Tagged: Congress

Examining the ERA’s Comeback: the Legal Debate Over a 38th Ratification

February 5th, 2019 in Analysis, Federal Legislation, State Legislation

At a time when the issues of gender and sexual harassment have come to a head, some activists are looking to a decades-old proposed constitutional amendment to secure gender equality. The Equal Rights Amendment (“ERA”), originally proposed by suffragist Alice Paul in 1923, would affirmatively state that no person’s rights under the law may be denied or abridged based on sex. This would raise the level of judicial scrutiny afforded to claims of gender discrimination from the “intermediate” and often uncertain level of scrutiny to the much more arduous level of strict scrutiny. Strict scrutiny would make gender a protected class and grant legal safeguards for gender discrimination claims on par with those of claims of racial discrimination. Despite renewed public support for the ERA, its complicated history and potential future passage raise contentious legal issues.

The ERA was introduced in every Congressional session from 1923 until its eventual passage in 1972. After passage, the landmark legislation went to the states for ratification; needing the ratification of at least 38 states—two thirds of the states—before the congressionally imposed deadline of March 22, 1979. While there was an initial surge in ratification, only 35 states ultimately ratified the ERA. Congress extended the deadline to June 30, 1982, however no other states ratified in that time.

After the deadline passed without the prerequisite ratification, the ERA largely disappeared from the national conversation and lay dormant until its contemporary resurgence. Millions participated in the Women’s Marches in response to President Trump’s election, and the #MeToo movement aimed at ending workplace sexual assault and harassment; both reflect a renewed push for gender equality. In light of those movements, the ERA, too, gained steam.  On March 22, 2017, exactly 45 years after Congress first passed the ERA, Nevada became the 36th state to ratify the amendment. A little over a year later, on March 30, 2018, Illinois followed suit, leaving the ERA needing only one more state to reach the required two-thirds of states. The final necessary ratification may come in the upcoming legislative session beginning in January, as Virginia lawmakers have recently wrapped up VAratifyERA, a 10-day, bipartisan bus tour of Virginia aiming to gather support for the bill across the state.

While activists pursue a 38th ratification, legal scholars debate the legitimacy of a passage of the amendment so far beyond Congress’ deadline. Does Congress have the power to simply extend the deadline again and certify the ERA’s passage if a 38th state passes it, or did the ERA expire in 1982, rendering a 38th ratification moot?

According to a 2018 Congressional Research Service (CRS) report on the ERA and ratification issues, ERA advocates argue that a contemporary ratification is valid given Congress’ broad authority over the constitutional amendment process, including the power to extend or limit the deadline for the ERA. ERA supporters point to Article V of the Constitution—giving Congress broad power to propose amendments “whenever two thirds of both houses shall deem it necessary” and stating that proposed amendments are “valid to all intents and purposes” when ratified by the legislatures of three fourths of states—to argue that Congress may extend ratification deadlines as it sees fit. Notably, Article V does include any specific time limits related to constitutional amendments, while other constitutional rules with time periods are explicitly specified. Proponents of the ERA, including Nevada’s ERA Ratification Organizer, point to the 27th Amendment’s ratification process to support an expanded—if not long—ratification process. The 27th Amendment, the most recent amendment to the Constitution imposing rules on increases or decreases to the salaries of members of Congress, was introduced in 1789, without a deadline, and was not fully ratified until 1992.  ERA supporters argue that Congress can extend deadlines where the time limits appear only in the original proposing clause, not the text of the amendment itself. Finally, the fact that Congress already extended the deadline once suggests that Congress has the power to do so again.

According to the CRS report, opponents argue that despite Congress’ plenary power over the constitutional amendment process, extending the ERA deadline to allow for contemporary ratification would be unconstitutional because of ratifying states’ potential reliance on the time period in their decision to ratify. However, since the deadline was only in the proposing clause and all of the states’ ERA ratifications prior to the first deadline extension raised no constitutional issues, this argument may lack merit.

