Gender, Voting Rights, and the Nineteenth Amendment

53 Pages Posted: 6 Jul 2022

See all articles by Paula A. Monopoli

Paula A. Monopoli

University of Maryland Francis King Carey School of Law

Date Written: July 1, 2022

Abstract

One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that 'there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment'. This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct constitutional history and meaning. The unique historical context preceding and following the Nineteenth’s ratification militates for courts to adopt a holistic interpretative approach when considering a Nineteenth Amendment claim. Such an approach has both expressive and doctrinal implications, providing support for courts to adopt disparate impact, rather than intentional discrimination or discriminatory purpose, as a threshold standard for such claims. Reasoning beyond the text—from legislative intent, purposes, structure, and institutional relationships—could restore the lost constitutional history around the Nineteenth Amendment, making it a more potent tool to address gendered voter suppression today, especially for women of color. This paper provides a framework for judges willing to move away from rigid textual analogy toward a more holistic constitutional interpretation when evaluating a constitutional claim under the amendment.

Keywords: nineteenth amendment, enfranchise, voting rights, suffrage, constitutional construction, fifteenth amendment, equal protection, due process, vote suppression

Suggested Citation

Monopoli, Paula A., Gender, Voting Rights, and the Nineteenth Amendment (July 1, 2022). U of Maryland Legal Studies Research Paper No. 09, 2022, Georgetown Journal of Law & Public Policy, Vol. 20, 2022, Available at SSRN: https://ssrn.com/abstract=4152126

Paula A. Monopoli (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

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HOME PAGE: http://www.law.umaryland.edu/faculty_profile.asp?facultynum=083

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