Mary Lou Graves, Nolen Breedlove, and the Nineteenth Amendment

• Author: Ellen D. Katz
• Position: Ralph W. Aigler Professor of Law, University of Michigan Law School
• Pages: 59-89

Mary Lou Graves, Nolen Breedlove, and the

Nineteenth Amendment

ELLEN D. KATZ*

ABSTRACT

This close examination of two cases is part of a larger ongoing project to

provide a distinct account of the Nineteenth Amendment. In 1921, the Alabama

Supreme Court held the Nineteenth Amendment required that any poll tax be

imposed equally on men and women. Sixteen years later, the Supreme Court

disagreed. Juxtaposing these two cases, and telling their story in rich context,

captures my larger claim that—contrary to the general understanding in the

scholarly literature—the Nineteenth Amendment was deliberately crafted as a

highly circumscribed measure that would eliminate only the exclusively male

franchise while serving steadfastly to preserve and promote social hierarchies

more generally, specifically those based on race and gender.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

I. SUSTAINING ALABAMA’S RACIAL ORDER . . . . . . . . . . . . . . . . . . . . 62

II. MAINTAINING GEORGIA’S GENDER HIERARCHY . . . . . . . . . . . . . . . 72

III. THE NINETEENTH AMENDMENT AND OCCAM’S RAZOR . . . . . . . . . . 81

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

INTRODUCTION

Ratified in 1920, the Nineteenth Amendment provides that “[t]he right of citi-

zens of the United States to vote shall not be denied or abridged by the United

States or by any State on account of sex.”

1

At the time, laws in thirty-three States

explicitly restricted the right to vote to men in some or all types of elections.

2

The

* Ralph W. Aigler Professor of Law, University of Michigan Law School. Thanks to Daniel

Halberstam, Don Herzog, Richard Primus, and the participants in the Seventh Annual Salmon P. Chase

Distinguished Faculty Colloquium for comments, and to Lauren Shusterman, Diane Kee, Elena Meth,

and Laurel Ruza for excellent research assistance. © 2022, Ellen D. Katz.

1. U.S. CONST. amend. XIX, cl. 1.

2. See ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE

UNITED STATES 365–68 (rev. ed. 2009) (listing states with such electoral restrictions).

59

Nineteenth Amendment easily dispensed with these laws,

3

thereby eliminating an

obstacle that had blocked roughly twenty-seven million women from casting bal-

lots.

4

Numerous barriers to participation nevertheless remained, and questions

quickly arose as to whether the new Amendment undermined other gender-based

distinctions within the electoral process and, indeed, well beyond it.

The assessment of poll taxes was one arena in which this issue emerged. In

1920, eleven States required voters to pay a poll, or capitation, tax as a prerequi-

site to voting.

5

Thirteen states assessed a poll tax at the time, but Nevada and New Hampshire did not make

payment a prerequisite to voting. See KEYSSAR, supra note 2, at 334–35 (listing Alabama, Arkansas,

Florida, Georgia, Louisiana, Mississippi, Nevada, New Hampshire, North Carolina, South Carolina,

Tennessee, Texas, and Virginia as requiring a poll tax at this time); Steve George, Campaigning, Voter

Registration, and Casting Ballots in Nevada, in POLITICAL HISTORY OF NEVADA 168 (Barbara K.

Cegavske, ed.); NEV. CONST. art. II, § 7 (repealed 1966); New Hampshire Unaffected, N.Y. TIMES, Jan.

18, 1964, at 12,https://www.nytimes.com/1964/01/18/archives/new-hampshire-unaffected.html [https://

perma.cc/LJM6-7N4E]; Marcus Hurn, State Constitutional Limits on New Hampshire’s Taxing Power:

Historical Development and Modern State, 7 PIERCE L. REV. 251, 253 (2008).

States assessed these taxes well in advance of an election and

required voters to present proof that they paid the tax in order to cast a ballot.

6

Several States made this requirement even more stringent by imposing cumula-

tive obligations, such that would-be voters needed to pay not only the tax

assessed for the given year but all taxes past due in order to vote.

7

Ratification of

the Nineteenth Amendment gave rise to disputes as to whether States now needed

to set identical poll tax obligations for men and women.

This Essay examines two rulings that addressed this question. In the 1921 deci-

sion Graves v. Eubank, the Alabama Supreme Court held that the Nineteenth

Amendment “placed all women in the state upon the same footing with men” and

thus prohibited Alabama from “placing conditions or burdens upon one [sex] not

placed upon the other as a condition precedent to the right to vote.”

8

Sixteen years

later, the United States Supreme Court overruled Graves in Breedlove v. Suttles

and held that nothing in the Nineteenth Amendment limited Georgia’s power to

discriminate between men and women when setting poll tax requirements.

9

Where Graves suggested the Nineteenth Amendment set forth a broad principle

of gender equality that extended throughout the electoral process, Breedlove saw

a narrow prohibition targeting only those state laws that explicitly limited the

3. See, e.g., Brown v. City of Atlanta, 109 S.E. 666, 672 (Ga. 1921) (calling the Nineteenth

Amendment “self-executing” and stating “that under it females are not now disqualified on account of

their sex to register and to vote, but on the contrary they are qualified” (citations omitted)).

4. See ELAINE WEISS, THE WOMAN’S HOUR: THE GREAT FIGHT TO WIN THE VOTE 1 (2018).

5.

6. See FREDERIC D. OGDEN, THE POLL TAX IN THE SOUTH 44–54 (1958) (describing variations

among States in timing of poll tax assessment and proof of payment).

7. See id. at 32–38 (describing operation of cumulative poll taxes in Alabama, Georgia, Mississippi,

and Virginia); J. MORGAN KOUSSER, THE SHAPING OF SOUTHERN POLITICS: SUFFRAGE RESTRICTION AND

THE ESTABLISHMENT OF THE ONE-PARTY SOUTH, 1880–1910, at 65 (1974) (discussing Florida as well);

see also RICHARD M. VALELLY, THE TWO RECONSTRUCTIONS: THE STRUGGLE FOR BLACK

ENFRANCHISEMENT 50, 157 (2004) (noting that Florida abolished its poll tax in 1936; Georgia adopted a

cumulative tax in 1877).

8. 87 So. 587, 588 (Ala. 1921).

9. 302 U.S. 277, 284 (1937).

60 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:59