Significantly, a 38th ratification of the ERA may raise the question of whether states’ rescinding of ratifications of constitutional amendments are valid, as five states—Idaho, Kentucky, Nebraska, South Dakota, and Tennessee—have withdrawn their ratifications. This is not a settled area of law, but ERA proponents argue that such rescissions are not legal, as Article V provides only for ratification procedures, not rescission. The passage of the Fourteenth Amendment in 1868 lends credence to this argument, at it was certified based on the ratification of a two-thirds majority of states including Ohio and New Jersey, despite the fact that they had previously attempted to withdraw ratification. Additionally, the Supreme Court has been reluctant to weigh in on the validity of states’ ratifications of recessions of constitutional amendments. In Coleman v. Miller (1939), the Court regarded the question of the “efficacy of ratifications by state legislatures…” as a political question and did not issue a ruling on the merits. Therefore, it is likely that Congress could certify the ERA in a similar vein to the Fourteenth Amendment—that is, including ratifications from states that have since attempted to withdrawal their ratifications—legally and without intervention from the courts.

While the legal status of a 38th state ratification may be murky, the importance of the ERA today is clear. United States Supreme Court Justice Ruth Bader Ginsburg has supported the ERA, arguing that while recent women’s rights advancements through legislation are positive, it could be repealed without an underlying principle of equality enshrined in the Constitution. For example, a 2012 Wisconsin Act rolled back protections for victims of wage discrimination. Practically, the ERA’s heightened scrutiny on gender discrimination cases would go a long way in preventing rollbacks of laws protecting gender equality as well as preventing the implementation of laws that actively discriminate based on gender. For example, the ERA would likely have prevented the rollback of the Wisconsin wage equality law. Experts also argue that a heightened level of scrutiny for gender discrimination claims likely would have changed the outcome of the famous 2014 Burwell v. Hobby Lobby case, which allowed for-profit companies to deny its employees health coverage of contraception based on religious objections. If the ERA can win its final state ratification and pass through the many legal hurdles it faces, it would represent the realization of an almost century-long ordeal to ensure a basic principle of equal protection and rights under the law regardless of gender.


Chloe Aubuchon graduated from the University of Michigan with a B.A. in International Studies and Spanish in 2017 and anticipates graduating from Boston University School of Law in May 2020.

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Can Partisan Gerrymandering be Stopped?

July 19th, 2018 in Analysis, Legislation in Court, Legislative Operations, State Legislation

Attention to partisan gerrymandering has heightened as the next wave of redistricting fast approaches and the Supreme Court’s 2017-2018 docket included two cases regarding the constitutionality of partisan gerrymander. Following the release of the 2020 census, states will set out to redraw their district maps. States redistrict at least every ten years. The 2010 redistricting results are described as the most extreme partisan gerrymandering in our country’s history. The 2010 maps have a heavy Republican partisan advantage, as evidenced by the 2012 election results with Republicans gaining a 234 to 201 seat advantage in the House of Representatives despite Democrats winning 1.5 million more votes than Republicans. The Republican partisan advantage has remained strong. The Brennan Center for Justice has predicted that in the 2018 midterm elections Democrats will need to win by a margin of nearly 11 points to gain a majority in the House of Representatives. Democrats, however, have not won by a margin this large since 1974. Following years of heavily gerrymandered districts, a supermajority of Americans have indicated support for the Supreme Court to bring an end to partisan gerrymandering, yet the Court failed to take action this year.

Partisan gerrymandering is the carving of districts, into sometimes odd shapes, to benefit a political party’s electoral prospects. The term gerrymandering was coined after Elbridge Gerry, a Massachusetts’s governor, in order to describe an irregularly shaped district that looked like a salamander in an 1812 redistricting map he signed into law. As a result, partisan gerrymandering has been a defining feature of “American politics since the early days of the Republic.” While racial gerrymandering is unconstitutional, the constitutionality of partisan gerrymandering is an open question, as the Supreme Court has never struck down a map for partisan gerrymander.

