August 17, 2022

The Question of Ratification’s Legitimacy:  The United States Supreme Court Decision in Lesser versus Garnett, February 27, 1922 

In the traditional telling of the story of how Tennessee became “the Perfect 36”,  the story ended when  State Representative Harry S. Burn voted in support of ratification.  Although bells rang out across the United States as word of Tennessee’s ratification spread across the country, there were no bells ringing, however, in Nashville that day. The Tennessee suffragists who had gathered in Nashville and worked tirelessly for ratification during the special session knew that the  Antis were not willing to surrender without another fight.  Two days later, the Antis held a “Save the South”  rally at the Ryman Auditorium to arouse public support to have the vote on ratification overturned. When the Constitutional League failed in an attempt to get an injunction from a state judge to prevent Governor Roberts from signing the ratification documents, the Antis tried to get a federal judge to issue an injunction to prevent U.S. Secretary of State Bainbridge Colby from signing the documents. That also failed, and on August 26,  1920, Secretary Colby signed the documents, making Tennessee’s ratification official.   (Near the end of her life, when Josephine Pearson, the leader of the Tennessee anti-suffrage campaign,  continued to refer to the ratification certificate as a  “national fake.”) 

Women across the country began to register to vote immediately.  Two months after ratification,  when two Maryland women registered to vote, Oscar Leser and others filed a lawsuit in a Baltimore court to have the women’s names removed from the voting list.  Leser and the other plaintiffs argued that it was the people of Maryland that had the right to determine voter requirements, not the U.S. Constitution. Using a states’ rights argument, they charged that since  Maryland had not ratified the suffrage amendment, voting in  Maryland was limited only to men.  For this reason, the  Nineteenth Amendment was unconstitutional.  They believed that only the people of a state had the right to determine qualifications for voters in that state. 

In spite of the fact that  West Virginia and Connecticut reconfirmed their ratification votes a few weeks after Tennessee’s vote,  and Vermont ratified the amendment in early 1921, Leser’s case was heard in a Maryland trial court, but then dismissed.  Still not willing to give in, Leser appealed the case to the Maryland Court of Appeals, but it affirmed the lower court’s decision.  As a last resort, they were able to file a final appeal to the United States  Supreme Court.   In early 1922, the United States Supreme Court heard arguments in the case  Leser v. Garnett, contesting Tennessee and West Virginia’s ratification. 

One of the main arguments made by the plaintiff was that giving women the right to vote would add  such a great number of voters to the electorate,  which would destroy  the state’s “autonomy as a political body.”  The point of law that the case centered on was the fact that Tennessee’s General Assembly members had been elected BEFORE the amendment was ratified in spite of the fact that the state constitution said that amendments could only be ratified by legislators who had been elected AFTER an amendment was sent to the states for ratification. (This stipulation had been put in a  new state constitution when Tennessee’s ex-Confederates returned to power and rewrote the Tennessee constitution in 1870. This clause was in the constitution as a way to make it difficult to amend the state constitution. Although this applied to amending the state constitution, the Antis argued that it also applied to federal amendments.)   

The high court handed down its decision on February 27, 1922, settling once and for all the questions of whether or not women in all states could vote.  Justice Louis Brandeis wrote the decision on behalf of a unanimous court.  He pointed out that if the plaintiffs’ argument that the Nineteenth Amendment was unconstitutional, the Fifteenth Amendment, which gave African-American men the right to vote, was also invalid.  Since the Fifteenth Amendment had been accepted for more than fifty years, Justice Brandeis explained that under the provisions of the federal constitution, the power of the states came from the federal government.  The Federal Constitution “transcends any limitations sought to be imposed by the people of a state,”  Brandeis wrote. 

The argument that Tennessee and West Virginia’s ratification violated each state’s legislative procedures also was invalid.  And, since Connecticut and Vermont had now ratified the Nineteenth Amendment, no grounds existed to argue this case.  Brandeis also pointed out that since the  United  States Secretary of State had proclaimed the Nineteenth Amendment to be ratified in 1920,  women in all states were now eligible to vote.  Although this case once and for all settled the woman legality of the Nineteenth Amendment, the question of who can and cannot vote remains a  hotly-debated issue to this day.