「Under Article V of the Constitution, three-fourths of the states -- or 38 states -- are required to ratify constitutional amendments.
Congress passed the ERA in 1972, sending it to the states with a seven-year deadline for them to ratify the amendment. It later extended the deadline to 1982.
But by then, only 35 states had signed off on the ERA -- and five of those states rescinded their support of the ERA within that time.
In recent years, Virginia, Illinois and Nevada approved the ERA, with Virginia claiming to be the 38th -- and thus final necessary -- state to ratify the amendment in 2020.
Advocates argue that states cannot rescind amendment ratifications and that the ERA's deadline had not lapsed since it was not included in the ERA's body text.
Opponents say the three states' ratifications are invalid and point to the five states' rescissions as part of why the ERA is not ratified. They also say Congress cannot change or remove its deadline after it expired.
They also note an opinion from an Obama-appointed federal district judge in March 2021 that the deadline to ratify the ERA "expired long ago."
The Department of Justice's Office of Legal Counsel also issued a legal opinion, under the Trump administration in 2020, that said the deadline to ratify the ERA expired and that the archivist cannot certify it.
The OLC said in a new opinion released last month that its 2020 memo is "not an obstacle either to Congress's ability to act with respect to ratification of the ERA or to judicial consideration of questions regarding the constitutional status of the ERA." The office did not withdraw the 2020 memo nor instruct the archivist to publish the ERA.
House Democrats passed their version of the bill to remove the ERA deadline last year, and are trying to pass a resolution that recognizes ratification of the ERA. It currently has 155 Democratic cosponsors -- including House Speaker Nancy Pelosi -- and was referred to the Judiciary Committee.
House Oversight Chairwoman Carolyn Maloney, a longtime advocate for the ERA, also wrote to Ferriero in October, urging him to "carry out your statutory duties to certify and publish the ERA without further delay."」