.

Christopher Man and Linda T. Coberly were on the brief for amicus curiae The ERA Coalition and Advocates for Equality and Women's Rights in support of appellants.

Linda H. Martin , Olivia A. Radin , Scott A. Eisman , Elena Hadjimichael , and Noelle Williams were on the brief for amici curiae Marie Abrams, et al. in support of appellants.

Tracy F. Flint , Elizabeth Y. Austin , and Meredith R. A. McBride were on the brief for amici curiae Former State Legislators in Illinois, Nevada, and Virginia in support of appellants.

Sarah E. Harrington , Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellee. With her on the brief were Brian M. Boynton , Principal Deputy Assistant Attorney General, and Michael S. Raab and Thomas Pulham , Attorneys.

Steve Marshall , Attorney General, Office of the Attorney General for the State of Alabama, Edmund G. LaCour, Jr. , Solicitor General, Patrick Strawbridge , Cameron T. Norris , Tiffany H. Bates , Jeff Landry , Attorney General, Office of the Attorney General for the State of Louisiana, Elizabeth B. Murrill , Solicitor General, Jason Ravnsborg , Attorney General, Office of the Attorney General for the State of South Dakota, at the time the brief was filed, Douglas J. Peterson , Attorney General, Office of the Attorney General for the State of Nebraska, James A. Campbell , Solicitor General, Herbert H. Slatery, III , Attorney General and Reporter, Office of the Attorney General for the State of Tennesee, at the time the brief was filed, were on the brief for intervenors in support of appellee. Alexander B. Bowdre , Deputy Solicitor, Office of the Attorney General for the State of Alabama, entered an appearance.

Matthew J. Clark was on the brief for amicus curiae Gregory Waston in support of appellee.

Talmadge Butts was on the brief for amicus curiae The Foundation for Moral Law in support of appellee.

Kathryn E. Tarbert was on the brief for amicus curiae Independent Women's Law Center in support of intervenors for appellee.

Patrick M. McSweeney , William J. Olson , Jeremiah L. Morgan , and Robert J. Olson were on the brief for amici curiae Eagle Forum, et al. in support of appellee.

Austin Knudsen , Attorney General, Office of the Attorney General for the State of Montana, David M.S. Dewhirst , Solicitor General, Christian B. Corrigan , Assistant Solicitor General, Sean D. Reyes , Attorney General, Office of the Attorney General for the State of Utah, Melissa Holyoak , Solicitor General, Leslie Rutledge , Attorney General, Office of the Attorney General for the State of Arkansas, Eric Schmitt , Attorney General, Office of the Attorney General for the State of Missouri, John M. O'Connor , Attorney General, Office of the Attorney General for the State of Oklahoma, Alan Wilson , Attorney General, Office of the Attorney General for the State of South Carolina, Ken Paxton , Attorney General, Office of the Attorney General for the State of Texas, were on the brief for amici curiae State of Montana, et al. in support of appellee.

Jessica L. Ellsworth was on the brief for amici curiae Constitutional Law Professors in support of neither party.

Before: Wilkins, Rao and Childs, Circuit Judges.


The States of Illinois and Nevada (collectively referred to as "the States" or "Plaintiffs") filed this mandamus action in the district court, seeking to compel the Archivist of the United States to certify and publish the Equal Rights Amendment ("ERA") as part of the Constitution of the United States. See 28 U.S.C...

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