The Supermajority Cure
I’m writing away on my ERA article and have settled on a new idea. Suppose that more than two-thirds of each House of Congress voted to waive the ERA’s ratification deadline and disregard the rescissions of the states that attempted to withdraw their yes votes back in the 1970s in reaching a count of 38 states in favor. Would that supermajority vote allay the legitimacy concerns that would naturally arise if a bare majority of each house did the same?
I’m not sure, but I pose this as an alternative that Congress could pursue in lieu of counting the rescinding states as no votes. Partly I’m influenced by the observation that the congressional votes to reject rescissions during Reconstruction were done by a greater than two-thirds vote (I think–I need to double check). Thus, one way of understanding state rescissions is that they are presumptively valid but can be overridden by a supermajority of each House of Congress. The other more bass thought is that obtaining a supermajority is hard, so doing so is a strong indication that a proposed amendment really commands the necessary support.