November 5, 2022
One hundred and fifty years ago today, American women turned out to vote in the presidential election, exercising their right to have a say in their government by choosing either Democratic candidate Horace Greeley or Republican incumbent Ulysses S. Grant.
Except they didn’t have that right explicitly. They were claiming it.
After the Civil War, lawmakers discussed what a newly reconstructed nation would look like and who would get to decide its parameters. Women who had worked for the survival of the United States government, given their sons and husbands to it, invested their money in it, nursed and sometimes fought for it, believed they had demonstrated their right to have a say in it. When Congress began to discuss the Fourteenth Amendment, overturning the 1857 Dred Scott decision of the Supreme Court denying that Black Americans could be citizens and protecting Black Americans from racially discriminatory laws in the South, suffragists demanded that their citizenship be included in that constitutional amendment.
Instead, the Fourteenth Amendment included the word “male” in the Constitution for the first time. The amendment specified that it protected the right of men—not women—to vote with its attempt to pressure states into allowing Black male suffrage by threatening to reduce congressional representation for any state that kept a significant number of men from the polls. It provided that “when the right to vote…is denied to any of the male inhabitants of [a] state, being twenty-one years of age, and citizens of the United States…, the basis of representation therein shall be reduced [proportionally].”
Outraged that they had been excluded, suffragists set their sights on the Fifteenth Amendment, protecting the right to vote. But when Congress passed it and sent it off to the states for ratification in 1870, the amendment said nothing about women’s suffrage. Indeed, it distinctly avoiding the word “sex” when it established 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 race, color, or previous condition of servitude.”
Fed up with trying to gain their rights through lawmakers, in 1872, suffragists took matters into their own hands. They decided to vote in the presidential election, arguing that the Fourteenth Amendment recognized their citizenship by virtue of its first section, which said: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” They were born in the United States, they pointed out, and therefore, according to the Fourteenth Amendment, were citizens.
In Rochester, New York, suffragist Susan B. Anthony led a group of women to the polls in November and successfully cast her vote for Grant. But Anthony was already famous for her long career as a reformer, making her a perfect figure for officials to use as an example. Three weeks after the election, authorities arrested her for voter fraud. She could not testify at her own trial and the judge wrote his opinion before it began, directing the jury to find her guilty. Anthony was fined $100 but refused to pay it, instead going on a speaking tour of New York in which she declared: “This government is not…a republic. It is an odious aristocracy; a hateful oligarchy of sex….”
Anthony’s case grabbed headlines, but it was the story of Virginia Minor that would change the next hundred years of our history. Minor was a suffragist in St. Louis, Missouri. She and her husband, Francis, had been instrumental in developing and publicizing the idea that women had the right to vote under the Fourteenth Amendment and that they should force that issue in 1872 by showing up at the polls.
On October 15, 1872, Minor had tried to register to vote in her St. Louis district, but the registrar, Reese Happersett, refused to enroll her on the grounds that she was female. Virginia’s husband sued—as a married woman she had no standing to sue on her own account—and the case wound its way up to the U.S. Supreme Court.
On March 29, 1875, the court handed down the Minor v. Happersett decision.
“There is no doubt that women may be citizens,” it said, but it went on to say that citizenship did not necessarily convey the right to vote. “[T]he constitutions and laws of the several States which commit that important trust to men alone are not necessarily void,” it wrote.
According to the Supreme Court, state governments, elected by white men, could discriminate against their citizens so long as that discrimination was not on the grounds of race, color, or previous condition of servitude.
The next year, white supremacists would take control of the South with the argument that Black men should not vote because they were poor and would vote for lawmakers who would promise roads, schools, and hospitals that could only be paid for with tax levies on white men. Such rules accumulated until in 1890, Mississippi codified this state-based system by putting into place a new constitution that limited voting to white men by imposing education requirements to be judged by white officials, lack of criminal record, and proof of tax paying. Soon, state constitutions across the country limited voting with all sorts of requirements that cut Black people out on grounds other than race.
In 1920 the Nineteenth Amendment to the Constitution, 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” overruled Minor v. Happersett on the issue of women’s suffrage. But the Supreme Court continued to use its guidelines for other restrictions until the 1960s, upholding literacy tests, poll taxes, and other rules designed to keep Black people from voting.
Finally, in 1966, almost 100 years after Virginia Minor sued, the Supreme Court decided that voting was a fundamental right protected by the Fourteenth Amendment.
And 50 years later—and 150 years after Anthony cast her vote—those of us who have not been cut out of the right to vote by one or another of the measures states are now imposing on their voters can exercise that right, and determine what our nation will look like, once again.
Richard Briffault, “The Contested Right to Vote,” Michigan Law Review, 100 (2002): 1521-1522.