In July, two years from now, America will mark a poignant anniversary – a full 100 years since women’s rights activist Alice Paul first put forth the idea that women should have equal rights enshrined in the Constitution. Supporters have been trying ever since to make that a constitutional reality, and the U.S. House of Representatives made a new start on that effort yesterday afternoon.
By a vote of 222 to 204, the House approved a measure to erase any deadline for ratification of the Equal Rights Amendment. Twice before, Congress had set deadlines, and both expired without the necessary number of states’ ratifications.
By taking that action through a simple resolution, the House did not need the two-thirds majority that it would have taken if the sponsors had decided to start all over in a new attempt to get a fresh ERA through Congress and then put it up for ratification (needing 38 states’ approval). With the Senate now divided 50-50 between the two political parties, it would be enough if just 50 votes were to be cast in that chamber for the measure (with Vice President Harris casting the deciding vote). One of the resolution’s Republican supporters – Alaska Sen. Lisa Murkowski – suggested that sponsors are still looking for the necessary votes.
Here is what the Constitution would say if it included the ERA in its present form, perhaps as the 28th Amendment: “Equality of rights shall not be denied or abridged by the United States or by any State on account of sex.”
In the current atmosphere of deep partisan polarization, it seems almost impossible for a completely fresh start to be successful. Getting two-thirds’ approval in both the House and Senate and three-fourths’ approval in the states very likely are goals well out of reach. (Yesterday’s majority vote in the House, it should be noted, was 63 votes short of two-thirds. Almost certainly, there are not 67 votes for the ERA in the current Senate.)
The measure passed by the House Wednesdays says simply that “notwithstanding any time limit contained” in the ERA as originally approved by Congress in 1972, the amendment would become part of the Constitution whenever it had ratification of three-fourths of the states (that is, 38 states). In short, that would mean no new deadline, presumably enhancing chances of its ratification as the idea of women’s equality soars in popularity across the nation.
Some supporters already argue that 38 states have given their assent, but three of those approvals came after the second deadline expired in 1982, and the status of those ratifications remains in some legal doubt. Also in legal doubt is the validity of actions by five states that withdrew their prior ratifications. No one knows for sure, at this point, whether those doubts would have to be resolved by Congress or by the courts, if yesterday’s deadline-erasing measure clears the Senate and becomes law.
The three states that insist that they have ratified post-deadline are Illinois, Nevada and Virginia. If counted, that could make 38, depending on whether it was legal for five other states to have rescinded their prior approvals. Those five are Idaho, Kentucky, Nebraska, Tennessee and South Dakota.
Attempts in federal court by the three states that insist that their post-deadline approvals are valid have so far failed. In fact, earlier this month, a federal trial judge in Washington, D.C., ruled that those three states had no legal right to pursue their claim in court and that, in any event, their attempts to ratify came too late, after both the original deadline and the extended deadline had expired. The judge, however, avoided any ruling on whether Congress has power to reopen ERA, as the House did yesterday, and did not rule on the validity of the five states’ rescissions of their ratification votes.
An appeal remains a possibility in that case, but that will take time. That legal action would not be necessary, or would take a different form, if the Senate were to approve the measure that cleared the House on Wednesday.
Sponsors feel a need to move rapidly with the congressional measure, while the Democrats have at least working control of the Senate. If the resolution became law, state legislatures that favor the ERA could approve new ratifications, or the three states that claimed already to have ratified could press a new claim, in Congress or in court. The courts or Congress may also have to sort out the status of the five states’ decisions to withdraw their prior ratifications.
In the Washington judge’s ruling this month, he concluded that the courts have a significant role to play in deciding what the Constitution’s Article V allows in terms of the amendment process. That, he decided, is not solely a “political question” for Congress alone to answer. Then, after asserting his authority to rule, he concluded that the deadlines had long since expired, thus blocking – at least for the time being – the argument that ERA is already a ratified amendment with 38 states’ approval already settled.