Status Contested

The status of the amendment has been hotly disputed since January 2020 when the Virginia legislature voted to approve it, arguably becoming the 38th state to ratify and giving the measure approval from three-fourths of states—satisfying the Constitution’s amendment process.

Opponents argue the Virginia vote came decades too late, as did the ratifications by lawmakers in Nevada in 2017 and Illinois in 2018, because Congress had given states a seven-year deadline when it sent them the proposed amendment in 1972. The ERA’s supporters argue the deadline isn’t valid, partly because the Constitution doesn’t give Congress authority to set time limits on amendments.

Separate litigation over the constitutional addition is pending in the federal appealscourt in Washington, D.C., where Illinois and Nevada are seeking an order compelling the U.S. archivist to publish the ERA as the 28th Amendment. Archivist David Ferriero, who had declined to publish it based on a 2020 legal opinion from the Justice Department, recently retired and his replacement hasn’t yet been appointed.

The cases are Elizabeth Cady Stanton Trust v. Nessel, Mich. Ct. Cl., 22-000066-MB, 5/18/22, Elizabeth Cady Stanton Trust v. Neronha, R.I. Super. Ct., PC-2022-02942, 5/18/22, and Elizabeth Cady Stanton Trust v. James, N.Y. Sup. Ct., 903819-22, 5/19/22