Commemorating the Forgotten Intersection of the Fifteenth and Nineteenth Amendments

St. John's Law Review Volume 94 Number 4 Volume 94, Winter 2022, Number 4 Article 4 Commemorating the Forgotten Intersection of the Fifteenth and Nineteenth Amendments Taunya Lovell Banks Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Part of the Constitutional Law Commons, Law and Gender Commons, and the Law and Race Commons This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . ARTICLES COMMEMORATING THE FORGOTTEN INTERSECTION OF THE FIFTEENTH AND NINETEENTH AMENDMENTS TAUNYA LOVELL BANKS† The women’s rights movement, throughout its history, defined its priorities with reference to white middle- or upper-class women. Thus “discrimination that affected all women” included the right of owning property but not [B]lack women’s voting rights.1 I. INTRODUCTION This year we commemorate the one hundredth anniversary of the Nineteenth Amendment’s ratification.2 I use the term commemorate instead of celebrate because it is important to remember that this anniversary is also a time to reflect on the lost opportunities to advance equality for all one hundred years ago. This reflection seems especially appropriate in a presidential election year rife with accusations of voter suppression.3 First, a caveat about terminology. We commonly speak of the Nineteenth Amendment as conferring the right to vote on † Jacob A. France Professor of Equality Jurisprudence, Francis King Carey School of Law, University of Maryland. An earlier version of this essay was delivered as the keynote address at the 2020 St. John’s Law Review Symposium on the Nineteenth Amendment, held Friday, October 23, 2020. The author thanks her colleague Paula Monopoly for her helpful comments on an earlier version of this essay. 1 Ronnie L. Podolefsky, The Illusion of Suffrage: Female Voting Rights and The Women’s Poll Tax Repeal Movement After the Nineteenth Amendment, 7 COLUM. J. GENDER & L. 185, 221 (1997) (internal citations omitted). 2 See U.S. CONST. amend. XIX. 3 Jonathan Martin & Maggie Haberman, Trump Hopes to Use Party Machinery to Retain Control of the G.O.P., N.Y. TIMES, Nov. 23, 2020, https://www.nytimes.com/2020/11/23/us/trump-hopes-to-use-party-machinery-toretain-control-of-the-gop.html; see also TERRY SMITH, WHITELASH: UNMASKING WHITE GRIEVANCE AT THE BALLOT BOX 135 (2020). 899 900 ST. JOHN’S LAW REVIEW [Vol. 94:899 women, but that is not what the actual text says. It reads: “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.”4 Any right to vote is conferred by the state, not the federal constitution. The Nineteenth Amendment, like its cousin the Fifteenth Amendment—which applies to race—only prohibits states from disqualifying someone from becoming a voter due to sex.5 What we casually call the right to vote is actually a franchise—a privilege, that the state can choose to confer or The Framers had a deep “distrust of direct withhold.6 democracy.”7 They consciously chose not to include voting as a constitutional right, instead giving the states the power to determine voter qualifications.8 According to the United States Supreme Court, “[s]tates . . . have broad powers to determine the 4 U.S. CONST. amend. XIX. See U.S. CONST. amend. XV. 6 See Minor v. Happersett, 88 U.S. 162, 164 (1875) (finding the right to vote not included in the privileges and immunities of federal citizens); see also Pope v. Williams, 193 U.S. 621, 632 (1904) (holding that nothing in the federal constitution confers “[t]he privilege to vote”). 7 ALLAN J. LICHTMAN, THE EMBATTLED VOTE IN AMERICA: FROM THE FOUNDING TO THE PRESENT 18 (2018). The Jurist William Blackstone opined that: The true reason of requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. If these persons had votes, they would be tempted to dispose of them under some undue influence or other. Robert Crutchfield, Abandon Felony Disenfranchisement Policies, 6 CRIM. & PUB. POL’Y 707, 708 (2007). 8 A few scholars argue that the Supreme Court, at least during the Warren era, treated voting as a fundamental right. See John M. Greabe, A Federal Baseline for the Right to Vote, 112 COLUMBIA L. REV. SIDEBAR 62, 68 & n.53 (2012) (citing ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 1080-81 (3d ed. 2009), which is Dean Erwin Chemerinksy’s constitutional law text that cites several landmark cases decided by the Warren Court); see also Joshua A. Douglas, Is the Right to Vote Really Fundamental?, 18 CORNELL J. L. & PUB. POL’Y 143, 149–50 (2008). But see, for example, recent Supreme Court decisions upholding picture identification requirements to vote in elections like Crawford v. Marion Co. Election Bd., 553 U.S. 181, 188–89 (2008). Also, the summary treatment by the Court of two absentee ballot requirements for photo identification during the 2020 election seem inconsistent with the view that voting is a fundamental right. See, e.g., Texas Dem. Party v. Abbott, 140 S.Ct. 2015, 2015 (2020) (denying motion to expedite consideration of a law not allowing most voters under sixty-five to vote absentee in light of the pending election) & Merrill v. People First of Alabama, No. 20A67 (a fiveto-four decision staying a lower court decision blocking restrictions requiring that voters provide a photo identification card with their absentee ballot, and have the ballot signed by two witnesses or a notary public.). Some scholars concede this point. Douglas, supra, at 144–46 (conceding that courts do not always treat restrictions on voting as fundamental rights issues). 5 2020] THE FORGOTTEN INTERSECTION 901 conditions under which the right of suffrage may be exercised, absent of course the discrimination which the Constitution As one scholar notes, the decision not to condemns.”9 constitutionalize the vote, consigning voter qualifications to the individual states, “reinforced the established view of the time that the vote, however essential to a popular government, was not a natural right but a privilege conferred by government and subject to constitutional and statutory limitations.”10 In commemorating the one hundredth anniversary of the Nineteenth Amendment it is important to note that the quest for women’s first-class citizenship, which I define as equal participation in all aspects of the American political process, has not been achieved. While white women have greater access to the franchise than non-whites, they are not necessarily considered political equals on the ballot. Legal scholar Reva Siegel points out that fifty years after ratification of the Nineteenth Amendment “women . . . were barely represented in Con (...truncated)