Wednesday Writs: Women’s Suffrage Turns 100

Leaders of Womens Suffrate, Elizabeth Cady Stanton, Susan B. Anthony, and Lucretia Mott

L1: Yesterday was the 100th anniversary of the ratification of the 19th Amendment, giving women the right to vote. In recognition, President Trump announced that Susan B. Anthony, the most well-known suffragette, would be pardoned. From what, you may ask?

Well, you see, Susan B. Anthony was a federally convicted criminal. Her crime, officially, was violation of The Enforcement Act of 1870.

Anthony began her crusade for women’s voting rights in 1852 at the age of 32; however, she was an OG social justice warrior¹ long before then, collecting signatures on anti-slavery petitions when she was just 15. It was her attendance at a women’s rights convention that put her on the path history would remember her for.

By 1872, when her speeches, protesting, lobbying, and writing had not effectuated change, she would wait not longer. She and her three sisters entered a barber shop which was serving as a voters registration office and demanded to be registered. The three men working there were hesitant and at first refused. Anthony, who believed that the 14th Amendment providing equal protection to all citizens predicated her right to vote, threatened to sue each of them for violation of her civil rights. Finally, the registration site supervisor instructed the workers to register the women; he believed that it would be the women violating the law, not the clerks.

Elizabeth Cady Stanton and Susan B. Anthony

Four days later, Anthony and several other women cast their votes at the West End News Depot in Rochester, New York. According to a letter Anthony subsequently wrote to fellow suffragette, Cady Stanton, Anthony voted a straight Republican ticket.

In the days following, a poll watcher filed a complaint against Anthony for illegally voting, in violation of section 19 of The Enforcement Act. The Act was intended to stop the use of force and intimidation to prevent Black people from voting. But the Act (which was actually three separate acts) also contained provisions against illegal voting. Section 19, which Anthony was accused of violating, provided that any person who voted in a federal election while not having the legal right to vote was guilty of a crime against the United States, punishable by up to three years in prison, or a fine of up to $500, or both.

Anthony was in the parlor of her home in Rochester when she was informed by a deputy marshal that she was to be arrested for illegally voting. According to Anthony, the young man “hemmed and hawed”, telling her only that US Commissioner Storrs, who issued the warrant, wished to see her. Anthony asked the man if this was how he customarily arrested a man, and he said it was not. Anthony allegedly presented her wrists for handcuffs, indicating her wish to be treated the same as a man would have been treated. She further declined when given the option of traveling with her sister to the Commissioner’s office rather than with the marshal.

In addition to Anthony, fourteen other women were charged with illegally voting, as were the ballot inspectors who allowed them to vote. All were released on bail, except for Anthony. She intended to use her detention to her advantage; it would allow her lawyer, former New York Appeals Court Justice Henry Seldon, to file a writ of habeas corpus and bring her case to the attention of the US Supreme Court. Much to her dismay, in January Seldon would post the $1000 bond that would later be set. Anthony, understanding that this precluded a petition before the high court, confronted Seldon, who said he could not bear to see “a lady [he] respected” put in jail.

Late in January 1873, a grand jury returned an indictment against Anthony, and the trial in our case of the week, US v. Susan B. Anthony, was set to begin the following May. In the meantime, Anthony gave speeches in towns throughout surrounding counties. She entitled her lecture “Is it a Crime for a Citizen of the United States to Vote?” and invoked the founding fathers, the Declaration of Independence, and Thomas Paine in her impassioned argument.

And yet one more authority; that of Thomas Paine, than whom not one of the Revolutionary patriots more ably vindicated the principles upon which our government is founded:

“The right of voting for representatives is the primary right by which other rights are protected. To take away this right is to reduce man to a state of slavery; for slavery consists in being subject to the will of another; and he that has not a vote in the election of representatives is in this case….”

Is anything further needed to prove woman’s condition of servitude sufficiently orthodox to entitle her to the guaranties of the fifteenth amendment? Is there a man who will not agree with me, that to talk of freedom without the ballot, is mockery–is slavery–to the women of this Republic, precisely as New England’s orator Wendell Phillips, at the close of the late war, declared it to be to the newly emancipated black men?

Her speeches caused concern with the prosecution, who worried about the effect her oratory would have on potential jurors. Quite revealingly, US attorney Richard Crowley wrote “I have just closed a canvass of this county–from which my jurors are to be drawn–and I rather guess the U. S. District Attorney–who is very bitter–will hardly find twelve men so ignorant on the citizen’s rights–as to agree on a verdict of Guilty.”

Subsequently, Crowley successfully moved the trial court to relocate Anthony’s trial to Ontario County to avoid a tainted jury pool. Not to be deterred, Anthony spent the 21 days leading up to her trial giving her stump speech all over Ontario County.

Henry Seldon represented her at trial. He had dim hopes for the ultimate success of Anthony’s case; that April, the Supreme Court had struck a blow to women’s rights with their opinion in Myra Bradwell v. Illinois, in which the Court upheld the state’s law prohibiting women from the practice of law.

The trial finally began on June 17, with former president Millard Fillmore in the gallery to spectate. Judge Ward Hunt presided, with Crowley representing the government. the defense’s main argument would be that Anthony’s reasonable belief that the 14th Amendment gave her the right to vote negated the provision of the law that makes it a crime to knowingly cast an illegal vote. In his opening statement, Crowley argued that it did not matter whether Anthony had a good faith belief that she had the right to vote; she didn’t, and it only mattered that she had, in fact, voted. It did not matter if she had no intention of breaking the law.

