Herring: Virginia cannot rescind ratification of ERA

Outgoing Attorney General Mark R. Herring says that the Virginia General Assembly cannot rescind its ratification of the Equal Rights Amendment.

Herring offered this in the form of an official advisory opinion. You can expect the incoming attorney general, Republican Jason Miyares, to revisit this opinion in short order.

The General Assembly passed the ERA in 2020, making Virginia the 38th and final state needed to ratify the amendment and, in turn, adding it to the Constitution. In the opinion, Herring, whose term ends on Saturday, cites numerous instances throughout history where states have unsuccessfully attempted to rescind the ratification of various amendments and concludes that, “‘a ratification once given cannot be withdrawn.’”

Herring, along with Illinois Attorney General Kwame Raoul and Nevada Attorney General Aaron Ford, has been fighting in court to ensure the federal government properly recognizes that the ERA has been ratified and is now part of the United States Constitution.

“Virginia made history when we became the 38th state to ratify the Equal Rights Amendment, finally adding gender equality to the U.S. Constitution,” Herring said. “The Constitution gives no mechanism to withdraw the ratification of an amendment and, throughout history, various states’ attempts to rescind such legislation have been unsuccessful. Women have waited more than 200 years to be given equal protections under the law and we cannot go back now.”

In the opinion, Herring notes that four other states have unconstitutionally rescinded their ratification of the ERA, saying “[t]hese rescissions are inconsistent with the text of Article V and with longstanding historical practice.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.”

He adds that, “[a]s 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.”

Herring concludes his opinion by saying, “[t]here 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.’”