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July 29, 2020 Feature

From the Nineteenth Amendment to the Twenty-First Century: Bridging the Gavel Gap

By Elizabeth M. Yang

We are rapidly approaching the 100th anniversary of the certification of the Nineteenth Amendment to the Constitution. As with any major event, especially a constitutional amendment, there is resulting introspection and queries as to whether the purpose of its creation has been fulfilled. The Nineteenth Amendment, granting the right to vote to women, is no different. In order to answer this question, one must consider the premise of the amendment and apply it to present time. What circumstances created the need for the Nineteenth Amendment? What role, if any, did the courts play in its enactment? What was the intended remedy of the amendment? Has that remedy been realized? These questions can best be answered through an analysis of the trends and current status of women’s participation in our political process and the judiciary.

Brief History of the Nineteenth Amendment

On August 26, 1920, Secretary of State Bainbridge Colby certified that the Nineteenth Amendment was ratified as part of the U.S. Constitution. This momentous occasion, 132 years after the ratification of the Constitution in 1788, established the right to vote for women. The Constitution, as originally drafted, granted the right to vote to “the People of the several States.” At that time, “people” were white males who either owned property, met certain religious requirements, or paid poll taxes, representing approximately 6 percent of the adult population.1

The 70-year struggle to gain women’s suffrage began in Seneca Falls, New York, at the 1848 Seneca Falls Convention, led by Elizabeth Cady Stanton and Lucretia Mott, to raise awareness and provide a forum for a discussion of the disparate social, civil, and moral rights given to women versus those afforded to men at the time. Equal rights for women was the primary premise of the convention. This long-fought journey culminated in two simple sentences, composed of 39 words, “[t]he 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 remaining barriers preventing women of color from voting were eradicated as a result of the two-decades-long civil rights movement, which began in the 1940s and ended in the 1960s with the adoption of the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

As we approach the centennial of the Nineteenth Amendment, there have been much celebration and reflection on the struggles, sacrifices, and sheer tenacity of so many that resulted in the ultimate triumph of women’s suffrage in the United States. After all, amendments to the Constitution are common and are not to be taken lightly, as they seek to change the fundamental and guiding principles of our government. Amendments must be adopted by a two-thirds majority of the U.S. House of Representatives and Senate and then ratified by three-fourths of the states. Of course, we celebrate the tremendous efforts that allowed the Nineteenth Amendment to become a reality, as any amendment to the Constitution is precious and certainly not an easy endeavor.

But, as is often the case, reflection is just as important as celebration, for it allows us to more fully understand and appreciate our past. Women’s suffrage is the perfect example of why reflection is important. Names of white suffragettes, like Elizabeth Cady Stanton and Susan B. Anthony, have always been associated with obtaining the right to vote for women. The gift of time coupled with growth and changes that have led to a more inclusive society have allowed for an honest accounting and representation of the diversity of the participants in the suffrage movement. We now hear of the important roles that Harriet Tubman, Sojourner Truth, and other women of color played in the passage of the Nineteenth Amendment and the civil rights movement that ultimately granted the right to vote to all women.

Relevant Case History and Legal Analysis

Despite the huge struggle, time, and efforts expended to bring the Nineteenth Amendment to fruition, once it was ratified, there does not appear to have been a commensurate legal analysis or case law related to the Amendment. As Professor Daniel R. Ortiz, of the University of Virginia School of Law, remarked at a 2019 American Bar Association program celebrating the centennial of the Amendment, “it went missing almost at the moment of its enactment.”

In 1922, there was an attempt to nullify the ratification. Oscar Leser, an attorney from Baltimore, Maryland, asked the Supreme Court to rule on whether the Nineteenth Amendment had been properly enacted. Leser argued that women should not be allowed to vote because he lived in a state that had not ratified the amendment and that, procedurally, the ratification was flawed in Tennessee and West Virginia. The Supreme Court unanimously rejected Leser’s claims. The Court found that the Nineteenth Amendment had been properly enacted—much like the Fifteenth Amendment had become a part of the Constitution despite the nonratification of six states—and that the amendment had been ratified and certified.2

Purpose and Remedy of the Nineteenth Amendment

Women Voting

At its most basic level, the women’s suffrage movement can be interpreted as a herculean effort to gain the right to vote for women, allowing them the same right afforded to men in the twentieth century. As such, the success of the Nineteenth Amendment can easily be gauged by statistics and trends of the numbers of women and men voting in elections. Under such an interpretation, the promise of the amendment is achieved if women and men are voting in equal numbers.

In the last 40 years, starting with the 1980 presidential election and in all subsequent federal elections, more women than men have cast ballots. In fact, the number of women voting has been greater than men in all presidential elections since 1964. In 2018, 55 percent of eligible women voted versus 51.8 percent of eligible men, compared to 61 percent of eligible women and 61.5 percent of eligible men in 1980, and 39.25 of eligible women and 37.5 percent of eligible men in 1964. These statistics are on track with the last two censuses of 2000 and 2010, which reported a male population of just over 49 percent and a female population of just under 51 percent. Based on this analysis, the Nineteenth Amendment has been successful, and its promise has been achieved.

Civil and Political Freedom

But a more nuanced interpretation would suggest that the intent of the women’s suffrage movement was about more than giving women the right to vote. After all, the genesis of the Nineteenth Amendment, borne out at the 1848 Seneca Falls Convention, was to give women complete and equal rights when compared to men. Today, this concept of equal rights is explored through “gender parity” and the “gender gap.”

