The president of the Virginia affiliate of the League of Women Voters is calling on new Virginia Attorney General Jason Miyares to continue the position of his predecessor and support a lawsuit calling for inclusion of the Equal Rights Amendment into the U.S. Constitution.
“On Jan. 27, 2020, Virginia became the 38th – and last state needed – to ratify the ERA,” Deb Wake said in a Jan. 27 press statement. “And still, we wait.”
Wake’s view that the measure should be enshrined in the Constitution may be more hopeful than realistic, both in terms of Miyares’s decision and in the end result, as it remains an open question that the ratification is constitutionally valid.
The Equal Rights Amendment had been introduced to Congress every session from 1923 to 1972, the year it was passed and sent out to the 50 states. By the end of 1973, it had been ratified by 30 states and seemed on the road to passage, but the push then stalled as opponents gained the upper hand.
The amendment is short and to the point: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” The generalness of the wording led opponents to raise concerns about its real-world implications if ratified, further stalling momentum. Republicans turned on the measure in time for the 1980 election, keeping momentum stalled.
No state ratified the measure between 1977 and the 1983 deadline – extended from 1979– set by Congress (a deadline supporters of the measure view as unenforceable), and six states have since rescinded their initial ratifications (actions proponents of the amendment also say do not count).
The holdouts after 1977: Virginia, North and South Carolina, Florida, Nevada, Georgia, Alabama, Mississippi, Arkansas, Louisiana, Missouri, Illinois, Oklahoma, Arizona and Utah. Nevada ratified the measure in 2017, Illinois in 2018 and Virginia (with all Democrats and a few Republicans in support) in 2020.
When Virginia’s vote took place, proponents across the nation celebrated but the Trump administration ignored it, saying it signified nothing since it occurred 37 years too late.
Democratic Virginia Attorney General Mark Herring was part of a lawsuit demanding that the National Archivist add the measure to the Constitution. Democratic attorneys general in Illinois and Nevada also have been party to the suit.
But two-term incumbent Herring was knocked off last November by Miyares, part of a Republican sweep of Virginia statewide offices that seemed to be a response to the calamitous first year of the Biden administration at the national level, a chaotic campaign by Democratic gubernatorial candidate Terry McAuliffe at the state level and public anger over education policy in pockets of the commonwealth.
On his way out the door in early January, Herring issued an advisory opinion that the legislature does not to have the power to rescind its ratification of the Equal Rights Amendment, but that opinion could just as easily be amended by Miyares and probably wouldn’t have much practical value, given that Democrats still control the state Senate.
Although at this point in the timeline positions on ratification of the ERA seem completely colored by political-party affiliation, League of Women Voters officials say they are not coordinating with Democrats on the matter.
“We are proud to be nonpartisan, neither supporting nor opposing candidates or political parties at any level of government, but always working on vital issues of concern to members and the public,” the Virginia affiliate noted.
So it was perhaps just a coincidence that, in the same week as the League of Women Voters came out with its push, President Biden urged members of Congress to pass a resolution declaring the measure part of the Constitution. (Such a measure is unlikely to get through the Senate and, even if it did, still would face review in a federal judiciary reshaped to the right during the Trump presidency.)
The ERA did not mark the first time the Virginia General Assembly took its sweet time in ratifying a constitutional measure. Legislators got around to supporting the 19th Amendment (granting women the right to vote nationwide) only in the early 1950s, more than three decades after it had become enshrined in the Constitution.