In my last post on the justiciability of Article V cases, we discussed the Supreme Court’s 1939 decision in Coleman v. Miller and whether that decision would be applied broadly to block most or all Article V claims as nonjusticiable political questions. Those who would read Coleman narrowly often cite two district court decisions from the 1970s which addressed justiciability of claims related to the ratification of the Equal Rights Amendment. While these cases do provide some support for a narrower application of the political question doctrine, they also illustrate other justiciability issues which may be equally if not more problematic for an Article V plaintiff.
Today I will discuss one of those cases, Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975), which was brought by members of the Illinois General Assembly seeking declaratory and injunctive relief regarding the attempt to ratify the ERA during the 78th Session of the General Assembly. During that session, votes in both the house and senate resulted in a majority, but less than three-fifths, supporting ratification of the amendment. Neither house deemed this vote sufficient to pass the ratification resolution. In the house, the speaker ruled that a supermajority was necessary under both a provision of the Illinois constitution and a house rule, each of which declared a three-fifths vote was required to ratify amendments. The senate presiding officer also ruled that a three-fifths vote was needed for ratification, despite a recently adopted senate rule allowing a simple majority vote, presumably on the basis that the state constitutional provision took precedence.
The plaintiffs sought declaratory relief that the Illinois constitutional provision and similar house rule were void and of no legal effect under Article V, which (they argued) requires that ratification of proposed amendments be by a simple majority. The also sought injunctive relief against the house speaker and senate president, prohibiting these officers from applying any supermajority requirement to ratification votes and ordering them to sign and certify the ratification resolutions that had previously received majority approval.
A three-judge court was convened, including then-Judge (and future Justice) John Paul Stevens, who wrote the court’s opinion.