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Policy Summary
In 1923 Alice Paul, a member of the National Women’s Party, drafted and submitted to the U.S. Congress the first version of the Equal Rights Amendment (ERA). The intent was to guarantee in the Constitution equal rights for women alongside men but the amendment was not approved at that time. In 1943, Ms. Paul redrafted the text of the amendment. In October 1971, the constitutional amendment with the 1943 text was introduced in the House of Representatives where it passed by a vote of 354 – 24. The amendment was then introduced in the Senate and passed by a vote of 84 – 7. After passage by both houses of Congress, the Constitution required that the amendment be ratified by three – fourths of the state legislatures in order to be added to the Constitution. This meant that thirty – eight (38) states would need to vote for the amendment. The amendment was sent to the states in 1972 but with a seven – year deadline for ratification. Between 1972 and the 1979 deadline thirty – five state legislatures voted to ratify the amendment. The deadline was later extended by Congress to 1982 but by that time the final tally of states ratifying the amendment remained at thirty – five, three short for the amendment to be enacted.

In March 2019, the North Dakota Legislature introduced a resolution that sought to rescind their state’s approval of the amendment in 1975. The resolution was approved in the North Dakota House by a vote of 67 – 21 but was defeated in the North Dakota Senate by a 24 – 23 vote. The vote in North Dakota comes on the heels of two additional states voting to approve the ERA recently – the Nevada Legislature voted to approve the amendment in March 2017 and Illinois in May 2018. The addition of Nevada and Illinois brings the total of number of states approving to thirty – seven, one shy of the thirty – eight required. LEARN MORE, LEARN MORE, LEARN MORE

Analysis
The ratification of the Equal Rights Amendment raises a number of interesting legal and procedural issues that still need to be sorted out. The U.S. Constitution in Article Five has laid out the appropriate procedures to introduce, consider and ratify amendments to the constitution, which were properly followed by the Equal Rights Amendment. However, this amendment has run into two issues – whether a deadline and subsequent extension for ratification is within Congress’ power and whether states have the power to rescind a prior ratification of the amendment.

As to the issue of a limited time period and subsequent extension of that time period, there is no question that there was an initial seven year deadline for the states to ratify. But when it appeared that not enough states would ratify before the expiration of the seven – year deadline, Congress went ahead and granted an additional three – year extension. What Congress can do to overcome this roadblock is to simply vote to remove the deadline for ratification. And this is exactly what Congress has taken steps to do as both the House and Senate have introduced resolutions in 2019 to remove the ratification deadline from the ERA ratification process. There clearly is support in Congress to have additional states debate and vote on the amendment.

The final issue of whether a state can rescind a prior ratification of the amendment also raises a novel question of law. While the Constitution is silent on this point, making it ripe for litigation, Linda Coberly of the ERA Coalition Legal Task Force points to historical and legal precedent that recissions of prior ratifications have not been counted as was the case in a prior nineteenth century amendment ratification battle. It also brings up a contradiction that was illustrated in the recent attempts in North Dakota to rescind their ratification. If opponents of the ERA point to the deadline issue as making it impossible to have a future state ratify the ERA now, then why did North Dakota go to the trouble to vote to rescind their ratification from 1975? The actions in North Dakota seems to have implicitly acknowledged that the Equal Rights Amendment is on the verge of being ratified and politicians in North Dakota wanted to get ahead of the issue while they believed they had a chance to do something.

Whatever the legal and procedural issues are at play in the long battle to approve the Equal Rights Amendment it is becoming clear that there is widespread support for the amendment. Nevada and Illinois have recently voted to ratify. And Congress, with their attempts to extend the deadline along with Representative Carolyn Maloney’s (D-NY) symbolic introduction of the amendment in Congress this year, shows that the struggle for gender equality is still ongoing. It is a battle that many people still want to fight for nearly one hundred years after Ms. Alice Paul delivered the Equal Rights Amendment to Congress for the first time. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org

Photo by Yeo Khee

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