Thin and Thick Conceptions of the Nineteenth Amendment Right to

ARTICLES

Thin and Thick Conceptions of the Nineteenth

Amendment Right to Vote and Congress’s Power to

Enforce It

RICHARD L. HASEN* & LEAH M. LITMAN**

This Article, prepared for a Georgetown Law Journal symposium on the

Nineteenth Amendment’s one-hundred-year anniversary, explores and

defends a “thick” conception of the Nineteenth Amendment right to vote

and Congress’s power to enforce it. A “thin” conception of the Nineteenth

Amendment maintains that the Amendment merely prohibits states from

enacting laws that prohibit women from voting once the state decides to

hold an election. And a “thin” conception of Congress’s power to enforce

the Nineteenth Amendment maintains that Congress may only supply rem-

edies for ofﬁcial acts that violate the Amendment’s substantive guarantees.

This Article argues the Nineteenth Amendment does more. A “thick”

understanding

of the Nineteenth Amendment’s substantive right is con-

sistent with the Amendment’s text and history, as well as with a synthetic

interpretation of the Constitution and its expanding guarantees of voting

rights. The thick understanding of the Nineteenth Amendment would

allow voting-rights plaintiffs to attack restrictive voting laws burdening

women—especially those laws burdening young women of color, who are

also guaranteed nondiscrimination in voting on the basis of age and

race. A thick understanding of Congress’s power to enforce the

Nineteenth Amendment would give Congress the ability to pass laws pro-

tecting women from voter discrimination and promoting their political

equality. The thick understanding offers a way to redeem the Amendment

from some of its racist origins and entanglement with the sexism that lim-

ited the Amendment’s reach. It also reinforces the democratic legitimacy

of the Constitution. Nonetheless, the current Court is unlikely to embrace

a thick understanding of the Nineteenth Amendment.

Hasen & Leah M. Litman.

** Assistant Professor of Law, University of Michigan Law School. The authors thank Erwin

Chemerinsky, Ellen DuBois, Steve Kolbert, Paula Monopoli, Neil Siegel, Reva Siegel, and Adam

Winkler for very helpful comments, Hannah Bartlett (UC Irvine, class of 2021) and Emma Rosen

(University of Michigan, class of 2021) for excellent research assistance, Christina Tsou and Dianna

Sahhar for wonderful research assistance, and Judge M. Margaret McKeown and the editors of The

Georgetown Law Journal for inviting us to contribute this Article to the 19th Amendment Special

Edition.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

I. J

USTIFYING A THICK READING OF THE NINETEENTH AMENDMENT . . . . . . . 33

A. THIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

B. THICK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

1. Text and History .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

2. Synthetic Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . 45

3. Supreme Court Precedent . . . . . . . . . . . . . . . . . . . . . . . . 48

II. C

ONGRESS’S THICK NINETEENTH AMENDMENT ENFORCEMENT POWER .. . 49

A. VOTING EQUALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

B. POLITICAL EQUALITY AND POLITICAL ECONOMY . . . . . . . . . . . . . . . . 60

III. T

HE SUPREME COURT’S FEDERALISM JURISPRUDENCE AND THE THIN

VERSION OF CONGRESS’S NINETEENTH AMENDMENT ENFORCEMENT

POWER .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

A. STATE ACTION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

B. CONGRUENCE AND PROPORTIONALITY . . . . . . . . . . . . . . . . . . . . . . . . 65

C. “ON ACCOUNT OF” SEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

1. Intent Versus Effects . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

2. Gender Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

D. EXTERNAL CONSTRAINTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

ONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

NTRODUCTION

“The Nineteenth Amendment merely gives the vote to women.”

Justice John

Marshall Harlan II wrote this simultaneous overstatement and understatement in

his 1963 dissent in an early one-person, one-vote case, Gray v. Sanders. Justice

Harlan’s claim was an overstatement because nothing in the Nineteenth

Amendment, which prohibits denial or abridgement of the right to vote “on

account of sex,”

enfranchised African-American women. Despite the Fifteenth

1. Gray v. Sanders, 372 U.S. 368, 386 (1963) (Harlan, J., dissenting).

2. U.S. C

ONST. amend. XIX.

28 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

Amendment’s bar on racial discrimination in voting, African-American women

continued to face disenfranchisement, especially in the American South, until af-

ter the passage of the Voting Rights Act of 1965.

Indeed, the Nineteenth

Amendment did not give any women—or men—the right to vote in elections;

instead, it just barred discrimination in voting once a state agreed to hold an

election.

Justice Harlan’s observation was an understatement because there was nothing

“mere” about the signiﬁcance of the Nineteenth Amendment’s passage. Its 1920

ratiﬁcation was the numerically largest single act of voter enfranchisement since

the American founding, roughly doubling the voting population from only eligi-

ble men to eligible men plus women.

The Court decided Gray just a year after its decision in Baker v. Carr, which

declared justiciable one-person, one-vote challenges under the Fourteenth

Amendment.

The year after Gray, the Court struck down unequally apportioned

state legislative districts in Reynolds v. Sims

and unequally apportioned congres-

sional districts in Wesberry v. Sanders.

At issue in Gray was Georgia’s weighted

voting system for choosing U.S. Senators and statewide ofﬁceholders.

The

3. See ROSALYN TERBORG-PENN, AFRICAN AMERICAN WOMEN IN THE STRUGGLE FOR THE VOTE,

1850–1920, at 1–2 (1998) (“For black women, however, the struggle to maintain the vote continued for

two generations after the passage of the woman suffrage amendment, as most were robbed of their

ballots by the success of white political supremacy in the South.”); Neil S. Siegel, Why the Nineteenth

Amendment Matters Today: A Guide for the Centennial, 27 D

UKE J. GENDER L. & POL’Y 235, 241–42

(2020). Indeed, it was not just African-American women who remained disenfranchised:

Women who could not pay a poll tax, pass a literacy test, or a “moral character” evaluation;

American women who lost their citizenship by marrying a non-citizen man and women from

immigrant groups barred from naturalization; and many American Indian women, via citi-

zenship denials and other avenues, were all still easily and legally excluded by state voter

disqualiﬁcations after the Nineteenth Amendment took effect.

ORRINE M. MCCONNAUGHY, THE WOMAN SUFFRAGE MOVEMENT IN AMERICA: A REASSESSMENT 251–

52 (2013).

4. Cf. Bush v. Gore, 531 U.S. 98, 104 (2000) (“The individual citizen has no federal constitutional

right to vote for electors for the President of the United States unless and until the state legislature

chooses a statewide election as the means to implement its power to appoint members of the electoral

college. . . . History has now favored the voter, and in each of the several States the citizens themselves

vote for Presidential electors. When the state legislature vests the right to vote for President in its people,

the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental

nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State,

of course, after granting the franchise in the special context of Article II, can take back the power to

appoint electors.” (citations omitted)).

5. A

LEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE

UNITED STATES 175 (rev. ed. 2009) (“The electorate nearly doubled in size between 1910 and 1920, but

voting patterns and partisan alignments were little affected.”); see also A

ILEEN S. KRADITOR, THE IDEAS

OF THE

WOMEN SUFFRAGE MOVEMENT: 1890–1920, at 29–30 (W.W. Norton & Co.1981) (1965)

(explaining argument against enfranchising women who were also members of an undesirable class,

political persuasion, or race: “Doubling the electorate would increase the preponderance of

‘undesirable’ voters.”).

6. See 369 U.S. 186, 204 (1962).

7. 377 U.S. 533, 581 (1964).

8. 376 U.S. 1, 18 (1964).

9. Gray v. Sanders, 372 U.S. 368, 372 (1963).

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 29

“county unit” voting system gave greater voting power to voters in rural counties

compared to urban counties and to voters in smaller rural counties compared to

larger rural counties.

The Court in Gray struck down that system as an equal

protection violation.

Although Gray decided the constitutional question under the Fourteenth

Amendment, Justice Douglas’s majority opinion also relied upon a nascent thick

understanding of the Nineteenth Amendment, situating it within the greater strug-

gle to expand voting rights in the United States:

The Fifteenth Amendment prohibits a State from denying or abridging a

Negro’s right to vote. The Nineteenth Amendment does the same for women.

If a State in a statewide election weighted the male vote more heavily than the

female vote or the white vote more heavily than the Negro vote, none could

successfully contend that that discrimination was allowable. How then can one

person be given twice or 10 times the voting power of another person in a

statewide election merely because he lives in a rural area or because he lives in

the smallest rural county?

Near the end of his majority opinion, Justice Douglas wrote: “The conception

of political equality from the Declaration of Independence, to Lincoln’s

Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments

can mean only one thing—one person, one vote.”

The Court repeated this lan-

guage in Reynolds.

A similarly thick conception of the Nineteenth Amendment, with an emphasis

on broad congressional enforcement power, appears in a provocative, short foot-

note in Justice Ruth Bader Ginsburg’s dissent in the 2013 case Shelby County v.

Holder.

In Shelby County, the Supreme Court struck down the coverage for-

mula in section 4(b) of the Voting Rights Act, which set forth the jurisdictions

that had to submit their voting changes for federal approval.

The Court majority

held that because Congress had not updated the coverage formula, the law that

Congress had extended repeatedly (and that the Supreme Court had upheld

repeatedly

) now violated the “equal sovereignty” of states.

The Court

10. Id. at 372–73.

11. Id. at 381.

12. Id. at 379 (citation omitted).

13. Id. at 381.

14. Reynolds v. Sims, 377 U.S. 533, 557–58 (1964).

15. 570 U.S. 529 (2013); see also Richard L. Hasen, Shelby County and the Illusion of Minimalism,

22 W

M. & MARY BILL RTS. J. 713, 728–29 (2014) (describing the footnote as offering a “muscular and

integrated vision of the ﬁve constitutional amendments mentioning the right to vote and, coupled with

its view of the Elections Clause in Article 4, [viewing] the Constitution [as] giv[ing] Congress broad

power to protect the franchise and democratic processes against state encroachment”).

16. Shelby County, 570 U.S. at 556–57.

17. See Lopez v. Monterey County, 525 U.S. 266, 287 (1999); City of Rome v. United States, 446

U.S. 156, 187 (1980); South Carolina v. Katzenbach, 383 U.S. 301, 337 (1966).

18. Shelby County, 570 U.S. at 544.

30 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

determined that this part of the Voting Rights Act was no longer within

Congress’s power to enforce the Fourteenth or Fifteenth Amendments.

Justice Ginsburg disagreed, ﬁnding ample congressional power in the Fifteenth

Amendment.

She included the following footnote, expressing the view that the

constitutional amendments mentioning the “right to vote” gave Congress broad

power to protect voting rights:

The Constitution uses the words “right to vote” in ﬁve separate places:

the Fourteenth, Fifteenth, Nineteenth, Twenty–Fourth, and Twenty–Sixth

Amendments. Each of these Amendments contains the same broad empower-

ment of Congress to enact “appropriate legislation” to enforce the protected right.

The implication is unmistakable: Under our constitutional structure, Congress

holds the lead rein in making the right to vote equally real for all U.S. citizens.

These Amendments are in line with the special role assigned to Congress in pro-

tecting the integrity of the democratic process in federal elections.

In contrast to this thick conception of the Fifteenth Amendment, Justice

Harlan’s Gray dissent offered a “thin” conception of the Nineteenth

Amendment’s right to vote.

Rather than reading the constitutional provi-

sions concerning the right to vote to reinforce one another, Justice Harlan

viewed each of the provisions in isolation, so that the Nineteenth

Amendment’s enfranchisement of women had nothing to do with the enfran-

chisement of African-Americans in the Fifteenth Amendment or the right to

equal protection in the Fourteenth Amendment. This was the context in which

Justice Harlan recognized the “mere[]” enfranchisement of women; he

thought that their enfranchisement had nothing to say about how courts

should interpret voting rights under the Fourteenth Amendment.

Justice Harlan returned to this theme in his Reynolds v. Sims dissent, arguing

that if the Fourteenth Amendment really protected the right to vote, the Fifteenth

or Nineteenth Amendments would have been unnecessary.

Each amendment

did its work alone.

19. Id. at 557. For a critique of the Court’s use of the principle, see generally Leah M. Litman,

Inventing Equal Sovereignty, 114 M

ICH. L. REV. 1207 (2016).

20. Shelby County, 570 U.S. at 567 (Ginsburg, J., dissenting).

21. Id. at 567 n.2.

22. See Gray v. Sanders, 372 U.S. 368, 382 (1963) (Harlan, J., dissenting). Reva Siegel uses the term

“thin” in a different way: to refer to arguments that the Nineteenth Amendment affected only voting

rights. Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism and the

Family, 115 H

ARV. L. REV. 947, 1022 (2002). “Modern sex discrimination doctrine is built on this ‘thin’

conception of the Nineteenth Amendment — on the assumption that the Nineteenth Amendment is a

nondiscrimination rule governing voting that has no bearing on questions of equal citizenship for

women outside the franchise.” Id.

23. Gray, 372 U.S. at 385–86 (Harlan, J., dissenting) (“Certainly no support for this equal protection

doctrine can be drawn from the Fifteenth, Seventeenth, or Nineteenth Amendment.”).

24. 377 U.S. 533, 612 (1964) (Harlan, J., dissenting).

25. Id. at 611–12 (“[U]nless one takes the highly implausible view that the Fourteenth Amendment

controls methods of apportionment but leaves the right to vote itself unprotected, the conclusion is

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 31

Although Justice Harlan in his Gray and Reynolds dissents did not mention it,

the Court’s 1937 opinion in Breedlove v. Suttles provides an even thinner view of

the Nineteenth Amendment.

Justice Harlan had offered a gender-neutral, for-

malist view of the Nineteenth Amendment that prohibited only laws that explic-

itly discriminate in voting on the basis of sex.

The Court in Breedlove viewed

the Nineteenth Amendment as doing even less: The Court’s sexist interpretation

of the Nineteenth Amendment allowed for de jure gender discrimination in voting

rules.

In Breedlove, the Court upheld a Georgia election law that imposed a poll tax

on men and women but exempted women who declined to register to vote.

we will show,

Breedlove, the only Supreme Court case to directly decide

whether a state law violated the Nineteenth Amendment, drips with sexism.

1966, the Court in Harper v. Virginia State Board of Elections overruled the por-

tion of Breedlove that rejected an equal protection challenge to state poll taxes.

As Justice Black pointed out in dissent, however, the Harper majority did not

overrule the part of Breedlove approving gender discrimination in the application

of the poll tax.

The Court has never returned to the issue, leaving Breedlove to

be at least nominally good law on the meaning of the Nineteenth Amendment

right to vote.

In this Article, we explore what it would mean for Congress and the Supreme

Court to take seriously a thick conception of the Nineteenth Amendment substan-

tive right and Congress’s enforcement power as part of a constellation of amend-

ments expanding the right to vote. Part I explains where Breedlove and Justice

Harlan’s dissents in Gray and Reynolds went wrong in adopting a thin reading of

the Nineteenth Amendment’s voting right, and offers instead a synthetic and

intersectional thick reading. Part II sets forth the kinds of voting rights reforms

that Congress could pass pursuant to a thick understanding of its Nineteenth

Amendment enforcement power, consistent with Justice Ginsburg’s thick reading

inescapable that the Court has, for purposes of these cases, relegated the Fifteenth and Nineteenth

Amendments to the same limbo of constitutional anachronisms to which the second section of the

Fourteenth Amendment has been assigned.”).

26. See 302 U.S. 277 (1937), overruled by Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1996).

27. See Gray, 372 U.S. at 385–86.

28. See Breedlove, 302 U.S. at 283–84.

29. Id.

30. See infra Part II.

31. For a rare modern case discussing Nineteenth Amendment voting rights, see Ball v. Brown, 450

F. Supp. 4 (N.D. Ohio 1977). The court treated the Amendment as coextensive with the Equal Protection

Clause of the Fourteenth Amendment. Id. at 8.

32. 383 U.S. 663, 669 (1966).

33. Id. at 673 (Black, J., dissenting) (“The Breedlove case upheld a poll tax which was imposed on

men but was not equally imposed on women and minors, and the Court today does not overrule that part

of Breedlove which approved those discriminatory provisions.”); see also id. at 669 (majority opinion)

(overruling Breedlove only to “that extent” that it upheld a poll tax against equal protection challenge).

Justice Harlan, joined by Justice Stewart, separately dissented in Harper. Id. at 680 (Harlan, J.,

dissenting); see also Ronnie L. Podolefsky, The Illusion of Suffrage: Female Voting Rights and the

Women’s Poll Tax Repeal Movement After the Nineteenth Amendment, 73 N

OTRE DAME L. REV. 839,

887 (1998) (“The issue of gender discrimination in Breedlove was left intact.”).

32 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

of Congress’s power to protect voting rights. This Part considers legislation

related to voting power, political equality, and political economy. Finally, Part III

returns to reality, explaining the likelihood that the current Supreme Court would

reject the thick reading of Congress’s Nineteenth Amendment enforcement

power by relying on state action and congruence and proportionality require-

ments, a narrow interpretation of “on account of” sex, and external constitutional

constraints.

I. J

USTIFYING A THICK READING OF THE NINETEENTH AMENDMENT

Given the paucity of judicial interpretations and scholarly writings on the

scope of the Nineteenth Amendment, even one hundred years after its ratiﬁcation,

we believe that its interpretation remains up for grabs in important respects.

