Democrats just won control of the Virginia statehouse for the first time in 26 years, and that’s a big deal for the proposed Equal Rights Amendment, the 47-year-old measure that was supposed to add a sex discrimination ban to the U.S. Constitution.
The newly-blue legislature is expected to make the Virginia the 38th state to ratify the amendment in the next legislative session, taking the entire nation one step closer to enshrining the ERA in the Constitution.
Needless to say, women’s rights advocates are amped.
The amendment would ensure that constitutional rights apply to everybody, regardless of sex, meaning it could help shape legislation and legal decisions on sex discrimination, pay equity and gender based-violence.
"Tonight, we are finally within reach of true equality for girls and women in the United States, thanks to the voters of Virginia and supporters across the country," Jessica Neuwirth and Carol Jenkins, both presidents of The ERA Coalition, said in a statement Tuesday. "In January of 2020, these elected officials will take up ratification of the Equal Rights Amendment. They stand a very good chance of becoming the 38th and final state we need to ratify this amendment into the U.S. Constitution."
Republican roadblocks
For decades, Democrats and women's rights advocates have hoped to add Virginia to clinch the three-fourths of states ratifying the amendment. The ERA passed Congress in 1972 and it was supposed to be ratified by 1982 with the support of 38 states. It’s not entirely clear what happens if Virginia ratifies it now, and the road to get there is still riddled with Republican roadblocks.
A procedural bill that would’ve allowed Virginia’s legislators to at least vote on the ERA failed earlier this year, thanks to Republicans in the state’s House of Delegates who blocked the legislation from even getting to the floor.
But, that won't happen next time since Democrats took control of both chambers of Virginia's legislature with at least five House seats and two Senate seats. The state legislature is expected to vote on the amendment next year, along with other bills that Republicans previously blocked on gun laws and a higher minimum wage.
“If we flip the House of Delegates, (the ERA) will probably be ratified in the first week we’re back,” state Sen. Scott Surovell, a Virginia Democrat, told the Associated Press before Tuesday’s election.
Legal challenges
But ratification in Virginia’s won't guarantee success for the ERA nationwide. It’ll just start what’s likely to be a hotly contested legal battle over whether the amendment can finally make it into the Constitution after all these years.
Republicans and anti-ERA activists nationwide have long argued that the amendment would allow greater abortion access, force women into the military, and fail to actually guarantee women rights that they don’t already have. Because the ratification deadline has long passed, efforts to enshrine the amendment into the Constitution will almost certainly face legal challenges.
For its part, Congress could extend the ratification deadline — but that’s unlikely to happen as long as Sen. Mitch McConnell is majority leader in the U.S. Senate.
Conservatives will likely argue that at the time of the amendment’s deadline in 1982, three more states were still needed to ratify the amendment.
Plus, five states have also since moved to rescind their support, and it’s unclear whether that will have a real impact on whether or not the ERA makes it into the Constitution. The nation will be in totally uncharted territory, because it usually doesn’t take decades to get a constitutional amendment ratified.
For this and other reasons, the amendment will likely end up at some point before the Supreme Court.
“That would leave the amendment essentially in a legal limbo that was not foreseen by framers of the Constitution,” Robinson Woodward-Burns, an assistant professor of political science at Howard University, told VICE News in February.
Cover: Jessica Lenahan, center, a domestic violence survivor, and Carol Jenkins, right, of the Equal Rights Amendment Task Force, attend a news conference at the House Triangle on the need to ratify the Equal Rights Amendment on June 6, 2018. (Photo By Tom Williams/CQ Roll Call)
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