The election inspector who testified to having witnessed  Anthony register to vote as well as mark and submit a ballot admitted on cross examination that not only had her ballot been accepted unquestioningly, but that objections to her registration had been considered and rejected. These points supported the notion that Anthony did not knowingly cast an illegal vote. Seldon himself testified, telling the jury that he, himself had advised her she had the right. On cross however, Seldon admitted that she had consulted him only after she registered.

Anthony wished to testify in her own defense, as well, but the prosecution objected, arguing that she was not a competent witness. The Court agreed. Evidence closed, that the lawyers made their legal arguments. Seldon spoke for three hours, emphatically arguing that the Fourteenth Amendment gave Anthony the right to vote, and that the sole basis of her prosecution was her sex. But Crowley, who gave a two hour statement, continued to insist that the act of voting, whether she knew it to be illegal or not, was a crime.

They needn’t have bothered with their combined 5 hours of oratory. Upon the completion of the arguments, Judge Hunt pulled out a previously written note and read it aloud:

The Fourteenth Amendment gives no right to a woman to vote, and the voting by Miss Anthony was in violation of the law… Assuming that Miss Anthony believed she had a right to vote, that fact constitutes no defense if in truth she had not the right. She voluntarily gave a vote which was illegal, and thus is subject to the penalty of the law… Upon this evidence I suppose there is no question for the jury and that the jury should be directed to find a verdict of guilty.”

Anthony and her attorney were stunned; the judge had taken the decision out of the jury’s hands and ordered them to find her guilty.² A newspaper would later publish a quote from a juror “Could I have spoken, I should have answered ‘not guilty,’ and the men in the jury box would have sustained me.”

The sentencing hearing took place the next day. Seldon moved for a new trial, arguing that his client’s right to a jury trial had been violated. The motion was denied. Judge Hunt then asked Anthony if she had anything to say before he imposed sentence. She stood and began to argue again that the 14th Amendment rendered her vote legal and the charge against her improper. Judge Hunt did not listen long before he told her to stop talking; nevertheless, she persisted. She spoke on and on about her disenfranchisement, her denial of a jury verdict, and the fact that none of the jurors, the judge, nor the prosecutors or even her own lawyer were her peers, but rather her “political sovereigns.” The Judge interrupted her six times, imploring her to stop talking.

When she finally did, he imposed a sentence of $100, at which time Susan B. Anthony began to speak again. She informed the Court that “not a penny shall go to this unjust claim”, and “I shall earnestly and persistently continue to urge all women to the practical recognition of the old revolutionary maxim, that “Resistance to tyranny is obedience to God.”

The Court replied only that he would not finalize the judgment in her case until her fine was paid; this was because without a final sentencing order, she could not appeal her case. She never did.

Anthony was not the only woman whose attempt to vote in the 1872 election became the subject of a court case. In Illinois, Virginia Minor sued when her attempts to register were refused. The United States Supreme Court decided Minor v. Happersett in 1874, holding that women are, in fact, persons, and therefore can be considered citizens of the United States. In fact, the Court said, women had always been citizens under the Constitution; the 14th amendment did not confer that status: “She has always been a citizen from her birth, and entitled to all the privileges and immunities of citizenship. The amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her. That she had before its adoption.” However, the Court did not find that voting was among the “privileges and immunities” of citizenship. They point out that, had the 14th Amendment been intended to bestow voting rights as a privilege and immunity to every citizen, the 15th Amendment — “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 race, color, or previous condition of servitude”– would have been superfluous. “If the law is wrong it ought to be changed; but the power for that is not with us.”

The Minor ruling was still the law of the land when Susan B. Anthony died in 1906, after spending more than 50 years fighting for women’s suffrage. It would remain so until the ratification of the 19th Amendment, on August 18th, 1920. 

L2: The state of Idaho passed a law prohibiting transgender women from participating in women’s sports, but federal court judge David Nye- a Trump appointee- has issued an injunction, finding that the ACLU’s lawsuit against the state over the law is likely to succeed.

L3: Potential first Second Gentleman Doug Emhoff has taken a leave of absence from his position as a partner with international law firm DLA Piper, in light of his wife’s current endeavors. Some experts suggest his work at the firm for clients with government interests could present ethical conflicts if his wife lands the new job she’s going for.

L4: More bar exam woes: Florida calls off its attempt to move the test online. Applicants will have to wait until October or February, but many are trying to convince the state bar to consider other options.

L5: On June 13, Colorado passed a police reform bill, including a provision holding officers financially liable for 5% of any civil judgement as a result of their actions. By August 7th, 241 officers retired or resigned. Police unions say the reform bill is the reason for many of these departures. 

L6: I can’t do a better blurb than the first paragraph of this article: “When all else fails and you’re headed to prison for 66½ to 133 years, your last recourse may be to question the law on grounds of grammatical ambiguity.”

L7: Ten years, $86.5 million, and nobody thought it important to sign a formal contract.  Now, UC Berkeley and Under Armour are in a battle involving COVID-19, force majeure, and $591 in outdated Nike gear.

L8: It’s not unusual for attorneys to be off-duty friends with police officers, since they often work together. But an invitation for a hotel room pizza date after leading a cop on a high speed chase is a bit out of the ordinary.

1. a term I do not use pejoratively
2. Directed verdicts, also known as “judgment as a matter of law.” are not unheard of. However, an 1895 case, Sparf et al v. US, prohibits a court from directing juries to convict; ever since then, the law permits only directed verdicts of acquittal; never guilt.