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July 29, 2020 INTRODUCTION

Celebrating the Nineteenth Amendment in the Time of a Pandemic

By Judge M. Margaret McKeown

As we gear up to celebrate the centennial of the ratification of the Nineteenth Amendment, a little history is in order. Just over a century ago, the 1918 influenza pandemic swept across the United States and threatened to upend decades of suffragist efforts to achieve victory in the battle for the Nineteenth Amendment. We can learn from the suffragists, who did not let the pandemic slow their momentum, and draw inspiration from the early women judges—who were suffragists, too—who persevered in the face of formidable challenges.

In the early spring of 1918, the suffragists were seven decades deep into their campaign to secure the right to vote for women, and they were on the brink of victory. The House of Representatives had just passed the constitutional amendment that would “prohibit the states and federal government from denying the right to vote to citizens of the United States on the basis of sex,” and the amendment was in the hands of the U.S. Senate. The suffragists needed the Senate to pass the amendment and then 36 states to ratify it. But, following their House victory, the campaign was dealt a wild card. With the deadly pandemic sweeping the vulnerable nation, public health officials made the now-familiar call to halt public gatherings.

The suffragists had built their movement on marches, rallies, and conventions. Carrie Chapman Catt, leader of the National American Woman Suffrage Association, who was stricken by the flu herself, spoke of “times growing unexpectedly saddened by the sudden and sweeping epidemic of Influenza.” What the suffragists could not have realized at the time was that the pandemic, along with the impact of World War I, actually helped women secure the right to vote.

Recognizing changing circumstances, the suffragists strategically redefined the narrative of women’s value in American society. Before the war, women were seen as adequately represented in politics by the men in their families. With men falling ill from the flu and dying in the battlefield, that narrative no longer rang true and the United States’ workforce was diminishing. Well, the male workforce was diminishing.

American women seized the moment and filled critical jobs. They took on manufacturing jobs, labored in farm fields, and served as nurses on the frontlines. Both at home and in the workforce, women became the glue that held the country together. Their efforts did not go unnoticed.

At the close of the war, President Woodrow Wilson, who had previously been lukewarm to the amendment, wrote a letter to Catt and enthused, “The services of women during this supreme crisis of the world’s history have been of the most signal usefulness and distinction. The war could not have been fought without them, or its sacrifices endured.” With that, President Wilson was on board, and women across the United States sent a message to the anti-suffragists that they could be ignored no longer.

Despite the welcome victory in the war, the pandemic was spreading and the suffragists still had to confront the ban on public gatherings. Canceled marches, rallies, parades, and soapbox speeches did not mean the suffrage movement was canceled. It just meant the effort would look different. In much the same way that COVID-19 has changed the way we use the internet, Zoom, and GoToMeeting to connect with family, friends, and communities; hold court hearings; and continue business, the suffragists shifted their tactics. Turning to the mail, telephone calls, posters, banners, and newspaper advertisements, they redirected their efforts to spread the message and shore up support.1 And it worked.

In 1919, the Senate passed the Amendment, and the following year, the 36th state, Tennessee, ratified the amendment. The ratification of the Nineteenth Amendment is a victory that came after the suffragists used their ingenuity to turn the troubles of war and a deadly pandemic into a new narrative for American women. Women not only showed their value in American society, but they also showed an ability to respond creatively to the challenges imposed when a nation was shut down by the deadly opponents of war and pandemic.

The tenacity and creativity exhibited by the suffragists from 1918–1920 reflect the spirit of some other pivotal American women: the earliest women judges. In 1870, Esther Morris was appointed as the first woman in the United States to serve as justice of the peace in the mining town of South Pass City, Wyoming. Even though Wyoming had just become the first territory (and later was the first state) to grant women the right to vote and hold office (a point of pride for me as a Wyoming native), not everyone agreed that a woman truly could hold office.2 Justice James W. Stillman was one of those dissenters. He stepped down from his position as justice of the peace in protest to the idea that a woman could ever be capable of holding an office like his. Ironically, Morris, with no prior legal training or experience, was appointed to fill his position days later.

In an effort to make things difficult for the new Justice Morris, Justice Stillman refused to hand over the court docket and papers. He ardently believed that “no woman should ever have [the office].” Morris was not fazed. She purchased her own docket book, remarking that she preferred her clean new docket to Stillman’s “dirty docket,” which was in disarray.

