The Washington PostDemocracy Dies in Darkness

The Equal Rights Amendment is one state from ratification. Now what?

Activists from a variety of women’s organizations demonstrate for ratification of the Equal Rights Amendment on Feb. 7 outside the Virginia State Capitol in Richmond. (Patricia Sullivan/The Washington Post)

Illinois recently became the 37th state to approve the pending Equal Rights Amendment (ERA), putting it one state short of ratification. The amendment forbids denying equal rights on the basis of sex, could broadly reshape U.S. politics by expanding and cementing women’s rights to education, welfare and a fair workplace, and could even protect transgender rights.

Illinois’s ratification vote comes on top of the #MeToo movement and many women’s frustrations with President Trump — and has brought a bump in media and legislative attention. For instance, Rep. Carolyn B. Maloney (D-N.Y.) recently held a shadow hearing on the Hill. And Arizona, Florida, North Carolina, Utah and Virginia have been debating casting an additional, final vote for ratification.

These women have won their primaries. Will they be elected in November?

But it is unclear whether the amendment, proposed in 1972, is still valid. In Dillon v. Gloss (1921) and Coleman v. Miller (1939), the Supreme Court let Congress set a seven-year ratification deadline for proposed amendments, to be extended as needed. That did happen for the ERA in 1979, when it was three states short of ratification: Congress extended the ERA’s deadline by another three years — but no new states had signed on when the deadline passed.

So is the ERA still alive?

The ERA has had a rocky path to ratification. Suffragist Alice Paul first suggested such an amendment in 1923. Decades later, second-wave feminists and civil rights advocates flooded Congress with hundreds of similar proposals until the House and Senate overwhelmingly approved the ERA as worded in 1972.

It got close, as Kelsy Kretschmer explained here at TMC this week. But Phyllis Schlafly, a traditionalist who had opposed integration and civil rights reform, led a conservative backlash that halted the amendment’s progress through the states, and later persuaded five states to withdraw their ratifications.

The answer is a firm ‘probably’ 

There are a few reasons the Equal Rights Amendment could be ratified.

Illinois ratified the ERA — 36 years late. Here’s what you need to know.

First, although the Supreme Court in the Dillon and Coleman decisions held that amendments should be passed quickly, the court nevertheless added that the exact length and extension of amendment ratification deadlines was a political question best left to Congress. This is why Congress was able to extend the ERA’s deadline from 1979 to 1982, and why it could again modify or completely void the 1982 deadline. Congress has proposed this a few times, and a 2013 Congressional Research Service report affirmed that Congress could choose to lift the deadline.

Second, the 27th Amendment, originally proposed in 1789 without a time limit, was finally ratified in 1992. Like that amendment, and unlike some other amendments, the text of the Equal Rights Amendment itself sets no ratification deadline. Because the states ratified the text and not Congress’s separate deadline resolution, some legal scholars have argued that Congress’s time limit does not bind the states. That has spurred the “three-state strategy” that has pushed the amendment closer to ratification.

Here’s the catch 

But what about the five states — Idaho, Kentucky, Nebraska, South Dakota and Tennessee — that withdrew their ratifications? Here we get a tougher question. In 1868, Ohio and New Jersey rescinded approval for the 14th Amendment, which expanded birthright citizenship and equal protection of the law. But Congress and the secretary of state ignored these two recessions and affirmed the amendment’s passage.

A similar issue emerged briefly when New York rescinded approval of the 15th Amendment, prohibiting racial disenfranchisement, and when West Virginia did so with the 19th Amendment, prohibiting gender disenfranchisement. But the secretary of state overruled New York’s withdrawal, certifying the 15th Amendment, and later did the same with the 19th Amendment, suggesting that states cannot withdraw ratification.

But the most dramatic reversals were the five states that rescinded ERA ratifications. After these withdrawals, scholars clarified that nothing in Article V of the Constitution expressly grants the states this reversal power. Some have therefore argued that the Supreme Court could void these five reversals. While in Chandler v. Wise (1939), the court suggested that it couldn’t rule on a rescinded ratification, it did leave the issue to the Congress, which has clear plenary power to overrule the states.

But will it get ratified?

The ERA first needs one more state. Last February, Virginia Republicans refused to approve the amendment, but activists in the state are continuing to push this session. The North Carolina and Arizona legislatures have also been resisting local activists’ pressure, but the Illinois ratification may give those activists some momentum.

Will 2018’s ‘pink wave’ of female candidates make it in Congress? Almost certainly.

If a final state does ratify the amendment, Congress could choose to affirm the ratification.

But will it? The current Republican Congress is unlikely to do so. If the Democrats recapture the House this fall, as some predict, they could rely on the Dillon, Coleman and Chandler decisions to lift the deadline and recognize the states’ ratification. Of course, a Republican Senate might filibuster, adding another hurdle.

Once the amendment clears that bar, it would be valid law — under Article V of the Constitution, proposed amendments, unlike regular bills, cannot be vetoed by the president. So, while Trump has stirred activists to revive the ERA, he cannot legally block the amendment.

If approved, the ERA would probably be challenged in the courts. But it would be uncharacteristically bold for the federal courts to reverse their own decisions and overturn the amendment, thereby directly confronting Congress.

Either way, if a 38th state approves the Equal Rights Amendment, expect more controversy. 

Robinson Woodward-Burns (@rwbdc) is an assistant professor of political science at Howard University, where he researches U.S. constitutional thought and history, federalism, abolitionism and American transcendentalism.