There could be a curious constitutional challenge brewing after the Virginia Senate Privileges and Elections committee voted to report the ERA to the floor of the Senate on Wednesday. That would be the 38th state to ratify but the vote ignores two glaring problems. First, the deadline for ratification passed 38 years ago and five states that approved the ERA have since rescinded their ratification.
The original bill stated the following with the language of the new amendment:
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 within seven years from the date of its submission by the Congress:
“ARTICLE —
“Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
“Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
“Sec. 3. This amendment shall take effect two years after the date of ratification.”
An amendments to the Constitution must be ratified by three-quarters of the states, or 38 states. However, four states have rescinded their ratification before that threshold was reached: Nebraska, Tennessee, Idaho Kentucky.
Kentucky adds to this confusion because the Lieutenant Governor vetoed the resolution but Article V speaks of ratifications by the state legislatures.
There is also confusion over the sunset provision. In 1981, a federal district court ruled in Idaho v. Freeman that Congress could not extend the ERA’s ratification deadline, but the Supreme Court later stayed that order and then declared the matter moot.
The sunset provision and later reversals strongly suggest that the vote in Virginia is clearly symbolic, but there could be renewed litigation over the ERA over hopes to revive the amendment.