After Virginia ratified the Equal Rights Amendment in 2020, can a later session of the Virginia General Assembly take that ratification back?

Subject

Virginia may not rescind its ratification of the Equal Rights Amendment.

Plain-English summary

Virginia ratified the proposed Equal Rights Amendment on January 27, 2020. Senator Mamie Locke asked whether Virginia could later rescind that ratification. The Attorney General answered no.

The opinion's reasoning begins with Article V of the U.S. Constitution. It provides for states to ratify proposed amendments, but gives no process for withdrawing a ratification. The AG concluded that a state's role in the ratification process ends once it votes to ratify.

The opinion also cites federal treatment of earlier attempts to withdraw approval. Ohio and New Jersey passed resolutions purporting to withdraw their Fourteenth Amendment ratifications, but the Secretary of State counted their original ratifications. The Secretary of State did not recognize New York's attempted withdrawal of its Fifteenth Amendment ratification, and published the Nineteenth Amendment with Tennessee among the ratifying states despite Tennessee's attempted rescission. The opinion quotes a Supreme Court observation that Article V "contains no provision as to rejection." It draws its own no-rescission conclusion from the constitutional text and these examples.

The AG's final answer is limited to Virginia's ability to rescind its vote. The opinion does not decide the separate question of whether the ERA has become part of the Constitution.

What this means for you

Virginia legislators: The AG's opinion says a later resolution cannot withdraw Virginia's ratification. Its conclusion rests on Article V's text and the treatment of previous attempted rescissions.

Readers following the ERA: This opinion answers a question about Virginia's vote. It does not resolve the broader status of the proposed amendment.

Common questions

What did Virginia do in 2020?

The opinion says the General Assembly passed joint resolutions ratifying the proposed ERA on January 27, 2020.

Why does the AG say that vote cannot be taken back?

The opinion reads Article V as providing for ratification without a rescission procedure. It also describes earlier attempted withdrawals that federal officials did not recognize.

Did the Supreme Court decide the rescission question in the passage the AG quotes?

The passage quoted in the opinion says that Article V "contains no provision as to rejection." The opinion itself draws the conclusion that "a ratification once given cannot be withdrawn."

Does this opinion decide whether the ERA is in the Constitution?

No. Senator Locke asked whether Virginia could rescind its ratification, and the conclusion answers that question.

Background and statutory framework

Article V provides for Congress to propose amendments and for three-fourths of the states to ratify them. The opinion quotes the 1972 congressional resolution proposing the ERA, including its seven-year ratification period and the proposed amendment's text. It says Virginia was the thirty-eighth state to ratify the proposal. The AG treats ratification as the final state act under Article V and concludes that Virginia cannot rescind its vote.

Citations

• U.S. Const. art. V
• Va. Code § 2.2-505

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2022/21-099-Locke-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Mark R. Herring
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

January 6, 2022

The Honorable Mamie E. Locke
Member, Senate of Virginia
Post Office Box 9048
Hampton, Virginia 23670

Dear Senator Locke:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You have requested an opinion as to whether Virginia may rescind its 2020 ratification of the Equal Rights Amendment.

Applicable Law and Discussion

Article V of the United States Constitution states:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

In March 1972, after strong, bipartisan approval by the House and Senate, the Congress of the United States, pursuant to the power conferred in Article V, formally proposed the Equal Rights Amendment to the states. The entirety of the text of the joint resolution proposing the Equal Rights Amendment provides:

JOINT RESOLUTION
Proposing an amendment to the Constitution of the United States relative to equal rights for men and women.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:

ARTICLE __

SECTION 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

SECTION 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

SECTION 3. This amendment shall take effect two years after the date of ratification.

The text of the proposed amendment provided that ratification was to occur upon the vote of the legislatures of the states. On January 27, 2020, Virginia became the thirty-eighth State to ratify the Equal Rights Amendment after the passage of joint resolutions by the House of Delegates and Senate of Virginia.

Of these thirty-eight states, however, four states have, subsequent to their ratification vote, voted to rescind that ratification, raising questions about whether such rescission is constitutionally sanctioned. These rescissions are inconsistent with the text of Article V and with longstanding historical practice.

Article V addresses the ratification of proposed amendments in exclusively positive terms. Nowhere does the constitutional text provide that a State may void its ratification. Thus, under the plain language of Article V, when a State has ratified a proposed amendment, the State's constitutional authority is exhausted and its role in the ratification process has come to an end.

As the United States Supreme Court has recognized, "Article V, speaking solely of ratification, contains no provision as to rejection. Nor has the Congress enacted a statute relating to rejections." In accordance with this principle, previous purported rescissions of ratifications of constitutional amendments have not been given effect.

For example, in 1868, 29 states, one more than the required 28 at the time, had ratified the Fourteenth Amendment. Two of those states, however, had passed subsequent resolutions withdrawing their initial approval. The Secretary of State, the entity then-responsible for recognizing the ratification of constitutional amendments, issued a proclamation stating that the amendment had been ratified by the requisite number of states. Importantly, "the resolution of the legislatures of Ohio and New Jersey ratifying the aforesaid amendment are to be deemed as remaining of full force and effect, notwithstanding the subsequent resolutions of the legislature of those states, which purport to withdraw the consent of said States from such ratification."

Similarly, New York attempted to rescind its ratification of the Fifteenth Amendment, but such rescission was not recognized by the Secretary of State. In 1920, after ratifying the 19th Amendment, Tennessee attempted to rescind its ratification; this rescission was never recognized (and the Secretary of State published the amendment including Tennessee among the ratifying States). Recognizing the inability of states to rescind, a constitutional amendment was proposed in Congress in 1924 to specifically grant states the power of rescission. It was defeated.

There is thus no federal authority from which I could conclude that a state may rescind its ratification of a constitutional amendment, after such ratification vote has occurred. This conclusion is supported by Virginia law, which speaks only to ratifications, and does not confer any method by which to rescind them.

The same conclusion has been reached by other states confronting the question of whether ratification may be withdrawn. I agree that "a ratification once given cannot be withdrawn."

Conclusion

For the foregoing reasons, it is my opinion that Virginia cannot rescind its ratification of the ERA.

With kindest regards, I am,

Sincerely yours,

Mark R. Herring
Attorney General