Interpretations of the Amendment’s scope fall on a continuum from thin readings

(which maintain the Amendment does very little) to thick readings (which inter-

pret the Nineteenth Amendment to do more). Thin readings include the view that

the Nineteenth Amendment provides little substantive relief from gender inequal-

ity in voting (as in Breedlove) and the gender-neutral, formalist view that Justice

Harlan embraced in his Harper dissent. Thick readings include Justice

Ginsburg’s view that the Amendment, together with other constitutional provi-

sions, secures more substantial voting rights under the Constitution.

In this Part we advocate a thick interpretation of the Nineteenth Amendment’s

substantive right. This reading recognizes that the Constitution protects against

the perpetuation of political-power disparities on the basis of gender. The thick

reading is gender-conscious (not gender-neutral), and it recognizes that the main

purpose of the Amendment was originally and should continue to be read as pro-

tective against the subordination of women in U.S. politics. In this way, it rejects

both Breedlove’s sexism and Justice Harlan’s formalism. The text and history of

the Nineteenth Amendment and the broader struggle over voting rights and wom-

en’s equality for the last 150 years support this thick reading.

The thick reading also protects voting rights holistically rather than in a piece-

meal fashion. In other words, the Constitution’s voting rights protections should

be read broadly and synergistically rather than discretely focused on whether a

voting restriction burdens age, gender, or race. Discrimination that affects groups

of people who fall within a number of constitutionally protected classes (such as

race, gender, and age) should be viewed as especially suspect, even if restrictive

voting laws would fail if they had a disparate impact on people in just one of these

categories.

Further, as we explain in Part II, a thick reading of the Nineteenth Amendment

includes a muscular interpretation of congressional power to protect voting rights.

Congress can go beyond the Elections Clause (which gives it power only over

federal elections and voting) and the Fourteenth Amendment in passing laws

assuring greater political equality across genders and across other classes of

people.

2020] T

HIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 33

A. THIN

To believers in the promise of a strong Nineteenth Amendment, Breedlove v.

Suttles

is a profound disappointment. The 1937 Breedlove opinion offers the

Supreme Court’s most extensive application of the scope of the Amendment—

although it is only one paragraph long

—and the opinion sadly reﬂects the sex-

ism of the day. The case offers the thinnest possible version of the Nineteenth

Amendment, even thinner than what Justice Harlan offered in his Gray and

Reynolds dissents, and future courts and constitutional scholars should reject it.

Nolen R. Breedlove was a twenty-eight-year-old white, male American citizen

and resident of Georgia.

He brought suit against a Georgia tax collector who

would not register him to vote because Breedlove refused to pay a poll tax.

The

relevant Georgia statute required that every inhabitant of the state between the

ages of twenty-one and sixty pay a poll tax of one dollar, “but that the tax shall

not be demanded from the blind or from females who do not register for vot-

ing.”

In other words, a sighted male or female citizen between the ages of

twenty-one and sixty who wished to vote had to pay the poll tax before voting.

And sighted males between twenty-one and sixty, but not females, had to pay the

tax whether or not they registered or were even eligible to vote.

Breedlove argued that the poll tax violated three provisions of the Constitution:

the Equal Protection Clause of the Fourteenth Amendment, the Privileges or

Immunities Clause of the Fourteenth Amendment, and the Nineteenth

Amendment.

The Court rejected each of the arguments, spending the most time

on the equal protection argument (the only part of the Breedlove decision that the

Supreme Court reversed in the 1966 Harper case

After declaring that “[t]he equal protection clause does not require absolute

equality,” the Court stated that it would be “harsh and unjust” to require the col-

lection of a tax from those who were “too poor to pay.”

It justiﬁed the exclusion

of minors from the tax because a tax would burden “their fathers or others upon

whom they depend for support.”

It also justiﬁed the exclusion of men over the

34. 302 U.S. 277 (1937), overruled by Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966).

35. Id. at 283–84.

36. On the historical reasons for the emergence of a thin Nineteenth Amendment, see Paula A.

Monopoli, The Constitutional Development of the Nineteenth Amendment in the Decade Following

Ratiﬁcation, 11 C

ONLAWNOW 61, 71 (2019) (“With Congress, state legislatures and state and federal

courts important sources of constitutional enforcement and interpretation, the suffrage movement faced

powerful patriarchal agents that were, as a matter of institutional self-interest, likely inclined to limit the

impact of women’s enfranchisement.”). Monopoli ﬂeshes out this argument in P

AULA A. MONOPOLI,

ONSTITUTIONAL ORPHAN: GENDER EQUALITY AND THE NINETEENTH AMENDMENT (forthcoming 2020)

(manuscript at 57–58) (on ﬁle with authors).

37. Breedlove, 302 U.S. at 280.

38. Id.

39. Id. at 279–80 (citing G

A. CODE § 92-108 (1933)).

40. Id. at 280. Breedlove did not argue against the exemption of the blind from the poll tax

requirement. Id. at 280–81.

41. See supra notes 26–33 and accompanying text.

42. Breedlove, 302 U.S. at 281.

43. Id.

34 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

age of sixty on the grounds that older men were “often, if not always, excused

from road work, jury duty and service in the militia” and many had already served

the public before turning sixty.

The Court then justiﬁed the exclusion of women who declined to register to

vote from poll tax obligations:

The tax being upon persons, women may be exempted on the basis of special

considerations to which they are naturally entitled. In view of burdens neces-

sarily borne by them for the preservation of the race, the State reasonably may

exempt them from poll taxes. The laws of Georgia declare the husband to be

the head of the family and the wife to be subject to him. To subject her to the

levy would be to add to his burden. Moreover, Georgia poll taxes are laid to

raise money for educational purposes, and it is the father’s duty to provide for

education of the children. Discrimination in favor of all women being permis-

sible, appellant may not complain because the tax is laid only upon some or

object to registration of women without payment of taxes for previous years.

After quickly disposing of the privileges or immunities argument,

the Court

offered a single paragraph analyzing and rejecting the Nineteenth Amendment

argument.

The Court declared that the Amendment “applies to men and women

alike and by its own force supersedes inconsistent measures, whether federal or

state.”

The Court held that the provision’s purpose “is not to regulate the levy or

collection of taxes. The construction for which appellant contends would make

the amendment a limitation upon the power to tax.”

Citing the long history of

state poll taxes and declaring them a “familiar and reasonable regulation,” the

Court held that:

[B]y the exaction of payment before registration, the right to vote is neither

denied nor abridged on account of sex. It is fanciful to suggest that the Georgia

law is a mere disguise under which to deny or abridge the right of men to vote

on account of their sex.

It is hard to know where to begin in describing modern objections to

Breedlove’s analysis of the Nineteenth Amendment. The Court’s reasoning is

short, perfunctory, and conclusory, for starters. And the little substantive analysis

it did contain was objectionable: The Court based its equal protection analysis

44. Id. at 281–82.

45. Id. at 282 (citations omitted).

46. Id. at 283 (“To make payment of poll taxes a prerequisite of voting is not to deny any privilege or

immunity protected by the Fourteenth Amendment. Privilege of voting is not derived from the United

States, but is conferred by the State and, save as restrained by the Fifteenth and Nineteenth Amendments

and other provisions of the Federal Constitution the state may condition suffrage as it deems

appropriate.”).

47. Id.

48. Id.

49. Id.

50. Id. at 283–84.

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 35

upon sexual stereotypes and sexist state laws that placed the husband as the head

of the family.

It also saw the exclusion of nonregistered women from the poll

tax as a way to relieve a ﬁnancial burden on men but failed to acknowledge the

burden of the tax on unmarried women.

Implicitly gesturing toward the still-extant racial discrimination of the day, the

Court declared that women were entitled to exemptions from some laws because

of the “burdens necessarily borne by them for the preservation of the race.”

Here, the Court relied upon earlier cases, including the 1908 case, Muller v.

Oregon, which upheld the imposition of a ten-hour maximum workday on

women and not on men because of (white) women’s maternal burden.

The

Court reasoned that “as healthy mothers are essential to vigorous offspring, the

physical well-being of woman becomes an object of public interest and care in

order to preserve the strength and vigor of the race.”

White women, in other

words, were too busy bearing and raising children to vote.

There are other ﬂaws in the Court’s analysis as well. The Court declared that a

state would not violate the Nineteenth Amendment by burdening men, but not

women, with a poll tax.

It treated the issue of taxes on the act of voting and vot-

ing as two separate and distinct issues. But the poll tax may have effectively

given husbands a veto over their wives’ ability to vote given the various ways

husbands exercised ﬁnancial control over their wives at the time.

And most

51. See id. at 282 (“The laws of Georgia declare the husband to be the head of the family and the wife

to be subject to him. To subject her to the levy would be to add to his burden.” (citing G

A. CODE § 51-

501 (1933)).

52. See L

ESLIE FRIEDMAN GOLDSTEIN, THE CONSTITUTIONAL RIGHTS OF WOMEN 101 (2d ed. 1988)

(“Is there any part of Justice Butler’s reasoning [in Breedlove] that justiﬁes exempting unmarried

women from this tax?”).

53. Breedlove, 302 U.S. at 282.

54. 208 U.S. 412, 421–23 (1908). The other cases the Breedlove Court cited for this proposition were

Quong Wing v. Kirkendall, 223 U.S. 59 (1912); Riley v. Massachusetts, 232 U.S. 671 (1914); Miller v.

Wilson, 236 U.S. 373 (1915); and Bosley v. McLaughlin, 236 U.S. 385 (1915). Breedlove, 302 U.S. at

282.

55. Muller, 208 U.S. at 421.

56. The reference to “the race” here could be read more charitably as referring to the human race

rather than the white race, but the racism of the Court in Muller, and by extension, Breedlove, is at least

implicit. See Katherine C. Sheehan, Toward a Jurisprudence of Doubt, 7 UCLA W

OMEN’S L.J. 201, 247

n.188 (1997) (“A public interest in fertility has often been asserted as a reason for special protections or

restrictions on women’s activities. This interest is typically racist, either implicitly, see Muller, or

explicitly. The mid-nineteenth-century campaign to restrict the availability of abortion, for example,

was supported by arguments that the decline in white birth rates must be reversed to prevent the nation

from being overrun by immigrants.”).

57. It was not just sexism which caused the Court to ignore this issue of Georgia’s penalty on

registering and voting women; it was the nature of a Nineteenth Amendment claim brought by a male

plaintiff. See JoEllen Lind, Dominance and Democracy: The Legacy of Woman Suffrage for the Voting

Right, 5 UCLA W

OMEN’S L.J. 103, 205 n.511 (1994) (“Perhaps because the Court was faced with a male

petitioner, the possibility that Georgia’s scheme actually militated against women’s right to vote was

even more obscured.”).

58. See Margaret J. Chriss, Troubling Degrees of Authority: The Continuing Pursuit of Unequal

Marital Roles, 12 L

AW & INEQ. 225, 227–46 (1993) (outlining various rules that solidiﬁed economic

subordination of wives to husbands); Siegel, supra note 22, at 981–87 (same); Reva Siegel, Why Equal

36 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

importantly, the Court ignored the fact that imposing a poll tax only on women

who chose to register discouraged women from voting. Women who registered to

vote had to pay (or have others pay) the tax; women who declined to register to

vote did not have to pay. The Georgia poll tax therefore amounted to a penalty

upon voting women. Far from the tax and voting rights being separate, Georgia

law tied them together and discriminated against women.

Breedlove is not unique in failing to recognize discrimination against women.

The Court would continue this trend over the next several decades. Goesaert v.

Cleary upheld a Michigan statute that provided bartending licenses to women

only if they were the wife or daughter of a man who owned a business licensed to

sell beer.

Hoyt v. Florida upheld the exclusion of women from jury service.

The Court overruled Hoyt, but not until 1975.

And it was only around that time

that the Court began to invalidate laws that discriminated on the basis of sex.

But the sexism of the 1937 opinion in Breedlove and its reliance on the pater-

nalistic reasoning in Muller is nonetheless curious. Fourteen years before

Breedlove, the Court had rejected Muller and embraced a more formal account of

gender equality in Adkins v. Children’s Hospital.

Whereas Muller had upheld a

law imposing maximum work hours on women but not men, Adkins held that

such laws discriminated against women by denying them the same freedom to

contract as men.

This “freedom of contract” idea was a relic of the Lochner era and later

reversed as to minimum-wage and maximum-hour laws in the 1937 West Coast

Hotel Co. v. Parrish case.

But the 1923 Adkins opinion is still notable for its

partial acceptance of gender equality and how it rooted that acceptance in the

Nineteenth Amendment:

[T]he ancient inequality of the sexes, otherwise than physical, as suggested in

the Muller Case has continued “with diminishing intensity.” In view of the

great—not to say revolutionary—changes which have taken place since that

utterance, in the contractual, political, and civil status of women, culminating

in the Nineteenth Amendment, it is not unreasonable to say that these differen-

ces have now come almost, if not quite, to the vanishing point.

Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV.

1111, 1116–19 (1997) (same).

59. 335 U.S. 464, 467 (1948).

60. 368 U.S. 57, 69 (1961).

61. Taylor v. Louisiana, 419 U.S. 522, 537 (1975).

62. See Reed v. Reed, 404 U.S. 71, 77 (1971); see also Elizabeth Sepper & Deborah Dinner, Sex in

Public, 129 Y

ALE L.J. 78, 97–104 (2019) (documenting hosts of public discrimination against women

and the movement toward public accommodations laws in the 1970s).

63. 261 U.S. 525 (1923), overruled in part by W. Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

64. Id. at 552–53.

65. 300 U.S. at 400.

66. Adkins, 261 U.S. at 553 (citation and internal quotation marks omitted).

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 37

Breedlove’s embrace of sexism, its reliance of the repudiated Muller case, and

its decision to ignore Adkins’ more progressive view of the Nineteenth

Amendment, moved the issue of women’s voting rights and the scope of the

Amendment backwards.

Justice Harlan did not perpetuate or repeat Breedlove’s sexist views in

his dis-

sents in Gray v. Sanders and Reynolds v. Sims. His analysis recognized the formal

equality of voters regardless of gender.

But, as explained in the Introduction,

his brief analysis minimized the Nineteenth Amendment’s signiﬁcance, both as

an act of enfranchisement and as part of a growing constellation of enfranchising

changes to the Constitution.

B. THICK

Justices Douglas in his Gray v. Sanders majority opinion and Justice Ginsburg

in her Shelby County v. Holder dissenting opinion have led the way toward a

thicker and more robust understanding of the Nineteenth Amendment’s protec-

tion against gender discrimination in voting. Rather than viewing the 1920

enfranchisement of women in isolation, one can trace an expansion of voting

rights from the Declaration of Independence’s recognition that “all men are cre-

ated equal,”

to President Abraham Lincoln’s reiteration of that principle in the

Gettysburg Address in the midst of the Civil War struggle to end slavery of

African-Americans, to the passage of a number of voting-related constitutional

amendments including: the Fourteenth Amendment (imposing a penalty of repre-

sentation in the U.S. House of Representatives upon states that deny the votes to

male, citizen, nonfelon residents), the Fifteenth Amendment (prohibiting discrim-

ination in voting on the basis of race), the Seventeenth Amendment (providing

that voters could directly elect U.S. Senators), the Nineteenth Amendment (pro-

hibiting discrimination in voting on the basis of gender), the Twenty-Third

Amendment (granting Washington, D.C. the power to choose presidential elec-

tors), the Twenty-Fourth Amendment (barring the use of poll taxes in federal

elections), and the Twenty-Sixth Amendment (barring discrimination in voting

against eighteen- to twenty-one-year-olds).

This Part offers three reasons for embracing a thick reading of the Nineteenth

Amendment, which would give Congress broad authority to enact laws promot-

ing political equality in voting. First, a thick reading is consistent with the text of

the Nineteenth Amendment as well as with certain aspects of the history of the

Amendment’s passage. One of the most signiﬁcant ﬁghts over the Amendment in

Congress was whether enfranchising women would be decided on a national or

on a state-by-state basis. The Amendment marked the success of nationalist

forces, which supports reading the Amendment to contain strong congressional

enforcement power to further its aims.

67. See supra text accompanying notes 2–4, 22–25.

68. T

HE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

69. We acknowledge that this thick reading is in some tension with some of the exclusivist arguments

that some supporters of women’s suffrage made. See infra notes 71–115 and accompanying text.

38 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

Second, the thick reading is justiﬁed by a synthetic interpretation of the

Constitution. Reading the amendments to the Constitution chronologically dem-

onstrates the nation’s growing commitment toward political equality and toward

giving Congress the tools to promote it.

Third, the thick reading reﬂects evolving standards of political equality, dating

back to Supreme Court

cases in the 1960s recognizing voting as a fundamental

right for all citizen, adult resident nonfelons. It is also consistent with the long-

standing political process theory that grounds many of those Supreme Court deci-

sions.

Despite the Court’s conservative turn, these precedents still appear to be

ﬁrmly established judicial doctrines.

1. Text and History

A thick reading of the Nineteenth Amendment is consistent with its text, which

prohibits not just denial but abridgement of the right to vote on account of sex.

When a state passes a law that results in greater burdens on women being able to

“abridges” the Nineteenth Amendment. Abridgment occurs when a state “dimin-

ishes” or “shortens” a voting right on account of sex.

The Supreme Court has made this point in the analogous context of the

Fifteenth Amendment’s prohibition of

abridgement of the right to vote on

account of race.

At the very least, laws and procedures diminishing voting on

the basis of gender are constitutionally impermissible. Nothing about the term

“abridgement” suggests the term applies only to intentional discrimination.

