June 16, 2021

Virginia Votes to Ratify the ERA

Equal Rights Amendment supporters demonstrate outside the State Capitol in Richmond, Virginia, January 8, 2020. Virginia ratified the ERA on January 15.

In a historic vote in Richmond on Wednesday, both chambers of the Virginia state legislature ratified the Equal Rights Amendment, becoming the 38th and final state needed to add the amendment to the Constitution. The House voted 59-40 and the resolution passed 28-12 in the Senate.

Delegate Eileen Filler-Corn (D-Fairfax), the first female speaker in the legislature’s history, gaveled in the new legislative session and made the amendment’s ratification the first item on the agenda. The vote comes as Virginia’s state legislature flipped blue in November, and Democrats control state government for the first time since 1994.

The ERA motivated activists to help flip districts. Natalie White, vice president of Equal Means Equal, began coming to Virginia in 2017 to lobby for the ERA. Last year, the state fell short by one vote in the house. So White and Kamala Lopez, president of Equal Means Equal, moved to Virginia to help make it happen.

The two began renting an Airbnb in Delegate Chris Jones’s district (R-76). They focused on ten districts, hoping to flip two. Instead, they flipped six. “So when we asked and we were told no we went in and unseated those who told us no,” said White. “We were not going to ask anymore. We were just going to come for their seat.” Twenty-one-year incumbent Jones, who is responsible for drawing up racially gerrymandered districts so objectionable the Supreme Court ruled they must be redrawn, lost his seat to Clint Jenkins, who is African American.

The vote may not be enough to add the ERA to the Constitution, opponents contend. Congress passed the amendment and sent it to the states in 1972. But it included a ratification deadline, eventually extended to 1982. Only 35 states ratified the amendment before the deadline came and went. But then in 2017, Nevada ratified the amendment, and Illinois followed suit in 2018. The ratifications generated buzz, after a period of seeming hibernation of the amendment’s advocates.

The national archivist released a statement in December, saying that it would not take action to write down the amendment until receiving guidance from the Department of Justice. In January, the DOJ’s Office of Legal Counsel announced that it would be arguing that the 1982 deadline has expired. But Lopez and White pointed me to Article V of the Constitution, which says nothing about congressional deadlines, or even that the archivist must record new amendments. Instead, it says that once three-fourths of the states ratify the amendment, it “shall be … as Part of This Constitution.” White also noted that archivist David Ferriero’s letter in 2012 to Representative Carolyn Maloney’s office (D-NY) stated that once the National Archives and Records Administration “receives at least 38 state ratifications of a proposed Constitutional Amendment, NARA publishes the amendment along with certification of the ratifications and it becomes part of the Constitution without further action by Congress.”

House/Prospect – Donate (Challenge/Orange) – 300×250
Equal Means Equal has taken this argument to Massachusetts U.S. district court, to challenge the Trump administration’s refusal to recognize the ERA as a valid amendment. The complaint alleges that ratification deadlines are invalid. In fact, many states which ratified the amendment did not even vote on the preamble, which includes the 1982 deadline set by Congress.

The deadline hurdle has been the focus of the recent flurry to get the ERA across the finish line. In November, the House Judiciary Committee held a markup for a joint resolution that would remove the ratification deadline. The ERA “was introduced in both Houses of Congress in 1923, but 96 years later, the United States Constitution still does not explicitly declare that women have equal rights under the law,” said Chairman Jerry Nadler (D-NY) in a statement about the markup.

Another complication is that five states rescinded their ratification after originally voting for the amendment. This may be a simpler hurdle, however. Lopez explained that the Supreme Court has already weighed in on this issue, ruling that states cannot rescind their ratification retroactively. “Otherwise states would try to undo things and [amendments] would become like laws and statutes,” Lopez said. “[This] is a guarantee from one generation to the next.”

Right now, advocates are celebrating. Lopez and White, who were in the chamber, said the normally quiet room erupted in cheers after the vote. During the speeches, the crowd tittered. Delegates speaking on behalf of ratification heard cheers, and those speaking against it garnered hissing from the crowd.

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