Challenge 1: Textual Discrepancies in the State Ratifications
In 1985, researchers Bill Benson and Red Beckman published "The Law That Never Was," a two-volume work examining the ratification records of all states. They reported that of the states that ratified, several ratified versions whose wording differed from the federal proposal, in capitalization, punctuation, and the spelling of the word "income."
The argument is that a state legislature must ratify the exact text proposed. A ratification of a different text is not a ratification of the Amendment. On this view, the discrepant ratifications do not count toward the three-fourths required by Article V.
Challenge 2: Kentucky's Procedural Irregularity
Kentucky is recorded as having ratified the Amendment on February 8, 1910. Researchers argue that the Kentucky ratification was procedurally defective, that the resolution as passed by the legislature did not conform to the federal proposal, and that the recorded ratification does not reflect a valid act of that state's legislature.
Challenge 3: The Ohio Statehood Question
Ohio ratified the Sixteenth Amendment on January 23, 1911. Researchers argue that Ohio was not validly admitted as a state until a retroactive act of Congress in 1953, and that its 1803 admission did not satisfy the terms of its Enabling Act. On this view, Ohio was not a state in 1911, and its ratification of the Sixteenth does not count.
The counter-position is that Ohio functioned as a state from 1803 onward, seated members of Congress, and was treated as a state by every branch of the federal government for 150 years before the 1953 act, which merely confirmed the earlier admission.
Challenge 4: Secretary Knox's Declaration
On February 25, 1913, Secretary of State Philander C. Knox declared the Sixteenth Amendment ratified. Researchers argue that Knox, aware of the textual discrepancies and the Ohio question, nonetheless certified ratification, and that the certification was issued without resolving the irregularities.
The argument is that a certification issued over unresolved defects does not constitute a valid proclamation of ratification under Article V.