Thus, the term “abridgement” is consistent with the thick reading of the

Amendment as barring laws that have discriminatory effect on voting power on

the basis of gender.

The historical argument for the thicker reading of the Nineteenth Amendment

is more complex, but it begins with this basic fact: women and men who

supported passage of the Nineteenth Amendment believed that laws denying

women’s full and equal participation in the political process should be

70. See generally United States v. Carolene Prods., 304 U.S. 144, 152 n.4 (1938) (explaining that

judicial review should be especially searching when laws limit access to the political process); J

OHN

HART ELY, DEMOCRACY AND DISTRUST (1980) (same).

71. Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 333–34 (2000) (explaining that the “core meaning”

of the term “abridge” is “to shorten” according to two dictionaries, and that “abridging” in context of

Fifteenth Amendment “refer[s] . . . to discrimination”); see also United States v. Alabama, 252 F. Supp.

95, 104 n.53 (M.D. Ala. 1966) (“Signiﬁcantly, the Fifteenth Amendment uses the term ‘abridged’ as

well as ‘denied.’ Webster’s New International Dictionary deﬁnes abridged as: ‘To make shorter; to

shorten in duration; diminish; curtail; as, to abridge a visit * * *. To deprive; to cut off;— followed by

‘of’, and formerly by from; as, to abridge one of his rights.’ Webster’s New International Dictionary,

Second Edition, 1959, p. 7.”); Dale Ho, Minority Vote Dilution in the Age of Obama, 47 U. R

ICH. L.

EV. 1041, 1062 n.84 (2013) (quoting the Black’s Law Dictionary deﬁnition of abridge as “[t]o reduce

or diminish”); Michael P. O’Connor, Time Out of Mind: Our Collective Amnesia About the History of

the Privileges or Immunities Clause, 93 K

Y. L.J. 659, 717 (2004) (discussing nineteenth century

dictionary and legal dictionary deﬁnitions of “abridge”).

72. See Bossier Par. Sch. Bd., 528 U.S. at 333–34; United States v. Alabama, 252 F. Supp. at 104

n.53; Ho, supra note 71, at 1062 n.84; O’Connor, supra note 71, at 717.

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 39

unconstitutional and that the national government should have broad powers to

enforce the right contained in the Amendment when states fail to do so on their

own accord.

Members of Congress and ratifying state legislatures understood the

Amendment as granting full, equal political rights

to at least white women.

Indeed, Zornitsa Keremidchieva’s analysis of the debates contemporaneous to

the passage of the Nineteenth Amendment shows that Congress focused less on

whether women were entitled to equal voting rights than on whether this question

was better resolved at the state or national level.

Congress rejected an amend-

ment that would have left the power to enforce the Amendment in the hands of

the states.

The complexity arises because some supporters of women’s suffrage, mostly

in the last decade before the ratiﬁcation of the Nineteenth Amendment,

advanced their cause by opposing the voting rights of other groups, particularly

African-Americans. Although this reality arguably undermines a broad synthetic

reading of voting rights in the Constitution, it is important not to hold supporters

of women’s suffrage to a higher standard than other political movements whose

principles are reﬂected in the Constitution, and whose aims were also infected

with racism. As Ellen Carol DuBois writes, “every other white-dominated popu-

lar political movement of that era similarly accommodated to insurgent white su-

premacy. And yet only the woman suffrage movement—not the Gilded Age

labor movement or the People’s Party or even Progressivism itself—has been so

ﬁercely criticized for the fatal ﬂaw of racism.”

Those movements produced

principles that have been divorced from their racist underpinnings and racist limi-

tations, and the movement that agitated for the passage of the Nineteenth

Amendment can do the same.

Equally important, Reva Siegel has argued that the Women’s Suffrage

Movement began with claims for universal human rights and human suffrage,

even though some wings of the Movement subsequently embraced the period’s

racism.

For example, early suffrage proponents Elizabeth Cady Stanton and

Susan B. Anthony, on behalf of the Women’s Loyal National League, organized

a petition that collected almost half a million signatures demanding emancipa-

tion.

See Letter from E. Cady Stanton,

President, and Susan B. Anthony, Sec’y, The Women’s Loyal

Nat’l League, to the Women of the Republic (Jan. 25, 1864) (supporting the abolition of slavery),

https://www.senate.gov/artandhistory/history/resources/pdf/WomensLoyalNationalLeague.pdf [https://

perma.cc/CKE3-U54T].

As Siegel’s historical analysis suggests, the history of the Nineteenth

73. Zornitsa Keremidchieva, The Congressional Debates on the 19th Amendment: Jurisdictional

Rhetoric and the Assemblage of the US Body Politic, 99 Q.J. S

PEECH 51, 55 (2013).

74. Steve Kolbert, The Nineteenth Amendment Enforcement Power (but First, Which Is the

Nineteenth Amendment, Again?), 43 F

LA. ST. U. L. REV. 507, 544–45 (2016); see also infra notes 243–

65 and accompanying text.

75. E

LLEN CAROL DUBOIS, SUFFRAGE: WOMEN’S LONG BATTLE FOR THE VOTE 3–4 (2020).

76. Id. at 4.

77. Reva B. Siegel, The Nineteenth Amendment and the Democratization of the Family, 129 Y

ALE L.

J.F. 450, 456–62 (2020).

78.

40 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

Amendment began with antebellum efforts for universal equality, including racial

equality.

It is nonetheless worth noting that when the Nineteenth Amendment was rati-

ﬁed, the promotion of women’s suffrage sometimes led to denigrating the suf-

frage prospects of others. We cannot ignore this history even as we argue later in

this Article toward a more intersectional, holistic approach to voting rights. The

struggle for women’s suffrage was never easy. Aileen Kraditor in her key history

of the woman’s suffrage movement reports that, “The early pioneers for women’s

rights were subjected to humiliation and occasional violence. . . . No rights were

handed to them on a platter; they fought long and hard for every victory they won

down to and including the Nineteenth Amendment.”

In 1875, the Supreme

Court in Minor v. Happersett rejected the argument that the Fourteenth

Amendment’s recognition of the privileges and immunities bestowed upon all

citizens conferred equal voting rights on women in the United States.

After that defeat, supporters of women’s suffrage began a decades-long strug-

gle to pass a constitutional amendment guaranteeing women the right to vote.

Sometimes that ﬁght led women’s suffrage supporters to make questionable alli-

ances and to advance now-unpalatable arguments to aid in the movement’s

progress.

Corrine McConnaughy recently explored the complex passage of the

Nineteenth Amendment, which required coalitional politics.

The path to ratiﬁ-

cation, which began in the states decades before the ratiﬁcation of the Nineteenth

Amendment, did not follow the “strategic enfranchisement” model through

which African-Americans achieved formal enfranchisement.

Under the strate-

gic enfranchisement model, Republicans at the end of the Civil War supported

granting blacks voting rights “anticipating that the party could proﬁt from its

claim as the liberator of the country’s slave population by reaping the votes of

these new citizens. Blacks were seen as a promising voting bloc, one the

Republicans sorely needed, especially to have any electoral hope in the readmit-

ted Confederate states.”

According to McConnaughy, the strategic enfranchisement model could not

work for women’s enfranchisement because of the commonly held belief that

women would follow the leads of their husbands in voting, with the expectation

that the number of votes would double without causing a shift in partisan

79. See Siegel, supra note 77, at 460–63.

80. K

RADITOR, supra note 5, at xiv.

81. 88 U.S. 162, 171 (1875) (“It is clear, therefore, we think, that the Constitution has not added the

right of suffrage to the privileges and immunities of citizenship as they existed at the time it was

adopted.”). For an argument that women suffragists were early “living constitutionalists” in asking for

the Fourteenth Amendment to guarantee women’s suffrage, see Adam Winkler, A Revolution Too Soon:

Women Suffragists and the “Living Constitution,” 76 N.Y.U. L. R

EV. 1456, 1458 (2001).

82. For an excellent history, see generally D

UBOIS, supra note 75.

83. M

CCONNAUGHY, supra note 3, at 10.

84. Id. at 34–35 & 35 n.19.

85. Id. at 253–54.

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 41

politics.

These predictions initially turned out to be correct, despite the later

emergence of a “gender gap” between men and women.

As states began to en-

franchise white women in the early twentieth century, each state’s partisan politi-

cal alignment remained mostly the same.

McConnaughy argues that women’s

suffrage supporters instead followed a “programmatic enfranchisement” model:

“changes in state laws came when suffragists could build coalitions with groups

able to leverage for their cause from inside party politics; woman suffrage was

delivered by politicians as part of a program of policies meant to appease their

existing constituents.”

Supporters of women’s suffrage allied themselves with other groups, such as

farmers, in an effort to build on existing interest-group power to push for changes

in voting laws.

Women’s suffrage was not the top agenda item for these other

interest groups, but they were happy to have the additional support and help to-

ward electoral viability and, in turn, supported women’s suffrage.

Given the

middle- and upper-class white base of the Women’s Suffrage Movement,

some

coalitions proved harder to forge, such as with labor unions and, in some places,

with supporters of enfranchisement rights for nonwhites.

Among the most important coalitionist activities of women’s suffragists was to

ally with minor political parties. These parties, which typically held only a few

seats in state legislatures, often affected the balance of power within states and

inﬂuenced the eventual policy positions of the major parties.

This same pattern of third-party inﬂuence emerged on the national scale. The

decades-long effort to convince Congress to pass a constitutional amendment

86. See id. at 11. This argument is in some tension with the idea that women would help to enforce

prohibition, because they were more likely to support morals legislation, and the later argument that

women would support Jim Crow as the price for southern support for women’s suffrage.

87. D

ANIEL HAYS LOWENSTEIN ET AL., ELECTION LAW—CASES AND MATERIALS 43 n.f. (6th ed.

2017).

88. M

CCONNAUGHY, supra note 3, at 11.

89. Id. at 10, 252; see also id. at 215–16, 249–50.

90. See id. at 252–53.

91. Id. at 258.

92. It was a mostly white, middle-class women’s movement, but, as Rosalyn Terborg-Penn has

shown, African-American (also mostly middle-class) women also played an important, underreported

role in the struggle for the right to vote, ﬁghting “racism and sexism simultaneously.” T

ERBORG-PENN,

supra note 3, at 2; see also generally Liette Gidlow, The Sequel: The Fifteenth Amendment, The

Nineteenth Amendment, and Southern Black Women’s Struggle to Vote, 17 J. G

ILDED AGE &

ROGRESSIVE ERA 433 (2018) (describing the suffrage struggles of black women in the South between

the 1870s and 1920s).

93. M

CCONNAUGHY, supra note 3, at 222, 253; see also KRADITOR, supra note 5, at xiv (“Although

working-class, Negro, and foreign-born women received the vote along with the rest, the suffrage

movement was essentially from beginning to end a struggle of white, native-born, middle-class women

for the right to participate more fully in the public affairs of a society the basic structure of which they

accepted.”).

94. M

CCONNAUGHY, supra note 3, at 206, 208, 219–20.

95. Id. at 210 (“Nine of the ﬁfteen full woman suffrage adopter[] [states] and six of ﬁfteen

presidential or primary suffrage adopter[] [states] acted after an election in which the reform party

garnered more than 5 percent of the gubernatorial vote.”).

42 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

barring discrimination in voting on the basis of gender ﬁnally bore fruit.

President Teddy Roosevelt, who had not been an early supporter of women’s suf-

frage, became a supporter when he ran again as a candidate for president in 1912

as part of the Bull Moose Party.

As this new progressive party started to organ-

ize, it allied with other organizations, including organizations supporting wom-

en’s suffrage, to build political power.

Roosevelt lost the 1912 presidential

election to Woodrow Wilson, but the push for women’s suffrage survived. By

1916, both the Democratic and Republican Party platforms endorsed the exten-

sion of the franchise to women (although through state-based decisions, not via a

constitutional amendment).

The Women’s Suffrage Movement had the hardest time using coalitional poli-

tics in geographic areas where they could not form partnerships with other

groups, a problem most common in the American South.

100

It is not as though

Southerners were more opposed to women’s suffrage compared to the rest of the

country. Instead, there was great concern that allowing women’s voting rights on

a national scale could open up the system to effective re-enfranchisement of

African-Americans, which Southern senators strongly opposed.

101

CCONNAUGHY, supra note 3, at 245–46; see also Kimberly A. Hamlin, How Racism Almost

Killed Women’s Right to Vote, W

ASH. POST (June 4, 2019, 6:00 AM), https://www.washingtonpost.com/

outlook/2019/06/04/how-racism-almost-killed-womens-right-vote/.

By this point

in history, African-American voters had been effectively disenfranchised

throughout the South, and preserving that status quo was the paramount aim of

Southern politicians.

102

Further, Southern states generally had stricter election-

and ballot-access rules to block African-American voting, and these rules also

made it harder for women’s suffrage supporters to engage in political action to

assure nondiscrimination in voting on the basis of gender.

103

Partially in an appeal for Southern support, some women’s suffrage activists

pitted themselves against those ﬁghting for African-American and others’ voting

rights. Although women’s suffrage pioneer Susan B. Anthony “believed in uni-

versal suffrage on the theory that women, Negroes, propertyless workers, and

96. See id. at 247–48.

97. Id. at 238–39.

98. Id.

99. Id. at 244. The Democratic party platform recommended “the extension of the franchise to the

women of this country, State by State, on the same terms as to the men,” and the Republican party

“favor[ed] the extension of the suffrage to women, but recogniz[ed] the right of each State to settle

this question for itself.” Id. On the changing coalitional politics that led to conditions for the passage

of the Amendment, see K

EYSSAR, supra note 5, at 173–75.

100. M

CCONNAUGHY, supra note 3, at 250 (“The result was that states with large non-white

populations often presented nearly impossible political challenges for suffragists — no matter how large

suffrage organization memberships and budgets grew.”); see also K

RADITOR, supra note 5, at xv

(“The Southern [women’s] suffragist movement was a white women’s movement, and the participation

of Southern individuals and organizations in [the National American Woman Suffrage Association]

signiﬁed a permanent break with the abolitionist tradition from which the women’s right agitation had

sprung.”).

101.

102. See K

EYSSAR, supra note 5, at 173–75; MCCONNAUGHY, supra note 3, at 244, 251–52; Siegel,

supra note 3, at 7–8; T

ERBORG-PENN, supra note 3, at 1–2.

103. M

CCONNAUGHY, supra note 3, at 208–09.

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 43

naturalized citizens had the same inalienable right to consent to the laws they

objected as did white, rich, and native-born men,” over time some supporters of

women’s suffrage were willing to cast aside support for African-American

suffrage—sometimes even embracing racist arguments—to assure women’s suf-

frage on the state and national levels.

104

These later women’s rights supporters

“unanimously believed that the stability of government depended on the rule of

the ‘intelligent’ portion of the population, and so they could easily see the consis-

tency of decreasing the political power of ‘unﬁt’ groups with increasing their

own.”

105

Keremidchieva demonstrated that the congressional debates contemporaneous

with the Nineteenth Amendment’s passage reﬂected an understanding that the

right of (white) women to vote would not lead to rights for noncitizens and for

African-American women and men. “[E]arly in the debate Sen. Williams (D-MS)

introduced an amendment calling for the term ‘white’ to be inserted before the

word ‘person’ in the resolution.”

106

Williams was an opponent of the Nineteenth

Amendment, and his proposal was defeated.

107

Despite Southern resistance, the Amendment mandating women’s suffrage

rights on a national scale gained the reluctant support of President Wilson during

World War I and enough momentum to pass in Congress.

108

But it is “wildly

inaccurate” to think of women’s enfranchisement in the United States as happen-

ing in a single episode with the Amendment’s approval.

109

By the time of the

Amendment’s ratiﬁcation in 1920, “woman suffrage in some form was already a

reality in nearly every state. Thirty states had changed their laws to do away with

sex qualiﬁcations to vote in elections of national consequence.”

110

Many of the

senators voting in favor of the Amendment did so because of the support in their

states for women’s suffrage, as demonstrated by earlier state-enfranchisement

104. KRADITOR, supra note 5, at 163, 165 (“Southern white women began building a suffrage

movement the principal argument of which was that the enfranchisement of women would insure the

permanency of white supremacy in the South.”).

105. Id. at 164; see also Rabia Belt, Outcasts from the Vote: Women’s Suffrage and Mental

Disability 4 (unpublished manuscript) (on ﬁle with authors) (“Using techniques from petitions to

posters, elite white woman suffrage activists applied mental disability to leverage their privilege in order

to gain the franchise. They countered the images of female lunatics deployed by anti-suffragists,

homogenized the image of white women as able-minded, and offered these able-minded white women

to able-minded white men as allies and a bulwark against a potential menace of enfranchised mentally

impaired men.”).

106. Keremidchieva, supra note 73, at 58.

107. See id.; Kolbert, supra note 74, at 543 n.201.

108. See D

UBOIS, supra note 75, at 211–12, 222–29 (discussing Wilson’s reluctance); id. at 244

(discussing Wilson’s ﬁnal capitulation after years of protests during World War I); K

EYSSAR, supra note

5, at 173–74 (discussing the connection between the war effort and the Women’s Suffrage Movement).

109. M

CCONNAUGHY, supra note 3, at 251.

110. Id. States did so “either by striking the word male from the suffrage clauses of their state

constitutions, or by amending state law to remove the sex qualiﬁcation for presidential electors or

primary voters.” Id.

