The Case That Crushed Women's Suffrage--and the Right to Vote

Voting Rights Academy: Minor v. Happersett

There are a number of major Supreme Court decisions about voting rights that have been lost in time. Cases from from the 1870s through the 1890s that absolutely decimated the force and impact of the 14th and 15th Amendments, and crushed democracy for much of the 20th century—confined to mere footnotes if mentioned at all. I like to dig through these cases not only because of their historic import, but because their style, approach and outcomes bear a lot of similarity to the current Supreme Court’s approach to cases impacting voting rights and democracy. They also provide yet another reminder of how much activists had to fight through to make progress for our democracy.

Here’s another such case:

In the election of 1872, two women suffragists—one a household name and one far less known beyond her own state—tried to vote.

They both assumed…expected…to be denied.

In fact, that was the point. Their goal.

Frustrated by recent rebuffs in enshrining a woman’s right to vote into the Constitution, and not satisfied with a state-by-state strategy, this was their plan B: attempt to vote, be denied, then bring a lawsuit to enshrine a woman’s right to vote in American law. In the end, hundreds of women participated.

For the nationally famous Susan B. Anthony, the plan veered off course immediately. Because when she registered and then voted in Rochester, officials actually let her do it. She wrote to a friend that she’d proudly voted for Ulysses Grant and Republican candidates all the way down her ballot. Weeks later, she was arrested and criminally charged for voting illegally. After a high-profile jury trial, a judge ultimately ruled from the bench (not allowing the jury to weigh in) that she was guilty. He ordered a $100 fine, which Anthony would refuse to pay for the rest of her life. But the judge did not send her to jail. That sequence of events deprived Anthony of the argument she’d hoped to make at the Supreme Court to establish the right to vote.

Which left that argument to others who also voted illegally. And it ultimately fell on the shoulders of a less known suffragist who also tried to vote in the same election, in Missouri.

Originally from Virginia, Virginia Minor had married a man named Francis Minor, moved to St. Louis, worked as a volunteer hospital worker, and had started the Women Suffrage Association of Missouri several years after the Civil War (and after her only child’s death as a teenager). She’d led the group ever since.

In coordination with Anthony, she also planned to vote in the 1872 election in St. Louis. But in October, as expected, a St. Louis election registrar named Reese Happersett denied Minor’s attempt to register because the Missouri Constitution was explicit that that only men could vote.

Because married women were unable to bring suit back then, her husband sued Happersett for violating his wife’s right to vote.

They lost the case at the local and State Supreme Court level. Unlike Anthony, this gave Virginia Minor the opportunity to appeal the case to the Supreme Court.

There, Francis Minor—on her behalf—argued that the 14th Amendment granted women the right to vote, a legal position Virginia Minor had been asserting since the Amendment’s ratification in 1868. Among his arguments: “It is impossible that this can be a republican government, in which one-half the citizens thereof are forever disenfranchised.”

This was the moment the more radical wing of the suffragist movement had been anticipating for years.

But one they would soon dread.

The unanimous decision against Minor delivered a devastating defeat to women’s suffrage in America—ultimately forcing them to pursue an entirely different strategy that would take another fifty years (decades after Minor’s death) to fulfill.

And along the way, the decision greatly limited the “right to vote” more broadly. Despite the 14th and 15th Amendments, the Court reaffirmed the very narrow scope of voting spelled out in the original Constitution, while declaring that nothing about the recent Amendments changed that original, crabbed view of voting. The consequences of that aspect of the ruling would take well beyond 1920 to overcome. Indeed, we still live with its repercussions today.

Legal Backdrop

Although many women suffragists had been active in the abolitionist movement, many of those same activists were livid about the XIV Amendment.

Not because it established citizenship, granted equal protection and due process to all Americans. That language from Section 1 presented a potential opportunity for equality.

No, they were livid because for the first time, the XIV Amendment referenced gender explicitly in the American Constitution—and did so in a way that risked dealing a huge setback to the suffragists’ cause.

