Equal Rights Amendment - Three-state Strategy

Three-state Strategy

The three-state strategy is an argument made by some ERA supporters that the earlier 35 state ratifications are still valid and therefore only three more are needed in order to add the ERA to the Constitution, without Congress resubmitting it to state lawmakers. Since 1994, proponents of the three-state strategy have promoted ratification resolutions in the legislatures of most of the 15 states that never ratified the ERA approved by Congress in 1972. These attempts have met stiff resistance—some opponents characterize the measures as "resurrection resolutions"—and no legislature has approved one.

The three-state strategy was publicly unveiled at a press conference held in Washington, D.C., in December 1993. According to an Associated Press report, "a coalition of women's groups," operating under the name "ERA Summit," planned "to ask Congress to nullify 1982 deadline for ratification." Early the following year, Representative Robert E. Andrews, Democrat from New Jersey, introduced a resolution in the House of Representatives to require that "when the legislatures of an additional three states ratify the Equal Rights Amendment, the House of Representatives shall take any legislative action necessary to verify the ratification of the Equal Rights Amendment as a part of the Constitution." No action was taken on the resolution.

A 1997 William and Mary Journal of Women and the Law article by three law students explained the legal rationale for the "three-state strategy":

1. The 35 ratifications from state legislatures during the 1970s remain valid;
2. Rescissions of prior ratifications are not constitutional;
3. The 1978 extension of the ERA's deadline demonstrates that Congress can amend previously established deadlines; and
4. The Twenty-seventh Amendment's more than 202 year ratification period set a standard of "sufficiently contemporaneous"—a term used during the U.S. Supreme Court's 1921 ruling in Dillon v. Gloss—giving Congress the power to set time limits on constitutional amendments. Dillon v. Gloss was later modified by Coleman v. Miller, a decision also cited as a basis for the three state strategy.

The article further reasoned that because Article V of the Constitution gives the Congress the power to propose amendments to the Constitution—including changing aspects of the ratification process itself—that if three additional states ratify the ERA, the Congress has the power to deem the ERA properly ratified and duly added to the Constitution.

In 1996, the Library of Congress's Congressional Research Service issued a report that said, "There is no precedent for Congress promulgating an amendment based on state ratifications adopted after a ratification deadline has expired. However, proponents of this course cite as possible precedent the ratification activity of the states regarding the 27th Amendment... proponents of the ERA might wish to adopt a strategy of urging its ratification by state legislatures because their actions might prompt this or a future Congress to proclaim the amendment had been ratified." CRS stressed that it "takes no position on any of the issues."

On June 21, 2009, the National Organization for Women resolved to support both the three-state strategy and any strategy to submit a new ERA to the states for ratification.

On July 7, 2009, at a press conference outside the U.S. Capitol to announce the reintroduction of the ERA in Congress, activists supporting the three-state strategy distributed a flyer opposing reintroduction, saying "this is not the time to start over and ignore the work ERA advocates have already done."

Opponents of the three-state strategy point out that the 1789 resolution proposing what is now the Twenty-seventh Amendment did not contain a deadline for ratification. This amendment was ratified in 1992, more than 202 years after Congress submitted it to the states for ratification.

On February 6, 2011, the Senate of Virginia approved a bill to ratify the Equal Rights Amendment. However, a subcommittee in the Virginia House of Delegates killed the bill.

On February 14, 2012, the Senate of Virginia again approved a bill to ratify the Equal Rights Amendment. Just like in 2011, the bill died in a House of Delegates committee.