Getting the ERA Approved

The Virginia State Legislature last week approved the Equal Rights Amendment (ERA), becoming the 38th state to ratify its inclusion in the US Constitution. Democrats, who took control of both houses of the Virginia assembly in November (55-45 in the House and 21-19 in the Senate) have received most of the credit for the victory. ERA advocates may be heartened by the fact the vote for the amendment was bipartisan, 59-41 in the House and 28-12 in the Senate.

In December 2018, we wrote about Rep. Gilda Cobb-Hunter’s effort to have South Carolina’s General Assembly take that crucial step. Minority leader in the Republican-dominated SC House, Cobb’s proposal appeared to attract some early bipartisan interest, but that soon dissipated.

We noted in our original post that given South Carolina’s wretched record for domestic violence, twenty years in the top ten worst states, it would be refreshing for the state to be the one to push the ERA over the top. Alas, that was not to be, but there is still the chance politicians in South Carolina, and North Carolina, can play a role in confirming ERA ratification, since Virginia’s action is not likely sufficient to clinch the deal.

According to law, the ratification process for a constitutional amendment starts and ends with the Archivist of the United States. Once the Congress has proposed an amendment, the Archivist officially notifies the governor of each state that an amendment has been proposed. When and if a state ratifies a proposed amendment, it sends a formal notice to the Archivist. Upon receiving the required 38 state ratifications, the Archivist issues a certificate of ratification and then publishes both the amendment and the certificate in the Federal Register and United States Statutes at Large. 

For the current Archivist, David S. Ferriero, who was once the Vice Provost for Library Affairs at Duke University, the process is going to be a bit more complicated.

He is already the defendant in a lawsuit filed in December in the Northern US District Court of Alabama. Attorneys general from Alabama, Louisiana and South Dakota claim their states will suffer “serious injury” if the ERA is added to the US Constitution, given the expired deadline and the rescinding of previous ratification by five states.

In addition, Ferriero received in early January a 38-page advisory opinion from the Trump Department of Justice asserting Congress cannot extend the deadline for approval of a proposed amendment after it has expired. Although he heads an independent agency, Ferriero is subject to removal by the current president, and so he has indicated he will abide by the DOJ opinion unless ordered to do otherwise by a court order.

This is where complications set in. Congress is under no obligation to accept the advisory opinion of DOJ. The Supreme Court in Coleman v. Miller (1939) interpreted Article V of the US Constitution as limiting the amending process to Congress and the state legislatures “with the ultimate authority in the Congress.” That decision, related to the Child Labor Amendment which was never passed, ruled the issue of timeliness of ratification is a political question, meaning the court is unlikely to overturn congressional action related to the matter.

Under this interpretation of Article V, Congress by a simple majority in both houses extended the original 1979 ratification deadline for the ERA to 1982. There appears to be no barrier to Congress now removing the 1982 cutoff date, the DOJ opinion to the contrary notwithstanding.

Another apparent precedent for definitive action by Congress is the acceptance in 1992 of the Twenty-Seventh Amendment. That amendment, which forbids congressional pay increases taking effect until a new congress has been elected, was proposed in 1788 without a ratification deadline.  It lay virtually dormant until the 1980s. But when Michigan became the 38^th state to ratify the amendment in May 1992, the then Archivist Don Wilson certified the amendment even though there had been 203 years since its proposal.

Congress asserted its authority over the amendment process in that case by voiding the Archivist’s original certification, saying it lacked congressional approval. Almost immediately, Congress approved the amendment and ordered the Archivist to certify it in a joint resolution with almost unanimous support in both houses.

The attempt by five states to claim they have the right to rescind their earlier approval should also fail based on precedents. In the post-Civil War era, before the office of archivist existed, Congress certified both the 14^th Amendment and the 15^th Amendment even though some states tried to rescind their ratification.

Swift action by Congress to override the 1982 deadline and to instruct the Archivist to certify ratification of the ERA would be the best assurance of final passage. The court has indicated in the past an unwillingness to override congressional action with regards to the ratification process.

Based on the DOJ opinion, it can be assumed that the Trump administration will seek to derail ratification. That would also be consistent with Trump’s penchant for using the cultural wars for political gain. While there is already some bipartisan support in Congress for the necessary legislation to confirm the ERA, it is not likely to be easily accomplished.

Ensuring the rights of women are firmly embedded in the US Constitution has been too long in coming to fruition. US Representatives and Senators from the Carolinas should be urged to join in the effort to make that a reality.