On what authority did citizens acquire a right to vote?
Justice Ward Hunt ruled that voting rights arose from state citizenship, not U.S. citizenship.
Hunt doubted that a right to vote, as opposed to a privilege of voting, existed. He was certain, however, that individuals acquired this right or privilege from the laws of the states, “and not because of citizenship of the United States.” The Fourteenth Amendment, he said, had not changed the right of states to set their own qualifications for voting.
Anthony’s defense attorneys argued that the right to vote was an essential and inalienable right of citizenship, and that the Fourteenth Amendment’s protection of the rights, or “privileges and immunities,” of U.S. citizens extended to the right to vote. Hunt relied on recent Supreme Court decisions as authority for a much narrower definition of the rights of U.S. citizenship.
Did the Fourteenth and Fifteenth Amendments to the Constitution of the United States provide federal protection for voting rights?
No, answered Justice Hunt, except in those cases specifically designated by the Fifteenth Amendment.
On this point, Hunt turned to the recent decisions of the Supreme Court in the Slaughter-House cases and Bradwell v. Illinois, in which the Court defined distinct forms of citizenship—state and federal—and limited the protection provided by the Fourteenth Amendment to privileges and immunities arising from federal, or U.S., citizenship. The rights of state citizenship were unchanged by the amendment. Having decided that voting rights arose from state citizenship, it followed for Hunt that the amendment had no bearing on the case.
Hunt found further support for his position in the Fourteenth Amendment’s second section, which spelled out the sanctions states would suffer if they denied voting rights to any of their male citizens. The section, Hunt wrote, “assumes and admits the right of a state, . . . to deny to classes or portions of the male inhabitants the right to vote which is allowed to other male inhabitants.” In other words, the amendment affirmed the right of states to set the qualifications for voting.
The Fifteenth Amendment raised different questions. There the Constitution directly interfered with the right of states to set the rules. Justice Hunt read the amendment as a narrow and precise limit on the states, barring them from the use of only the enumerated standards—race, color, or previous condition of servitude—in determining qualifications for voting. Nothing more general about a federal authority over political rights could be found in the amendment.
Did women have voting rights under the Constitution as amended?
No, said Justice Hunt, the Reconstruction Amendments did not extend voting rights to women.
Justice Hunt’s answers to the previous questions led directly to his answer to this one. The state of New York had sole authority to define the voting rights of its citizens, even if the definition assigned different and unequal rights to men and women. Indeed, New York could exclude from voting almost any person it chose: young, old, a “person having gray hair, or who had not the use of all his limbs.” None of these categories would violate the Constitution. Moreover, returning to the second section of the Fourteenth Amendment, Hunt found positive evidence that Congress intended only to protect the rights of males to vote. Finally, he noted, the absence of the word “sex” from the list of prohibitions in the Fifteenth Amendment sealed the argument.
Could a belief in a right to vote be used as a defense against the criminal charge of voting without having that right?
No, answered Justice Hunt.
From the first examination before the U.S. commissioner, the defense in United States v. Susan B. Anthony had insisted that the prosecution must show that Anthony voted knowing that she had no right to do so. Referring to the language of the Enforcement Act of 1870, Defense Attorney Selden stated then, as he would at every step of the case, that “knowingly” voting without the right to do so was the essence of the offence in the statute. Whether or not Anthony voted in the belief that she had that right was the question of fact that Selden posed for the jury to decide. At trial, Selden testified about advising Anthony that she had a right to vote. He also pointed to the decision of the inspectors who accepted her ballot because they concluded she had a right to vote. Selden reminded the jury that Anthony did not dress as a man, that she used her own female name, and that she in no way deceived election officials.
Justice Hunt adopted the argument of the prosecution that the statute spoke of knowing one had voted, not of knowing about the illegality of one’s vote. By this reasoning, Hunt concluded that there was no fact for the jury to decide. According to Hunt, Susan B. Anthony had no right to vote, yet she knowingly voted; she must pay the penalty of the crime. “Ignorance of the law excuses no one,” Hunt wrote.
