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 When the Fourteenth Amendment was ratified, Congress counted states that had repealed a prior ratification as “yes” votes.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.)

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7 Responses

  1. Joe says:

    It’s possible that an opinion from the 1930s will have limited staying power, of course, or that it was wrongly decided. But, I think the analysis as to the current law is sound. Again, I am not totally gung ho about the current law. fwiw

    The idea of withdrawing, especially if the situation appears to be different (e.g., if Congress actually extended the time limit again), seems to some a sensible idea. But, if it is allowed, we can have changing votes back and forth possibly as legislative control changes. This is quite possible foreseeing a relatively short — let’s say 10 years — period of ratification. This doesn’t seem like an advisable possibility.

    Finally, why exactly should states have the power to have backsies? Once the legislature (or a convention) decides, it provides a formal vote on their judgment. It’s official. It’s possible, I guess, like it is in Congress, to provide a mechanism to have a state change their vote. But, that would be at best a discretionary rule for Congress. In general, once you decide something, you are stuck with it. And, precedent over a 100 years says that as well in this context.

    Under widely accepted understanding of the law, something that long term is given strong recognition, especially if there is no clear reason to change it. It surely isn’t in the text of the Constitution. But, I think Congress probably can decide not to count those who change their vote after all this time. The time passed makes it a special case.

  2. Rich says:

    Actually, I believe it requires 38 states, not 37.

  3. Rich says:

    I believe it requires 38 states, not 37.

  4. Gerard Magliocca says:

    Yes, sorry. I meant 36 approvals with 38 required. I will fix the post.

  5. Mike Stern says:

    So there are multiple possible scenarios here: (1) 38 states ratify the ERA (disregarding rescissions) without any congressional action extending the deadline; Archivist either publishes the amendment or informs Congress of the ratification; Congress does nothing; (2) same as 1 except Congress adopts resolution declaring the amendment ratified; (3) same as 1 except neither Congress nor Archivist do anything; (4) Congress extends the deadline but says nothing about rescissions; thereafter the remaining needed states (disregarding rescissions) ratify; Archivist acts but Congress doesn’t; (5) same as 4 but Archivist doesn’t do anything; (6) same as 4 except Congress adopts resolution declaring the amendment ratified.

    It also may make a difference whether the legal dispute regarding the validity of ratification arises in a subsequent litigation where one party claims the ERA is now part of the Constitution, rather than in a case like Coleman, where there was no claim that the amendment ratification process was completed.

    There are already substantial uncertainties regarding the proper interpretation, application and precedential weight of Coleman. http://www.pointoforder.com/2016/09/16/coleman-v-miller-and-the-political-question-doctrine/ These will be magnified to a greater or lesser degree depending on the scenario in which these issues arise.

  6. Brett Bellmore says:

    In addition to the states that rescinded their ratifications by separate action, a number of the originally ratifying states for the ERA stated in their ratification resolutions that the ratification expired at the (original) deadline. I think you should count those among the recessions, the number stands at considerably more than 5.