44 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

efforts.

111

Ultimately, the Nineteenth Amendment passed without much support

from Southern senators

112

and without ratiﬁcation in Southern states.

113

Scholars continue to debate the racism of the later Women’s Suffrage

Movement,

114

and the extent to which the tactics embraced by some in the Movement

reﬂected the views of suffrage supporters generally. In the end, the Women’s

Suffrage Movement proved successful enough that (white) women quickly gained the

franchise where it had not already been granted by a state. Others who were denied

the franchise had to wait decades more to achieve full voting rights. The Nineteenth

Amendment barely needed judicial review because few states directly discriminated

against white women in voting, whereas discrimination against African-American

men and women returned many times to the courts, often with embarrassingly little

done about it until after the passage of the Voting Rights Act of 1965.

115

2. Synthetic Interpretation

As the last section demonstrated, the text of the Nineteenth Amendment as

well as its history indicate that its drafters and supporters intended to give the

national government a key role in ensuring equal voting rights regardless of gen-

der. The Amendment mandated gender equality in voting on a national scale,

with federal protection and congressional enforcement power to be wielded

against resisting states. Less clear from that history is support for our argument

that the Nineteenth Amendment should be read more broadly as part of a general

expansion of voting rights in the United States. Indeed, some of the history points

toward a kind of gender exclusivism, which rejected concerns about voting laws

discriminating against other groups.

We advance the argument for a holistic and broad approach by looking syn-

thetically at the Constitution,

116

viewing the Nineteenth Amendment as one of a

111. Id. at 243.

112. Id.

In the end, enough senators, including a few from below the Mason-Dixon Line, voted “yes”

on the Susan B. Anthony Amendment for it to pass on June 4, 1919. Senators approved the

amendment not because they thought it would enfranchise women of color or compel the

enforcement of the 15th Amendment, but because they knew it would not.

Hamlin, supra note 101.

113. K

EYSSAR, supra note 5, at 175.

114. Marjorie Julian Spruill, Race, Reform, and Reaction at the Turn of the Century; Southern

Suffragists, the NAWSA, and the “Southern Strategy” in Context, in V

OTES FOR WOMEN: THE STRUGGLE

FOR SUFFRAGE REVISITED 102, 102 (Jean H. Baker ed., 2002).

115. See Shelby County v. Holder, 570 U.S. 529, 560–63 (2013) (Ginsburg, J., dissenting); South

Carolina v. Katzenbach, 383 U.S. 301, 310–17 (1966).

116. Here, we follow Reva Siegel and others in “approach[ing] the Constitution as a charter of

government forged in history by successive generations of authors and emphasiz[ing] the ways that they

modiﬁed the Constitution’s meaning by amending the document over time.” Siegel, supra note 22, at

967 & n.54. Synthetic readings of the Constitution differ from “intratextualism,” which “urges a reader

interpreting ‘a contested word or phrase that appears in the Constitution; to consider its meaning as it

appears in other passages.” Michael T. Morley, The Intratextual Independent “Legislature” and the

Elections Clause, 109 N

W. U. L. REV. ONLINE 131, 135 (2015) (quoting Akhil Reed Amar,

Intratextualism, 112 H

ARV. L. REV. 747, 748 (1999)).

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 45

number of important amendments expanding the right to vote in the United States

and Congress’s enforcement powers, and looking at the Supreme Court’s history

of expanded voting rights. The thick reading recognizes that the Constitution’s

voting rights protections should be read broadly and synergistically rather than

focusing discretely on whether a voting restriction burdens age, gender, or race.

Imagine a state law imposing especially high burdens on the voting rights of

young women of color. Such a law could require voting to take place only during

ten hours on Election Day and offer no early or no-excuse absentee voting, de-

spite evidence that young women of color are most likely among the voting popu-

lation to have difﬁculty in voting given work and childcare obligations. A thick,

synthetic reading of the Nineteenth Amendment would recognize that these vot-

ers’ rights are also protected by the Fourteenth, Fifteenth, and Twenty-Sixth

Amendments, and ﬁnd such a law unconstitutional.

This is not to say that such laws would be unconstitutional only if they bur-

dened people who ﬁt in all three categories. But courts should be especially sensi-

tive to laws imposing disproportionate political burdens on people potentially

facing discrimination for multiple reasons.

The text of the Nineteenth Amendment, read in the context of the entire

Constitution and especially the

other amendments protecting voting rights, sup-

ports the thick reading. This reading could provide a basis not only for a lawsuit

attacking the state’s failure to offer meaningful alternatives to Election Day vot-

ing, but also for congressional legislation mandating that states offer early or no-

excuse absentee voting, even in state and local elections.

117

We are not the ﬁrst to suggest that the Nineteenth Amendment should be read

synthetically and in a thick way. In a famous 2002 article, She the People: The

Nineteenth Amendment, Sex Equality, Federalism, and the Family, Professor

Reva Siegel argued that the passage of the Nineteenth Amendment strengthened

the scope of equal protection rights contained in the earlier-ratiﬁed Fourteenth

Amendment.

118

“When Americans ﬁnally voted to ratify the Nineteenth

Amendment, they were breaking with understandings of the family that had

organized public and private law and deﬁned the position of the sexes since the

founding of the republic.”

119

Her “synthetic reading” of the Fourteenth and

Nineteenth Amendments

would bring to the interpretation of the Equal Protection Clause a knowledge

of the family-based status order through which women were disfranchised for

most of this nation’s history and from which they were emancipated after over

a half century of struggle. Interpreted from this sociohistoric standpoint, a core

117. No doubt Congress would have the power under the Elections Clause to require such

opportunities in elections with federal candidates on the ballot. See Arizona v. Inter Tribal Council of

Ariz., 570 U.S. 1, 8–9 (2013).

118. Siegel, supra note 22, at 952. For an originalist argument following Siegel’s lead, see Steven G.

Calabresi & Julia T. Rickert, Originalism and Sex Discrimination, 90 T

EX. L. REV. 1, 12–13, 67–68

(2011) (describing where the authors agree and disagree with Siegel’s analysis).

119. Siegel, supra note 22, at 951.

46 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

meaning of equal protection for women is freedom from historic forms of sub-

ordination in the family.

120

Our argument is much narrower than Siegel’s because it is focused speciﬁcally

on the question of voting and political rights contained in the Constitution, and

not, for example, on issues of family law.

In a nutshell, no one reading the Constitution and its amendments in chrono-

logical order could miss the progression

in favor of expanded voting rights. At

the time of the original Constitution, there was no direct election of the U.S.

Senate

121

until the passage of the Seventeenth Amendment in 1913 and the

Electoral College gave state legislatures broad powers to choose the manner of

selecting presidential electors.

122

The Fourteenth and Fifteenth Amendments pro-

hibited discrimination in voting on account of race; the Seventeenth Amendment

provided for the direct election of senators; the Nineteenth Amendment prohib-

ited discrimination in voting on account of sex; the Twenty-Third Amendment

effectively enfranchised Washington, D.C. residents to vote for President; the

Twenty-Fourth Amendment prohibited poll taxes; and the Twenty-Sixth

Amendment assured that voters as young as eighteen years old would not face

discrimination in voting. Each of these steps expanded voting rights, and no

amendments have ever constricted them.

It is easy to imagine a litigation strategy premised on a revived Nineteenth

Amendment within the scope of a cluster of new voting rights claims. Indeed,

although Nineteenth Amendment litigation has been virtually nonexistent, paral-

lel arguments recently have emerged in terms of potential state violations of the

Twenty-Sixth Amendment barring discrimination in voting on the basis of age.

Eric Fish has argued that the Amendment “should be interpreted to protect voters

of all ages from age discrimination, not merely the young. It should also be inter-

preted to permit Congress to enact legislation overriding state policies that

abridge voting rights on the basis of age, even if such discrimination is not those

policies’ main purpose.”

123

Yael Bromberg notes that thus far, most courts have avoided deciding whether

the Twenty-Sixth Amendment has its own legal force when plaintiffs allege that

120. Id. at 952; see also Joseph Fishkin, Equal Citizenship and the Individual Right to Vote, 86 IND.

L.J. 1289, 1344 (2011) (“The Nineteenth Amendment . . . . overturned the hollow conception of the

political meaning of citizenship at the heart of Minor—the proposition that while ‘citizens’ might have

some civil rights, in terms of politics they are nothing more than subjects who happen to reside in a

republic.”).

121. U.S. C

ONST. art. I, § 4, cl. 1.

122. U.S. C

ONST. amend. XVII. State legislators retain the power to directly choose presential

electors even as all states have allowed voters to choose. See supra note 4. Franita Tolson has argued

that the Elections Clause gives Congress broad power to regulate elections. See Franita Tolson, The

Spectrum of Congressional Authority over Elections, 99 B.U. L. R

EV. 317, 321 (2019).

123. Eric S. Fish, Note, The Twenty-Sixth Amendment Enforcement Power, 121 Y

ALE L.J. 1168,

1172 (2012); see also Symm v. United States, 439 U.S. 1105, 1105 (1979) (mem.) (summarily afﬁrming

the district court, which struck down a law burdening college-student voters as a violation of the

Twenty-Sixth Amendment).

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 47

they face burdens as young voters.

124

She also argues that courts need to think

more creatively about the standard under the Twenty-Sixth Amendment and

should pay particular attention when age discrimination in voting overlaps with

discrimination on the basis of race and partisanship.

125

3. Supreme Court Precedent

Beginning in the 1960s, the Supreme Court’s constitutional voting rights juris-

prudence began to recognize this expansion of

voting rights. The Court has come

a long way since it rejected the right to women’s suffrage under the Fourteenth

Amendment in the 1875 case Minor v. Happersett;

126

tolerated Southerners’ con-

tinued disenfranchisement of African-Americans in 1903 with Giles v. Harris

127

and whites-only political primaries in 1935 under Grovey v. Townsend;

128

and

accepted poll taxes in the 1937 Breedlove v. Suttles

129

case and literacy tests in

1959 through Lassiter v. Northampton County Board of Elections.

130

But two decades later, the Court reversed Grovey, holding that whites-only pri-

maries violate the Constitution.

131

And beginning in the 1960s, the Court’s

greater protection for voting rights took hold. As noted in the Introduction, the

Court in a series of cases created and applied the one-person, one-vote rule to fed-

eral, state, and local elections.

132

The Court partially reversed Breedlove and

struck down poll taxes on equal protection grounds in the 1966 Harper case.

133

The Court established voting as a fundamental right, rendering most citizen,

adult, resident nonfelons eligible to vote in local and state elections.

134

It struck

down long durational-residency requirements

135

and oppressive ballot access

rules.

136

And in dealing with the formerly intractable problem of continued

Southern resistance to the Fifteenth Amendment, the Supreme Court upheld

Congress’s power under the Fourteenth and Fifteenth Amendments to pass key

124. Yael Bromberg, Youth Voting Rights and the Unfulﬁlled Promise of the Twenty-Sixth

Amendment, 21 U. P

A. J. CONST. L. 1105, 1111–12 (2019).

125. Id. at 1113–15.

126. 88 U.S. 162, 171 (1875).

127. 189 U.S. 475, 476 (1903).

128. 295 U.S. 45, 55 (1935), overruled in part by Smith v. Allwright, 321 U.S. 649 (1944). Before

Grovey, the Court at ﬁrst sidestepped the question of the white primary’s constitutionality in Newberry

v. United States, 256 U.S. 232 (1921), and then struck down white primaries in Nixon v. Herndon, 273

U.S. 536, 541 (1927) and Nixon v. Condon, 286 U.S. 73, 89 (1932).

129. 302 U.S. 277, 284 (1937), overruled by Harper v. Va. State Bd. of Elections, 383 U.S. 663

(1966).

130. 360 U.S. 45, 53–54 (1959).

131. Terry v. Adams, 345 U.S. 461, 470 (1953); Smith, 321 U.S. at 666.

132. See supra notes 1–14 and accompanying text. The extension to local elections occurred in Avery

v. Midland County, 390 U.S. 474, 481 (1968).

133. Harper, 383 U.S. at 666–69.

134. See Evans v. Cornman, 398 U.S. 419, 424–26 (1970); Kramer v. Union Free Sch. Dist. No. 15,

395 U.S. 621, 632–33 (1969); Carrington v. Rash, 380 U.S. 89, 96 (1965). The exception is for special-

purpose units of government. See Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S.

719, 733 (1973).

135. Dunn v. Blumstein, 405 U.S. 330, 360 (1972).

136. Williams v. Rhodes, 393 U.S. 23, 34 (1968).

48 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

provisions of the 1965 Voting Rights Act,

137

including a nationwide ban on liter-

acy tests.

138

The Voting Rights Act has been the most important step toward

effective enfranchisement of African-American men and women voters in

American history.

139

The current Supreme Court has been unwilling to further extend voting

rights.

140

In 2013, it struck down the coverage formula in the Voting Rights Act

because it held that Congress acted unconstitutionally in relying on old data.

141

2019, it refused to recognize a standard for policing partisan gerrymandering.

142

But the much more conservative judicial body has not touched any of the Warren

Court-Era precedents expanding the right to vote. When the Court returned to

one-person, one-vote issues in the Evenwel v. Abbott case, which raised the ques-

tion whether the one-person, one-vote standard requires drawing districts with

equal numbers of voters or citizens, only Justice Thomas suggested revisiting the

earlier precedents and allowing states to draw districts with unequal popula-

tions.

143

The Warren Court-Era voting rights cases seem ﬁrmly established even

in the hands of a much more conservative Supreme Court.

That these cases have endured for more than half a century despite the more

conservative turn of the Supreme Court demonstrates the strong commitment to

expanded political equality under the Constitution. The cases begin with the sup-

position that all eligible voters are entitled to an equal vote that will be fairly

counted, and that distinctions among groups of voters will be subject to strict

scrutiny. Together, the cases support the thick reading of the Nineteenth and other

voting Amendments, along with broad congressional power to enforce such rights

through appropriate legislation.

II. C

ONGRESS’S THICK NINETEENTH AMENDMENT ENFORCEMENT POWER

Some work advancing gender equality in politics can occur at the state level:

States can pass laws seeking to equalize political power across genders. Other

work could be done in the courts: Individuals or entities could bring lawsuits

challenging state and local voting restrictions as violating the Nineteenth

Amendment and potentially other voting-related Amendments. But some states

137. South Carolina v. Katzenbach, 383 U.S. 301, 337 (1966); see also supra note 19 and

accompanying text (describing Court’s continued recognition of congressional power to impose

preclearance under the Voting Rights Act until the Shelby County decision).

138. Oregon v. Mitchell, 400 U.S. 112, 131–34 (1970).

139. See L

OWENSTEIN ET AL., supra note 87, at ch. 5 (analyzing Voting Rights Act cases and issues of

minority voting rights).

140. For a look at the Roberts Court’s record on voting rights in its ﬁrst decade, see Richard L.

Hasen, Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed

Bumps and Surprising Twists, 68 S

TAN. L. REV. 1597 (2016).

141. Shelby County v. Holder, 570 U.S. 529, 557 (2013).

142. Rucho v. Common Cause, 139 S. Ct. 2484, 2508 (2019).

143. 136 S. Ct. 1120, 1133 (2016) (Thomas, J., concurring) (“I write separately because this Court

has never provided a sound basis for the one-person, one-vote principle.”). Justice Alito also concurred

separately expressing caution, id. at 1142 (Alito, J., concurring), but did not go as far as Justice Thomas

and did not join Justice Thomas’s concurrence.

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 49

will not act, and some courts will not view the Nineteenth Amendment’s substan-

tive protections broadly enough. In such an instance, Congress may act to ensure

greater political equality across genders. Inevitably, the question will arise

whether Congress has exceeded its powers in passing such legislation. Congress

already has broad authority to set rules for federal elections under the Elections

Clause.

144

We believe courts and scholars should embrace a thick conception of

Congress’s enforcement power contained in Section 2 of the Nineteenth

Amendment to allow Congress to act even more broadly in the areas of state and

local elections and to go beyond direct enfranchisement and towards laws that

equalize political power across genders more broadly.

Justice Ginsburg in her Shelby County dissent emphasized the congressional

enforcement powers contained in many of the amendments expanding the fran-

chise.

145

Like several of the preceding amendments (and in particular, the

Reconstruction Amendments), the Nineteenth Amendment contains both a sub-

stantive provision and a grant of power to Congress.

146

The Nineteenth

Amendment Enforcement Clause also similarly gives Congress the “power to

enforce this article by appropriate legislation.”

147

Justice Ginsburg wrote that

these Amendments are “in line with the special role assigned to Congress in pro-

tecting the integrity of the democratic process in federal elections.”

148

A thick reading of the Nineteenth Amendment’s voting right could justify

broad federal voting rights legislation as well as more generally applicable legis-

lation promoting political equality regardless of gender. This Part offers a

glimpse of how Congress might exercise its powers under the Nineteenth

Amendment.

There are several different reasons to think—and theories that explain—why

Congress has the power to prohibit state laws or policies that might not violate

the Nineteenth Amendment’s substantive provision. We will refer to this as a

“thick” conception of Congress’s enforcement power (similar to the “thick” con-

ception of the right to vote). Some of these theories have been—or could be—

applied to the preceding Reconstruction Amendments; the fact that they have not

is an important reason to doubt that the modern Court would adopt a thick con-

ception of Congress’s powers under the Nineteenth Amendment. Part III explains

the various obstacles that a thick conception of Congress’s enforcement powers

would likely encounter; this Part, however, explores what a thick conception of

Congress’s enforcement powers might look like, and some reasons to prefer that

conception.

