Friday, January 18, 2019
The GOP-led state Senate voted Tuesday to make Virginia the 38th and final state to ratify the federal Equal Rights Amendment.
The measure passed with bipartisan support, with seven Republicans joining Democrats on a 26-to-14 vote. The measure faces tougher odds in the House of Delegates and beyond, including hurdles related to long-expired deadlines for passage.
The legislation died last year in committee in both chambers, even though a majority of lawmakers in both the House and the Senate had signed on as co-sponsors. The full Senate has passed it five times in the past eight years, but it has never cleared the House.
The Senate resolution now heads to the House, where comparable House legislation remains in committee.
The Virginia Senate, however, has passed the ERA before, in 2011, 2012, and 2014. So the real question is whether the House will do so.
The "three-state strategy" is a legal approach to passing the Equal Rights Amendment focused on getting three additional states to pass the ERA. After Congress passed the ERA in 1972, ratification fell three states short (35 of the required 38) by the original deadline of 7 years. Congress extended the deadline by 3 years to 1982, but no additional state passed the ERA during that time.
The current strategy assumes that the window of opportunity for ratification remains open, and that if three states ratify the ERA to meet the required 38, Congress could then accept those and/or reopen the deadline. Nevada ratified the ERA in 2017; Illinois in 2018. One argument in support of this approach is that the original deadline for the ERA was contained in the text of the preamble, rather than the text of the amendment, makes this possible. A second argument is that the precedent of Congress extending the deadline once, making extension of the deadline possible.
The three-state strategy was initially articulated in a 1997 law review article by three students in the William & Mary Journal of Women and Law, The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States. The authors relied on an analogy to the 27th Amendment, the Madison Amendment regarding salaries for government officials. The 27th Amendment was open for ratification in 1789, but not finalized until 203 years later when additional states finally signed on. And so the additional state strategy does have precedent.
The American Bar Association has advocated in support of the ERA, and specifically in favor of Virginia ratified it. See ABA President Urges Virginia Lawmakers To Ratify the ERA. A 2016 American Bar Association Resolution explains more of this legal background:
There remains considerable academic and political disagreement on whether the ERA can be revised and ratified by achieving ratifications of an additional three states’ under the 35- of 38-state tally noted above; to wit, a “three-state strategy.” 4 That strategy is discussed in a 1997 article called “The Equal Rights Amendment: Why the Era Remains Legally Viable and Properly Before the States” in the William & Mary Journal of Women and the Law. In 2013, a report of the Library of Congress's Congressional Research Service (Thomas H. Neale, The Proposed Equal Rights Amendment: Contemporary Ratification Issues, Congressional Res. Serv., (May 9, 2013)) examined the legislative history and provided an analysis of the factors affecting its viability
It also explains one potential limitation on the strategy, if post-ratification rescissions of state affirmation in five states, Nebraska, Tennessee, Idaho, Kentucky, and South Dakota, are valid.
(It is important to note that the U.S. Constitution is silent regarding a state's authority to rescind its ratification of a proposed, but not yet adopted, constitutional amendment.)
On Dec. 23, 1981, in Idaho v. Freeman, 529 F. Supp. 1107 (1981), the United States District Court for the District of Idaho ruled that the rescissions—all of which occurred before the original 1979 ratification deadline—were valid and that the ERA's deadline extension was unconstitutional. The National Organization for Women appealed the ruling. However, the acting solicitor general reported to the Court that the administrator of general services concluded the ERA had not received the required number of ratifications, so "the Amendment has failed of adoption no matter what the resolution of the legal issues presented here." He urged the Court to dismiss the complaint. On Oct. 4, 1982, in NOW v. Idaho, 459 U.S. 809 (1982), the U.S. Supreme Court vacated the ruling in Idaho v. Freeman and declared the entire matter moot on the grounds that the ERA was dead for the reason given by the administrator of general services.
Looking to precedent of the Fourteenth Amendment, several states sought to rescind their endorsement of that Civil Rights Amendment after ratification, but Congress still included those states in the list of enacting states, suggesting that the ratification was not effective.
For the longer history of the ERA, up until the present lobbying action, see my book chapter: Tracy A. Thomas & TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in One Hundred Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism" (Holly McCammon & Lee Ann Banaszak eds.) (Oxford Univ. Press 2018)