Thank you for joining me for Women’s History Month. This year’s theme is “Valiant Women of the Vote: Refusing to Be Silenced.”
The conventional story of the right to vote in America describes a pattern of gradual and inevitable progress. Indeed, in his 1835 masterwork, Democracy in America, Alexis de Tocqueville identified “one of the most invariable rules of social behavior” as this: “Once a people begins to interfere with the voting qualification, one can be sure that sooner or later it will abolish it altogether.” But that is not what happened. The history of right to vote in America, and women’s suffrage in particular, is one of expansion and contraction, of punctuated equilibria, rather than gradual evolution.
New Jersey provides the earliest example. New Jersey adopted its post-American Revolution state constitution in 1776, and passed its first election laws in 1790. Those laws granted the vote to ‘‘all inhabitants’’ otherwise qualified, and women therefore voted in New Jersey alongside men. But by 1807, apparently in response to bloc voting by women that had affected the outcome of several elections, the New Jersey legislature replaced its original rules with a provision that “no person shall vote in any state or county election for officers in the government of the United States or of this state, unless such person be a free, white male citizen.”
In 1840, Elizabeth Cady Stanton and Lucretia Mott, two American antislavery activists attended the World Anti-Slavery Convention in London. There, they were struck by the irony that female abolitionists were denied access to the floor of the convention simply because they were women. So in 1848, they called the nation’s first women’s rights convention in Seneca Falls, New York. During the Seneca Falls meeting, Stanton read a “Declaration of Sentiments” modeled on the Declaration of Independence. Here is how the substantive discussion began:
“The history of mankind is a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her. To prove this, let facts be submitted to a candid world.
“He has never permitted her to exercise her inalienable right to the elective franchise.
“He has compelled her to submit to laws, in the formation of which she had no voice.”
Even so, the Resolution proposing “that it is the duty of the women of this country to secure to themselves their sacred right to the elective franchise” was the only one of the Convention’s eleven resolutions not to pass unanimously.
In the short run, the Declaration got nowhere. But the Civil War produced a profound change.
As early as 1862, Ulysses S. Grant observed that Black men who escaped slavery might ultimately serve in the Union Army and “it would be very easy,” if a man “fought well, eventually to put the ballot in his hand and make him a citizen.” And General William Tecumseh Sherman observed that “when the fight is over, the hand that drops the musket cannot be denied the ballot.” President Lincoln also endorsed black suffrage “on the basis of intelligence and military service.”
Stanton was hopeful that national expansion of the franchise would include women as well. Referring to the voting booth, she announced that women intended “to avail ourselves of the strong arm and the blue uniform of the black soldier to walk in by his side.”
But that was not to occur. Instead, the Constitution enshrined a sex-based distinction with regard to voting.
The Reconstruction Amendments eliminated, at least as a formal matter, racial restrictions on the right to vote. In the long run, the equal protection and due process clauses of the Fourteenth Amendment were to become the primary constitutional source protecting the right to vote, and courts were to use them to strike down a range of restrictions without regard to race.
But initially, the major voting rights provision in the Fourteenth Amendment was the reduction-of-representation clause, in section 2. That clause provided that a state’s representation in Congress (and hence its electoral college votes as well) would be reduced, in the Amendment’s words, “when the right to vote in any election...is denied to any male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime.”
The suffrage movement was quite alarmed by the proposed text of the amendment. As Stanton put it, ‘‘If that word ‘male’ be inserted, it will take us a century at least to get it out.’’ She and Susan B. Anthony sparked a nationwide debate in newspapers and the floor of Congress. More than 10,000 supporters of women’s rights wrote in protest to their Congressmen. Petitions protesting this aspect of Section 2 were presented on the floor of Congress on at least five occasions. Nonetheless, Congress adopted Section 2 with the word ‘‘male.’’ According to Stanton, a friend with access to the congressional deliberations reported that when one committee member proposed substituting ‘‘persons’’ for ‘‘males,’’ another replied, ‘‘That will never do, it would enfranchise wenches.’’
When Virginia Minor brought suit under the Fourteenth Amendment claiming that voting was a privilege or immunity of citizenship that Missouri had wrongly denied her because of her sex, the Supreme Court pointed to Section 2’s language. In 1874, in Minor v. Happersett, the Court declared itself “unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void.”
Minor’s suit was not only rejected unanimously by the Court, but it was considered frivolous. Missouri did not even send an attorney to Washington to argue the case. The Nation, then as now an avowedly progressive publication, published an editorial suggesting that the Court’s decision to give “precious time to the consideration” of her suit might “delay justice” given the “vast number of really important cases” the Court could have considered instead.
