Thursday, April 7, 2022

Reading the Nineteenth Amendment as Preserving Racial and Gender Social Hierarchies

Ellen D Katz, Mary Lou Graves, Nolen Breedlove, and the Nineteenth Amendment, forthcoming Georgetown Journal of Law & Public Policy, Vol. 20.

In 1920, eleven States required voters to pay a poll, or capitation, tax as a prerequisite to voting. 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. Several States made this requirement even more stringent by imposing cumulative 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. 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 decision 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.” 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. 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 electorate to men. Graves and Breedlove thus adopted facially incompatible views of the Nineteenth Amendment’s reach.

Read together, Graves and Breedlove are fodder for the narrative, pressed by assorted scholars for decades, that judges, legislators, and other public officials have long read the Nineteenth Amendment too narrowly. These scholars claim that the Amendment is best read to set forth a robust equality norm or, even more broadly, an anti-subordination principle that should have displaced a broad swath of regulations that made or promoted gender-based distinctions.

On this view, decisions like Breedlove failed to implement the Amendment as intended because the Court read it to allow a gender-specific poll tax. By contrast, claims of the sort found in cases like Graves—that, for instance, the Nineteenth Amendment “placed all women . . . upon the same footing with men”—are viewed more favorably. Language of this sort is seen to suggest the possibility of a different storyline, one in which the Nineteenth Amendment was understood to embrace broad equality and anti-subordination principles. This interpretation insists that the Amendment should have occupied a more central place in the fight for gender equality and that it might yet be deployed productively in ongoing disputes.

This Essay relies on a close examination of Graves and Breedlove to introduce a competing account of the Nineteenth Amendment. The underlying claim, which I develop elsewhere in more detail, is that the Nineteenth Amendment was never meant to promote a broad equality principle, much less an anti-subordination norm. Instead, it was crafted as a deliberately circumscribed measure that would eliminate the male-only electorate while preserving and promoting existing social hierarchies. More specifically, advocates of the Nineteenth Amendment repeatedly promised that women could be included in the electorate without destabilizing either the traditional family or white supremacy. Indeed, these advocates promised that women voters would bolster both hierarchies. These promises, while not universally endorsed, dominated discussion of the
Amendment, particularly in the years closest to ratification, and were the ones that shaped how the Amendment was read and applied.

On this understanding of the Amendment, cases like Graves and Breedlove look more harmonious than their seemingly conflicting holdings might otherwise suggest. In particular, this Essay seeks to show that both Graves and Breedlove manifested a determination to preserve existing social hierarchies and read the Nineteenth Amendment to mandate such preservation.

For its part, Graves made sure that newly enfranchised women voters would not threaten the existing racial hierarchy. Graves did so by holding that the Nineteenth Amendment barred Alabama from exempting women voters from the poll tax that it collected from men.

Constitutional, Legal History, Race | Permalink


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