Gender, Voting Rights, and the Nineteenth Amendment

• Author: Paula A. Monopoli
• Position: Sol & Carlyn Hubert Professor of Law, University of Maryland Carey School of Law
• Pages: 91-142

Gender, Voting Rights, and the Nineteenth

Amendment

PAULA A. MONOPOLI*

ABSTRACT

One hundred years after the woman suffrage amendment became part of the

United States Constitution, a federal court has held—for the first time—that a

plaintiff must establish intentional discrimination to prevail on a direct constitu-

tional claim under the Nineteenth Amendment. In adopting that threshold stand-

ard, the court simply reasoned by strict textual analogy to the Fifteenth

Amendment and asserted that “there is no reason to read the Nineteenth

Amendment differently from the Fifteenth Amendment.” This paper’s thesis is

that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis

independent of the Fifteenth Amendment because it has a distinct constitutional

history and meaning. The unique historical context preceding and following the

Nineteenth’s ratification militates for courts to adopt a holistic interpretative

approach when considering a Nineteenth Amendment claim. Such an approach

has both expressive and doctrinal implications, providing support for courts to

adopt disparate impact, rather than intentional discrimination or discriminatory

purpose, as a threshold standard for such claims. Reasoning beyond the text—

from legislative intent, purposes, structure, and institutional relationships—

could restore the lost constitutional history around the Nineteenth Amendment,

making it a more potent tool to address gendered voter suppression today, espe-

cially for women of color. This paper provides a framework for judges willing

to move away from rigid textual analogy toward a more holistic constitutional

interpretation when evaluating a constitutional claim under the amendment.

TABLE OF CONTENTS

I. INTRODUCTION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

II. THE HISTORY OF REASONING BY ANALOGY TO THE FIFTEENTH

AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

III. INTERPRETING THE NINETEENTH AMENDMENT HOLISTICALLY .. . . . 106

A. Text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

B. Legislative Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

* Sol & Carlyn Hubert Professor of Law, University of Maryland Carey School of Law. © 2022,

Paula A. Monopoli.

91

C. Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

IV. APPLYING THE NINETEENTH AMENDMENT TO FACIALLY NEUTRAL

VOTING LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

A. Empirical Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

B. Threshold Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

I. INTRODUCTION

The Nineteenth Amendment constitutes both a prohibition against and a grant

of government power.

1

It constrains the states’ authority to enact laws that regu-

late voting, preventing them from denying citizens the vote—or abridging it—on

account of their sex.

2

The Nineteenth also includes express authority for enforce-

ment legislation.

3

The text is the same as that of the Fifteenth Amendment—the

first express federal voting amendment—except that the Nineteenth includes the

word “sex” rather than the phrase “race, color, or previous condition of servi-

tude.”

4

As a historical matter, the Nineteenth enfranchised a significantly larger

1. “The right of citizens of the United States to vote shall not be denied or abridged by the United

States or by any state on account of sex. Congress shall have power to enforce this article by appropriate

legislation.” U.S. CONST. amend. XIX.

2. The title uses “gender” as opposed to “sex” to highlight the article’s focus on contemporary state

voting statutes that have a disparate impact on women, which some scholars have described as

“gendered voter suppression.” Note that the ratification of the Nineteenth Amendment in 1920 did not

protect all women from disenfranchisement. Native American women were not permitted to become

citizens until federal legislation was enacted in 1924. Asian American immigrant women were

prohibited from becoming naturalized U.S. citizens until federal legislation was enacted in the 1940s

and 1950s. Black women and Latinas were de facto disenfranchised through literacy tests, poll taxes,

physical intimidation, and other devices for another forty-five years, until the Voting Rights Act of 1965.

See PAULA A. MONOPOLI, CONSTITUTIONAL ORPHAN: GENDER EQUALITY AND THE NINETEENTH

AMENDMENT 155–56 nn.5–6 (2020).

3. Article I, Section 4, Clause 1 of the U.S. Constitution provides that “[t]he Times, Places and

Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the

Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as

to the Places of chusing Senators.” U.S. CONST. art I, § 4, cl. 1. Note that this constitutional provision

applies to elections for federal office. But the Nineteenth Amendment has a broader reach. It prevents

the states from denying or abridging a citizen’s right to vote in either state or federal elections. See U.S.

CONST. amend. X IX.

4. The Fifteenth Amendment provides that “[t]he right of citizens of the United States to vote shall

not be denied or abridged by the United States or by any State on account of race, color, or previous

condition of servitude. The Congress shall have the power to enforce this article by appropriate

legislation.” U.S. CONST. amend. XV, §§ 1–2. Notably, 2020 marked both the 100th anniversary of the

Nineteenth Amendment and the 150th anniversary of the Fifteenth Amendment. I use the phrase “the

first express federal voting amendment” to distinguish the Fifteenth Amendment from Section 2 of the

Fourteenth Amendment. The ratification of Section 2 of the Fourteenth inserted the word “male” into the

Constitution for the first time. Section 2 also implicates voting, though less directly. See Franita Tolson,

The Constitutional Structure of Voting Rights Enforcement, 89 WASH. L. REV. 379, 385 (2014) (“The

92 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:91

number of citizens than did the Fifteenth.