Partisan gerrymandering seems to fly in the face of democracy. Voting is a fundamental right and electing who you want to represent you in office is a fundamental part of democracy. Legislatures that scheme, plan, and manipulate maps to benefit one party over another can undermine the purpose of democracy. Some of this scheming, planning, and manipulating is self-interested as legislatures try to protect incumbents and create safe districts, but can also serve the purpose of entrenching a political party’s majority until the next redistricting cycle. Both parties, Republicans and Democrats, have enjoyed the benefit of partisan gerrymandering when given the opportunity.

While the Supreme Court has indicated that some level of partisan gerrymandering may be unconstitutional, it has yet to explain when the constitutional line has been crossed. This term, the Supreme Court took up the question of partisan gerrymandering for the first time in more than a decade. The two cases before the Supreme Court were Gill v. Whitford and Benisek v. Lamone. The Supreme Court was asked to answer when partisan gerrymander crosses the constitutional line. Gill v. Whitford challenged a statewide map that has been deemed among one of the worst partisan gerrymandered maps in the country, with a significant Republican partisan advantage. Benisek v. Lamone  challenged one congressional district in Maryland, with a significant Democratic partisan advantage. Some speculated that the Court took up both cases to deter an appearance that the Supreme Court prefers one party over the other. Another reason may be that the Wisconsin case was a challenge to a statewide map compared to the Maryland case challenging one congressional district.

The appellants attorney in Gill v. Whitford argued during oral arguments (see, page 62) that the Supreme Court is the only institution to put an end to partisan gerrymandering. The Court, however, sidestepped the entire issue by unanimously finding the Gill plaintiffs did not have standing, and that the challengers in Benisek had waited too long to seek an injunction blocking the district.   The Supreme Court’s silence allows legislatures to continue to strategically gerrymander.

While the country waits on the Supreme Court to provide an answer on the constitutionality of partisan gerrymander, some states have attempted to take partisanship out of the process by using redistricting commissions, while others suggest that computers with algorithms should produce the maps. Yet, neither of these options individually seem to completely insulate redistricting from politics.

States have adopted redistricting commissions with the intention to remove partisanship from the redistricting process. However, this has often proved difficult to achieve, as finding non-partisan committee members is difficult and oftentimes the commission is appointed by partisan members, such as elected representatives and governors. States use different types of commissions and may only use a commission for redistricting the state map or congressional map. About 23 states use commissions for the state legislative maps and about 14 states use commissions for the congressional maps. The redistricting commissions can take the form of an advisory commission that makes suggestions to the legislature, a backup commission that draws the map if the legislature fails to redistrict, or as having the primary responsibility of drawing the map.

Arizona State Capitol
Phoenix 1901

Even states that use independent redistricting commissions have had difficulties completely insulating the process from politics. For instance, in 2011, Arizona’s Independent Redistricting Commission chairwoman was removed by the Republican Governor and the Republican-controlled State Senate. The Governor accused the chairwoman of skewing the process for Democrats. The Arizona Supreme Court, however, reinstated the chairwoman and the United States Supreme Court upheld Arizona’s independent redistricting commission as a legitimate way to draw district maps. Although some states are moving toward redistricting commissions as a way to insulate the process from politics, these commissions are “only as independent as those who appoint it.”

While technological advances have been thought to help parties gerrymander more effectively, some suggest that similar technology could take politics out of the process with the proper algorithms. Brian Olson, a Massachusetts software engineer, wrote an algorithm to create “‘optimally compact’ equal-population congressional districts.” Olson prioritized the compactness requirement in an effort to reflect “actual neighborhoods” and because dramatically non-compact districts can be a “telltale sign of gerrymandering.” However, political scientists are skeptical about an algorithm prioritizing compactness, because it ignores other important factors, such as community of interest. Furthermore, someone needs to set the algorithm and there can be infinite map results. Thus, without very strict restrictions and guidelines, setting an algorithm and picking the map can still be an inherent gerrymander.

Removing politics completely from the redistricting process appears to be nearly impossible. Partisanship is deeply entrenched in the process, and dates back to even before the coined term “gerrymander.” Redistricting commissions do not always guarantee a partisan free redistricting effort, and while technology offers an alternative to human map drawing, humans are still making the final decision.  Some combination of these efforts may help to lessen the amount of politics used in the redistricting process or lessen the appearance of partisanship, but are unlikely to completely end partisan gerrymandering all together.