144. Arizona v. Inter Tribal Council of Ariz., 570 U.S. 1, 8–9 (2013).

145. Justice Ginsburg did not mention the Seventeenth Amendment, which lacks any congressional

enforcement mechanism, and neither Justice Douglas nor Justice Ginsburg mentioned the Twenty-Third

Amendment.

146. See U.S. C

ONST. amend. XIX.

147. U.S. Const. amend. XIX, § 2.

148. Shelby County v. Holder, 570 U.S. 529, 567 n.2 (2013).

50 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

One thick conception of the Enforcement Clause views the Clause as remedial

and primarily backward looking,

149

allowing Congress to remedy past discrimina-

tion on the basis of sex and sex inequality. Some of the gender disparities that

exist today are vestiges of the regime that the Nineteenth Amendment (partially)

dismantled—a regime in which women were not allowed to vote and were

viewed as unﬁt for public and political life.

150

See Siegel, supra note 22, at 977–93. Women

still face political-power disparities, even as

women’s voter turnout has equaled or exceeded men’s turnout in recent U.S. elections, especially

among younger voters. C

TR. FOR AM. WOMEN & POL., GENDER DIFFERENCES IN VOTER TURNOUT

(2019), https://www.cawp.rutgers.edu/sites/default/ﬁles/resources/genderdiff.pdf [https://perma.cc/

WKW3-78Z3].

Congress’s enforcement power

might conceivably allow Congress to eliminate the lingering effects of that re-

gime in order to prevent preexisting gender disparities from compounding. For

example, to the extent that certain social norms about what makes a successful

political leader are informed by who has been a political leader in the past,

Congress might be able to combat those perceptions, which may be driven, in

part, by the history of sex discrimination.

151

Another interpretation of Congress’s enforcement power would look to the

way that the Court has interpreted the Eleventh Amendment and the principle of

state sovereign immunity it reﬂects (but does not exhaust). The Eleventh

Amendment, by its terms, prohibits the federal courts from hearing cases between

a state and a citizen of another state.

152

But the Court has interpreted the Eleventh

Amendment to reﬂect a broader principle of state sovereign immunity that pro-

hibits the federal and state courts from hearing cases between a state and its citi-

zens.

153

The Court has also held that the state sovereign immunity principle

prevents Congress from subjecting states to suits in state or federal court under its

power to regulate interstate commerce.

154

The Court has justiﬁed this principle by

asserting that the Eleventh Amendment prohibited only one speciﬁc type of suit

that was foremost on Americans’ minds at the time; the Amendment purportedly

addresses the prototypical case implicating state sovereign immunity, but the

Amendment applies more broadly than that speciﬁc example.

155

One could imagine a similar approach to the Nineteenth Amendment.

156

That

is, the substantive provision of the Nineteenth Amendment might address one

particular manifestation of the sex disparities that existed at the time while

149. This theory comports with City of Boerne’s focus on the remedial nature of the Enforcement

Clause language. See infra notes 251–71 and accompanying text.

150.

151. See infra notes 229–30 and

accompanying text (discussing electability problems that female

candidates encounter).

152. U.S. C

ONST. amend. XI.

153. See Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1490 (2019); Hans v. Louisiana, 134

U.S. 1, 21 (1890).

154. See Alden v. Maine, 527 U.S. 706, 712 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44,

53 (1996).

155. See Alden, 527 U.S. at 723; Seminole Tribe, 517 U.S. at 69–70. We do not mean to endorse the

Court’s interpretation of the Eleventh Amendment, but rather to demonstrate an instance in which the

Court expanded the reach of an amendment beyond its text and toward a broader principle.

156. Reva Siegel’s article takes a similar approach. See Siegel, supra note 22, at 1046.

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 51

reﬂecting a more far-reaching principle, at least under the Enforcement Clause

(such that Congress could prohibit additional forms of discrimination).

157

Another interpretation of Congress’s enforcement power views the power as a

backstop to judicial enforcement of the Constitution. Judicial doctrines implement-

ing the Constitution imperfectly identify conduct that violates the Constitution.

The tiers of scrutiny, for example, create some false positives (by invalidated

laws under heightened scrutiny when the laws do not offend the Constitution) as

well as some false negatives (by upholding laws under only minimal scrutiny

when the laws do violate the Constitution).

158

Other doctrinal apparatuses also

imperfectly capture constitutional substance. For example, the Court has held

that facially neutral laws amount to unconstitutional discrimination only where

the laws are motivated by a discriminatory purpose.

159

The doctrine’s focus on

legislative intent creates the risk that judges might lack the pertinent fact-ﬁnding

capabilities to conclude that a state actor had an impermissible purpose.

160

Judges’ deference to the political branches might also lead them to err on the

side of upholding laws.

161

Congress’s capacity to legislate beyond the substantive provisions of the

Nineteenth Amendment compensates for these realities. Congress can con-

clude that some restrictions on voting amount to impermissible discrimination

on the basis of sex. That is, Congress can reach a conclusion even if federal

courts could not and should not reach that same conclusion based on the judi-

cial doctrines that limit judges’ implementation of substantive constitutional

guarantees.

162

Congress also has fact-ﬁnding capabilities and is able to draw

lines that might seem arbitrary on the margins but nonetheless distinguish

between laws that are different in important respects.

163

Congress’s enforcement power might also be a vehicle for legislative constitu-

tionalism and departmentalism. Departmentalism is the idea that other branches

of government besides the federal courts interpret the Constitution.

164

Legislative

constitutionalism is one particular manifestation of this idea—where Congress

157. The Eleventh Amendment, of course, contains only a substantive prohibition.

158. See Richard H. Fallon, Jr., The Supreme Court, 1966 Term—Foreword: Implementing the

Constitution, 111 H

ARV. L. REV. 54, 83–88 (1997) (arguing that doctrinal rules implement substantive

constitutional guarantees and only imperfectly capture them); Eric A. Posner & Adrian Vermuele,

Emergencies and Democratic Failure, 92 V

A. L. REV. 1091, 1131–33 (2006) (similar).

159. See Washington v. Davis, 426 U.S. 229, 248 (1976).

160. E.g., Abbott v. Perez, 138 S. Ct. 2305, 2313 (2018) (upholding voting restriction that had

disparate effects).

161. Id. at 2315–16 (implying that the district court erred by failing to defer to Texas legislature).

162. This principle, too, was arguably reﬂected in Katzenbach v. Morgan, 384 U.S. 641 (1966). In

that case, the Court allowed Congress to prohibit a voting test (a literacy test) that the Court had

previously upheld against a facial challenge under the Fourteenth Amendment. See Lassiter v.

Northampton Cty. Bd. of Elections, 360 U.S. 45, 53–54 (1959).

163. See Caitlin E. Borgmann, Rethinking Judicial Deference to Legislative Fact-ﬁnding, 84 I

ND.

L.J. 1, 4 (2009) (“[T]here is a widely accepted view that legislative bodies are better than courts at fact-

ﬁnding.”).

164. See Kevin C. Walsh, Judicial Departmentalism: An Introduction, 58 W

M. & MARY L. REV.

1713, 1715 (2017).

52 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

makes a constitutional determination.

165

As Reva Siegel and Robert Post

explained with reference to the Fourteenth Amendment, Congress’s enforcement

power might authorize Congress to arrive at a different conclusion than the fed-

eral courts about whether any particular law violates the Constitution, or even

about the meaning of a particular substantive guarantee in the Constitution.

166

Post and Siegel elaborated on why, as a matter of constitutional governance and

democratic legitimacy, the Constitution would assign Congress this power—

particularly with respect to rights-reinforcing legislative powers.

167

And Michael

McConnell, among others, has explained why, as a matter of history, the public

that ratiﬁed the Fourteenth Amendment would have wanted Congress to be on

the forefront of enforcing the amendment’s substantive guarantees, rather than

the federal courts.

168

Given that the Nineteenth Amendment uses the same lan-

guage as the Fourteenth Amendment, it may embody a similar principle.

169

Another conception of Congress’s enforcement power maintains that Congress

can adopt prophylactic measures that prevent future constitutional violations.

Katzenbach v. Morgan arguably reﬂected this understanding of Congress’s

enforcement powers under the Fourteenth and Fifteenth Amendments.

170

In that

case, the Court allowed Congress to prohibit the state of New York from subject-

ing anyone educated in Puerto Rico to literacy tests as preconditions to voting.

Although the Court had previously upheld a similar literacy requirement,

171

the

Court explained that reinforcing citizens’ ability to vote might prevent the state

from denying them social services or civic access in the future—and thus deter

future constitutional violations.

172

For purposes of the Nineteenth Amendment, these prophylactic or preventative

measures might have several different orientations. One would be to address bur-

dens (in addition to voter-access restrictions or voter-identiﬁcation requirements)

that might contribute to burdens on voting for women. Consider, for example,

recent research by Jamila Michener, which has shown that individuals who obtain

Medicaid coverage or health insurance are more likely to vote than people who

are uninsured.

173

To the extent there are aspects of social citizenship (like health

165. See Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power:

Policentric Interpretation of the Family and Medical Leave Act, 112 Y

ALE L.J. 1943, 1947 (2003).

166. See id. at 1946–66, 2026–32.

167. Id. at 2026–32.

168. See, e.g., Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne

v. Flores, 111 H

ARV. L. REV. 153, 156 (1997).

169. See U.S. C

ONST. amend. XIV, § 5 (“The Congress shall have power to enforce, by appropriate

legislation, the provisions of this article.”); U.S. C

ONST. amend. XIX, § 2 (“Congress shall have power

to enforce this article by appropriate legislation.”).

170. 384 U.S. 641, 658 (1966). City of Boerne v. Flores, of course, changed Katzenbach’s standard

of review. 521 U.S. 507, 527–28 (1997); see also infra notes 250–62. But City of Boerne appears to

endorse this interpretation of Katzenbach. See 521 U.S. at 527–29.

171. Lassiter v. Northampton Cty. Bd. of Elections, 360 U.S. 45, 53–54 (1959).

172. Katzenbach, 384 U.S. at 651–58.

173. See generally J

AMILA MICHENER, FRAGMENTED DEMOCRACY: MEDICAID, FEDERALISM, AND

UNEQUAL POLITICS (2018).

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 53

insurance) that facilitate political participation, Congress could reduce impedi-

ments to voting by reducing barriers to social citizenship. Another approach to

preventing future constitutional violations would be to address preemptively

ways in which women’s political participation could be impeded. For example,

eliminating economic barriers to political participation might have the effect of

safeguarding women’s political participation and preventing future constitutional

violations. Some scholars have questioned whether the staggering costs of elec-

tions (and the reality that large amounts of money appear to garner political inﬂu-

ence) deter citizens from voting.

174

If that is correct, then eliminating or

attempting to combat that impediment to voting might also be a way of enforcing

the Nineteenth Amendment.

175

Finally, a thick conception of Congress’s enforcement power provides an im-

portant mechanism for the possibility of a Second Reconstruction, but for sex

equality,

176

which could make the Nineteenth Amendment deeper and longer last-

ing. As the previous Part recounted, voting rights for African-Americans were

not realized until almost a century after the Reconstruction Amendments, when

Congress enacted the Voting Rights Act.

177

Since the Nineteenth Amendment

was ratiﬁed, elections have also become more democratic and the franchise has

expanded signiﬁcantly.

178

That is partially because the Supreme Court recognized

the one-person, one-vote principle and invalidated various antidemocratic laws

and policies,

179

and because the Constitution has been amended to expand the

number of eligible voters.

180

These developments mean that many of the groups

who stood to beneﬁt from the Nineteenth Amendment (black women, younger

women, and women in more urban areas, among other groups) are only now in a

position to make claims that sound in the Amendment.

The same is true of the Amendment’s (albeit limited) promise of sex equality.

When the Amendment was ratiﬁed, the country had certainly not rid itself of dis-

crimination on the basis of sex. At the time, people expected women to vote like

their husbands, and many of them did so.

181

Some of the arguments for suffrage

174. See Bertrall L. Ross II, Addressing Inequality in the Age of Citizens United, 93 N.Y.U. L. REV.

1120, 1166–70 (2018).

175. This is not to say that the Nineteenth Amendment alone would displace all of constitutional

antidiscrimination law, or that any law that conceivably affects political power could be justiﬁed as an

exercise of Nineteenth Amendment powers. But laws that more directly allow for women’s full

participation in the political process should be within Congress’s power to enforce the Amendment. This

would be true, for example, about the Violence Against Women Act. See infra note 244.

176. Reva Siegel helpfully raises the need for this Second Reconstruction. Reva B. Siegel, The

Pregnant Citizen, From Suffrage to the Present, 108 G

EO. L.J. 19TH AMEND. SPECIAL EDITION 167

(2020); see also Siegel, supra note 77.

177. See supra text accompanying notes 2–4.

178. See supra text accompanying notes 126–43.

179. See supra text accompanying notes 1–14.

180. See supra text accompanying note 69.

181. See supra text accompanying note 5.

54 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

even centered around the idea that women would remain in the home.

182

The

country was still in the grips of these regressive notions about sex (in addition to

race). The continued acceptance of sexism may (partially) explain why there

has never been any congressional legislation attempting to enforce the

Nineteenth Amendment. But in the last several decades, there have been signif-

icant advances in sex equality.

183

Congressional enforcement offers a way out

and a way forward—a path to moving beyond the societal expectations and

shared understandings that limited the reach of the Nineteenth Amendment and

that contributed to cramped judicial interpretations of it. A thick notion of con-

gressional enforcement also offers a deeper grounding for the democratic legit-

imacy of the Constitution by enabling congressional protection of voting rights

and legislative solidiﬁcation of sex equality.

Whatever the precise theory, however, the point is that many different concep-

tions of Congress’s enforcement power would

allow Congress to legislate in

ways other than providing remedies for conduct that violates the Nineteenth

Amendment. For the remainder of this Part, we survey how this thick conception

of Congress’s enforcement power might work: Congress’s enforcement power

might conceivably allow it to address restrictions on voting that disproportion-

ately burden women; and prevent other impediments to women’s political

equality.

A. VOTING EQUALITY

To enforce the Nineteenth Amendment’s substantive provision, Congress

might enact legislation that eliminates obstacles to women voting. Short of pro-

hibiting women from casting votes (or discounting women’s votes), states some-

times enact preconditions to voting that have the effect of prohibiting some

women from voting, or making it more difﬁcult for them to do so. Some precon-

ditions to voting might limit people’s ability to vote on account of sex because

they rely on proxies for sex or correlates with sex.

184

For example, state laws pre-

viously allowed only property owners to vote.

185

When state laws prohibited

women from holding property, that precondition prohibited women from

voting.

186

182. See 58 CONG. REC. 80, 88 (1919) (arguing that suffrage would not change women’s traditional

role in the home); 52 C

ONG. REC. 1436 (1915) (“If women vote, it will not destroy the home. It only

means a short time, once or twice a year, to go to the polls and deposit a marked piece of paper, and

during these few minutes she wields a power that is doing more to protect her home and all other homes

than any other possible inﬂuence, and she need not neglect her household nor her children in order to do

it. Almost any woman has enough time to go to the polls, and enough time to inform herself so she can

vote intelligently.”); Robert B. Jones, Defenders of “Constitutional Rights” and “Womanhood”: The

Antisuffrage Press and the Nineteenth Amendment in Tennessee, 71 T

ENN. HIST. Q. 46, 60 (2012)

(highlighting similar arguments made in Tennessee).

183. Sepper & Dinner, supra note 62, at 97–128 (discussing advances against public discrimination

on the basis of sex).

184. See City of Phoenix v. Kolodziejski, 399 U.S. 204, 206–07 (1970).

185. Id.

186. Id.; see Guy-Uriel E. Charles, Corruption Temptation, 102 C

ALIF. L. REV. 25, 31 (2014).

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 55

But there are also modern preconditions that impede women’s ability to vote,

which Congress might restrict under its enforcement power. Steve Kolbert pio-

neered the idea that Congress might legislate to address modern voting precondi-

tions under its Nineteenth Amendment enforcement powers.

187

He argued that

Congress’s Nineteenth Amendment enforcement powers could target restrictive

voting laws that disproportionately fall upon women, including voter-identiﬁcation

laws, documentary-proof-of-citizenship requirements, improper voter-registration

database maintenance practices, and cutbacks in voting access.

188

Until recently,

Kolbert observed, “the extent to which these restrictions on voting may dispropor-

tionately affect women had gone largely unnoticed.”

189

The Nineteenth Amendment might be used not only to attack the constitution-

ality of some of these restrictive laws, but also to provide the predicate for con-

gressional legislation eliminating state restrictions. Consider the case of strict

state voter-identiﬁcation laws, which may disproportionately burden women vot-

ers for a few reasons.

190

Women change their names more frequently than men

when they get married.

191

As a result, women will need to obtain updated identiﬁ-

cation documents before voting more frequently than men, which imposes a bur-

den on women who would like to vote. Even if women do obtain the updated

identiﬁcation documents, they might still be prevented from voting to the extent

the states voter-registration lists have not been updated to reﬂect their changed

names.

192

Voter-identiﬁcation laws may also disproportionately burden women because

of socioeconomic disparities in the United States. It is no secret that women pos-

sess less wealth than men;

193

they receive less money for doing similar work,

194

Valentia Zarya, Female Founders Got 2% of Venture Capital Dollars in 2017, F

ORTUNE (Jan.

