Part 3: Virginia could become final vote for ERA

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CHARLOTTESVILLE, Va. (CBS19 NEWS) -- The Equal Rights Amendment, or ERA, passed in the Virginia Senate last week, but was killed by a House subcommittee Tuesday.

There is still a chance it could be brought back to life, and advocates say if it does, Virginia could become the 38th and final vote needed.

Three-fourths, or 38 states, must ratify an amendment for it to become part of the U.S. Constitution.

However, the Constitution does not give a specific time period for when an amendment must be ratified, according to James Monroe Professor of Law Saikrishna Prakash at the University of Virginia School of Law.

"There was some requirement that proposal and ratification occur relatively close in time to each other," Prakash said.

When Congress passed the Equal Rights Amendment in 1972, the states were given seven years to ratify it.

That was later extended to 1982 when the states fell short of 38.

However, even with the extension, only 35 states ratified the ERA by 1982.

"After 1982 came and went, people started writing articles and books saying the amendment is dead. It didn't pass, it's finished, it's kaput," said Prakash.

States have continued pushing forward with the ERA despite the deadline.

As of 2019, two more have ratified the amendment, meaning only one more would be needed to get to 38.

While some argue that the deadline is too far gone, others think it could go through anyway, or that Congress could pass another extension.

"I don't think they would have let the Senate in Virginia pass it six times if it wasn't able to go forward," said Kobby Hoffman from the Charlottesville National Organization for Women.

The Senate version of the bill has passed in 2011, 2012, 2014, 2015, 2016 and now in 2019. In 2017, it passed indefinitely by the Senate Rules Committee.

Virginia Attorney General Mark Herring also agrees.

Herring issued an opinion to Senator Dick Black (R-Loudoun) that states Congress should be able to extend the deadline again.

Former Stafford County Supervisor Susan Stimpson opposes the ERA because she says it would fund abortions.

However, she said that others seem to believe it could pass despite the deadline.

"Democrats and some of the most elite Republicans seem to be pretty certain that this is going to be the path forward," Stimpson said.

Prakash said the Constitution does not say who has the power to decide if the deadline was valid.

He said no one knows whether Congress or the President would make that decision.

"It just says that when three-fourths of the states have ratified, it's an amendment. But it doesn't say who gets to decide whether three-fourths of the states have ratified," he said.

Prakash also says we do not know if the courts would uphold the restriction of the deadline or not.

Another issue with the ERA is that five states that originially ratified it have since rescinded their decisions.

Even if a 38th state ratifies, the future is still unknown.

"We don't really know what's going to happen. Virginia could ratify the amendment, be the 38th state to ratify it and then we don't really have an answer if there have been 38 states to ratify it," Prakash said.

There is a chance the House bill could be resurrected in the 2019 session on Friday.

In a statement, Charlottesville NOW wrote, "We are not going away. We will not be silenced. We will persist until we have equal rights. If lawmakers fail to ratify this year, we’ll channel our energy into replacing them in November by lawmakers who will ratify next year. "

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