Nonetheless, things were beginning to change. In the Wyoming Territory, women had been enfranchised since 1869. In 1890, members of Congress suggested that they would not admit Wyoming as a state unless it repealed women’s suffrage—since as one senator predicted, allowing women to vote would lead to women serving in the military while men stayed at home to nurse the children. According to Justice Sandra Day O’Connor “Wyoming leaders replied that they would rather remain outside the Union than join without women as voters.” A few other newly admitted Western states followed suit.
But a half century after the Civil War, the suffrage movement, although it had attained victory in several western states, was bogged down in a state-by-state campaign to gain the right to vote.
World War I changed the dynamic. The industrial demands of modern war meant that women moved into the labor force and contributed to the war effort on the home front. In 1918, President Wilson, who had ignored suffrage completely in his 1916 address to Congress, gave an address in which he supported suffrage “as a war measure,” noting that the war could not be fought effectively without women’s participation.
Another more abstract connection was perhaps also at work. If the United States had gone to war to make the world “safe for democracy,” in President Wilson’s famous phrase, this raised the question whether America itself was truly democratic. Suffragists conscripted the rhetorical claims advanced in favor of the war into the service of arguments in favor of domestic expansion of voting rights. For example, as Justice O’Connor reported, “when the new Russian Republic extended the vote to women following its revolution, suffragists taunted President Wilson with the lack of similar progress in the United States.”
On August 18, 1920, three months after presidential candidate Warren G. Harding called for a return to “normalcy,” Tennessee became the thirty-sixth state to ratify the Nineteenth Amendment, which provided that “[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.” Charlotte Woodward, the last surviving women to have attended the Seneca Falls convention cast her first vote at the age of 90, declaring “I am going to the polls if they have to carry me.”
There has been relatively little litigation under the Nineteenth Amendment, in contrast to the tremendous amount of litigation under the Fourteenth and Fifteenth Amendments. But that is not at all to say that the struggle for women’s suffrage ended in 1920. This brings us to one of the most Valiant Women of the Vote: Fannie Lou Hamer.
While the Nineteenth Amendment conferred the right to vote on white women throughout the United States, Black women in the South remained effectively disenfranchised until the Civil Rights Movement of the 1960s. In Mississippi, for example, as late as 1964, fewer than seven percent of Black residents were registered to vote. Mrs. Hamer was instrumental in changing that.
Born into a sharecropping family, and a sharecropper herself, Mrs. Hamer became active in the voting rights movement in 1961. In August 1962, she led a small group of citizens to the Indianola Courthouse where they attempted to register. After their applications were denied on the basis of the Mississippi literacy test, the group was harassed on its way home. Police stopped the school bus in which they were traveling and fined them $100 on the grounds that the bus was too yellow.
That night, the landlord came by Mrs. Hamer’s home and said, “If you don't go down and withdraw your registration, you will have to leave.” And then he told her that even if she did withdraw her application, “you still might have to go because we are not ready for that in Mississippi.” Here’s how Mrs. Hamer responded:
“I didn't try to register for you. I tried to register for myself.”
She had to leave home that same night.
Nevertheless, Mrs. Hamer persisted, even after she was arrested, and savagely beaten, for her voting rights efforts.
In 1964, as a member of the Mississippi Freedom Democratic Party, Mrs. Hamer went to Atlantic City for the Democratic Convention. The Freedom Democratic Party sought to be seated, as a racially integrated state delegation, in place of the all-white segregated delegation that Mississippi had sent.
Mrs. Hamer’s testimony about the denial of voting rights—the beatings, the arrests, the economic retaliation, and the lack of basic human respect—galvanized the nation. She ended her testimony with these words, which should be a challenge to us all:
“All of this is on account of we want to register, to become first-class citizens. And if the Freedom Democratic Party is not seated now, I question America. Is this America, the land of the free and the home of the brave, where we have to sleep with our telephones off the hooks because our lives be threatened daily, because we want to live as decent human beings, in America?”
Perhaps Mrs. Hamer’s most famous line came in an interview shortly before her appearance in Atlantic City.
“All my life I've been sick and tired. Now I'm sick and tired of being sick and tired.”
It is because of valiant women of the vote like her, who refused to be silenced even when they were sick and tired, that the United States has come closer to the Constitution’s aspiration of “securing the Blessing of Liberty” to all “our posterity.”
Thank you.
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Pamela S. Karlan, Principal Deputy Assistant Attorney General of the Civil Rights Division, Delivers Remarks in Recognition of Women's History Month - Department of Justice
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