With a record number of women lawmakers in Richmond and the #metoo movement roiling the nation, advocates of a federal Equal Rights Amendment have been pushing for Virginia to become one of the last two states needed to ratify the measure.
But while a Senate panel will hear arguments for the ERA on Friday, Republican leaders in the House of Delegates are refusing to hold a hearing on any of three nearly identical bills, which have bipartisan support, dimming their chances this session.
GOP leaders in the House say they will not consider the legislation because the congressional deadline to ratify the amendment expired 36 years ago.
“I don’t believe the ERA is even a viable amendment at this point,” said House Majority Leader Todd Gilbert (R-Shenandoah).
“The [bills] are not lawfully before us,” said Del. Mark Cole (R-Fredericksburg), the chairman of the Privileges and Elections Committee, who has refused to assign any of the bills to subcommittee or set aside time in the full commitee for them. He added that while he “certainly support[s] equal rights for all,” once the ratification period expired, it’s up to Congress to extend the deadline before the Virginia General Assembly acts.
If the Senate resolution is approved by the Rules Committee early Friday morning, and it passes a floor vote Friday or Monday, the House could still “theoretically” approve the ERA ratification in the second half of Virginia’s 60-day legislative session, said Sen. Scott Surovell (D-Fairfax), sponsor of the Senate bill.
But he and other legislators said getting a bill to a House floor vote, where supporters believe they have the votes to pass it, will have almost no chance of success. Five times in the last seven years, the Virginia Senate passed the ERA but each time, it languished in the House.
Under questioning from the House floor Thursday, House Speaker Kirk Cox (R-Colonial Heights) told Minority Leader David Toscano (D-Charlottesville) that it’s “unlikely but not impossible” for any bill that does not have a hearing scheduled by Friday to pass before Tuesday’s “crossover” day, when each chamber must send its work to the other in order to have any hope of passage.
ERA activists plan to demonstrate Friday morning at the House committee. They’ve bought three billboards on I-95 pressing their case, taken out newspaper ads and mailed 10,000 handwritten postcards.
They say lawmakers should argue the merits of the ERA apart from state capitol politics and congressional deadlines.
“We know the public interest is there, but the leadership in the legislature is choosing to ignore it,” said Eileen Davis, founder of Women Matter, one of a myriad of feminist organizations pushing for a vote. “Virginia has a state-level ERA but it has never ratified the federal ERA, which means we’re at odds with our own values.”
First introduced 95 years ago by suffragist Alice Paul, the ERA would bar discrimination on account of sex. Congress passed the ERA in 1972 and sent it to the states for ratification. In order to be adopted, 38 of the 50 states had to approve the measure by 1982, Congress said. By that time, only 35 states had ratified it, so the amendment never made it into the Constitution.
Activists dispute the notion that since the 1982 deadline has passed, the issue is dead. Numerous constitutional experts believe that Congress could extend the deadline again, even after a generation-long lapse. Two bills have been introduced in Congress by Sen. Ben Cardin (D-MD) and Rep. Jackie Speier (D-Calif.) to eliminate the deadline for ratification.
If that legislation passes, as long as 38 states ratify the amendment at any point, it would become part of the Constitution. Five states have voted to rescind their previous ratification votes but it’s unclear whether that would affect the ratification tally.
Activists also noted the 27th Amendment, which bars Congress from voting on its own pay raises, was ratified 202 years after it was first introduced. No ratification deadline was set for that measure.
An informal advisory provided by the state Attorney General’s office to Surovell two years ago said Congress has the power to extend the ratification deadline, and even without an extension, it is possible that the legislature’s ratification could be found valid, depending on future congressional action.
But an earlier opinion from the attorney general’s office in 1994 called any potential action by the General Assembly “a nullity.” Cole has cited that opinion in letters and emails.
Both Surovell and Del. Alfonso Lopez (D-Arlington), who sponsored one of the House bills, cited the influence of their mothers who took them to ERA rallies when they were children, and called the ERA “unfinished family business.”
A Republican delegate from Midlothian, Roxann Robinson, sponsored another of the House ERA bills, as did Fairfax Democrat Kaye Kory.
With the balance of power nearly even between Democrats and Republicans in the Virginia General Assembly, ERA advocates believe their odds of success have increased. They also are counting on the surge in women’s interest in politics in the past year, from the Women’s March the day after President Trump’s inauguration, to the 11 new women elected to the Virginia General Assembly in November. Just a week ago, Supreme Court Justice Ruth Bader Ginsburg expressed her support for the ERA at a Washington synagogue.
“Whatever resistance there may be, it’s quiet obstruction, not loud or in your face,” said Sen. Jennifer Wexton (D-Fairfax), chief co-sponsor of the Senate ERA bill. “One thing people saw in 2017 election is power of women. No one wants to cross them overtly.”
“Women are pretty upset and they’re voting and elected officials are paying attention to that,” Surovell said. “Elected officials ignore angry women at their peril.”