Mikayla Foster anticipates graduating from Boston University School of Law in May, 2019.

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Raising the Minimum Wage: Look No Further Than Your Own Backyard

May 8th, 2017 in Analysis, Federal Legislation, State Legislation

By: Brynn E. Felix

The United States has a minimum wage problem. In 2015, roughly 2.6 million workers earned at or below the federal minimum wage—a measly $7.25 per hour. The federal minimum has not budged since 2009 and continues to depreciate in value: by 2015 the $7.25 hourly wage had already lost approximately 8.1% of its purchasing power to inflation. With a looming Trump administration likely falling in lock-step with a Republican-controlled House and Senate, it seems safe to predict that the federal minimum isn’t going anywhere for the next four years.

Efforts by Democrats to raise the federal minimum wage to $10.10 largely stalled out, even after a letter signed by 600 economists supported the hike. Citing “close to 17 million workers” who would benefit from the raise, the economists pointed to

“important developments in the academic literature on the effect of increases in the minimum wage on employment, with the weight of evidence now showing that increases in the minimum wage have had little or no negative effect on the employment of minimum-wage workers, even during times of weakness in the labor market. Research suggests that a minimum-wage increase could have a small stimulative effect on the economy as low-wage workers spend their additional earnings, raising demand and job growth, and providing some help on the jobs front.”

Pros & Cons of Increasing the Minimum Wage

In addition to the economic arguments provided by the 600 economists who favor raising the minimum wage, proponents also point to the fact that the current minimum wage fails to provide a living wage for workers living in urban centers and places with higher costs of living. Indeed, the value of the minimum wage has significantly declined since the 1960s and 1970s. Moreover, low wage earners are more likely to spend the majority of their income locally, which benefits the local economy. In addition to the economic arguments, proponents have effectively framed the narrative as pursuit of economic justice. Too many working families are struggling to make ends meet, juggling multiple jobs with no relief in sight.

o-MINIMUM-WAGE-facebookCritics claim that forcing businesses to raise the minimum wage will inevitably cause them to reduce their employment ranks, rendering “many less skilled workers unemployable.” A wage hike would mean fewer jobs and an increase in unemployment. In response to Senator Bernie Sanders’ proposal to raise the federal minimum wage to $15, the Heritage Foundation claimed that approximately seven million full time jobs would be eliminated by 2021. Moreover, doubling the federal minimum wage would have a greater impact on states with lower costs of living. In a nutshell, opponents decry minimum wage increases as “’feel good, sound good’ policies that appease the masses, harm businesses, and displace workers.”

Fight for 15

The Republican-controlled 114th Congress needed no further convincing.

Seeing their prospects fade at the federal level, minimum wage advocates have reacted by strategically shifting their efforts to local reforms. Municipalities in particular have become the forefront of the movement for a living wage.

Seattle was the first major metropolitan city to enact a minimum wage hike amid the failed effort to increase the federal minimum wage. In early 2014, Seattle saw months of contentious debates and public demonstrations, bringing thousands of strikers and economic justice activists to the streets. The “Fight for 15” campaign had officially begun.

“It was the experience of a lifetime,” said former McDonald’s worker Martina Phelps. “After seeing my co-workers literally struggling and not having enough money to take care of their children, it was set in my mind that I can do something about this.”

Labor triumphed. By June of 2014, the Seattle City Council unanimously approved a city ordinance that raised the $9.50 an hour wage to $15 an hour. “No city or state has gone this far,” one councilmember noted, “We go into uncharted territory.” The ordinance contains different phase-in schedules that vary by business size: employers with 500 or more employees will pay $15/hour by 2017, while smaller businesses have until 2021 to gradually implement the raise. The first increases took place in April of 2015, while large employers currently pay $13/hour.

Building on Seattle’s success, the Fight for 15 spread like wildfire to other urban centers and state legislatures.

