The Crime of Voting

The second floor courtroom at the courthouse in Canandaigua, New York, filled to capacity on June 17, 1873. Judge Ward Hunt was presiding over a criminal case. The defendant? Susan Brownell Anthony, age 53. Her crime? Voting in the presidential election in November, 1872. A prim Quaker school teacher on trial as a federal felon! How had things come to such a pass? But as one of her colleagues, Matilda Joslyn Gage, declared, “Susan B. Anthony is not on trial; the United States is on trial.”

Susan B. Anthony was born and raised in a devout Quaker family. Early in life she joined her parents in active support of the causes of temperance and the abolition of slavery. In 1839, she took a teaching job to help her family out of a difficult financial situation. She worked as a teacher until 1851. During that time she met a number of abolitionist leaders, including William Lloyd Garrison and Frederick Douglass. Although she and Douglass later had significant disagreements, they remained friendly until Douglass’ death on February 20, 1895. In fact, the day he died, Douglass attended a suffrage meeting in Washington, D.C. During that meeting, he was brought to the platform and given a standing ovation.

A number of men paid court to the attractive Ms Anthony. She choose to turn them all away and remained single her entire life. Late in life she commented, “I never felt I could give up my life of freedom to become a man’s housekeeper. When I was young, if a girl married poor she became a housekeeper and a drudge. If she married wealthy, she became a pet and a doll.”

It was in May of 1851, while attending a lecture by William Lloyd Garrison, that Susan Anthony first met Elizabeth Cady Stanton. The two women became close friends and life-long colleagues in the struggle for women’s rights. In September, 1852, Susan Anthony attended her first woman’s rights convention and from that point onward began to focus on suffrage as the key to achieving a full range of civil rights for women. As other women of her generation, she applied the skills she had honed in the abolition struggle to the cause of women.

During the period of Reconstruction after the Civil War, the Radical Republicans [no, that is not a typographical error nor a contradiction in terms–there really were senators and representatives who relished the name “radical”] passed through Congress, and the required number of states ratified, the Thirteenth, Fourteenth and Fifteenth Amendments to the U.S. Constitution. These came to be called the Reconstruction Amendments.

In the relevant part, the Fourteenth Amendment says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.” For suffrage advocates like Ms Anthony, the key word was “person.” The constitutional language did not say “men.”

The Fifteenth Amendment declares, “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.” Taken in tandem with the Fourteenth then, we have this constitutional equation: person = citizen = right to vote = no denial.

Armed with this constitutional language, on November 1st, 1872, Susan B Anthony walked into the requisite place to register to vote in Rochester, New York. The election inspectors initially refused her request, but she persisted, quoting the Fourteenth Amendment’s citizenship provision and the article from the New York state Constitution pertaining to voting, which contained no sex qualification. When they continued to hesitate, she gave them the school teacher stare and loudly declared,”If you refuse us our rights as citizens, I will bring charges against you in criminal court and I will sue each of you personally for large, exemplary damages! I know I can win.” They accepted her voter registration. On election day, Tuesday, November 5th, Susan B Anthony voted a straight Republican ticket, with former general Ulysses S Grant for president at the top of the ticket.

To her dear friend, Elizabeth Cady Stanton, Ms Anthony wrote, “Well I have been & gone & done it!!–positively voted the Republican ticket–strait this a.m. at 7 O clock . . . .” But the battle had just begun.

A Rochester business man, a Democratic poll watcher named Sylvester Lewis, filed a complaint charging Ms Anthony with casting an illegal vote. Lewis challenged both Ms Anthony’s registration and her subsequent vote. The U S Elections Commissioner William C. Storrs acted upon Lewis’ complaint by issuing a warrant for Ms Anthony’s arrest on November 14th. The warrant charged one Susan B Anthony with voting in a federal election “without having a lawful right to vote and in violation of section 19 of an act of Congress” enacted in 1870, called the Enforcement Act. The Act carried a maximum penalty of $500 or three years imprisonment.

On November 18th, a young U S deputy marshal appeared at the Anthony family home where he was greeted by one of Susan’s sisters. Susan Anthony had been expecting her visitor. She had previously received word from Commissioner Storrs “to call at his office.” In response, “I sent word to him that I had no social acquaintance with him and didn’t wish to call on him.” At the deputy’s request, Ms Anthony came to the parlor. At first the young, slightly embarrassed law officer avoided stating directly the nature of his call, until pressed he finally said that Mr Storrs wanted to see her. When Ms Anthony asked what for, the fellow answered, “To arrest you.”

