UPDATE: House Concurrent Resolution 3037 failed and did not pass!

Leveling the playing field between women and men should be a priority for North Dakota legislators, but House Concurrent Resolution 3037 suggests otherwise.

The ACLU of North Dakota opposes HCR 3037, legislation that would rescind North Dakota’s ratification of the Equal Rights Amendment to the Constitution. HCR 3037, which passed the House, will be heard in the Senate’s Government and Veterans Affairs Committee today.

The Equal Rights Amendment is just as critical today as it was in 1972.

In 2019, women are still not treated equally in our society, Women, on average, are paid only 80 cents on the dollar compared to men, and, for women of color, the wage gap is even greater. Women are vastly overrepresented among those living in poverty and women are disproportionately impacted by gender-based violence and other forms of harassment. Women are also vastly underrepresented among those holding political office and other positions of power.

In fact, HCR 3037 is sponsored entirely by men – not a single woman is listed as a sponsor. That itself says a lot.

Additionally, the ACLU of North Dakota disagrees with the assertions that North Dakota’s approval to ratify the Equal Rights Amendment expired 40 years ago. In fact, attempts to “rescind” or limit a ratification have never been effective.

Article V of the U.S. Constitution speaks only to the states’ power to ratify an amendment but not to the power to rescind a ratification. Looking to Congress’ historical practice of not validating the rescissions from state legislatures in the context of constitutional amendments, it is likely that Congress would act accordingly in the case of the ERA. 

A ratification is something that happens at a moment in time — for North Dakota, in 1975 – and once it’s done, it’s done.

For example, that’s why, in the case of the 14th Amendment, all three branches of the federal government treated that amendment as fully ratified and effective even though two of the necessary states had ratified but later voted to rescind. During the ratification process of the 15th Amendment, New York rescinded its vote before the last state necessary to ratify voted in favor in 1870. Despite this, New York was still listed as a ratifying state.  Congress is likely to follow its historical pattern and not count rescissions.

Therefore, it is most likely that if HCR 3037 advances, the vote to rescind North Dakota’s ratification of the ERA is a legal nullity.

The legislature should not rescind North Dakota’s ratification of the Equal Rights Amendment.