When she took office, Morris, who had been a seamstress by profession, did not let her lack of legal training hinder her success. She began educating herself in the law and decided cases by “justice first then after that the law.” What she may have lacked in formal education, Morris made up for in her command of the courtroom. She held court from a bench in her log cabin, with her sons serving by her side as her courtroom clerks. Morris kept the mining town in order and had no trouble shutting down the men who cried in attempts to appeal to her “womanhood.”

By the end of her term, Morris became the preferred justice in town. She rendered 70 decisions—from civil to criminal and the occasional marriage—in her short eight-and-a-half-month term. No decision was overturned on appeal. She seemed to recognize the magnitude of her feat, humbly stating at the end of her tenure, “I feel that my work has been satisfactory, although I have often regretted I was not better qualified to fill the position.”3

Morris taught her small Wyoming town, and the rest of the country, that indeed a woman could hold public office. Not only could a woman serve a judicial role, but she could do so successfully and with the respect of her community. Morris changed the direction of the judicial tradition and showed that “we can do it.”

Morris’s story of overcoming sex discrimination in achieving a judicial appointment is not an isolated instance. She stands at the beginning of a long line of resilient early women judges. Catharine McCulloch, the first woman justice of the peace in Illinois, also started her legal career staring in the eyes of rejection rooted in discrimination.

McCulloch graduated from law school in 1886 with hopes of practicing law in Chicago. Despite recommendations from judges and professors, no law firm would give McCulloch the time of day, let alone a job opportunity. McCulloch later reminisced, “I sailed out inflated with enthusiasm and confidence in my own abilities. I dragged myself back collapsed with chagrin and failure.”4

What McCulloch may have lacked in job offers, she made up for in her legacy. After returning to her hometown of Rockford, Illinois, she ran her own legal practice for a number of years. McCulloch used the opportunity to take on a variety of cases, even helping the women in her community who could not afford to pay her. McCulloch’s determination eventually resulted in her election as justice of the peace in Evanston, Illinois, in 1907. Like Morris, McCulloch was the first woman in her state to hold the position.

McCulloch is not the only early woman judge to graduate from law school and face a market that rejected her. Florence Allen faced a similar fate.5 After graduating second in her law school class at New York University in 1913, Allen eagerly returned to Ohio to practice law. She, too, received no job offers, so she set up her own practice and went on to become the first woman to serve on a state supreme court (Ohio) and a federal appellate court (Sixth Circuit). McCulloch and Allen are just two female judicial leaders who persevered in the face of blatant sex discrimination. Forty years later, Justice Sandra Day O’Connor told the same story.

Now, in the year of centennial celebrations in honor of the passage of the Nineteenth Amendment, we may find ourselves facing disappointment about the cancellation of events, court hearings, meetings, social gatherings, and travel. But we need to be mindful of the millions who have lost their jobs, especially the high percentage of women, and the millions who have died. Perhaps we can find a glimmer of inspiration in the stories of the suffragists, Esther Morris, Catharine McCulloch, and Florence Allen, who teach us that if we persevere, we just might be on the path to something remarkable.

Judge McKeown thanks Tara Giery, University of San Diego Law School 2020, for her research assistance.


1. Alisha Gupta, How the Spanish Flu Almost Upended Women’s Suffrage, N.Y. Times (Apr. 28, 2020). See also Ellen Dubois, A Pandemic Nearly Derailed the Women’s Suffrage Movement, Nat’l Geographic (Apr. 20, 2020).

2. Marcy Lynn Karin, Esther Morris and Her Equality State: From Council Bill 70 to Life on the Bench, 46 Am. J. Legal Hist. 300, 320 (2004).

3. Id. (quoting How Woman’s Suffrage and Office Holding Work, The Revolution, vol. VII, no. 7, Feb. 16, 1871).

4. See Jill Norgren, Ladies of Legend: The First Generation of American Women Attorneys, 35 J. Sup. Ct. Hist. 71 (2010).

5. See Michael J. Gabrail, Hon. Florence Ellinwood Allen, 63 Fed. Law. 51 (2016).

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By Judge M. Margaret McKeown

M. Margaret McKeown is a judge for the U.S. Court of Appeals for the Ninth Circuit and chair of the ABA Commission on the Nineteenth Amendment.