Can A State Withdraw an Article Five Ratification?
One of the issues surrounding the potential ratification of the Equal Rights Amendment is that a few states tried to repeal their “yes” ratification votes back in the 1970s. Thus, it is not clear how many states have ratified the amendment. If these rescissions are not counted, then the answer is 36. (38 are required.) If they are counted, then it’s less than 36. But should they be counted?
The answer is that Congress is the judge of whether a state ratification is valid. This was the holding of Coleman v. Miller, a 1939 Supreme Court case. Thus, if the ERA ever gets back before Congress, they can decide how to count or not count state ratification repeals.
It’s worth pointing out, though, that Congress has never recognized the right of a state to withdraw a ratification. When the Fourteenth Amendment was ratified, Congress counted states that had repealed a prior ratification as “yes” votes. The same was true for the Fifteenth Amendment, as New York tried to repeal its vote in favor and was still counted as “yes” in the final tally. Congress is free to reject these precedents, but those are what they are FWIW. (I’ll have to look into whether other amendments after the first ten involved any ratification repeals. I don’t think so, but I’m not sure.)