The Equal Rights Amendment may be only one state away from enactment
What is the Equal Rights Amendment?
134 nations guarantee gender equality under the law in their constitutions, but the U.S. does not. (Even though 80 percent of Americans incorrectly believe that it already does.)
In the 1970s, a proposal to add a gender equality constitutional amendment — called the Equal Rights Amendment, or ERA — gained steam.
Potential outcomes of the amendment could include mandatory equal pay for equal work, a requirement that women would have to register for a military draft (they currently don’t), and perhaps reduced options for a Supreme Court reversal of Roe v. Wade.
When it almost passed
In 1971–72, the ERA passed Congress overwhelmingly with large bipartisan majorities. The first vote was 354–24 in the House, then 84–8 in the Senate.
There was one more step to be officially included in the Constitution. It needed ratification by three-quarters of the states, or 38. But it stalled three votes short, at 35 states, by the time a 1982 deadline incorporated into the text of the ERA had been reached due to the efforts of conservative activist Phyllis Schlafly.
For decades after that, nothing happened…
The Trump era
…until recently.
Democrats, alarmed by what they perceived as a misogynistic Trump Administration and a potentially imminent reversal of Roe v. Wade, sought to revive the ERA once again. Although the last state to ratify it had been Indiana in 1977, Nevada did so in 2017. (GovTrack Insider previously wrote about this in April 2017.)
The amendment, stalled for decades at three states away, now seemed only two states away. Advocates had their sights set on Illinois — which just ratified it last month. It passed the state senate 43–12 and the state house 72–45, a mere one vote above the level needed for passage.
Now the ERA may be only one state away from enactment.
Interestingly, both Nevada and Illinois had complete Democratic control of the state legislatures but Republican governors. However, state ratification — unlike state laws — do not require the governor’s signature at all. Similarly, congressional ratification back in the 1970s didn’t require presidential support.
Do these ratifications even count?
Wait, what about that original 1982 deadline? Critics say these state ratification votes are purely for show, since the original amendment came with a deadline that passed decades ago.
However, legislation currently pending in Congress would retroactively eliminate that deadline. That’s allowed, according to a 1939 Supreme Court decision called Coleman v. Miller. The vast majority of Democrats have co-sponsored the Senate or House versions of the deadline-removal legislation.
If Democrats regain control of one or both chambers of Congress in November, they could pass the deadline removal, which would allow the ratifications of Nevada and Illinois to count.
There’s one other possible sticking point. Five states which had ratified the ERA back in the 1970s subsequently rescinded that vote in later years: Idaho, Kentucky, Nebraska, South Dakota, and Tennessee.
It’s unclear whether a state is even allowed to do this. But if the courts rule that they are, then the number of states which have ratified the amendment drops from 37 to 32 — possibly an insurmountable hurdle on the quest to 38.
What comes next?
The main state that ERA advocates have their eye on next is Virginia.
Following 2017’s elections there, the state House is only 51–49 Republican and the state Senate is only 21–19 Republican: the closest it’s been to Democratic control since the 1990s. If state Democrats hold together and can get only one or two Republicans to join them, the ERA could be ratified there.
Many states which will hold state legislature elections in November are expected to turn more Democratic. If that happens, ERA advocates may refocus from Virginia to one or more other states instead.
But it’s never too late: a constitutional amendment originally proposed by James Madison back in 1789 took until 1992 to be enacted.
This article was written by GovTrack Insider staff writer Jesse Rifkin.
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