Nevada’s Ratification of the ERA

by Gerard Magliocca · February 23, 2018

I’ve posted before about my research into the issue of whether or how Congress can declare the proposed Equal Rights Amendment to the Constitution ratified if enough states vote yes, notwithstanding the prior imposition of a ratification deadline that has long since passed. Last year Nevada did ratify the ERA. Here’s what the state joint resolution said before declaring its ratification:

WHEREAS, The 95th Congress of the United States amended the resolution of the 92nd Congress to extend the time for ratification to June 30, 1982, thereby indicating its continued support of the amendment; and

WHEREAS, The Congress of the United States adopted the 27th Amendment to the Constitution of the United States, which was proposed in 1789 by our First Congress but not ratified by threefourths of the States until May 7, 1992, and, on May 18, 1992, certified as the 27th Amendment; and

WHEREAS, The restricting time limit for ratification of the Equal Rights Amendment is in the resolving clause and is not part of the amendment which was proposed by Congress and which has already been ratified by 35 states; and

WHEREAS, Having passed a time extension for the Equal Rights Amendment on October 20, 1978, Congress demonstrated that a time limit in a resolving clause may be disregarded if it is not part of the proposed amendment; and

WHEREAS, The United States Supreme Court in Coleman v. Miller, 307 U.S. 433 (1939), recognized that Congress is in a unique position to judge the tenor of the nation, to be aware of the political, social and economic factors affecting the nation and to be aware of the importance to the nation of the proposed amendment; and

WHEREAS, If an amendment to the Constitution of the United States has been proposed by two-thirds of both houses of Congress and ratified by three-fourths of the state legislatures, it is for Congress, under the principles of Coleman v. Miller, to determine the validity of the state ratifications occurring after a time limit in the resolving clause, but not in the amendment itself; and

WHEREAS, The Legislature of the State of Nevada finds that the proposed amendment is meaningful and needed as part of the Constitution of the United States and that the present political, social and economic conditions demonstrate that constitutional equality for men and women continues to be a timely issue in the United States . . .

Mike Stern says:

February 23, 2018 at 9:39 pm

Hmm. Does Nevada also take the position that it’s up to Congress to judge the validity of rescissions?
Joe says:

February 23, 2018 at 10:05 pm

This website has an interesting map of the states that did not ratify: http://www.equalrightsamendment.org/states.htm

The resolution’s broad statement of congressional discretion regarding “tenor” to me suggests that the Congress can take into consideration the rescission of the amendment in certain states. The website argues that precedent holds that rescission is void but if Congress has “discretion” here to decide one way or the other given how much time has passed, they might factor in that along with three states that passed the amendment, some states wished to rescind.

In 1979, a state rescinding might not have been something to count, but now that thirty-five years has passed since 1982, Congress could factor in various things to determine if at this late date the amendment process should be deemed stale. I think the length of time warrants a new resolution to show that all the states are still willing to pass the amendment. Congress might have the power to just accept three more states passing it now ala the 27A but that doesn’t mean it is good policy.
Brett Bellmore says:

February 23, 2018 at 10:17 pm

Ratification is supposed to be up to the states, not Congress. If states limit the effective period of their ratification vote, or rescind it before the amendment is ratified by enough states, that’s that. It’s not Congress’s discretion to tell them otherwise, any more than the states are entitled to tell Congress whether it has properly conducted the vote to send an amendment to the states.

All we’re looking at here is an effort to win dirty on an amendment that’s already been defeated. You want an ERA, submit it to the states again.
- Joe says:
  
  February 23, 2018 at 11:36 pm
  
  The first paragraph including the power to rescind is supposition at best going by mere text and precedent.
  
  The second is if anything more dubious. The amendment was not passed yet; it was not “defeated.” Other amendments have time limits in the actual text. Not the case here.
  
  So, including per the rules of Coleman v. Miller [a 1930s SCOTUS opinion], this leaves more discretion to Congress. That is all Nevada is doing here — it is arguing Congress has discretion to extend the process some more. A perfectly reasonable argument that is not “dirty” even if you disagree with it.
  
  It is a democratic [small “d”] policy call. Two houses of Congress has to agree and mere non-action isn’t enough.
  - Brett Bellmore says:
    
    February 24, 2018 at 8:09 am
    
    Nothing but sophistry. You have an amendment that died unratified, no real prospect of getting the requisite supermajority vote in Congress to send it to the states anew, and multiple states recinded their ratification votes or placed time limits on them.
    
    And you want it to become part of the Constitution anyway, without doing the hard lifting of convincing people today to ratify it. So you’re changing the rules after the fact.
    