When Ms Anthony inquired if this was the way men were arrested, the deputy said no. Susan Anthony demanded to be arrested properly, even extending her arms to be handcuffed, which the young man refused to do. He did, however, pay her fare on the horse-drawn trolley on which he accompanied her downtown. To other passengers, Ms Anthony gave public notice that she was under arrest. Once downtown Ms Anthony was escorted to the office of Commissioner Storrs, which she described as “the same dingy little room where, in the olden days, fugitive slaves were examined and returned to their masters.”

On January 24th, 1873, Susan B Anthony was indicted by a federal grand jury for illegal voting. She entered a plea of not guilty. Henry R. Selden, a lawyer and retired New York state court judge, active in Republican politics, represented Ms Anthony. He never charged her for his services.

Originally the trial was set for May. Ms Anthony used the four months prior to the start of the trial to give a speech in every postal district in the county. She entitled her presentation “Is it a Crime for a Citizen of the United States to Vote?’ and gave her presentation to audiences of dozens and of hundreds.

In her excellent address, presented with oratorical skill, Ms Anthony argued that “It was we, the people, not we, the white male citizens, nor yet we, the male citizens; but we, the whole people, who formed this Union. And we formed it, not to give the blessings or liberty, but to secure them; not to the half of ourselves and the half of our posterity, but to the whole people-women as well as men. And it is downright mockery to talk to women of their enjoyment of the blessings of liberty while they are denied the use of the only means of securing them provided by this democratic-republican government-the ballot.”

The former school teacher knew her history, her constitution and the power of language and logic. She swayed listeners. “But it is urged, the use of the masculine pronouns he, his and him, in all the constitutions and laws, is proof that only men were meant to be included in their provisions. If you insist on this version of the letter of the law, we shall insist that you be consistent, and accept the other horn of the dilemma, which would compel you to exempt women from taxation for the support of the government, and from penalties for the violation of laws. . . . So the poor widow, who keeps a boarding house, manufacturers shirts, or sells apples and peanuts on the street corners of our cities, is compelled to pay taxes from her scanty pittance. I would that the women of this republic, at once, resolve, never again to submit of taxation, until their right to vote be recognized.”

The speech took an hour or more to deliver. It covers twenty typed pages in modern typescript. Ms Anthony’s lecture tour plainly worried her prosecutor, U. S. Attorney Richard Crowley. Before the May trial could start, Crowley convinced Judge Ward Hunt who would hear Anthony’s case, that she had prejudiced potential jurors, male jurors, since only men served on juries in New York at that time. Judge Hunt agreed to move the trial out of Monroe County to Canandaigua in Ontario County. Hunt set a new opening date for the trial of June 17th. Ms Anthony responded to the judge and prosecutor by immediately launching a lecture tour in Ontario County where she spoke for twenty-one days in a row, concluding her tour in Canandaigua, the county seat, on the night before the opening of her trial.

Judge Hunt had just taken his seat on the U S Supreme Court in January, 1873. He heard this case while riding circuit, which was common for justices of the Supreme Court for decades. (It is worth noting that Hunt had minimal impact on the high court during his ten years there. He sided with the majority in all but 22 cases and wrote only four rather mediocre dissenting opinions).

The trial transcript is appalling to read. The government’s case consisted of only two witness, both election officials. Judge Hunt ruled that as an unmarried female, the defendant was under a legal disability and not competent to testify on her own behalf. Selden made a three hour argument on Ms Anthony’s behalf. Judge Hunt ordered the jury of twelve men to return a directed verdict of guilty. When Selden asked for the jury to be polled, that is for each one to personally say if that was his verdict, Hunt denied Selden’s request. Hunt’s biggest mistake came at the very end.

From the transcript of the proceedings:

Judge Hunt: (Ordering the defendant to stand up) Has the prisoner anything to say why sentence shall not be pronounced?”

Miss Anthony: Yes, your honor, I have many things to say; for in your ordered verdict of guilty, you have trampled under foot every vital principle of our government. My natural rights, my civil rights, my political rights, my judicial rights, are all alike ignored. Robbed of the fundamental privilege of citizenship, I am degraded from the status of a citizen to that of a subject; and not only myself individually, but all of my sex, are, by your honor’s verdict, doomed to political subjection under this, so-called, form of government.

