ERA Revivalism

Another issue raised by the midterm elections is whether the Equal Rights Amendment will be ratified. Some people want Congress to pass a resolution declaring that the ERA is the 28th Amendment. Such a resolution would not be subject to a presidential veto, though it would be subject to a Senate filibuster.

My preferred route on this, as I explained in a 2019 article, would be for Congress to waive the ERA time limit but say that state ratification rescissions are valid until ratification is achieved. The effect of this would to require more states to ratify the ERA. This is possible. States that have not ratified the ERA include North Carolina and Arizona, which now have Democratic majorities in their state legislatures.

Since 5 states rescinded their ratifications in the 1970s, that means at least three more states would have to ratify to get to 38 if you assume that NC and AZ would ratify next year. Hard to see how you could get three more states without another election cycle where Democrats win. Thus, a deal in Congress to extend the ERA time limit (again) need not necessarily lead to ERA ratification and, I think, would allow for a robust test of public opinion on that issue now.