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

On January 27, 2020, the Virginia General Assembly ratified the Equal Rights Amendment, becoming the thirty-eighth state to do so. Senator Mamie Locke asked the AG whether a future session of the Virginia General Assembly could rescind that ratification.

The Attorney General said no. Article V of the U.S. Constitution speaks only of ratification. It does not provide for rescission, repudiation, or withdrawal of a previously cast vote. The plain language of Article V, supported by historical practice and Supreme Court precedent, treats a state's ratification as a final act.

Historical examples back this up:

• 1868: The Fourteenth Amendment was ratified despite Ohio and New Jersey passing later resolutions purporting to withdraw their initial approval. The Secretary of State recognized the original ratifications.
• New York's attempted rescission of its Fifteenth Amendment ratification was likewise not recognized.
• 1920: Tennessee tried to rescind its Nineteenth Amendment ratification (after a famous one-vote ratification by Harry Burn). The rescission was rejected.
• 1924: A constitutional amendment was proposed in Congress that would have given states the explicit power to rescind ratifications. It was defeated.

The Supreme Court endorsed the no-rescission view in Coleman v. Miller, 307 U.S. 433, 450 (1939), affirming the Kansas Supreme Court's holding that "where a state has once ratified an amendment it has no power thereafter to withdraw such ratification."

Other state AGs have reached the same conclusion. The Virginia AG agreed: "a ratification once given cannot be withdrawn."

What this means for you

For Virginia legislators considering rescission proposals

Even if both chambers of the General Assembly pass a rescission resolution, the rescission would have no legal effect on Virginia's status as a ratifying state under Article V. The Archivist of the United States (the official who certifies ratifications under 1 U.S.C. § 106b) would not honor it, based on consistent federal practice.

For ERA advocates

The opinion holds that Virginia's 2020 ratification stands and that the Commonwealth cannot withdraw it, so for Article V purposes Virginia remains a ratifying state. The opinion does not reach the separate questions of whether the ERA is part of the Constitution (Congress's seven-year deadline in the 1972 joint resolution, and the contested post-deadline ratifications by Nevada, Illinois, and Virginia); those do not turn on a state's ability to take back its vote.

For state constitutional law researchers

This is a clean restatement of the no-rescission rule. The AG's analysis tracks the broader scholarly consensus and federal practice. The AG cited similar South Dakota and Idaho AG opinions that reached the same conclusion in the context of ERA rescissions.

For citizens following the ERA debate

Virginia's ratification stands regardless of whether a later legislature wants it back. Whether the ERA is in the Constitution overall is a different question that depends on Congress's deadline and the validity of post-deadline ratifications, neither of which Virginia controls on its own.

Common questions

Did Virginia ratify the ERA?
Yes. On January 27, 2020, the General Assembly passed H.J. Res. 1 and S.J. Res. 1, making Virginia the 38th state to ratify the Equal Rights Amendment proposed by Congress in 1972.

Can Virginia take back that ratification?
No, per this AG opinion. The U.S. Constitution and federal practice treat ratification as a final, one-time act.

What's the legal basis for the no-rescission rule?
Article V of the U.S. Constitution speaks only of ratification. The Supreme Court in Coleman v. Miller, 307 U.S. 433, 450 (1939), endorsed the view that "Article V, speaking solely of ratification, contains no provision as to rejection." Historical practice from the Fourteenth, Fifteenth, and Nineteenth Amendments confirms that purported rescissions don't count.

Have any states actually rescinded their ERA ratifications?
Four states have passed resolutions attempting to do so: Kentucky (1978), Idaho (1977), Tennessee (1974), and Nebraska (1973). Whether those rescissions are legally effective is contested but, according to this AG opinion and prior federal practice, they are not.

Has the ERA actually been added to the Constitution?
That's a separate question, beyond this opinion. The 1972 joint resolution included a seven-year ratification deadline (later extended to 1982). Nevada (2017), Illinois (2018), and Virginia (2020) ratified after that deadline. Whether those post-deadline ratifications count for the 38-state threshold is the subject of ongoing legal and political dispute.

What does the ERA actually say?
"Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." It also gives Congress the power to enforce the amendment, and provides that it takes effect two years after ratification.

Could Congress change the answer?
Congress hasn't enacted any statute on rescissions. The 1924 attempt to amend Article V to allow rescission was defeated. So unless Congress acts in the future, the no-rescission default holds.

Background and statutory framework

Article V of the U.S. Constitution governs amendments: Congress proposes (by two-thirds vote of both houses, or a convention called by two-thirds of state legislatures), and three-fourths of the states ratify (through their legislatures or conventions, as Congress designates). Article V does not address rescission, repudiation, or withdrawal of a ratification vote.

The Supreme Court has emphasized the plain-language nature of Article V. Hawke v. Smith, 253 U.S. 221, 227 (1920), declared the language "plain, and admits of no doubt in its interpretation." Coleman v. Miller, 307 U.S. 433, 450 (1939), made the no-rescission rule explicit in affirming the Kansas Supreme Court's holding: "where a state has once ratified an amendment it has no power thereafter to withdraw such ratification."

Federal practice has consistently treated purported rescissions as ineffective. The Secretary of State (the office responsible for certifying ratifications before 1 U.S.C. § 106b transferred that role to the Archivist of the United States) refused to give effect to Ohio and New Jersey's attempts to withdraw Fourteenth Amendment ratifications. New York's purported rescission of its Fifteenth Amendment ratification was likewise rejected. Tennessee's attempted rescission of its Nineteenth Amendment ratification was not recognized either.

The 1924 proposal in Congress to amend Article V specifically to allow rescissions is good evidence that the rule did not allow rescission. Otherwise the amendment proposal would have been unnecessary. It was defeated.

Other state AG opinions have reached the same conclusion. The Virginia AG cited 1975-1976 Op. S.D. Att'y Gen. 110 and 1972-1973 Op. Idaho Att'y Gen. 137 for the same position.

James Madison, in correspondence with Alexander Hamilton (July 20, 1788), wrote that "[t]he Constitution requires an adoption in toto and for ever." The AG appended this as historical support.

Citations

• Va. Code § 2.2-505 (AG advisory opinions)
• U.S. Const. art. V (ratification process)
• 1 U.S.C. § 106b (Archivist of the United States certifies ratifications)
• Hawke v. Smith, 253 U.S. 221 (1920)
• Coleman v. Miller, 307 U.S. 433 (1939)
• Coleman v. Miller, 146 Kan. 390 (1937)
• H.R.J. Res. 208, 92d Cong., 86 Stat 1523-24 (1972) (Congress's ERA proposal)
• H.J. Res. 1, S.J. Res. 1, 2020 Va. Sess. (Virginia's ERA ratification)
• 1 Op. O.L.C. 13 (1977) (OLC discussion of Fourteenth Amendment ratification practice)
• 1974-1975 Op. Va. Att'y Gen. 94
• 1977-1978 Op. Va. Att'y Gen. 154
• 1972-1973 Op. Idaho Att'y Gen. 137
• 1975-1976 Op. S.D. Att'y Gen. 110

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