The Scope of the Nineteenth Amendment

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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.

Congress shall have power to enforce this article by appropriate legislation.

The Supreme Court has not decided many cases interpreting the Nineteenth Amendment.1 In the only significant case addressing the Amendment’s effect, Breedlove v. Suttles, the Court upheld a Georgia law that required state residents between the ages of twenty-one and sixty to pay a poll tax.2 The law exempted women who did not register to vote from paying the tax.3 However, men between twenty-one and sixty years of age were required to pay the tax, regardless of whether they registered to vote.4

A twenty-eight-year-old male who sought to register to vote challenged the law as a violation of the Fourteenth and Nineteenth Amendments.5 The Court acknowledged that the Nineteenth Amendment protected men’s voting rights in addition to women’s.6 However, the Court determined, without much elaboration, that the tax did not deny or abridge a man’s right to vote on account of his sex.7

Almost three decades later, in Harper v. Virginia State Board of Elections, the Supreme Court overruled Breedlove, determining that imposing a poll tax on voters in state elections violated the Fourteenth Amendment’s Equal Protection Clause.8 The Court held that conditioning a voter’s participation in state elections upon payment of a poll tax discriminated against prospective voters based on their wealth.9 However, in Harper, the Court did not revisit Breedlove's Nineteenth Amendment holding.

Since Breedlove, the Supreme Court has occasionally referenced the Nineteenth Amendment when resolving claims brought under the Fourteenth Amendment’s Due Process or Equal Protection Clauses. For example, when striking down Georgia’s county-unit system for tabulating votes in state primary elections as a violation of the Fourteenth Amendment’s Equal Protection Clause, the Court suggested that the Nineteenth Amendment stands for “political equality” and illustrates the concept of “one person, one vote.” 10

In a later equal protection case involving the Virginia Military Institute’s “male-only” admission policy, the Court traced its application of heightened scrutiny to official actions that deny “rights or opportunities based on sex,” in part, to the history of sex discrimination that preceded the Nineteenth Amendment’s recognition of women’s suffrage.11

Although the Court has occasionally referenced the Nineteenth Amendment in its opinions, a number of questions concerning the Amendment’s scope remain unresolved. For example, it is unclear whether a successful Nineteenth Amendment claim requires a showing of intentional gender-based discrimination12 and how far Congress’s Section 2 enforcement power extends.13

1: In the 1922 case Leser v. Garnett, the Supreme Court rejected Maryland voters’ arguments that the Nineteenth Amendment had not become part of the Constitution. 258 U.S. 130, 136–37 (1922) (rejecting, among other arguments, Maryland voters’ contention that the people of a state could deprive the state’s legislature of the power to ratify the Nineteenth Amendment by enacting state constitutional provisions that limited suffrage to men). See also Fairchild v. Hughes, 258 U.S. 126, 127–30 (1922) (holding that federal courts lacked jurisdiction to rule upon a taxpayer’s challenge to the procedures by which the Nineteenth Amendment was ratified). The Fairchild plaintiff sought an injunction to prevent the Secretary of State from proclaiming the ratification of the amendment and the U.S. Attorney General from enforcing it. Id.
2: 302 U.S. 277, 279–80 (1937), overruled by Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668–69 (1966).
3: Breedlove, 302 U.S. at 279–80. The law also exempted blind people from paying the tax. Id.
4: See id.
5: Id. at 280.
6: Id. at 283.
7: Id. at 283–84. The Court also rejected the plaintiff’s challenges under the Fourteenth Amendment’s Equal Protection and Privileges or Immunities Clauses. Id. at 282.
8: 383 U.S. 663, 670 (1966). The Twenty-Fourth Amendment, ratified in 1964, prohibits the federal and state governments from conditioning a U.S. citizen’s right to vote in federal elections on payment of a poll tax or “other tax.” See Amdt24.1 Overview of Twenty-Fourth Amendment, Abolition of Poll Tax.
9: Harper, 383 U.S. at 668–70 ( “[W]ealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.” ).
10: E.g., Gray v. Sanders, 372 U.S. 368, 381 (1963). See also Adkins v. Children’s Hosp., 261 U.S. 525, 553, 561–62 (1923) (striking down a federal law that set a minimum wage for women employed in the private sector as a violation of the Fifth Amendment’s substantive due process guarantee of liberty to contract and noting “the great . . . changes which have taken place . . . in the contractual, political and civil status of women, culminating in the Nineteenth Amendment” such that differences between women and men had “come almost, if not quite, to the vanishing point” ), overruled by W. Coast Hotel v. Parrish, 300 U.S. 379, 400 (1937).
11: United States v. Virginia, 518 U.S. 515, 531 (1996) ( “Today’s skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of [a history of sex discrimination] . . . . Through a century plus three decades and more of [American] history, women did not count among voters composing ‘We the People’; not until 1920 did women gain a constitutional right to the franchise.” (internal citations and quotation marks omitted)). Since the 1970s, the Fourteenth Amendment’s Equal Protection Clause has played a role in combating gender discrimination by subjecting gender-based classifications to intermediate scrutiny. See, e.g., Craig v. Boren, 429 U.S. 190, 197–98 (1976). See also Amdt14.S1.8.8.3 General Approach to Gender Classifications.
12: See Jones v. Governor of Fla., 15 F.4th 1062, 1067–68 (11th Cir. 2021).
13: See, e.g., Richard L. Hasen & Leah M. Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress’s Power to Enforce It, 108 Geo. L.J. 19th Amend. Special Edition 27, 50 (2020).