31, 2018, 7:30 AM), https://fortune.com/2018/01/31/female-founders-venture-capital-2017/; Claire

Zillman, The Fortune 500 Has More

Female CEOs Than Ever Before, F

ORTUNE (May 16, 2019, 6:30

AM), https://fortune.com/2019/05/16/fortune-500-female-ceos/.

and several predominantly female occupations are plagued by underpayment and

wage theft.

195

For a long time, domestic

work was speciﬁcally not covered by the federal wage laws. See Fair

Labor Standards Act of 1938, Pub. L. No. 75-718, 52 Stat. 1060 (current version at 29 U.S.C. § 213

Courts have recognized that the burden of voter-identiﬁcation laws

187. See Kolbert, supra note 74.

188. Id. at 508–29, 543–59; see also D

UBOIS, supra note 75, at 5 (“Today’s voter suppression is the

contemporary manifestation of the opposition to extending the franchise to African Americans and

women.”).

189. See Kolbert, supra note 74, at 511.

190. Id. at 511–16.

191. See Elizabeth F. Emens, Changing Name Changing: Framing Rules and the Future of Marital

Names, 74 U. C

HI. L. REV. 761, 785–89 (2007).

192. Kolbert, supra note 74, at 523 (“[W]omen are particularly vulnerable to problems related to

database-matching: a database that lists a woman under her maiden name may report a non-match

against the woman’s married name in the voter registration database (or an outdated voter registration

record may not match up with an updated driver’s license or social security database).”). Further,

counsel in Florida voting rights litigation reported voting “problems for married women who hadn’t

changed their name on Social Security or DMV information.” Id.

193.

See, e.g., Maria Cancian & Deborah Reed, Family Structure, Childbearing, and Parental

Employment: Implications for the Level and Trend in Poverty, 26 F

OCUS 21, 24 tbl.1 (2009).

194.

195.

56 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

https://time.com/5626156/domestic-workers-anti-discrimination-law-ndwa

[https://perma.cc/J4VH-NNNB].

“will fall most heavily on the poor,” in part because wealthier individuals may be

more likely to have drivers’ licenses and individuals with greater wealth may also

ﬁnd it easier to obtain the required documentation.

196

Plaintiffs’ claims against

these laws should rely at least partially on the Nineteenth Amendment. Further,

by eliminating these state laws, Congress would be eliminating voting barriers

that differentially affect people on account of sex.

Voter-roll maintenance systems are another obstacle that may disproportion-

ately burden women’s ability to vote. Voter-roll maintenance occurs when states

remove persons from the voter rolls, ostensibly to ensure that voter rolls are up-

to-date.

197

The National Voter Registration Act requires ofﬁcials to perform

voter-list maintenance to remove ineligible voters from voter registration.

198

Some states remove voters because there is no record of the person voting in a

recent election.

199

Other times, states may eliminate a voter from the voter rolls

when the voter-registration list contains a name that does not match a name on

the state’s other identiﬁcation lists (such as DMV lists).

200

Indeed, the Help

America Vote Act requires states to verify the names on the voter-registration

database with other databases in order to verify voters’ identity.

201

That method

may disadvantage women who change their names after getting married.

202

The

voter purges and voter-roll maintenance system may also have differential socio-

economic burdens, similar to voter-identiﬁcation laws. Getting back on the voter-

registration list may require administrative hurdles that are particularly difﬁcult

for persons in lower-paying jobs with less ﬂexible work schedules. And there is

no question that states occasionally (and perhaps quite frequently) mistakenly

eliminate voters from voter rolls—some estimates have suggested that Florida

improperly removed almost 20,000 voters from voter-registration rolls.

203

See Katie Sanders, Bill Nelson Compares Rick

Scott’s Voter Purge with a 2000 Attempt,

OLITIFACT FLA. (June 5, 2012 4:02 PM), https://www.politifact.com/factchecks/2012/jun/05/bill-

nelson/bill-nelson-compares-rick-scotts-voter-purge-2000-/ [https://perma.cc/K2H7-Q965]; see also

David Margolick et al., The Path to Florida, V

ANITY FAIR (Oct. 2004), at 310–11, https://archive.

vanityfair.com/article/2004/10/the-path-to-ﬂorida.

Another estimate found that Ohio’s proposed list of voter purges would have mis

(2018)). They are still not covered by civil rights laws on the workplace. See Madeleine Joung, Domestic

Workers Aren’t Protected by Anti-Discrimination Law. This New Bill Would Change That, T

IME (July

15, 2019, 12:04 PM),

196. Texas v.

Holder, 888

F. Supp. 2d 113, 140 (D.D.C. 2012), vacated on other grounds by 570 U.S.

928 (2013) (mem.).

197. See Naila S. Awan, When Names Disappear: State Roll-Maintenance Practices, 49 U. M

EM. L.

EV. 1107, 1108–09 (2019).

198. 52 U.S.C. § 20507(c)(2)(A) (2018).

199. See, e.g., Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833, 1838, 1848 (2018) (upholding

Ohio’s ability to eliminate voters from the voter rolls where the voter did not vote in the most recent

election and failed to return a form to the state).

200. See Kolbert, supra note 74, at 523–24.

201. 52 U.S.C. § 21083(a)(5).

202. See supra note 191 and accompanying text.

203.

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 57

takenly removed 40,000 voters.

204

See Nicholas Casey, Ohio Was Set to Purge 235,000 Voters. It Was Wrong About 20%., N.Y.

IMES (Oct. 14, 2019), https://www.nytimes.com/2019/10/14/us/politics/ohio-voter-purge.html.

(Ohio’s mistakes were identiﬁed only because

volunteers checked the state’s proposed list of ineligible voters.

205

)

Laws that restrict access to voting (by limiting early or absentee voting or

reducing the number of polling places) may also disproportionately burden

women. These laws result in abridgments on voting rights on account of sex for

similar reasons why voter-identiﬁcation laws do. The restrictions may be felt

more severely among those with less socioeconomic power, who ﬁnd it harder to

make additional time to wait in line at the polls or to take time off to vote.

206

Because women are less socioeconomically well-off than men, these restrictions

may burden women more than men.

207

Moreover, women frequently undertake a

greater proportion of work around the house, including child care and what

Elizabeth Emens calls “life admin,” relative to men.

208

That work may be more

difﬁcult to set aside (or opt out of) in order to overcome various barriers to voting.

The longer the trip to the polling place, the longer it takes to vote. Long trips com-

bined with a narrower time window in which to vote will make voting more difﬁ-

cult for people in charge of family care (which is less ﬂexible than a job that

offers days off).

Two pieces of the Nineteenth Amendment’s history help to put into focus why

eliminating these kinds of barriers to voting is a way of ensuring that voting will

not be abridged “on account of sex.” Some states used fears of voter fraud to

restrict women’s access to voting. In 1807, the New Jersey legislature prohibited

women from voting on the ground that it would prevent voter fraud.

209

Today,

some Republican-controlled states routinely recite an interest in preventing

extremely rare voter fraud as a justiﬁcation for enacting voter-identiﬁcation

requirements and for restricting absentee or early voting—restrictions that dispro-

portionately burden women.

210

More importantly, the voting restrictions discussed above have disparate racial

effects as well as disparate effects based on sex; voter-identiﬁcation laws and

restrictions on access to voting disproportionately hurt racial minorities.

211

Interpreting the Nineteenth Amendment to give Congress the power to remedy

204.

205. Id.

206. For a description

about how socioeconomic disparities in voting are a political problem, see

Ross II, supra note 174, at 1151–52.

207. See supra notes 191–93 and accompanying text.

208. Elizabeth F. Emens, Admin, 103 G

EO. L.J. 1409, 1433–39, 1440–41 (2015); see also Naomi

Cahn, The Power of Caretaking, 12 Y

ALE J.L. & FEMINISM 177, 181–82 (2000); Nancy E. Dowd,

Fatherhood and Equality: Reconﬁguring Masculinities, 45 S

UFFOLK U. L. REV. 1047, 1053–54 (2012).

209. Act of Nov. 16, 1807, 1807 N.J. Laws 33; see also Jan Ellen Lewis, Rethinking Women’s

Suffrage in New Jersey, 1776-1807, 63 R

UTGERS L.J. 1017, 1022–23 (2011).

210. See, e.g., Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 195–96 (2008); N.C. State

Conference of NAACP v. McCrory, 831 F.3d 204, 235 (4th Cir. 2016); R

ICHARD L. HASEN, ELECTION

MELTDOWN: DIRTY TRICKS, DISTRUST, AND THE THREAT TO AMERICAN DEMOCRACY ch. 1 (2020).

211. See, e.g., Ben Pryor et al., Voter ID Laws: The Disenfranchisement of Minority Voters?, 134

OL. SCI. Q. 63, 68 (2019).

58 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

voting restrictions that disproportionately hurt racial minorities (black women in

particular) is a way of redeeming the Nineteenth Amendment from the racist his-

tory with which it is entangled. As we have described,

212

some of the suffragists

who agitated for women’s right to vote were concerned with white women’s abil-

ity to vote; many of the most prominent women in the Movement as the

Nineteenth Amendment neared ratiﬁcation were content to exclude black women

from their movement and from the ambit of the Movement’s concern.

213

See A

LAN P. GRIMES, THE PURITAN ETHIC AND WOMAN SUFFRAGE 124–25 (1967); Brent

Staples, How the Suffrage Movement Betrayed Black Women, N.Y. T

IMES (July 28, 2018), https://www.

nytimes.com/2018/07/28/opinion/sunday/suffrage-movement-racism-black-women.html; Tammy L.

Brown, Celebrate Women’s Suffrage, but Don’t Whitewash the Movement’s Racism, ACLU (Aug. 24,

2018, 5:45 PM), https://www.aclu.org/blog/womens-rights/celebrate-womens-suffrage-dont-whitewash-

movements-racism [https://perma.cc/52PQ-85BA]. For work documenting the contributions of black

women to suffrage, see generally T

ERBORG-PENN, supra note 3.

Indeed,

some of the arguments for the Nineteenth Amendment were that white women

would help to maintain racial subordination and Jim Crow (and many white

women did).

214

Interpreting the Nineteenth Amendment, and in particular Congress’s enforce-

ment power, in a way that allows Congress to transcend the racist ideologies of

the Amendment’s contemporaries is an important part of legitimating the

Amendment and constitutional governance. An analogy here is helpful: The

Fourteenth Amendment has been interpreted as an aspirational guarantee that

secures protections beyond the racist practices and racist views of its ratiﬁers

(many of whom embraced segregated schools, among other invidious laws).

215

Interpreting Congress’s enforcement power under the Nineteenth Amendment to

allow Congress to address the unique burdens faced by black women is a way of

reinforcing the substantive and democratic legitimacy of the amendment itself. It

allows the Amendment to function as a guarantee that protects women of color in

addition to white women, and as a tool for Congress to rectify the burdens dispro-

portionately experienced by these women.

212. See supra notes 73–114 and accompanying text.

213.

214. Breedlove v. Suttles, 302 U.S. 277, 282 (“In view of burdens necessarily borne by them for the

preservation of the race, the State reasonably may exempt them from poll taxes.”), overruled by Harper

v. Va. State Bd. of Elections, 383 U.S. 663 (1966). Supporters also argued that women would impose

traditional values on politics. 58 C

ONG. REC. 80 (1919); Holly J. McCammon & Karen E. Campbell,

Winning the Vote in the West: The Political Successes of the Women’s Suffrage Movements, 1866-1919,

15 G

ENDER & SOC’Y 55, 58 (2001).

215. See Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case

of Original Meaning, 85 G

EO. L.J. 1765, 1803–05 (1997); Michael C. Dorf, The Aspirational

Constitution, 77 G

EO. WASH. L. REV. 1631, 1648 (2009). For work exploring the Fourteenth

Amendment ratiﬁers’ embrace of racist ideologies and practices, see generally Siegel, supra note 58

(exploring the post-Civil War embrace of “civil” rights in contrast to continued denials of “social”

rights), and Michael J. Klarman, Brown, Originalism, and Constitutional Theory: A Response to

Professor McConnell, 81 V

A. L. REV. 1881 (1995) (arguing that Brown v. Board of Education cannot be

justiﬁed on an originalist interpretation of the Fourteenth Amendment).

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 59

B. POLITICAL EQUALITY AND POLITICAL ECONOMY

Another way for Congress to enforce the Nineteenth Amendment would be

eliminating obstacles to women’s political equality—including obstacles to other

exercises of political power besides voting.

Some elements of political power relate to the political economy of voting and

elections. There is no

dearth of scholarship (or concern) about the relationship

between money and politics. Donating money to a candidate can facilitate access

to a lawmaker—and provide the potential to sway or inﬂuence them (even if the

money, as such, is not the inﬂuence).

216

As Larry Lessig has written, only a small

number of people possess the kind of money that would allow them to single-

handedly inject themselves (or a particular candidate) into federal politics.

217

Guy-Uriel Charles has described this issue in terms of “the structural and eco-

nomic barriers that preclude a vast majority of citizens from participating in poli-

tics or from ﬁnancing elections”;

218

through its method of ﬁnancing elections,

“the state has created a barrier for political participation (wealth) that some citi-

zens will never be able to overcome.”

219

In this framing, spending money is an as-

pect of political participation akin to voting.

220

Along these lines, Ryan Scoville’s

recent study of ambassadorships has shown how, over the last few decades,

ambassadors have been selected in part based on their campaign contributions.

221

In this context, at least, money buys political opportunities.

As the preceding section noted, the vast majority of people who possess the

kind of wealth that opens up these political opportunities are men.

222

If Congress

sought to ensure women’s ability to participate in politics on equal terms as men,

216. GENE M. GROSSMAN & ELHANAN HELPMAN, SPECIAL INTEREST POLITICS 10–11 (2001);

OBERT G. KAISER, SO DAMN MUCH MONEY: THE TRIUMPH OF LOBBYING AND THE CORROSION OF

AMERICAN GOVERNMENT 297 (2009) (outlining the view that donors give money to “reinforce

established connections”); Larry Makinson, What Money Buys, in S

HADES OF GRAY: PERSPECTIVES ON

CAMPAIGN ETHICS 171, 181 (Candice J. Nelson et al. eds., 2002). The ABA Task Force Report on

Lobbying refers to “a self-reinforcing cycle of mutual ﬁnancial dependency.” Am. Bar Ass’n, Task

Force on Federal Lobbying Laws, Lobbying Law in the Spotlight: Challenges and Proposed

Improvements, 63 A

DMIN. L. REV. 419, 451 (2011). For a description of how legislators can inﬂuence

policy, short of legislation and roll call votes, see Richard L. Hasen, Fixing Washington, 126 H

ARV. L.

EV. 550, 566–67 (2012) (reviewing LAWRENCE LESSIG, REPUBLIC, LOST: HOW MONEY CORRUPTS

POLITICS — AND A PLAN TO STOP IT (2011) and JACK ABRAMOFF, CAPITOL PUNISHMENT: THE HARD

TRUTH ABOUT WASHINGTON CORRUPTION FROM AMERICA’S MOST NOTORIOUS LOBBYIST (2011)).

217. Lawrence Lessig, What an Originalist Would Understand “Corruption” to Mean, 102 C

ALIF. L.

EV. 1, 18 (2014).

218. Charles, supra note 186, at 34 & n.37 (citing Spencer Overton, The Donor Class: Campaign

Finance, Democracy, and Participation, 153 U. P

A. L. REV. 73 (2004)).

219. Id. at 34

220. Id. at 35. This idea is consistent with the Court’s First Amendment cases that equate spending

money with (political) speech. See Citizens United v. FEC, 558 U.S. 310, 360 (2010); see also

McCutcheon v. FEC, 572 U.S. 185, 192 (2014) (conﬂating campaign donors with “constituents,” and

remarking that “ingratiation and access . . . . embody a central feature of democracy—that constituents

support candidates who share their beliefs and interests, and candidates who are elected can be expected

to be responsive to those concerns” (citation and internal quotations omitted)).

221. Ryan M. Scoville, Unqualiﬁed Ambassadors, 69 D

UKE L.J. 71, 109–18 (2019).

222. Think about the billionaires who run for President—Steyer, Perot, Schultz, Bloomberg.

60 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

then Congress might enact a few different kinds of legislation to address the polit-

ical economy of elections and politics. These might include some of the reforms

that scholars have proposed, including public funding of elections, or laws that

provide voters with monetary vouchers to give to candidates.

223

Other related pro-

posals include restrictions on the amount of money that any one person can give

in an election, through any medium.

224

These laws address political participation

and political power by leveling up and leveling down the playing ﬁeld

respectively.

Another way of addressing the disparities in political economy would be to

address the underlying economic disparities themselves. If the reason why

women lack political power is partially because they do not have access to the

same kind of wealth that men do, then laws that seek to ensure equal economic

opportunities for women might advance women’s political equality. These might

include prohibitions on pay discrimination or other forms of sex discrimination in

the workplace,

225

as well as prohibitions against pregnancy discrimination.

226

These laws might not eliminate the wealth gap between men and women, but

they might mitigate ways that the economic disparities between men and women

are entrenched over time.

Congress might also address some of the root causes of the disparities in politi-

cal economy. Some of the disparities in pay between men and women may be at-

tributable to lingering sex stereotypes and antiquated notions of gender roles that

undermine women’s success in the workplace.