Judge Hunt: The Court cannot listen to a rehearsal of arguments the prisoner’s counsel has already consumed three hours in presenting.

Miss Anthony: May it please your honor, I am not arguing the question, but simply stating the reasons why sentence cannot, in justice, be pronounced against me. Your denial of my citizen’s right to vote, is the denial of my right of consent as one of the governed, the denial of my right of representation as one of the taxed, the denial of my right to a trial by a jury of my peers as an offender against law, therefore, the denial of my sacred rights to life, liberty, property and-

Judge Hunt: The Court cannot allow the prisoner to go on.

Miss Anthony: But your honor will not deny me this one and only poor privilege of protest against this high-handed outrage upon my citizen’s rights. May it please the Court to remember that since the day of my arrest last November, this is the first time that either myself or any person of my disfranchised class has been allowed a word of defense before judge or jury-

Judge Hunt: The prisoner must sit down-the Court cannot allow it.

Miss Anthony: All of my prosecutors, from the 8th ward corner grocery politician, who entered the compliant, to the United States Marshal, Commissioner, District Attorney, District Judge, your honor on the bench, not one is my peer, but each and all are my political sovereigns; and had your honor submitted my case to the jury, as was clearly your duty, even then I should have had just cause of protest, for not one of those men was my peer; but, native or foreign born, white or black, rich or poor, educated or ignorant, awake or asleep, sober or drunk, each and every man of them was my political superior; hence, in no sense, my peer. Even, under such circumstances, a commoner of England, tried before a jury of Lords, would have far less cause to complain than should I, a woman, tried before a jury of men. Even my counsel, the Hon. Henry R. Selden, who has argued my cause so ably, so earnestly, so unanswerably before your honor, is my political sovereign. Precisely as no disfranchised person is entitled to sit upon a jury, and no woman is entitled to the franchise, so, none but a regularly admitted lawyer is allowed to practice in the courts, and no woman can gain admission to the bar-hence, jury, judge, counsel, must all be of the superior class.

Judge Hunt: The Court must insist-the prisoner has been tried according to the established forms of law.

Miss Anthony: Yes, your honor, but by forms of law all made by men, interpreted by men, administered by men, in favor of men, and against women; and hence, your honor’s ordered verdict of guilty; against a United States citizen for the exercise of that citizen’s right to vote, simply because that citizen was a woman and not a man. But, yesterday, the same man made forms of law, declared it a crime punishable with $1,000 fine and six months imprisonment, for you, or me, or any of us, to give a cup of cold water, a crust of bread, or a night’s shelter to a panting fugitive as he was tracking his way to Canada. And every man or woman in whose veins coursed a drop of human sympathy violated that wicked law, reckless of consequences, and was justified in so doing. As then, the slaves who got their freedom must take it over, or under, or through the unjust forms of law, precisely so, now, must women, to get their right to a voice in this government, take it; and I have taken mine, and mean to take it at every possible opportunity.

Judge Hunt: The Court orders the prisoner to sit down. It will not allow another word.

Miss Anthony: When I was brought before your honor for trial, I hoped for a broad and liberal interpretation of the Constitution and its recent amendments, that should declare all United States citizens under its protecting egis-that should declare equality of rights the national guarantee to all persons born or naturalized in the United States. But failing to get this justice-failing, even, to get a trial by a jury not of my peers-I ask not leniency at your hands-but rather the full rigors of the law:

Judge Hunt: The Court must insist-

(Here the prisoner sat down.)

Judge Hunt: The prisoner will stand up. (Here Miss Anthony arose again.) The sentence of the Court is that you pay a fine of one hundred dollars and the costs of the prosecution.

In response to the imposition of sentence, Ms Anthony declared that she had no resources to pay the fine. She would pay her just debts but “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.’”

Susan B Anthony lived until March of 1906 and never did pay any of the fine or costs imposed upon her by Judge Hunt. Nor did the United States government make any attempt to collect the money. Reading the transcript I quoted above leaves no doubt in my mind. Final score: the Quaker school teacher-10, the Supreme Court justice-0. Up to her death, Ms Anthony kept asserting, “Failure is impossible.” Fourteen years after her death a constitutional amendment, the Nineteenth, known as the Susan B Anthony Amendment, finally guaranteed women the right to vote.