    Do this thing, and it will make Roe v Wade look like a healing act of consensus. Nobody who opposes the ERA is going to accept the result as legitimate.
    
    If you want a democratic process to be accepted as legitimate by the losers, you can’t go changing the rules after the vote. Who knows how many of the states that ratified with time limits would have voted against the ERA if told that decades later their vote would be counted anyway?
    
    All you’re doing is rationalizing a dirty win, and I’m guessing at some level you know it.
Joe says:

February 23, 2018 at 10:28 pm

It is not out of the realm of possibility that two more states will ratify the ERA.

If so, Congress should declare per Coleman v. Miller that too much time has passed for it to be deemed properly ratified, but re-submit the amendment (with a time limit) to the states. The states will then decide.

The limited nature, congressional acceptance and non-action by states made it not much of a problem, but good policy would have been to do something similar for the 27A. The quick succession of ratification suggested that it would have been ratified anyway, but it would have been best not to count those done a century or more ago in the process.
- Brett Bellmore says:
  
  February 24, 2018 at 10:07 am
  
  The difference, of course, is that the 27th amendment didn’t have any time limit, and the ERA did. The idea that the location of the time limit matters is just post-defeat rationalization. There’s no evidence it was put where it was with the intent to make it meaningless, if anybody had thought at the time it mattered, it would have been in “the amendment itself”.
  
  But, yes, the 27th amendment was ratified by enough states in the modern era to make the threshold, rendering the question of the old ratifications moot.
  - Joe says:
    
    February 25, 2018 at 1:19 pm
    
    Your analysis makes the actual text of multiple amendments in significant degree superfluous — it doesn’t really matter since there was an “intent” and states had no idea (even after Congress extended the time limit once) the process for amendment could continue. This is like your views on rescission at best supposition, but since you are so cocksure about it other views must be “sophistry.”
    
    Just to clarify given the usage of “you,” I went out of my way to add two comments to spell out that personally I think the Congress — given the time that passed — should re-submit the ERA if two more states ratified. But, the idea it is somehow “dirty” for Nevada to toss the ball into Congress’ court, suggesting it democratically factor in everything and ratify — in part because the SUPREME COURT gave Congress such discretion — is sophistry. It underlines the inability to have reasoned disagreement, making things about one side being crooked.
Gerard Magliocca says:

February 24, 2018 at 7:48 pm

Oh, Congress can certainly deny ratification based on the state rescissions. If it chooses to recognize them.
- Mike Stern says:
  
  February 25, 2018 at 3:30 am
  
  Well, Nevada also rescinded its applications for an Article V convention so I guess that’s up to Congress also.
- Brett Bellmore says:
  
  February 25, 2018 at 7:55 am
  
  And I’m saying Congress had darned well “chose” to recognize those rescissions, if they don’t want to take the country several big steps closer to a civil war. Whether to ratify an amendment or not is the states’ business, not Congress’. Just as, unless the states decide to have a convention, whether to originate them is Congress’s choice.
  
  Look, after the 94 election, Congress staged, and I mean in the pretend sense, several votes on the term limits and balanced budget amendments. They brought several versions of each to a vote, so that everybody who needed to vote for the amendment could, without risk of any one version getting enough votes to reach the states.
  
  How would you like it if the states up and decided, “They were all votes for a term limits amendment. We’re going to add up everybody in Congress who voted for a term limits amendment, never mind if they were all for the same version, and it it reaches the threshold, we’ll treat it as having been sent to the states, and ratify that sucker.”
  
  That’s basically what you’re suggesting Congress can do to the states.
  
  The purpose of holding elections isn’t to convince the winners that the outcome is legitimate. They’re always going to think that, because it’s their victory.
  
  It’s to convince the losers that the outcome is legitimate. I think you’re losing sight of that.
Draft-dodger says:

February 25, 2018 at 3:05 am

Would the ERA require women to sign up for the draft or would it prevent men from having to sign up for the draft?
- Brett Bellmore says:
  
  February 25, 2018 at 7:42 am
  
  That’s like asking what amount a blank check is made out for. You’d have to ask the judges.
- Joe says:
  
  February 25, 2018 at 1:10 pm
  
  Rostker v. Goldberg addressed such a question using existing equal protection principles with three justices (including Justice White, repeatedly a conservative on certain issues) dissenting and said “no.”
  
  The ERA would set in place an explicit statement that classification by sex is illicit so would put in place a higher test though even under current law the test for sexual classifications is fairly high.
  
  Given how broadly women are serving in the military today, if there was a draft, it would probably be required to be required for both sexes under the ERA. It might be the case even without the ERA given all that has developed since 1980. The harder question is current rules regarding combat.