By December 2015 Chicago mayor Rahm Emanuel signed into law an ordinance to raise the city’s minimum wage to $13/hour by 2019. Three months later California legislators enacted a law that will elevate the state minimum wage to $15/hr by 2022. New York legislators followed suit with their own $15/hr measure, which will take effect in New York City by 2018.

In the meantime, the University of Washington’s Evans School of Public Policy and Governance published a study in July 2016, noting that Seattle’s wage increase had elevated the pay of minimum wage workers by nearly 12%, in contrast to a 5% increase seen by workers just outside the city limits. While the preliminary study concluded that low-wage workers’ employment levels and wages rose, the media continued to promote polemic interpretations of the study’s results. Supporters and opponents alike, eager to vindicate their own predictions, used the report to claim victory over their opponents. These two headlines are from the Seattle Times (July 25, 2016) and Forbes (July 26, 2016), respectively:

What actually happened? In reality, by July 2015, data demonstrated that the wage hike had a minor impact on employment and numbers of hours worked, along with significant increases in wages earned. Signs of misleading reporting were documented by the New Yorker: “Last February [2016], the Washington Policy Center and the American Enterprise Institute suggested that several Seattle restaurants were closing in anticipation of having to pay their staff more, though when a Seattle Times report went out to interview the owners she found more mundane causes: a bad location, a rebranding.“

Despite several media outlets prophesizing negative economic consequences of raising the minimum wage, voters in Arizona, Colorado, Maine, and Washington overwhelmingly approved November ballot measures to increase their respective state minimums. In total, 29 states now offer a higher minimum wage than the federal minimum.

Where do we go from here? Oregon may give us a clue.

With a few exceptions, the “Fight for 15” victories largely occurred on Democratic turf. In its article, The Bitter Lesson From Seattle’s Minimum Wage Hike, Investor’s Business Daily lamented:

“[S]uch foolishness seems to have infected the Democratic Party, with its now near-ubiquitous ‘Fight for $15’ campaign…forcing sharply higher wages on troubled local economies where the median wage is low and can have a devastating effect.”

Fears that increasing the minimum wage could harm states with lower costs of living are not unfounded; however, that alone should not be the reason for jurisdictions to reject minimum wage increases. Indeed, Oregon offers an innovative model that addresses concerns about significant economic disparities head on. In March of 2016 the Oregon State Legislature enacted a statewide law that raises the minimum wage, set at $9.25 at the time of passage, to $12.50, $13.50, or $14.75 by 2023—depending on the region. To accommodate both the high cost of living in Portland and the economic differential in nonurban counties, the legislature devised a system that divides the state into three regions: Standard, Portland Metro, and Nonurban Counties. By 2023, the Standard minimum wage will reach $13.50 and will be adjusted annually to compensate for any increases to the Consumer Price Index for All Urban Consumers. The Portland Metro area will hover at $1.25 above the Standard wage, while the minimum wage in Nonurban Counties will be fixed at $1 below the Standard minimum:

This multi-layered approach addresses many of the issues that may arise when different regional economies are subjected to uniform across-the-board wage hikes. By centrally managing wages by locality, Oregon was able to legislate for each sub-region’s unique economic situation. While such a plan might prove to be unconstitutional at the federal level due to the requirement that states be treated equally under the law, this approach may nevertheless provide a blueprint for other states that struggle with satisfying the needs of wildly different demographics.

The Takeaway

One of the greatest silver linings to emerge from the gridlock, obstructionism, and ever-intensifying polarization of Congress is the reminder that inaction at the federal level does not have to stall progress at the local level. Municipalities and local governments have proven to be successful incubators of policies that help the working poor. In Washington, a bold proposal in 2014 to raise the city’s minimum wage to $15 an hour catalyzed momentum for a statewide vote in 2016 to raise the state’s minimum wage to $13 an hour. Similarly, state legislatures like Oregon are adopting wage increases with creative and innovative implementation schemes. Only time will tell what effects these experiments will have—and how the media will attempts to shape the underlying narrative—but in the meantime, local advocates and policymakers should take full advantage of these beautiful laboratories.

Brynn Brynn E. Felix

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