The Equal Rights Amendment was a proposed amendment to the US Constitution with a 1979 deadline, which Congress later extended to 1982. The amendment failed due to being 3 states short of the required number of ratifications (not counting states that rescinding their ratification, something which the Constitution doesn't account for).

According to this question, if three more states ratified the amendment despite it being past the 1979/1982 deadline, the amendment would not become part of the Constitution. Nevertheless, Nevada ratified it in 2017 and Illinois did the same in 2018.

In the event that a third state ratified the amendment, what would be the next steps to determining whether or not the amendment can be legally considered part of the US Constitution? Would a court case get filed and go to the Supreme Court (and if so, who would file it)? Would something else happen?

What is the likely next step if three states ratify the Equal Rights Amendment after the deadline?

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    Well for starters, you'd have to decide what to do about the five states who rescinded their ratifications. Feb 19, 2019 at 16:19

2 Answers 2


All matters of "what is the constitution" are settled by the courts. In this case, if someone believed that their constitutional rights were being broken, they could file a case, which the Supreme Court could choose to hear (in accordance with "due process"). The ruling by the Supreme Court would then make it clear whether the Equal Rights amendment was part of the Constitution or not.

There would have to be somebody who was materially affected by the clause. If nobody is affected, then there is no case to hear, and the question of whether it is in the Constitution or not is immaterial.

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    While this is true, the nature of that amendment would be such that someone would immediately have claim that it's affecting them. Either someone who feels they were discriminated against on the basis of gender who wants to make sure it goes into effect, or someone who would be impacted by changes it requires who wants to prevent it.
    – Bobson
    Feb 21, 2019 at 3:38

The actions of Nevada and Illinois are purely symbolic, the former proposed Amendment is no longer a proposed Amendment since the time limit for ratification to complete has expired. Notifications of ratification received by Congress after the expiration date will be considered as unactionable and ignored. Any court examining this would conclude that there was no ambiguity and that there is no question to decide.

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    Congress isn't the one that receives notifications, actually. The federal Archivist, and members of the Office of the Federal Register who have power delegated to them by the Archivist, are the ones that actually do the ratification process once Congress gets the ball rolling by passing the proposed amendment. And the official decision on the validity of a ratification is up to them, and current precedent says they have the final and definitive say on the facial legal validity of ratification documents. SCOTUS precedent on the 27th does indicate the time limit would remain a problem, though. Feb 20, 2019 at 21:02

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