On December 5, 2019, Belinda Vega was quoted in SHRM on the Equal Rights Amendment (ERA). According to the article, now that Virginia has a Democrat-controlled legislature and governor, it is poised to become the 38th state to ratify the amendment. Two legal hurdles—a deadline for the amendment's ratification that has long since passed and five states' rescinding ratification—remain.
Alice Paul, a suffragist, wrote the ERA in 1921 after women got the right to vote. She thought the 19th Amendment, which mandates equal voting rights regardless of sex, wasn't enough and that the U.S. Constitution needed to guarantee that there would be no gender discrimination by the federal or state governments, said Vega.
The ERA was introduced into every session of Congress between 1923 and 1972, when it passed and was sent to the states for ratification. The Constitution requires that three-fourths of the states ratify an amendment proposed by Congress. The preamble of the act itself imposed a seven-year deadline for ratification. But by 1979, only 35 states—three states short of the 38 needed—had ratified it.
The deadline was extended to 1982, but no other states had ratified the ERA by then, and five states—Idaho, Kentucky, Nebraska, South Dakota, and Tennessee—voted to rescind their ratification. However, in the past, courts have not recognized attempts to rescind ratification of other amendments, including the 9th, 14th, and 15th Amendments, Vega said.
In addition, Congress could reopen the window of time for ratifying the ERA. The House Judiciary Committee has passed a resolution to remove the deadline for ratification from the ERA's preamble. Even if the resolution doesn't pass Congress, there is precedent for constitutional amendments not having any deadline, Vega said. The 19th Amendment did not include a deadline, and the 27th Amendment passed Congress in 1789 but was not ratified until 1992, she noted.
Nevada ratified the ERA in 2017, and Illinois ratified it in 2018. If Virginia ratifies the ERA and court challenges to ratification are defeated, the amendment eventually will take effect.