We Need More than the "38th State"
On May 30, 2018, Illinois became the 37th state to ratify the Equal Rights Amendment (ERA). In doing so, there was a flurry of press coverage and a big discussion over which state would be next, as you need the approval of 38 states to make a prospective amendment an official part of our constitution. Many media outlets couched their coverage as, “Who will be the one to make the ERA part of our Constitution?”
But hang on. There’s more to it. The problem starts with a Congress decision when they first passed the ERA and submitted it to the states. On March 22, 1972, the United States Senate adopted the following joint resolution. The amendment itself isn’t particularly quirky or unusual, but we are a long way from ratification. Congress has placed a time limit on the ratification process as evident in this excerpt from this statement “… 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 Congress.”
It’s an untested question whether or not Congress can put a time limit on the ratification process, but they did (or perhaps, tried). Over the next 5 years, 35 states would ratify the ERA. During that time, five of them would make moves that put the count in question today. They moved to rescind and/or time limit their ratification.
And that leads to our first complication. Can a state even rescind its ratification? Obviously, they can’t after the amendment becomes nationally ratified and is part of the Constitution. If they could, Jim Crow states could have wreaked havoc with the 13thor 15thamendments or the 18thamendment wouldn’t have needed to be repealed by the 21stbecause some states could have just rescinded their ratification.
But this is more complicated. While an Amendment is under consideration, can a state rescind its ratification? Can they approve and subsequently withdraw their approval? There are some precedents in both directions but none that have been tested in court. In application, Secretaries of State have generally held off on certifying the finality of an amendment until they’ve gotten a “non-controversial” three fourths majority.
Well, three states have done exactly that. Nebraska, Tennessee, and Idaho all moved to rescind their ratification within the original seven-year window. Thus, we really don’t know how things stand with those three states.
A fourth state has an even more muddled complication. Kentucky triedto rescind its ratification, but had it vetoed by the acting governor. From a legal standpoint, it’s unclear whether or not the executive has anyrole in amending a constitution. The question was settled at the federal level, but the state level is a little murkier. So we can add Kentucky to the list of “grey” candidates.
That leaves one more state to consider: South Dakota. South Dakota ratified but then later explicitly declared that their ratification was only good through the original deadline of 1979. And thus South Dakota’s ratification is suspect as well.
That gives us five states that are in various flavors of limbo with regards to their ratification. The general weight of precedent would seem to indicate that at least four of them (Idaho, Tennessee, Nebraska, and South Dakota) won’t count towards the requisite 38 while Kentucky might also be voided.
The real number is probably 32 or 33. As if that’s not enough, it’s a completely open question on whether a bare majority of Congress can reopen the ratification window or if it would require super-majorities in the two Houses. Section V of the Constitution states, “Whenever two thirds of both houses shall deem it necessary…” There doesn’t seem to be a window for a bare majority to reopen the expired window of the ERA ratification process.
Bottom line, if you’re a supporter of the ERA, you’ve got your work cut out for you. It’s going to be a tough fight that will only start with you get that “38th” state to sign on.