Invictus

By: Chris Fortier

It has been only 101 years since the 19^th amendment was passed by Congress on June 4, 1919, and ratified on August 18, 1920 granting women the right to vote.  One COVID year after the 100th anniversary of its passage, a panel convened to discuss where we are. Attorney General Mark Herring joined the program along with Professor Vivian Hamilton-Watts of William and Mary Law School.  This discussion and celebration, even if delayed by a year, is still relevant to our current events. The work continues for women’s rights and voting rights as the panel pointed out, as there are still areas where we have yet to achieve equality.

Suffrage for Women

Examining the history of women’s suffrage shows that while women gained the right to vote, those rights were still subject to previously enacted race and class limitations. When going over the history of the 19^th amendment, Professor Hamilton-Watts noted some shortcomings in the suffrage movement. 

Women’s suffrage shows that while it opened up rights for women to vote, those rights were still subject to race and class limitations previously enacted by Congress and the states. Professor Hamilton-Watts noted that the leaders of the movement in the 1800s did not support or recognize the ramifications of the 15^th amendment. However, suffragists went for a strategy of expediency, specifically going for white women’s enfranchisement, and had to get support of southern states.  As a result, African American women continued to deal with poll taxes and literacy tests.  Asian Americans and Native Americans were not able to enjoy suffrage as various laws prevented their vote until the 1950s. Officially, the Civil Rights Act of 1965 achieved universal suffrage for all races.

Professor Hamilton-Watts noted that women are going to higher office but far fewer women hold elected office today, as 27 percent of Congress and 29 percent of state legislatures are women. Ten million more women than men participated in the 2016 and 2020 elections. However, Latina women still lag in participation.  57 percent reported struggling to manage work and family compared to 37 percent of women overall.

The Civil Rights Act created the Preclearence rule, where states and localities with a history of voting discrimination had to clear their rule change with the Civil Rights Division of the Department of Justice.  However, this rule was overturned in Shelby County v. Holder. As a result of Shelby County, states are ramping up voting restrictions.  Voting restrictions hit marginal communities disproportionately harder. Currently, states previously subject to preclearance are now passing voter suppression laws. 

Attorney General (AG) Herring noted that the Virginia Voting Rights Act passed this year created 45 days of no excuse absentee voting, removed the mandatory photo ID requirement, makes election day a state holiday, prohibits intimidation or racial discrimination from voting. If a locality wants to move precincts or change the location of the registrar’s office, it has to get permission (preclearance) from the Attorney General’s Office. Voter information was made in languages other than English. The Virginia Act also created a voter outreach and education fund.

AG Herring noted that while wording of law limiting voter participation is gender neutral, the effects of time limitations are on lead parents, primarily women. Professor Hamilton-Watts notes that limits have a disproportionate effect on women and women of color as they have less flexible hours in positions such as caregivers. 

Equal Rights Amendment (ERA)

Virginia was the 38th state to ratify the ERA in January 2020. The Constitution provides for equal protection because of the 14^th amendment. While race generates strict scrutiny, sex only has intermediate scrutiny, meaning the law must be  substantially related to important government protection.  The ERA bumps up sex to strict scrutiny. Congress does not have wide-reaching jurisdiction over gender-based restriction, only limited jurisdiction.

When it came to what is missing, the ERA would give better gender-based protections with employment and gender-based violence for example, allowing for broad power to enact gender protections with the Constitutional basis. Castlelaw v. Gonzales outcome might be different as ERA would have required examination of law enforcement action for discrimination. The expressive effect of law is important as women are currently perceived as less than equal. For example, harassment or assault would be counteracted by an ERA.

AG Herring noted that every constitutional requirement has been fulfilled. When asked if there is a time limit to ratify, Herring stated that he believed there was none. He pointed out that there is no time limit to ratify amendments set out in the Constitution. As precedent, he pointed to the 27^th amendment, that Virginia ratified in the 1700s but was not an amendment to the Constitution until 1992.  Congress could also remove the time limit with a bill pending to remove that time limit set in 1972. In any case, there is still work to do to make the ERA law.

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Chris Fortier is an attorney at the Social Security Administration and the multimedia editor for Invictus. He serves on the Board of Governors for the Diversity Conference. The views represented in this article do not represent those of the Social Security Administration or the Federal Government.