Could a federal judge direct a jury to return a verdict of guilty in a criminal trial?
Yes, answered Justice Ward Hunt. The Supreme Court later ruled that a judge did not have this authority.
Justice Hunt ruled on this question himself when he responded to Henry Selden’s motion for a new trial. In justifying his directed verdict and denying the motion for a new trial, Hunt relied on a classic distinction between issues of fact and issues of law in a trial: juries decided the former, and judges decided the latter. The right to a trial by jury, he asserted, “exists only in respect of a disputed fact.” Thus, because the facts in this case, as he understood them, were conceded, there was nothing for the jury to decide. Hunt cited numerous examples of judges directing juries to find defendants not guilty, and he equated their actions with his: “if the power may be exercised in favor of the defendant, it may be exercised against him.” This ruling became the most controversial one in the case, eliciting sharp criticism in the press, among lawyers, and in Congress. In an unrelated case in 1895, the Supreme Court forbid the federal courts from directing a verdict of guilty.
What had the federal courts decided in earlier cases involving woman suffrage?
In November 1871, the Supreme Court of the District of Columbia (at the time, a court with the jurisdiction of a federal circuit and district court) ruled on two voting rights cases, Sara J. Spencer v. Board of Registration and Sarah E. Webster v. Judges of Election. [Citations to this case date the decision to the September term of 1873. Legal journals published the opinion in December 1871. By September 1873, the case was on the docket of the Supreme Court of the United States on appeal and scheduled for argument in December.] Sara Spencer and Sarah Webster were among seventy women who tried to register and vote in Washington, D.C., in the spring of 1871. Their attorneys sued D.C. officials, citing sections two and three of the Enforcement Act of 1870, wherein officials were required to register qualified voters and, if registration was denied, to accept ballots without prior registration. The women were qualified, they argued, because the word “male” in D.C.’s qualifications for voters was without effect since ratification of the Fourteenth Amendment. “No authority exists, ancient or modern,” the women asserted, “for defining ‘citizen’ so as to exclude any political right or privilege.”
The court’s chief justice, David K. Cartter, wrote a single opinion for the court covering the issues in both cases. The right to vote was not a natural right, he stated, but one that arose from specific legislation. By the Fourteenth Amendment, women were recognized as citizens and made “capable of becoming voters.” That capability, however, was at the moment an “inchoate right”; it “lies dormant . . . until made effective by legislative action.”
The defense attorneys in United States v. Susan B. Anthony referred to this opinion on two occasions. During the preliminary examination, John Van Voorhis suggested that by successfully voting, Anthony and the other women in Rochester had overcome the obstacle that Justice Cartter observed; their right to vote was no longer dormant but real. Henry Selden also referred to Cartter’s decision, but to dispute its assertion that the amendment did not execute itself. With their U.S. citizenship, Selden said, women had immediately gained their right to vote. At trial, Richard Crowley cited Cartter’s ruling in support of his view that the Fourteenth Amendment did not encompass voting rights.
Impact of the Case
Anthony could not appeal her conviction because appeals were not permitted at that time in federal criminal cases. She had reached the end of the line in her strategy to raise the question of woman suffrage in the federal courts. Had Justice Hunt jailed her for non-payment of her fine, she might have petitioned the Supreme Court for a writ of habeas corpus and thereby gained an opportunity for more discussion of the issues she sought to raise, but Hunt adhered to his decision not to jail her.
Woman suffragists’ hopes of reaching the Supreme Court of the United States survived Anthony’s conviction, however. The Court agreed to hear the two cases from Washington, D.C., and arguments were scheduled for December 1873, although following a postponement the Court sent the cases back to the District of Columbia court. In August 1873, the Court also agreed to hear an appeal from the Missouri Supreme Court in the case of Virginia Minor, another member of the National Woman Suffrage Association, who claimed a right to vote under the Fourteenth Amendment.