This page of our history is both instructive and motivating. Speaking in 1995 at a comme- ration of the 75th anniversary of the adoption of the Nineteenth Amendment, Justice Sandra Day O’Connor, the first woman to serve on the Supreme Court, noted, “In order to appreciate the tremendous progress made by American women in the last century, we should consider the point from which we started. The history of the suffrage movement is a colorful and entertaining one, and a tale from which we can draw many lessons.” Commenting upon this trial, Justice O’Connor declared that “Susan B. Anthony was the clear victor. Her treatment at the hands of the judicial system won for her the sympathy even of those who had been opposed to her original act. Letters of support and funds for her defense poured in. The following year, one newspaper even called her ‘America’s best-known woman.’” Near the conclusion of her remarks, the Justice noted, “the redoubtable women of the suffrage movement would tell us not to rest until full equality is achieved, and quite rightly so.”

Nadine Strossen, president of the ACLU from 1991 to 2008 and law professor at New York Law School, said in a 1997 speech that “During Women’s History Month, I think it is especially important to have this dual perspective: both looking backward, to see how far we have come; and looking forward, to see how far we still have to go. The backward perspective, thus, is not at all so that we can rest on our laurels, proud of our achievements to date. Rather, it is for the opposite purpose. By showing us how much progress it is possible to make through organizing and advocacy, this backward glance will encourage us to carry on those efforts energetically and optimistically.” She went on to say there are still those who “seek to relegate women to traditional roles, subordinate to men not only at work and in the political sphere, but also at home.”

According to the U.N. Commission on Human Rights in 2008, worldwide, about 1 in 4 women can expect to be raped during their lifetime. Internationally, twice as many women as men are illiterate. Only in 1998 did an international court declare that rape is a form of torture in prison, and a war crime when conducted systematically by the military. In the United States, gender-based persecution is usually not recognized as grounds for asylum, which means that women who are likely to be killed by their fathers, brothers or husbands or sure to be genitally mutilated if they return to their own countries are usually deported nonetheless, regardless of the potential danger.

An article in Forbes, February 28, 2011, found that based upon an extensive and detailed database of 250 temporary employees who, over a period of several years, jointly were involved in 1462 projects across 462 different companies, “even in temporary jobs, women get paid substantially less than men, for the same type of work. Women earned an average of $25.08 per hour while men, for the exact same job with the same qualifications, would earn an average of $29.66. And we can’t blame that on firm specific skills.”

According to statics from the U.S. Department of Labor compiled in April, 2009, in “non-traditional occupations” women continue to be a minority. Computer programmers, only 22.4% women; computer software engineers-20.9% are women; computer hardware engineers-19.4% are women; detectives and criminal investigators-19.2% are women [television shows not withstanding]; chefs and head cooks–17.0%; industrial engineers–14.9%; ordained clergy–14.8%; police officers–14.7%; chemical engineers–13.1%; computer repairers–10.5%; building inspectors–9.5%; industrial truck and tractor operators–8.9%; electrical engineers–7.7%; mechanical engineers–6.7%; fire fighters–4.8%; aircraft pilots–2.6%; automotive technicians and mechanics–1.6%; electricians–1.0%.

Recent data released by the Department of Labor reports that in 2009, women who were full-time wage and salary workers had median weekly earnings that were about 80% of the earnings of their male counterparts. In 1979, the first year for which comparable earnings data are available, women earned approximately 62% as much as men. After a gradual rise in the 1980s and 1990s, the women’s-to-men’s earnings ratio peaked at 81% in 2005 and 2006. Among younger workers, the earnings differences between women and men were not as great. In 2009, women earned 89% as much as men among workers 25 to 34 years old and 93% as much among 16- to 24-year-olds. In the age groupings of those 35 years and older, women had earnings roughly 75% as much as their male counterparts.

As for the power of voting and participation in government, look at the current membership of Congress. Presently, seventeen women serve in the Senate. That’s exactly 17% while last year’s census data shows that women constitute a little more than 50% of the total population. In the House of Representatives 72 women are serving. That’s 16.6% of the membership.

I deeply believe that we still need Susan B Anthony’s revolutionary enthusiasm.




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