The offending provision appeared in Section 2 of the Amendment. It was a clause (never acted upon) meant to penalize Southern states which attempted to suppress the right to vote of former slaves while still benefitting from the larger representation (and greater electoral power) those former slaves provided in the Halls of Congress. So Section 2’s mechanism for dealing with that was to reduce states’ representation in proportion to that denial of the right to vote back in those states.

BUT in structuring that mechanism, the Amendment limited it to the suppression of male votes:

“when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the 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 basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.”

That’s a lot of words, stated in complicated legalese, but the meaning could not have been more clear: states would be penalized for abridging the “the right to vote” of male inhabitants—but not for abridging the right to vote for female inhabitants.

Suffragists knew that, enshrined in the Constitution itself, such differential treatment greatly risked long-sought women’s suffrage. So much so, leading suffragists like Susan B. Anthony and Elizabeth Cody Stanton split with former civil rights allies to publicly oppose the 14th Amendment—and later the 15h Amendment (which did not correct the problem by including gender, or establishing universal suffrage, as they’d hoped).

After both Amendments passed, suffragists faced two potential paths: 1) a state-by-state battle to enshrine women’s suffrage into each state’s laws or Constitutions; or 2) a national legal strategy to establish women’s suffrage from other sections of the new Amendments.

More moderate activists chose the first path. But Anthony, Stanton and Virginia Minor chose the latter, which led to their—and Virginia Minor’s—attempts to vote in 1872.

Which brings us to the Supreme Court case in 1874.

The Argument

The argument the Minors made at the United States Supreme was grounded in one particular clause of the Fourteenth Amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Voting, they asserted, was surely a “privilege or immunity” of citizenship. So Missouri’s law barring Virginia Minor from voting violated her 14th Amendment rights.

As the Court itself sums up: “The argument is that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the state in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship which the state cannot by its laws or constitution abridge.”

The Court then proceeded to address that argument.

The Decision

Women Are Indeed Citizens

To start, the Court (in an opinion written by Chief Justice Waite, who also wrote the Cruikshank opinion I addressed a few weeks ago) dedicates much of the opinion answering whether women are, by law, citizens of the United States in the first place.

Mercifully, after probing analysis, he concludes that they indeed are:

“There is no doubt that women may be citizens. They are persons, and by the Fourteenth Amendment 'all persons born or naturalized in the United States and subject to the jurisdiction thereof’ are expressly declared to be ‘citizens of the United States and of the state wherein they reside.’ But in our opinion it did not need this amendment to give them that position.”

Waite goes on to explore history, language and law in a search for clues as to whether women should be considered citizens, and concludes there are many: “alien women and alien minors could be made citizens by naturalization, and we think it will not be contended that this would have been done if it had not been supposed that native women and native minors were already citizens by birth.” He further finds “abundant proof [] in the legislative and judicial history of the country” that women are citizens, including in a multitude of cases in which “her right to citizenship has been in all cases assumed.”

Together this proof makes clear that Virginia Minor “has always been a citizen from her birth and entitled to all the privileges and immunities of citizenship. The [XIV] amendment prohibited the state, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States, but it did not confer citizenship on her. That she had before its adoption.”

So, step 1 of Minor’s case—that she is a citizen—is accomplished!

Onto Step 2.

Voting is Not a Privilege or Immunity of Citizenship

Waite takes up the next part of Minor’s argument: what are the privileges and immunities of federal citizenship?

To get there, he first concludes that the XIV Amendment did not supplement or change the rights of federal citizenship: “The amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it….[T]he Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted.”

And this leads Waite to search back into the original Constitution, and ask whether it granted the right to vote as a privilege and immunity of federal citizenship:

“The Constitution does not define the privileges and immunities of citizens. For that definition we must look elsewhere. In this case, we need not determine what they are, but only whether suffrage is necessarily one of them.”

The Justice then takes a tour of the original Constitution’s reference to voting and voting rights, concluding that voting was not understood as a part federal citizenship:

“The United States has no voters in the states of its own creation. The elective officers of the United States are all elected directly or indirectly by state voters. The members of the House of Representatives are to be chosen by the people of the states, and the electors in each state must have the qualifications requisite for electors of the most numerous branch of the state legislature.”