In their 1875 opinion in Minor v. Happersett, the U.S. Supreme Court justices put an end to the hope of gaining woman suffrage through the Reconstruction Amendments. Virginia Minor’s case was the one Susan B. Anthony had expected for herself. Denied registration as a voter in St. Louis by the registrar, Minor petitioned a state circuit court and then the Supreme Court of Missouri for relief on the grounds that the state constitutional provision limiting voting rights to males was in conflict with the U.S. Constitution. Her lawyers argued her appeal before the Supreme Court of the United States in February 1875. With no complicating questions about criminal behavior, the case turned on the Court’s interpretation of the Fourteenth Amendment.
In a unanimous opinion, the Court addressed two questions: did the amendment make women voters in states limiting votes to men? and was a right to vote among the privileges and immunities of U.S. citizenship? The Court answered that women’s status was not changed by the Fourteenth Amendment. Women had always been citizens and had always been excluded from voting rights. Moreover, the Court said, the amendment granted no new privileges and immunities to citizens. Citizens of the United States were not necessarily voters. In conclusion, the Court was of the opinion “that the Constitution of the United States does not confer the right of suffrage upon anyone, and that the Constitutions and laws of the several States which commit that important trust to men alone are not necessarily void.”
Justice Hunt’s directed verdict stood, but debate about it in the legal community carried on for some time. It provided the basis for Susan B. Anthony to petition Congress for a remission of her fine. It prompted members of Congress to pass legislation (vetoed by the President) to permit the appeal of federal criminal convictions to the Supreme Court of the United States. One month after Ward Hunt retired from the Supreme Court in 1882, U.S. Circuit Judge George W. McCrary in Kansas ruled that the decision in United States v. Susan B. Anthony was a clear violation of the constitutional guarantee to a trial by jury. “There can, within the meaning of the constitution, be no trial of a cause by a jury,” he wrote, “unless the jury deliberates upon it and determines it.” In 1895, the Supreme Court in Sparf et al. v. United States held that federal courts did not have the authority to direct a jury to return a guilty verdict in a criminal trial.
Voting rights and the Constitution
The Nineteenth Amendment to the U.S. Constitution, ratified in 1920, prohibits the states or the U.S. government from denying or abridging the right to vote on the basis of sex. Several other provisions of the Constitution impose similar restrictions on laws regulating access to the vote. The Fifteenth Amendment guarantees that no one can be denied the vote on the basis of race, color, or previous condition of servitude. The Twenty-fourth Amendment guarantees that no one can be denied the vote because of failure to pay a poll tax or other tax. The Twenty-sixth Amendment guarantees that no one eighteen years of age or older can be denied the right to vote on the basis of age. And Article I, section 2, of the Constitution requires that the voting qualifications each state establishes for elections to the U.S. House of Representatives shall be the same as those for elections to the more numerous branch of the state legislature.
None of these provisions guarantees a citizen’s right to vote. Only in the mid-twentieth century did the Court recognize the right to vote as one entitled to the strictest constitutional protection. In the 1960s, the Court considered a series of cases involving the reapportionment of state legislative and congressional districts on the basis of geography rather than population. Culminating in the landmark 1964 holding, in Reynolds v. Sims, 377 U.S. 533 (1964), that legislatures must be apportioned according to the “one-person-one-vote” formula, the reapportionment cases established that the federal courts could hear cases involving the alleged infringement of voting rights—the issue in such cases was whether a particular voting system or scheme denied a person or a group of persons the equal protection of the laws.
The Court declared in Wesberry v. Sanders, 376 U.S. 1 (1964), that “no right is more precious in a free country than that of having a voice in the election of those who make the laws under which we, as good citizens, must live,” and in Reynolds the Court said that “any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized” because “the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights. . . .” While not creating any substantive voting rights, these pronouncements helped to establish the modern conception of voting as an essential aspect of citizenship.