227

See, e.g., Kate Manne, Warren Succeeded Because Voters Saw Her as Caring. That’s Also Why

She Failed., W

ASH. POST (Mar. 6, 2020, 9:57 AM), https://www.washingtonpost.com/outlook/warren-

succeeded-because-voters-saw-her-as-caring-thats-also-why-she-failed/2020/03/06/8064b7c2-5f0f-11ea-

b014-4fafa866bb81_story.html (citing studies that indicate that men are deemed more competent and

likeable in the workplace).

Laws trained at rooting out

these stereotypes (such as laws mandating equal parental or family-care leave for

men and women

228

) might enforce women’s political equality by challenging

stereotypes that contribute to inequality.

These stereotypes affect more than just the political economy aspects of politi-

cal equality. They may also limit women’s ability to obtain and exercise political

power. Concerns about electability often dog female candidates more than their

male counterparts, and they may make it harder for women to succeed in poli-

tics.

229

See Amelia Thomson-DeVeaux, Americans Say They Would Vote

for a Woman, But . . .,

IVETHIRTYEIGHT (July 15, 2019), https://ﬁvethirtyeight.com/features/americans-say-they-would-vote-

for-a-woman-but/ [https://perma.cc/E95U-YPDA] (highlighting common stereotypes of female

Female candidates are criticized for being too knowledgeable or not

223. Hasen, supra note 216, at 580; Richard L. Hasen, Is ‘Dependence Corruption’ Distinct from a

Political Equality Argument for Campaign Finance Laws? A Reply to Professor Lessig, 12 E

LECTION L.

J. 305, 311–12 (2013); Lessig, supra note 217, at 18.

224. Lessig, supra note 217, at 19.

225. See 42 U.S.C. 2000e-2(a)(1) (2018) (prohibiting employment discrimination because of sex).

226. See Id. § 2000e(k) (including pregnancy in the deﬁnition of “because of sex” or “on the basis of

sex” under the antidiscrimination statute).

227.

228. See Family and Medical Leave Act, 29 U.S.C. § 2612 (2012).

229.

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 61

informed enough, whereas similar traits in male candidates are written up as char-

acter features and elements of their character appeal.

230

Combating these stereo-

types may be a way of ensuring women have similar political power and

opportunities to exercise political power as men.

The political economy of elections is not the only other aspect of political par-

ticipation that Congress might reach under its enforcement power. There are other

avenues for political participation beyond voting, donating to campaigns, or lob-

bying those who are in political ofﬁce—such as serving on a jury. The jury is a fo-

rum for citizens to have input into the criminal process and a mechanism for self-

governance.

231

In part for these reasons, some early state cases relied on the

Nineteenth Amendment to invalidate state restrictions on women serving on

juries.

232

(Some state laws made all persons eligible to vote eligible for jury

service.

233

) Although the Supreme Court later grounded that principle in the

Fourteenth Amendment, rather than the Nineteenth Amendment,

234

the state deci-

sions on jury service underscore the idea that political participation extends

beyond the ballot box.

Congress might enforce gender equity in political participation by reducing

obstacles to these other forms of political participation. Consider, for example,

that some courthouses apparently lack spaces to allow breastfeeding mothers to

breast pump, which states then use as a reason to dismiss breastfeeding mothers

from jury service.

235

Judith P. Miller, My Attempt at

Jury Duty Failed — Because I’m a Nursing Mother, C

HI. TRIB.

(Oct. 13, 2017, 10:17 AM), https://www.chicagotribune.com/opinion/commentary/ct-perspec-jury-

duty-breastfeeding-1015-story.html. Some states give mothers the

option of postponing jury duty

service if they are breastfeeding. See Cuomo Signs Legislation That Exempts Breastfeeding Mothers

from Jury Duty, WKBW (Oct. 21, 2019, 12:14 PM), https://www.wkbw.com/news/local-news/cuomo-

signs-legislation-that-exempts-breastfeeding-mothers-from-jury-duty [https://perma.cc/D2PA-DCUS].

Congress’s ability to reach other aspects of political participation besides voting

and areas that are adjacent to political equality is bolstered by the combined force

of the Nineteenth and Fourteenth Amendments.

236

The Nineteenth Amendment, in

conjunction with the Fourteenth Amendment, solidiﬁes Congress’s power to dis-

mantle gender hierarchies outside the speciﬁc context of voting because the

Fourteenth Amendment is not limited to issues of political equality—it encom-

passes social equality and civic equality as well.

237

And the Constitution

candidates and using statistics to show that female candidates are at a disadvantage as a result of

stereotypes).

230. See id.

231. See Jocelyn Simonson, The Criminal Court Audience in a Post-Trial World, 127 H

ARV. L. REV.

2173, 2195–202 (2014).

232. See People v. Barltz, 180 N.W. 423, 425 (Mich. 1920); Parus v. Dist. Court of Fourth Judicial

Dist. of Nev., 174 P. 706, 708 (Nev. 1918).

233. The Supreme Court relied on similar reasoning to invalidate a restriction used to disenfranchise

a black man. See Neal v. Delaware, 103 U.S. 370, 389 (1880).

234. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146 (1994).

235.

236. See generally Michael Coenen, Combining Constitutional

Clauses, 164 U. P

A. L. REV. 1067

(2016) (exploring different ways that combination analysis can be used in constitutional law).

237. See Siegel, supra note 58, at 1131 (documenting the evolution to encompassing social equality

within the Fourteenth Amendment rather than just civic equality).

62 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

speciﬁcally prevents discrimination on the basis of only three characteristics

(race, in the Fifteenth Amendment;

238

sex, in the Nineteenth Amendment;

239

and

age, in the Twenty-Sixth Amendment

240

), which augments Congress’s authority

to break down gender disparities.

III. T

HE SUPREME COURT’S FEDERALISM JURISPRUDENCE AND THE THIN VERSION OF

CONGRESS’S NINETEENTH AMENDMENT ENFORCEMENT POWER

This Part applies the Court’s current approach to congressional power (and in

particular, congressional power to enforce constitutional provisions) to the

Nineteenth Amendment. It highlights the myriad roadblocks that a thick concep-

tion of Congress’s Nineteenth Amendment enforcement power might encounter:

(1) a state action limitation; (2) a congruence and proportionality requirement;

(3) a limited deﬁnition of what constitutes discrimination “on account of sex”;

and (4) other external obstacles, including the First Amendment.

A. STATE ACTION

The Nineteenth Amendment allows Congress to “enforce th[e] article,” and

the substantive Article provides 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.”

241

The Court has interpreted similar language in the Fourteenth

Amendment to mean that Congress can regulate only state action.

242

Section 5 of

the Fourteenth Amendment allows Congress to “enforce . . . th[e] article,” and

the substantive Article provides that:

No State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

243

If Congress may reach only state action under its Nineteenth Amendment

enforcement power, then Congress could not, for example, enact legislation

addressing workplace-pay disparities or wealth gaps between men and women,

even if those disparities contribute to political inequality of men and women; nor

could Congress address sex stereotyping among private actors, even if they inﬂu-

ence (or are inﬂuenced by) how the state treats women, or how the state regards

burdens on women voting.

244

238. U.S. CONST. amend. XV, § 1.

239. U.S. C

ONST. amend. XIX, § 1.

240. U.S. C

ONST. amend. XXVI, § 1.

241. U.S. C

ONST. amend. XIX (emphasis added).

242. The Civil Rights Cases, 109 U.S. 3, 11 (1883).

243. U.S. C

ONST. amend. XIV, §§ 1, 5 (emphasis added).

244. There are, of course, difﬁcult questions about what constitutes state action. In her Note on the

Nineteenth Amendment, for example, Sarah Lawsky argued that marriage was a proper subject of

regulation under the Nineteenth Amendment because marriage is a state-created institution. Sarah B.

Lawsky, Note, A Nineteenth Amendment Defense of the Violence Against Women Act, 109 Y

ALE L.J.

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 63

The idea that Congress may regulate only state action under the Fourteenth

Amendment has its critics. Richard Primus has argued that the Court’s key state

action decision, the Civil Rights Cases, was driven, in part, by racial resentment

and antipathy toward legislation addressing racial discrimination, as well as the

Court’s failure to appreciate how the Civil War and Reconstruction Amendments

nulliﬁed elements of the constitutional order that disadvantaged African-

Americans.

245

That critique provides a powerful argument against modeling other

constitutional rules on such a ﬂawed decision.

246

The Court has nonetheless stuck

with the state action requirement, including when it struck down the Violence

Against Women Act, which provided a civil remedy for victims of gender-based

violence, as exceeding Congress’s powers under the Fourteenth Amendment.

247

And just last Term, the ﬁve conservative Justices described the state action

requirement as a core component of liberty.

248

See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1934 (2019). For criticism, see

Genevieve Lakier, Manhattan Community Access Corp v. Halleck: Property Wins Out Over Speech on

the Supposedly Free-Speech Court, A

M. CONST. SOC’Y, https://www.acslaw.org/analysis/acs-supreme-

court-review/manhattan-community-access-corp-v-halleck-property-wins-out-over-speech-on-the-

supposedly-free-speech-court/ [https://perma.cc/MX72-Z8GB].

Given the similarities in the language between the Fourteenth and Nineteenth

Amendments, it is extremely unlikely that the Court would permit Congress to

regulate private actors under the Nineteenth Amendment. That is so despite some

possible differences between the Fourteenth and Nineteenth Amendments.

Consider, for example, that the Court’s reasoning in the Civil Rights Cases

included the claim that a state action requirement was necessary to constrain

Congress’s powers, because if Congress could regulate private parties under the

Fourteenth Amendment, its powers would be considerably augmented.

249

Although the Court might have a similar concern with allowing Congress to regu-

late private conduct under the Nineteenth Amendment, part of the reason why the

Court feared expansive congressional power under the Fourteenth Amendment

was because the substantive provisions of the Fourteenth Amendment are so

far-reaching.

250

The substantive provisions in that Amendment guarantee equal

protection, privileges and immunities, and due process of law. The substantive

provision of the Nineteenth Amendment, by contrast, limits one ground for state

differentiation (differentiation on the basis of sex), and the Amendment applies

that limit to only some contexts (voting, politics, citizenship, or perhaps

783, 808–15 (2000). Lawsky extended that argument to mean that Congress could also regulate on

topics of state criminal law, such as gender-based violence, because those, too, are state-created or

enabled institutions. Id. at 815.

245. See Richard A. Primus, The Riddle of Hiram Revels, 119 H

ARV. L. REV. 1681, 1724–30 (2006).

246. Primus also notes that the Court’s reasoning rested on a misguided analogy between the

Fourteenth Amendment and the Contracts Clause: The Court maintained that the Fourteenth

Amendment, like the Contracts Clause, was applicable only to the states. See The Civil Rights Cases,

109 U.S. at 12–13. But this analogy overlooked that the Fourteenth Amendment contains a grant of

power to Congress whereas the Contracts Clause does not. Primus, supra note 245, at 1720.

247. United States v. Morrison, 529 U.S. 598, 621–27 (2000).

248.

249. See The Civil Rights

Cases, 109 U.S. at 13–15.

250. See id. at 14–15.

64 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

something else). Even if the areas that fall within the ambit of the substantive pro-

vision of the Nineteenth Amendment go beyond voting, they are still narrower

than the set of areas that fall within the ambit of the substantive provisions of the

Fourteenth Amendment—which the Court understood to reach essentially every

aspect of life.

251

B. CONGRUENCE AND PROPORTIONALITY

Another limitation on Congress’s Nineteenth Amendment enforcement power

would also be drawn from a limitation on Congress’s Fourteenth Amendment

enforcement powers: the congruence and proportionality requirement. In City of

Boerne v. Flores, the Court held that the Fourteenth Amendment allows

Congress to enact legislation that is “congruen[t] and proportional[]” to a pattern

of constitutional violations.

252

In doing so, the Court required there to be a closer

ﬁt between a law’s means and ends when Congress legislates under Section 5 of

the Fourteenth Amendment than when it legislates under Article I.

253

And, the

Court declared, Congress’s powers under Section 5 are only remedial; Congress

cannot deﬁne or create new constitutional rights.

254

A congruence and proportionality limitation, like a state action requirement,

would prevent Congress from addressing many aspects of sex discrimination. It

would limit Congress’s ability to address sex discrimination among private actors

(assuming Congress could regulate non-state actors at all). It would also limit

Congress’s ability to address facially neutral laws or policies that have differen-

tial burdens on the basis of sex.

255

The congruence and proportionality standard

requires Congress to tie legislation to a pattern of constitutional violations.

256

But

many if not most facially neutral laws would be constitutional under existing doc-

trine; therefore, congressional legislation that prohibited those facially neutral

laws might not be closely tied to or remedy a pattern of constitutional

violations.

257

Like the state action requirement, the congruence and proportionality limit has

been subject to considerable scholarly criticism. Michael McConnell, among

others, has argued that the requirement misreads the drafting history of the

251. See id.; see also City of Boerne v. Flores, 521 U.S. 507, 523, 529 (1997) (noting that an

expansive interpretation of the Fourteenth Amendment would make it “difﬁcult to conceive of a

principle that would limit congressional power”).

252. See City of Boerne, 521 U.S. at 520.

253. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819); see also United States v.

Comstock, 560 U.S. 126, 130 (2010) (“[T]he Constitution grants Congress the authority to enact [laws

which are] ‘necessary and proper for carrying into Execution’ the powers ‘vested by’ the ‘Constitution

in the Government of the United States.’” (citing U.S. C

ONST. art. 1, § 8, cl. 18)).

254. See City of Boerne, 521 U.S. at 519.

255. See, e.g., Coleman v. Court of Appeals of Md., 566 U.S. 30, 39 (2012); see also Evan H.

Caminker, “Appropriate” Means-Ends Constraints on Section 5 Powers, 53 S

TAN. L. REV. 1127, 1153–

58 (2001) (explaining the congruence and proportionality requirement of City of Boerne).

256. E.g., Caminker, supra note 255, at 1153–58.

257. See, e.g., Coleman, 566 U.S. at 39; Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374

(2001); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 67 (2000).

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 65

Fourteenth Amendment and ignores the basic reality that the Fourteenth

Amendment drafters trusted Congress more than the courts.

258

He concludes that

it is therefore unlikely that the framers would have limited Congress’s powers

and tied Congress’s powers to judicial interpretations of the Constitution.

259

Doug Laycock has mounted a similarly forceful critique.

260

There are, again, some possible distinctions between the Fourteenth and

Nineteenth Amendments that are also based on the text and histories of the two

Amendments, such that the congruence and proportionality requirement might

apply to the former but not the latter. The textual differences between the two

Amendments are similar to those that might justify treating the two Amendments

differently for purposes of the state action requirement. Speciﬁcally, City of

Boerne v. Flores justiﬁed the congruence and proportionality requirement in part

by pointing to the otherwise expansive reach of Congress’s powers under the

Fourteenth Amendment. Those powers would be expansive, City of Boerne rea-

soned, because of the expansive reach of the substantive provisions of the

Article: If Congress could enact legislation that was merely somewhat related to

a list of far-reaching substantive protections, then Congress’s powers would be

signiﬁcantly expanded.

261

These concerns are less potent in the context of the

Nineteenth Amendment, whose substantive provision, the preceding section

explained, is narrower than the substantive provisions of the Fourteenth

Amendment (even if the substantive provision of the Nineteenth Amendment is

interpreted to apply outside the speciﬁc context of voting).

262

Nonetheless, there will still be concerns about allowing Congress to regulate in

areas of traditional state concern, which is where a thick conception of

Congress’s enforcement power would likely lead, given that vestiges of sex dis-

crimination remain in criminal law, family law, and morals legislation, among

other areas.

263

Moreover, the core textual basis for City of Boerne’s congruence

and proportionality requirement applies equally to both the Nineteenth and

Fourteenth Amendments. City of Boerne reasoned that Congress could enact laws

that are congruent and proportional to a pattern of constitutional violations

because the Fourteenth Amendment gave Congress remedial, rather than substan-

tive, powers by permitting Congress to “enforce” the provisions of the Article.

264

Given that the Nineteenth Amendment also grants Congress the power to enforce

the provisions of the Article, it is likely the Court would say that the Nineteenth

258. See, e.g., McConnell, supra note 168, at 181–83.

259. Id.

260. See Douglas Laycock, Conceptual Gulfs in City of Boerne v. Flores, 39 W

M. & MARY L. REV.

743, 766–67 (1998).

261. City of Boerne, 521 U.S. at 523, 529.

262. See Caminker, supra note 255, at 1191 & n.269, 1197–98 (outlining this argument with respect

to the Fifteenth Amendment).

263. Cf. Siegel, supra note 22, at 1022–24 (arguing that Congress can regulate these areas under the

Nineteenth Amendment).

264. City of Boerne, 521 U.S. at 520–29.

66 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

Amendment also requires Congress to enact laws that are congruent and propor-

tional to a pattern of constitutional violations.

There are also some possible historical differences between the Fourteenth and

Nineteenth Amendments that are relevant to whether

the congruence and propor-

tionality standard applies to both Amendments. Boerne relied on the Fourteenth

Amendment’s drafting history and, speciﬁcally, Congress’s rejection of a provi-

sion that would have allowed Congress to enact all laws necessary and proper to

secure the Amendment.