5

Yet, only two U.S. Supreme Court

cases have dealt directly with the Nineteenth: Leser v. Garnett

6

(upholding its va-

lidity) and Breedlove v. Suttles

7

(holding that a sex-differentiated poll tax regime

did not violate the Nineteenth).

8

Few federal cases even mentioned the

Nineteenth after 1937.

9

So, it is notable that in Jones v. DeSantis, a recent voting

rights case, a federal district court addressed a direct constitutional claim under

the Nineteenth.

10

The Jones court failed to engage in an independent analysis and

holistic interpretation of the Nineteenth.

11

Rather than considering the distinct

constitutional history and meaning of the Nineteenth, which is different from that

legislative debates in 1866 over the language of section 2 [of the Fourteenth Amendment] demonstrate

that Congress viewed its enforcement authority over voting and elections broadly. . . . [T]his provision

sets a very low threshold for violations to trigger federal action (abridgment on almost any grounds)

while giving Congress substantial authority to impose an extreme penalty to remedy such violations.”).

5. Some scholars have described the ratification of the Nineteenth Amendment as the “biggest

democratizing event” in the nation’s history. See AKHIL REED AMAR, AMERICA’S CONSTITUTION: A

BIOGRAPHY 419 (2005); see also J. KEVIN CORDER & CHRISTINA WOLBRECHT, COUNTING WOMEN’S

BALLOTS: FEMALE VOTERS FROM SUFFRAGE THROUGH THE NEW DEAL 3 (2016). But see generally

MONOPOLI, supra note 2, at 155–56 nn.5–6 (describing those groups of women in the country who were

not enfranchised by the Nineteenth Amendment, either de jure or de facto).

6. 258 U.S. 130, 136 (1922).

7. 302 U.S. 277, 283–84 (1937), overruled in part by Harper v. Va. State Bd. of Elections, 383 U.S.

663, 669 (1966).

8. While the U.S. Supreme Court did not ground its decision in Adkins v. Children’s Hospital, 261

U.S. 525 (1923), on the Nineteenth, it did invoke the Amendment to justify striking down a minimum

wage law for women on due process grounds, suggesting that the Amendment might have an impact on

other constitutional doctrine. Id. at 553. Justice Sutherland gave some insight into what the Court

thought the Amendment meant in 1923 when he described it as the culmination of a revolutionary

change in women’s “contractual, political, and civil status.” Id. Also, note that courts cited the

Nineteenth Amendment after its ratification far less often than they cited the Fifteenth Amendment. See

MONOPOLI, supra note 2, at 156 n.11 (“A Lexis-Nexis search (January 1, 2020) indicated that there are

622 judicial opinions that cite the Nineteenth Amendment, with 291 of those in state courts and 331 in

federal courts. The number of US Supreme Court opinions that cite the Nineteenth Amendment is 39. It

is interesting to compare that with the same search for the Fifteenth Amendment, which has virtually the

same text as the Nineteenth. That search turns up 2,845 total citations, with 2,734 of those coming after

1920. The split between federal and state courts is more skewed, with 439 state courts and 2,406 federal

courts citing the Fifteenth Amendment. Finally, there are 194 citations to the Fifteenth Amendment in

US Supreme Court decisions.”).

9. One of the few federal cases was Ball v. Brown, 450 F. Supp. 4, 8 (N.D. Ohio 1977) (describing

the scope of a Nineteenth Amendment claim as being “encompassed within the [F]ourteenth

[A]mendment guarantee of equal protection” in a case involving the automatic purging of voting

registrations for women who had been married and thus presumably had changed their surnames). In my

view, the Nineteenth Amendment is not simply co-extensive with, but also goes beyond, a Fourteenth

Amendment equal protection claim in voting rights cases. In my book, CONSTITUTIONAL ORPHAN:

GENDER EQUALITY AND THE NINETEENTH AMENDMENT, I offer an account of why a federal amendment,

which implicated important constitutional issues like federalism, the scope of women’s citizenship, and

the constitutional definition of equality, was so rarely invoked, discussed, or developed by the courts.

See generally MONOPOLI, supra note 2.

10. Jones v. DeSantis, 462 F. Supp. 3d 1196, 1239–40 (N.D. Fla. 2020).

11. When this paper calls for an independent analysis and holistic interpretation of the Nineteenth

Amendment, it means that a court should engage in a separate analysis of the Nineteenth—apart from

the Fifteenth Amendment—when interpreting its meaning. Judges should fully consider its distinct

constitutional history, rather than simply reasoning by rigid textual analogy to the Fifteenth

Amendment.

2022] GENDER, VOTING RIGHTS, AND THE NINETEENTH AMENDMENT 93