Virginia Votes to Ratify ERA, Setting Up Likely Legal Battle

By Jon Kamp and Jess Bravin (WSJ)

Updated Jan. 16, 2020 6:09 pm ET

Court ruling or congressional action likely needed to override 1982 deadline

Virginia on Wednesday became the 38th state to vote to ratify the Equal Rights Amendment, teeing up an expected legal battle over whether the approval counts.

The Trump administration has said the ratification deadline expired by 1982, a decade after Congress first passed the ERA, which would enshrine women’s equality in the U.S. Constitution. It may take a court ruling or congressional action to override that decision and determine whether the vote in Virginia, which pushed the number of ERA-approving states across a necessary three-fourths threshold, should lead to amending the Constitution.

Democrats in Virginia, who took control of the state’s House and Senate when the legislative session started last week, made ratifying the ERA one of their top priorities.

“For the women of Virginia and the women of America, the resolution has finally passed,” Democratic House Speaker Eileen Filler-Corn said to applause and cheers when the measure passed that chamber.

The measure also passed the Senate on Wednesday afternoon while drawing some Republican support.

Congress proposed ERA in 1972 and, after a later extension, states had 10 years to secure the three-fourths supermajority needed to ratify the measure. The ERA would provide that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

Virginia’s passage is important because, by crossing the needed three-fourths ratification threshold, the state has forced the legal question about whether the ERA’s deadline should stand, said Carl Tobias, who teaches Constitutional law at the University of Richmond’s School of Law.

“It’s probably true this is going to be resolved in the courts,” Mr. Tobias said, citing some pending cases arguing both sides of the issue in federal court. He believes the U.S. Supreme Court may ultimately have to rule on the matter, a process that can take years.

The Virginia House and Senate ERA bills called on clerks in both chambers to send the resolution to President Trump, leaders in the U.S. House and Senate, state lawmakers and the U.S. Archivist who heads the National Archives and Records Administration. The National Archives is responsible for certifying ratifications and publishing constitutional amendments.

The U.S. Justice Department’s Office of Legal Counsel, which advises the executive branch, said in an opinion last week the ERA’s deadline has long since expired. The National Archives said it would follow that legal opinion unless a final order from a court says otherwise.

The Constitution doesn’t mention ratification deadlines, and Congress didn’t initially include them when adopting proposed amendments by the states. That was underscored in 1992, when Alabama became the 38th state to ratify an amendment initially proposed in 1789 with the Bill of Rights to limit congressional pay raises.

The 18th Amendment, proposed by Congress in 1917, was the first to include a ratification deadline, according to a recent Congressional Research Service report. Deadlines soon became part of every proposed amendment, though ratification typically came quickly. It took just 100 days for states to ratify the 26th Amendment, which lowered the voting age to 18, in 1971.

Because Constitutional amendments are relatively rare, there is little legal precedent guiding disputes over the state ratification process.

Last month, three states—Alabama, Louisiana and South Dakota—asked a federal court in Alabama to accept five states’ moves to rescind ERA ratification. South Dakota was among the states that rescinded their earlier ERA approval, while Alabama and Louisiana never approved the measure.

It is unclear whether states have authority to rescind their ratifications. In 1868, Congress counted Ohio and New Jersey as among 29 states ratifying the 14th Amendment, despite their legislatures voting to revoke their approval.

The opposing states argue the ERA’s goals have mostly been achieved through legislation and court decisions. Opponents believe ratifying the ERA could expand the definition of what it means to discriminate on account of sex, such as by extending protections to LGBT people, while threatening abortion restrictions.

Meanwhile, ERA proponents are arguing in another federal court case, filed in Massachusetts last week, that the ratification deadline shouldn’t count because it wasn’t included in the text of the ERA itself.

Virginia Attorney General Mark Herring, a Democrat, said Wednesday, “I am preparing to take any steps necessary to ensure that Virginia is recognized as the 38th ratifying state, that the will of Virginians is carried out, and that the ERA is added to our Constitution, as it should be.”

Federal lawmakers have introduced several measures intended to revive the ERA, either by retroactively eliminating the ratification deadline or beginning anew the ratification process. Those measures have overwhelming support from Democrats, but so far only a few Republicans have signed on as co-sponsors.

On Tuesday, Sens. Ben Cardin (D., Md.) and Lisa Murkowski (R., Alaska), who have introduced legislation to lift the ratification deadline, said they disagreed with the Justice Department’s position that the entire amendment process must start again.

Write to Jon Kamp at jon.kamp@wsj.com and Jess Bravin at jess.bravin@wsj.com