Tuesday’s election results all but guarantee that another monumental issue will move itself front and center next year: the battle over the Equal Rights Amendment.
The election results that matter here are from Virginia, where Democrats secured complete control of state government, now controlling the governorship, the senate, and the house in the state. With the state completely blue, lawmakers are near-certain to pass the Equal Rights Amendment, which aims to ban discrimination on the basis of sex. Tuesday night, Democratic leaders in both the House and the Senate proclaimed they were going to pass the ERA next year.
This is hugely significant because Virginia is one of 13 states that has never ratified the ERA. After quick and easy passage in Congress in 1971 and 1972 (a 354-24 vote in the House, and an 84-8 vote in the Senate), the ERA was sent to the states, where it needed 38 legislatures to approve it. In the first year, 30 states ratified the constitutional amendment, including Wyoming, South Dakota, and Idaho, states we now look at as some of the most conservative in the nation.
But from there, things slowed down as opposition mounted. Notorious conservative anti-feminist Phyllis Schlafly took up the cause, trying to persuade the remaining states to vote down the ERA because, she claimed in horror, it would lead to co-ed bathrooms, same-sex marriage, and women being drafted. Five other states’ ratifications came crawling in — three in 1974, one in 1975, and one in 1977 — but then things stopped. The ERA was stuck at 35 states, three states short of the constitutional requirement.
Congress jumped back into the fray. Originally, Congress had given the states until March of 1979 to ratify the ERA, but Congress extended that date to June of 1982. However, no new states took up the cause, leaving the deadline expired without the additional three states.
That is, until 2017. That year, Nevada became the 36th state to ratify the ERA. And then in 2018, Illinois became the 37th. Earlier this year, the Virginia Senate voted to ratify the ERA but the Republican-controlled House blocked a full vote. But now, with the Virginia House changing to Democratic control, the 38th state is almost guaranteed, putting the ERA over the line.
Any time our Constitution is amended, it’s a big deal. After all, there have only been 17 amendments since the Bill of Rights was added in 1791, and only 2 in the past 50 years. If this were a simple, straightforward process, just adding the Equal Rights Amendment to the Constitution would be monumental enough.
But this isn’t going to be simple or straightforward. Not in the slightest. Assuming Virginia quickly ratifies the ERA in early 2020, there are two major obstacles that will make for significant battles. First, as already mentioned, Congress gave the states first until 1979 then until 1982 to ratify the ERA. Virginia’s 2020 ratification would be 38 years past that deadline. The 27th Amendment (prohibiting Congress from voting itself a pay raise) took over 200 years to ratify, so there is precedent for a long ratification process. However, the 27th Amendment had no deadline attached to it, so there’s no precedent for a Congressionally-imposed deadline lapsing before getting the necessary states to vote.
Here’s where Nancy Pelosi can try to fix the problem though. The House of Representatives can pass a bill to extend the deadline retroactively, giving states until 2020 (or later) to ratify the ERA. With Democrats controlling the House, such a bill would be certain to pass (get on it, House Dems!), leaving its fate in the Senate’s hands. The politics of 2020 (impeachment, election) might make passage difficult, but they could also cut different ways in predicting an outcome here. Regardless, without making a prediction, it’s clear pressure would be huge. After all, do Republicans want to campaign in 2020 against equal rights for women? Maybe they are comfortable doing so, but Speaker Pelosi should force the issue and make them own it by passing an extension in the House.
Second, even though Virginia would bring the total to 38 of the states that have ratified the ERA, five states have actually rescinded their ratification. Idaho, Kentucky, Nebraska, Tennessee, and South Dakota all voted in the late 1970s to retract their vote approving the ERA. There is precedent for ignoring retractions, as New Jersey’s and Ohio’s retracted votes on the 14th Amendment were ignored when it was finalized. However, there is no doubt ERA opponents would focus on this issue as a barrier to including it in the Constitution.
Ultimately, if the United States Archivist certifies the ERA as part of the Constitution after Virginia ratifies the amendment, the Supreme Court might get involved to answer the issues of deadline and retractions. If it does, there is no doubt the fight will be nasty. Even though equality for women generally and the ERA in particular polls very well, all civil rights advancement are met with pushback.
Amending our Constitution is difficult by design. But the ERA, long thought dead, may just have been revived Tuesday night, despite the seemingly endless roadblocks that have been thrown its way.
Correction: This piece has been updated to clarify the role of the president in certain aspects of the amendment process.