“Didn’t the ratification deadline pass?”

  • On May 11, 2018 Attorney General Mark Herring weighed in on this issue with a formal opinion addressed to Virginia Senator Black (R – Loudon).
  • “…the lapse of the ERA’s original and extended ratification periods has not disempowered the General Assembly from passing a ratifying resolution. ”
    – Attorney General Mark Herring, May 11, 2018

  • If Congress has the power to impose a ratification deadline, it should have the power to extend or eliminate the deadline.  In Coleman v. Miller, the Supreme Court left it to Congress to decide ratification periods.  Beginning with the prohibition amendment, Congress included ratification deadlines in amendments it submitted to the states.  With the Equal Rights Amendment, Congress imposed a ratification deadline but, significantly, it did so in the preamble of the resolution proposing the amendment, not in the amendment itself.  By not submitting the deadline with the amendment to the states for approval, Congress reserved for itself the ability to extend or eliminate the deadline.  In fact, in 1978 it did extend the ratification deadline to 1982.
  • Both Nevada (March 22, 2017) and Illinois (May 30, 2018) have ratified the Equal Rights Amendment, exercising their state’s right to ratify under Article V of the Constitution.
  • After Nevada ratified the Equal Rights Amendment, a white paper was produced for Congress exploring whether or not the deadline precluded the Equal Rights Amendment from being added to the Constitution (spoiler alert: it can be added).
  • Some legal scholars argue that Congress lacks the authority to impose a deadline on the ratification process.