The proposed Equal Rights Amendment to the U.S. Constitution (ERA) declares that “equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex….” The ERA was approved by Congress for ratification by the states in 1972; the amendment included a customary, but not constitutionally mandated, seven-year deadline for ratification. Between 1972 and 1977, 35 state legislatures, of the 38 required by the Constitution, voted to ratify the ERA. Despite a congressional extension of the deadline from 1979 to 1982, no additional states approved the amendment during the extended period, at which time the amendment was widely considered to have expired.
After 23 years in which no additional state voted to ratify the ERA, the situation changed when Nevada and Illinois approved the amendment, in March 2017 and May 2018, respectively. In addition, a change in party control of the Virginia legislature in the 2019 elections raised hopes among ERA supporters that this state might also vote to ratify, which would bring the number of approvals to 38, the requirement set by Article V for validation of a proposed amendment as part of the Constitution.
In the context of these developments, ERA proponents have renewed efforts to restart the ratification process. These actions center on the assertion that because the amendment did not include a ratification deadline within the amendment text, it remains potentially viable and eligible for ratification indefinitely. This proposal was originally known as the “Three State Solution,” for the number of state ratifications then necessary to reach the constitutional requirement that it be approved by three-fourths of the states. Supporters of this approach maintain that Congress has the authority both to repeal the original 1979 ratification deadline and its 1982 extension, and to restart the ratification clock at the current 37-state level—including the Nevada and Illinois ratifications—with or without a future ratification deadline. They assert that the broad authority over the amendment process provided to Congress by Article V of the Constitution includes this right. They further claim that the Supreme Court’s decision in Coleman v. Miller favors their position. They also note the precedent of the Twenty-Seventh “Madison” Amendment, which was ratified in 1992, 203 years after Congress proposed it to the states.
Opponents of reopening the amendment process may argue that attempting to revive the ERA would be politically divisive, and contrary to the spirit, and perhaps the letter, of Article V and Congress’s earlier intentions. They might also reject the example of the Twenty-Seventh Amendment, which, unlike the proposed ERA, never had a ratification time limit. Further, they might claim that efforts to revive the ERA ignore the possibility that state ratifications may have expired with the 1982 deadline, and that ERA proponents fail to consider the issue of state withdrawals from the amendment, known as rescissions, a question that has not been specifically decided in any U.S. court.