constitutional-law us-constitution
If Virginia ratified the Equal Rights Amendment, would it go into effect?
<p>In the Nov 2019 election, the Democrats won the majority of both Virginia state houses, and there is some discussion <a href="https://www.vox.com/policy-and-politics/2019/11/6/20951458/equal-rights-amendment-era-virginia-legislature-elections-results-democrats" rel="noreferrer">that Virginia could be the 38th state to ratify the (proposed) Equal Rights Amendment</a>. (See <a href="https://law.stackexchange.com/questions/41948/will-the-equal-rights-amendment-actually-have-an-effect-on-any-existing-statute">this law.SE question</a> for discussion of the ERA's possible effects.)</p>

<p>Approval by 3/4ths of the States would normally be enough to pass a Constitutional Amendment, but <a href="https://www.cnn.com/2019/11/06/politics/equal-rights-amendment-virginia-democrats/index.html" rel="noreferrer">there are apparently two problems</a>:</p>

<blockquote>
  <p>Even if Virginia acts as expected next year, there is no guarantee the amendment would take hold. A handful of the states that initially ratified the ERA have since rescinded those decisions and the most recent congressional deadline passed about four decades ago. Despite those roadblocks, activists believe they are well-positioned -- legally and politically -- to push the amendment, which was written by the suffragist Alice Paul in 1923, over the line.</p>
</blockquote>

<p><strong>1. Withdrawn ratifications</strong></p>

<p>Apparently <a href="https://en.wikipedia.org/wiki/Equal_Rights_Amendment#Ratifications_rescinded" rel="noreferrer">four states</a> (Nebraska, Tennessee, Idaho, Kentucky) have "rescinded" their ratifications, after initially approving them, and one state (South Dakota), added a "sunset" provision to their ratification if it wasn't approved in whole by the original deadline.</p>

<p>Are these "take backs" valid? Could they prevent the Amendment from going into effect? How would this question be adjudicated? Is there any relevant case law on the matter?</p>

<p><strong>2. Congressionally-imposed Deadlines</strong></p>

<p>The original resolution by the 92nd Congress <a href="https://en.wikipedia.org/wiki/Equal_Rights_Amendment#Congressional_extension_of_ratification_deadline" rel="noreferrer">included the following preface</a> (emphasis added):</p>

<blockquote>
  <p>Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States <strong>within seven years from the date of its submission by the Congress</strong></p>
</blockquote>

<p>In 1978 another resolution was passed, extending the deadline to 1982, although this extension was passed by simple and not 2/3rds majority.</p>

<p>Despite these deadlines, the Amendment was ratified by Nevada in 2017 and Illinois in 2018. </p>

<p>Are these post-deadline ratifications (and a hypothetical 2020 one from Virginia) valid? </p>

<p>Would Congress simply need to pass a new (future) deadline, and all the past ratifications would take effect? </p>

<p>Wikipedia does list some purportedly <a href="https://en.wikipedia.org/wiki/Equal_Rights_Amendment#In_the_courts" rel="noreferrer">relevant case law</a>, can anyone help me understand how these might apply to these questions?</p>

<p>The true answer is this is fundamentally unclear and ratification would definitely set up for a Supreme Court showdown.</p>

<p>The Supreme Court would in my opinion need to resolve 3 issues:</p>

<ol>
<li>Are Congressionally imposed deadlines in resolutions proposing an amendment to the States for ratification binding? </li>
<li>Does a state withdrawal of its ratification of an amendment annul its ratification of the amendment? </li>
<li>Who decides when an amendment is ratified?</li>
</ol>

<p>For the first question this is perhaps the most unresolved question. Clearly if the deadline is imposed in the text of the amendment it is binding. For example, see the text of the 18th amendment, Section 3.</p>

<p>What is not clear is what if any binding effect a deadline in the text of the resolution proposing an amendment has as to the validity of the proposed amendment. Article V makes no provision on such deadlines. In fact the most recent amendment ratified was submitted for ratification on September 25, 1789, but ratified May 5, 1992. In this instance the Archivist of the United States declared the amendment ratified, but Congress also acted to do so and several members scolded the Archivist for doing so before Congress acted. However, there was no resolution of who had to actually approve the ratification.</p>

<p>For the second question there is absolutely no answer to this question except Coleman v. Miller which suggests this is a political question. This essentially means that the question should be resolved by Congress, not the courts.</p>

<p>Lastly, for the third question see also my response to the first question. If Congress is indeed the ratifier, what happens if one Congress decides the amendment was not ratified, but a future one decides it was?</p>

<p>Honestly, ratification of the ERA would open a whole can of worms and make it difficult to really resolve this issue. Probably the most direct method to force the Supreme Court to rule on this issue would be someone challenging their requirements to register with the Selective Service System.</p>