“This makes it proper to inquire whether suffrage was coextensive with the citizenship of the states at the time of its adoption….

The Court then scans state suffrage laws at the time of the Founding, pointing to numerous states where women and others were prohibited from voting: “Women were excluded from suffrage in nearly all the states by the express provision of their constitutions and laws.” And following the enactment of the new Constitution, “no new state has ever been admitted to the Union which has conferred the right of suffrage upon women, and this has never been considered a valid objection to her admission.”

Against that backdrop, “In this condition of the law in respect to suffrage in the several states, it cannot for a moment be doubted that if it had been intended to make all citizens of the United States voters, the framers of the Constitution would not have left it to implication. So important a change in the condition of citizenship as it actually existed, if intended, would have been expressly declared.”

Instead, the Constitution explicitly deferred to states to define who could vote: “it cannot for a moment be doubted that if it had been intended to make all citizens of the United States voters, the framers of the Constitution would not have left it to implication. So important a change in the condition of citizenship as it actually existed, if intended, would have been expressly declared.”

“Certainly if the courts can consider any question settled, this is one. For nearly ninety years, the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage.”

So, voting was not part of federal citizenship at the Founding. And it was not added as a “privilege or immunity” in the Fourteen Amendment. Which pretty much ends Minor’s case.

But the Court doesn’t stop there. Instead, it piles on by addressing the very aspect of the Fourteenth Amendment that had so enraged suffragists a few years prior: the mention of male citizens and not female citizens in Section 2:

“Why this if it was not in the power of the legislature to deny the right of suffrage to some male inhabitants? And if suffrage was necessarily one of the absolute rights of citizenship, why confine the operation of the limitation to male inhabitants? Women and children are, as we have seen, "persons." They are counted in the enumeration upon which the apportionment is to be made, but if they were necessarily voters because of their citizenship unless clearly excluded, why inflict the penalty for the exclusion of males alone? Clearly no such form of words would have been selected to express the idea here indicated if suffrage was the absolute right of all citizens.”

The Fifteenth Amendment provided even further proof: “The Fourteenth Amendment had already provided that no state should make or enforce any law which should abridge the privileges or immunities of citizens of the United States. If suffrage was one of these privileges or immunities, why amend the Constitution to prevent its being denied on account of race?”

The Court concludes: “the Constitution of the United States does not confer the right of suffrage upon anyone, and that the constitutions and laws of the several states which commit that important trust to men alone are not necessarily void.”

The Aftermath

And with that, not only was the cause of women’s suffrage dealt a setback that would take nearly 50 years to overcome, but (along with other cases reaching similar conclusions) a very cramped general view of voting was locked into place for almost a century.

Once the Court declares that there is no affirmative right to vote in the Constitution—that it’s not included as part of the “privileges and immunities” of citizenship (or anywhere else)—and that is only cast as a negative right (it can’t be denied based on race), that opens the door to decades of voter suppression tools which, because they don’t explicitly mention race, are upheld by the court.

Poll taxes. Literacy tests. Other types of discretionary regulations aimed at Black voters.

All become tools that infringe on the voting of scores of Americans—disproportionately Black Americans, poor Americans, and other groups. But since the Court ruled that voting is not a privilege of citizenship, and because these laws do not explicitly refer to race, the Court upholds them all.

With their legal strategy dead, suffragists pursued the other path available to them: a state by state (and territory by territory) battle to enshrine the right to vote at the state level, and ultimately, into the federal Constitution. By 1912, nine Western states (largely new states) included women’s suffrage in their state Constitutions.

Virginia Minor never stopped fighting for suffrage. She passed away in 1894, just as those first states began to allow women to vote. Twenty-six years later, the XIX Amendment would take effect.

But Minor's legacy carried on in another way.

She and Anthony’s legal strategy was essentially an act of civil disobedience. Attempt to break the law, creating a “test case” allowing a litigant to challenge that law’s propriety. While unsuccessful for Minor, this strategy would form the basis of the long-term legal strategy that opened up the right to vote, and struck down laws of segregation, over the course of the 20th century.

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It’s a long battle, folks. Never stop.