I am very pleased to welcome to ELB Book Corner several contributors to The Oxford Handbook of American Election Law (Eugene D. Mazo ed. 2024). The 30% discount code for ELB readers is ALAUTHC4. The seventh contribution is from Pam Karlan:
My chapter addresses election law and gender. Laws governing the right to vote can operate on several levels. Some provisions govern participation—the basic right of suffrage. Some set rules about aggregation—how voters’ ballots are combined to determine election outcomes. Still others implicate governance—how representatives chosen by the voters engage in policymaking.
In this blog post, I’ll discuss how these issues played out between the ratification of the Nineteenth Amendment and the outbreak of World War II because that’s probably the period least familiar to readers of the blog.
In contrast to the Fifteenth Amendment, whose text served as the model for the Nineteenth Amendment, and which was widely flouted across the south until the 1960s, there was little resistance to the Nineteenth Amendment. One attack on the amendment did reach the U.S. Supreme Court. A male voter in Maryland, represented by William Marbury (yes, a descendent of that Marbury) sued to have several women’s names removed from the voting rolls. The Maryland Legislature had refused to ratify the Nineteenth Amendment, and he claimed that “so great an addition to the electorate, if made without the state’s consent, destroys its autonomy as a political body.” The Supreme Court, in an opinion by Justice Brandeis, unanimously rejected this claim.
Although the Nineteenth Amendment swept away sex-specific legal barriers to women’s voting, female turnout lagged behind male turnout for many decades. Indeed, it was not until at least 1980 that the participation gap largely disappeared.
There are a variety of explanations for the gap. Among other things, at least two formally sex-neutral legal restrictions on the franchise—the literacy test and the poll tax—continued to affect women’s participation until the mid-1960s, when federal legislation and judicial decisions abolished them.
It is unclear to what extent literacy tests had a disparate impact on women; there appear to be no empirical studies on the subject. Nevertheless, the absolute effect on female participation was substantial: literacy tests, often unfairly administered, certainly disenfranchised massive numbers of Black and Latina women in the south and southwest. And Puerto Rico actually imposed a sex-based literacy qualification between 1929 and 1935.
The poll tax also had a significant impact on female turnout. For example, when Louisiana abolished its poll tax in 1934, the number of male voters increased by about 25 per cent. But the women’s vote nearly doubled. And when Alabama eased its requirement for paying prior poll taxes, survey data suggested that 57 percent of the new registrants were female.
One suggestion for why this is so is embedded in the Supreme Court’s only substantive decision addressing the Nineteenth Amendment, Breedlove v. Suttles. Nolan Breedlove challenged Georgia’s version of the tax, levied on all inhabitants of the state between the ages of 21 and 60, because it exempted women who did not register to vote. The Court, in a short, unanimous opinion, rejected his claim. With respect to the Nineteenth Amendment claim, the Court emphasized that requiring inhabitants to pay the tax did not deny or abridge the right to vote “on account of sex.” As a logical matter, the Court was correct: women who wanted to vote were not exempted; male and female voters therefore paid exactly the same tax. But when the Court dispatched Breedlove’s Fourteenth Amendment argument—that the selective exemption of nonvoting women from the tax violated equal protection—it did so on the grounds that the exemption was rational: Imposing the tax on nonvoting women would add to the burden on their husbands —presumably because all the family’s assets were his to control.
2. Gender and Aggregation
Both suffragists and their opponents had long argued that the enfranchisement of women would change election outcomes. The assumption was that women’s values differed materially from men’s and they would therefore support different candidates or vote differently on ballot propositions. But a year before the amendment was ratified, scholars William F. Ogburn and Inez Goltra figured out a technique for getting around the difficulty that “women’s ballots are not distinguished from those of men but are deposited in the same ballot box.” Their article presented the first known example of a technique that subsequently became a cornerstone of vote dilution cases: inferring individual behavior from election returns through statistical methods such as regression analyses.
Bearing out the common wisdom, the highest correlation coefficient they found involved an initiative to impose prohibition, where women were quite a bit more supportive than men. And throughout the interwar period, there were seldom statistically significant differences between male and female voters’ support for particular candidates or political parties—a contrast to the current gender gap.
3. Gender and Governance
Throughout the interwar period, there was a huge disparity between the number of male and female elected officials. The dearth of female office-holders was not, however, directly attributable to continued legal restrictions on the election of women. Early on, it had been unclear what effect the Nineteenth Amendment would have on state laws that limited certain offices to “male citizens.” But most states concluded, as the New Hampshire Supreme Court put it, that “the rights of electing and being elected are equal,” and therefore that sex-based restrictions on the former having being abolished by the Nineteenth Amendment, sex-based restrictions on the latter should fall as well. States therefore eliminated the restrictions through legislation, constitutional amendment, or judicial reconstruction of their statutes. But it was not until 1943 that Oklahoma became the final state to abolish all sex-based restrictions on office-holding. And the gap still has not been completely erased.