265

But the drafting history of the Nineteenth Amendment

suggests Congress attempted to expand the scope of Congress’s enforcement

authority, rather than constrict it. After some members of the House warned that

the Nineteenth Amendment’s Enforcement Clause “gives to Congress the full,

absolute, unrestricted, and exclusive power” over elections,

266

the Senate consid-

ered and rejected an amendment that would have replaced the Enforcement

Clause with the following:

That the several States shall have the authority to enforce this article by neces-

sary legislation, but if any State shall enforce or enact any laws in conﬂict

therewith, then Congress shall not be excluded from enacting appropriate

legislation to enforce it.

267

Congress, however, elected to keep the broader Enforcement Clause. Equally

important is that when Congress selected the Nineteenth Amendment

Enforcement Clause, it had before it some evidence that the language of the

Enforcement Clause allowed Congress to legislate far beyond the substantive

provisions of the Amendment. (The Court did not announce the congruence and

proportionality requirement until 1997.) When Congress picked the Enforcement

Clause language in the Nineteenth Amendment, Congress had exercised its

authority under the analogous Enforcement Clause of the Eighteenth Amendment

to enact laws that extended well beyond the substantive provisions of the

Eighteenth Amendment. The Eighteenth Amendment prohibited only “the manu-

facture, sale, or transportation of intoxicating liquors within, the importation

thereof into, or the exportation thereof from the United States and all territory

subject to the jurisdiction thereof for beverage purposes.”

268

But relying on the

Eighteenth Amendment’s Enforcement Clause, Congress had enacted legislation

prohibiting the simple possession of liquor.

269

Congress had also prohibited non-

intoxicating liquors and regulated alcohol that was not used for beverage

purposes.

270

265. Id. at 520–21. For a critique of the Court’s historical analysis on Boerne, see McConnell, supra

note 168.

266. 58 C

ONG. REC. 90 (1919) (statement of Rep. Clark).

267. Id. at 634 (text of amendment proposed by Sen. Gay).

268. U.S. C

ONST. amend. XVIII, § 1, repealed by U.S. CONST. amend. XXI, § 1.

269. National Prohibition Act, ch. 85, §§ 3, 25, 41 Stat. 307, 308, 315 (1919).

270. Id. §§ 1, 4–13, 41 Stat. at 307–12.

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 67

A Court committed to grafting a congruence and proportionality requirement

onto the Nineteenth Amendment might point to the only legislation that Congress

ever proposed pursuant to its enforcement power under the Amendment. That

legislation provided for a cause of action against ofﬁcials who violated the sub-

stantive provisions of the Amendment by prohibiting women from casting votes

because they were women.

271

That legislation is certainly consistent with a nar-

row conception of Congress’s enforcement power that allows Congress only to

remedy constitutional violations, but it does not prove that supplying a remedy

against unconstitutional conduct exhausts the full scope of Congress’s enforce-

ment power under the Nineteenth Amendment.

C. “ON ACCOUNT OF” SEX

The scope of Congress’s enforcement power also depends on what it means for

a law or policy to be “on account of sex.” This section outlines two related issues

about interpreting the phrase “on account of sex” that will affect the scope of

Congress’s enforcement powers. The ﬁrst is whether “on account of sex” refers

to restrictions that intentionally discriminate on the basis of sex versus restrictions

that have the effect of discriminating on the basis of sex; the second is whether

“on account of sex” encompasses restrictions that differentially affect transgender

or nonbinary individuals.

1. Intent Versus Effects

We assume, consistent with the Court’s equal protection doctrine, that voting

restrictions that explicitly include

a reference to sex (or whose application turns

on a reference to sex) are on account of sex.

272

In addition to laws that are explic-

itly sex-based, some facially neutral laws will also discriminate on account of

sex, and there are at least two different accounts of what it means for a facially

neutral voting restriction to be on account of sex. One is that a facially neutral

restriction is on account of sex if the restriction intentionally seeks to treat people

differently because of their sex.

273

The other is that a voting restriction is on

account of sex when it has the effect of producing differential burdens on certain

groups of people on the basis of sex.

274

If on account of sex refers only to those laws that explicitly mention sex or

intentionally target people because of their sex, then Congress’s enforcement

power would be considerably narrower than if on account of sex encompassed

laws that produced disparate effects. This is particularly true if, as we expect, the

current Court would read a congruence and proportionality requirement into the

271. S. 4739, 66th Cong. § 2 (1920); H.R. 15018, 66th Cong. § 2 (1920); S. 4323, 66th Cong. § 2

(1920).

272. See Reva B. Siegel, From Colorblindness to Antibalkanization: An Emerging Ground of

Decision in Race Equality Cases, 120 Y

ALE L.J. 1278, 1286–88 (2011) (deﬁning the “anticlassiﬁcation”

principle).

273. Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 257, 275 (1979).

274. See Siegel, supra note 272, at 1288 (explaining how “facially neutral” policies can have a

“disparate impact on minorities”).

68 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

Nineteenth Amendment.

275

If on account of sex includes only laws that purpose-

fully differentiate between sexes, then it would be harder for Congress to address

laws that impose differential burdens on the different sexes, because federal legis-

lation targeting those laws would not be as closely tied to a pattern of constitu-

tional violations.

We believe that a discriminatory effect standard is a better way to judge

Nineteenth Amendment violations.

276

But the Supreme Court’s 1980 decision in

City of Mobile v. Bolden imposed a purpose requirement on Fourteenth and

Fifteenth Amendment claims of racially discriminatory voting,

277

and the Court

has adopted an increasingly restrictive account about what it means to discrimi-

nate based on certain characteristics.

278

The Court is therefore likely to adopt a

discriminatory purpose standard, which would further narrow the scope of

Congress’s enforcement authority. Further evidence of this is that the Court has

(remarkably) ruled that discrimination on the basis of pregnancy does not consti-

tute discrimination on the basis of sex,

279

and it also has concluded that a state

rule preferencing a group that was over 98% male does not constitute intentional

discrimination on the basis of sex.

280

As scholars have noted, the Court has

adopted demanding rules about the kind of evidence required to establish inten-

tional discrimination (circumstantial evidence is often not enough) and has relied

on a very narrow deﬁnition about what constitutes intentional discrimination (fo-

cusing on whether decisionmakers desire to hurt a particular group).

281

A narrow

deﬁnition of “on account of sex” would limit Congress’s enforcement power, par-

ticularly in conjunction with a congruence and proportionality requirement.

2. Gender Identity

The phrase “on account of sex” is most commonly understood to refer to dis-

tinctions between men and women. But linguistically and conceptually, it might

also refer to burdens that fall on transgender or nonbinary individuals. If these

laws are considered voting abridgments on account of sex, then Congress’s

enforcement authority could include legislation protecting the voting rights and

political rights of transgender individuals.

Consider how voter-identiﬁcation requirements or voter-roll maintenance

systems might burden transgender individuals. These laws might result in the dis-

enfranchisement of transgender individuals if state-recognized forms of

275. However, under certain conceptions of Congress’s enforcement power, Congress could either

disagree with judges’ conclusions that particular laws intentionally target individuals because of their

sex, or disagree that the substantive principle embodied in the Nineteenth Amendment prohibits only

intentional discrimination. See supra notes 158–61 and accompanying text.

276. At least, we do not believe that discriminatory purpose is always required to establish a

constitutional violation. This Part, however, is focused on what the Court is likely to do.

277. 446 U.S. 55, 61–64 (1980); see also Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 334 n.3

(noting that the Court had never held that vote dilution violates the Fifteenth Amendment).

278. Jessica A. Clarke, Explicit Bias, 113 N

W. U. L. REV. 505, 523–40 (2018).

279. See Geduldig v. Aiello, 417 U.S. 484, 494–95 (1974).

280. Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 257, 275 (1979).

281. See, e.g., Clarke, supra note 278, at 523–40.

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 69

identiﬁcation do not reﬂect an individual’s identiﬁed or expressed gender—such

as where an individual starts to live consistently with their gender identity, which

does not correspond with their sex assigned at birth, or where an individual does

not identify as gender binary.

282

An individual who changes one method of identi-

ﬁcation runs the risk that database matching will turn up other records that have

not been updated; and the burden of updating one’s state identiﬁcation is itself an

additional barrier to voting that falls on the genderqueer community.

283

These distinctions and burdens are sex-based in at least one respect—they neces-

sarily depend on an individual’s sex assigned at birth.

284

If a transgender man was

assigned male sex at birth, then the voting-identiﬁcation requirements or database

matching would not have been an obstacle to him. But because he was assigned

female sex at birth, they are. The resulting burden is therefore on account of sex.

If on account of sex encompasses regulations whose operation is contingent on

or depends on an individual’s sex, then burdens that fall on the genderqueer com-

munity might fall within the set of restrictions that Congress can eliminate in the

course of enforcing the Nineteenth Amendment.

285

D. EXTERNAL CONSTRAINTS

Finally, legislation attempting to enforce the Nineteenth Amendment might en-

counter a variety of obstacles external to the Nineteenth Amendment. The Court

has been generally skeptical of legislation designed to remedy inequities and

enforce civil rights. For example, the Court invalidated section 4 of the Voting

Rights Act on the basis of the “equal sovereignty principle,”—a free-ﬂoating

principle that is not based in the constitutional text and lacks a serious historical

foundation or roots in the constitutional structure.

286

The First Amendment may prove to be another obstacle to some of the legisla-

tion discussed in the previous Part. In particular, some of the laws designed to

counter wealth-based disparities in the political process are likely inconsistent

with the Court’s current interpretation of the First Amendment.

287

In Citizens

282. See Kolbert, supra note 74, at 513–14.

283. See id.

284. They may also embody a form of sex stereotyping. See Price Waterhouse v. Hopkins, 490 U.S.

228, 250 (1989).

285. This term, the Court is expected to decide a pair of cases that shed some light on how it might

interpret the Nineteenth Amendment. In EEOC v. R.G. & G.R. Harris Homes, Inc., 884 F.3d 560 (6th

Cir. 2018), cert. granted in part, 139 S. Ct. 1599 (2019) (mem.), and argued No. 18-107 (Oct. 8, 2019),

and Bostock v. Clayton County Board of Commissioners, 723 F. App’x 964 (11th Cir. 2018), cert.

granted, 139 S. Ct. 1599 (2019) (mem.), and argued No. 17-1618 (Oct. 8, 2019) (consolidated with

Altitude Express, Inc. v. Zarda, No. 17-1623), the Court is considering whether, for purposes of Title

VII, discrimination against members of the transgender community or against gays, lesbians, and

bisexuals constitutes discrimination on the basis of sex. The plaintiffs in the cases argue that it does

because any such differential treatment is contingent on an individual’s sex assigned at birth (or their

partner’s sex assigned at birth). The employers, on the other hand, are relying more on the fact that the

enacting Congress did not expect the prohibition against discrimination on the basis of sex to encompass

legal protections for the LGBTQ community.

286. See Litman, supra note 19, at 1209–19.

287. See Hasen, supra note 223, at 307; Hasen, supra note 216, at 574–75.

70 THE GEORGETOWN LAW JOURNAL [Vol. 108:27

United v. FEC, the Court rejected the argument that restricting corporate spend-

ing in politics could be justiﬁed on the ground that the restrictions protected polit-

ical equality (given that some individuals have the resources to make

contributions through different mediums, including corporations).

288

Previously,

the Court had allowed Congress to restrict these expenditures in order to limit

the “distorting effects of immense aggregations of wealth” accumulated with the

help of the corporate form.

289

The sex-based-disparity rationale for some of the

hypothetical legislation discussed in the previous part resembles this justiﬁcation

insofar as its goal is to offset resource and wealth advantages (or other political

advantages) that are, in part, the product of sex discrimination. And some of the

legislative means to accomplish that objective—in particular, restricting cam-

paign contributions—would implicate the First Amendment’s protections for

speech.

290

Others, like public funding for elections, would not.

291

CONCLUSION

One view of the Nineteenth Amendment is that it is a remarkable story of con-

stitutional success. After the Amendment’s ratiﬁcation, few states passed laws

discriminating on the basis of sex in voting, meaning there was little need for liti-

gation or for congressional enforcement against state voting laws.

Our view is more measured. We view the Nineteenth Amendment as partially

successful in ending the most blatant discriminatory voting practices against

most white women. But it took the Civil Rights Movement of the 1960s and the

passage of the 1965 Voting Rights Act to fully grant the franchise to all women.

We also think the current thin understanding of the Nineteenth Amendment fails

for lack of imagination about the scope of its promise.

Courts have interpreted the Nineteenth Amendment to do very little, at least of

its own force, in

part because the Nineteenth Amendment was ratiﬁed at a

moment when the march toward women’s equality was very much unﬁnished

and was still hamstrung by the racial ideologies of the ﬁrst part of the twentieth

century. When the Amendment was ratiﬁed, women were still treated as second-

class citizens—not capable of participating in all aspects of public life, as unﬁt to

work, and as natural caretakers, which kept them out of many parts of civil life.

292

288. 558 U.S. 310, 356–61 (2010).

289. Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 660 (1990), overruled by Citizens

United, 558 U.S. 310.

290. See generally McCutcheon v. FEC, 572 U.S. 185 (2014); Citizens United, 558 U.S. 310.

291. See Ariz. Free Enter. Club’s Freedom PAC v. Bennett, 564 U.S. 721, 722 (2011) (striking down,

under the First Amendment, a provision of Arizona’s public-ﬁnancing system that provided extra

ﬁnancing to participating candidates who faced large spending by opponents or outside groups).

292. See, e.g., 52 C

ONG. REC. 1443 (statement of Rep. Brown) (arguing that Nineteenth Amendment

would not displace generally accepted poll taxes or educational tests); id. at 1408–09 (statement of Rep.

Campbell) (arguing that women would use the vote to reﬂect their traditional place in the home); id. at

1413–14 (statement of Rep. Clark) (same); Ellen Carol DuBois, Outgrowing the Compact of the

Fathers: Equal Rights, Woman Suffrage, and the United States Constitution, 1820–1878, 74 J. A

IST. 836, 862 (1987); McCammon & Campbell, supra note 214, 59–69 (describing resistance to

implementing the Nineteenth Amendment in several states).

2020] THIN AND THICK CONCEPTIONS OF THE 19TH AMENDMENT 71

Those shared beliefs probably informed judicial interpretations of the Nineteenth

Amendment. But they were also built into the narrow scope of the substantive pro-

tections in the Nineteenth Amendment—the substantive provision is aimed only at

voting, rather than all measures of citizenship, political equality, and public life.

Although some proponents of women’s suffrage surely wanted (and some critics

undoubtedly feared) the Amendment would effect a radical reshaping of women’s

lives and sex equality, the reality is that it has had far more tepid results.

Subsequent Congresses and later body politics need not be limited by those same

regressive intuitions. By delegating to Congress (including all

future Congresses)

the power to play a role in the effectuation of the Nineteenth Amendment, the

Enforcement Clause invites future legislatures to shed the impulses that may have

contributed to a more restrictive substantive provision and to more restrictive judi-

cial interpretations of that substantive provision. Congressional enforcement is a

mechanism—indeed, the mechanism—to move beyond the ideas and principles that

contributed to such a narrow account of the Nineteenth Amendment. That is part of

the problem with the fact that the current Court is so skeptical of congressional

enforcement and so wedded to a notion of judicial supremacy.

293

A thicker and more robust Nineteenth Amendment, viewed in light of other

constitutional amendments expanding voting rights and giving Congress the

prime tool to enforce these amendments, gives ample room for eliminating many

remaining voting and political-power disparities that continue to exist a century

after ratiﬁcation.

294

Acceptance of the ratiﬁcation of the Equal Rights Amendment, which provides that “Equality of

rights under the law shall not be denied or abridged by the United States or by any State on account of

sex,” would considerably strengthen these arguments. Frequently Asked Questions, ERA, https://www.

equalrightsamendment.org/faq [https://perma.cc/Z7H5-MKK6] (last

visited Apr.

5, 2020).

Congress passed the Amendment in 1972 and, at the time of this Article, enough states had ratiﬁed the

Amendment, but not within the time limit originally set by Congress. Litigation over the Amendment’s

ratiﬁcation has begun. Sarah Rankin & Michelle L. Price, Democratic AGs Sue to Force U.S. to Adopt

ERA in Constitution, A

SSOCIATED PRESS (Jan. 30, 2020), https://apnews.com/4913397a57f671c62

989a1a5ec10df17 [https://perma.cc/MZ4U-HWG7].

The full scope of the effect of ratiﬁcation on the voting rights claims advanced here is well beyond the

scope of this Article. But accepted ratiﬁcation of the Equal Rights Amendment would bolster a twenty-

ﬁrst century synthetic reading of the Nineteenth Amendment as part of a contemporary franchise-

extending and rights-extending U.S. Constitution.

Courts should read congressional power broadly to protect

women’s political and voting rights. And given the synthetic reading of the

Constitution that points to a constitutional commitment to enhanced voting rights,

courts should be especially skeptical of state laws—and especially deferential to

federal legislation targeting state laws—that infringe upon the rights of groups of

voters who enjoy multiple voting protections in the Constitution such as younger,

female voters of color. As Justice Ginsburg reminded us in her 2013 Shelby

County dissent: “Under our constitutional structure, Congress holds the lead rein

in making the right to vote equally real for all U.S. citizens.”

295

It is time for

Congress to take that rein.

293. Leah M. Litman, Debunking Antinovelty, 66 DUKE L.J. 1407, 1435–37 (2017).

294.

295. Shelby County v. Holder, 570 U.S. 529, 567 n.2 (Ginsburg, J., dissenting).

72 THE GEORGETOWN LAW JOURNAL [Vol. 108:27