In any vibrant society or democracy, the ability of all citizens to engage in civic and political freedom is paramount. Full participation in civics and politics is not limited to the act of voting. The Global Gender Gap Report 2020 (Gender Gap Report), published by the World Economic Forum, surveys 153 countries and measures various dimensions to determine progress toward gender parity.3 These key dimensions are economic participation and opportunity, educational attainment, health and survival, and political representation. The scope and intent of the Nineteenth Amendment fall squarely in the dimension of political representation and as one of the contextual indicators of civic and political freedom.

In the overview to the Gender Gap Report, the World Economic Forum states, “[w]ithout representing one-half of the population in national and local politics, progress will be stymied in other areas pertinent to women and the quest for gender parity.”4 In other words, unless full consideration and understanding of women’s issues occurs during the drafting of legislation and policy, then other key aspects affecting women, such as economic participation and opportunity, are less likely to advance. There is also a right to equal justice index, contained in the Gender Gap Report, that “measur[es] whether women and men have the same rights to provide testimony in court, hold public or political office in the judiciary and sue.”5 This important examination of true opportunities for equal justice for women is critical in ensuring full civic and political freedom. Simply put, equal representation of women in national, state, and local governments and judiciaries is a key factor in ensuring and advancing gender parity.

An analysis of women in elective office and the judiciary in the United States will require a more thorough examination of American women in politics and the law and, for comparison purposes, their counterparts in the rest of the world.

The Gender Gap and Political Representation

In 2019, with the centennial of the Nineteenth Amendment just around the corner, there were a record 126 American women in federal elective office (25 women senators and 101 women representatives); 91 women in statewide elective executive positions; and 28.9 percent of state-wide elective legislative offices held by women.6

The following figures represent a growing upward trend of women in elective government roles in the United States.

In 2019, on the local level, in the 100 cities with the largest populations, 27 mayoral offices were held by women; in cities with populations greater than 100,000, 59 out of 284 mayors were women; and in cities with populations greater than 30,000, 300 out of 1,366 mayors were women. Roughly 22 percent of mayors in cities with populations greater than 30,000 were women.

These figures representing the role of American women in federal, state, and local government elective office show great growth, but unfortunately, when compared to the proportion of women to men, the gender gap is still large. The female-to-male ratio of the general population in the United States hovers at close to even, with the slightest of advantages to women at 51 percent of the population, and men at 49 percent. Even if we use the generous figure of 29.3 percent of women in statewide elective office in 2019, the gender gap is over 20 percent, and in federal elective office, the gender gap is over 25 percent. These figures point to a long road to gender parity in political representation in the United States.

The Rest of the World

Compared to the rest of the world, in 2019, the United States had the largest number of women in federal, state, and local elective office, yet the achievement of true gender parity in political representation still seems a far reach. In fact, according to the Gender Gap Report, the United States placed just in the top third, ranking 53 of 153 countries overall globally. Yet, when considering political empowerment, the United States dropped to a little better than half of all countries surveyed and placed at 86 of 153. One might wonder how this is possible. How could the United States, known as the leader of the free world and for its democratic principles and values, have such a low standing when it comes to gender parity and political representation? The answer is quite simple: The United States, for all its advantages and democratic success, has never had a female national head of state. A woman has never served as president of the United States of America.

Women as Heads of State

The list of women heads of state is reasonably large and not limited to European countries. As of January 1, 2020, there were currently 24 women heads of state in the world.7 The geographic reach of women as national leaders is wide and far reaching. The following is not an exhaustive list of international women heads of state, but rather an attempt to show the diversity of geography and length of service. Indira Gandhi served as prime minister of India from 1966 to 1977 and again from 1980 until her assassination in 1984. Saara Kuugongelwa has served as the prime minister of Namibia since 2015. Golda Meir served as prime minister of Israel from 1969 to 1974. Margaret Thatcher served as prime minister of England from 1979 to 1990. Corazon Aquino served as president of the Philippines from 1986 to 1992. Sahle-Work Zewde has served as the president of Ethiopia since 2018. Benazir Bhutto served as prime minister of Pakistan from 1988 to 1990 and from 1993 to 1996. Mary Robinson served as president of Ireland from 1990 to 1997, followed by Mary McAleese from 1997 to 2011. Angela Merkel has served as chancellor of Germany from 2005 to the present. Park Geun-hye served as president of South Korea from 2013 until 2017. Aung San Suu Kyi has served as state counsellor of Myanmar, the de facto head of state, from 2016 to the present. And Tsai Ing-wen has served as president of Taiwan from 2016 to the present; on January 11, 2020, she won a second term in a landslide victory.

The reality is that, all other factors being equal in global comparisons, despite record numbers of women holding elective office in the United States, until a female president is elected, the United States will continue to rank lower vis à vis political representation, thus lowering its overall rank in future global gender gap reports.

The Gender Gap and the Judiciary

Any examination of the right of women to equal justice and the concomitant right of women to be appointed or elected to judicial office must first begin with a study of women and the law. According to the U.S. Census Bureau, there has been a steady increase in the number of women lawyers in the United States. In 1960, there were 7,000 women lawyers; in 1980, there were 62,000 women lawyers; in 2009, the number had grown to 333,000; and in 2018, there were more than 400,000 women lawyers, making up 38 percent of the total lawyer population. At present, a little more than 1 in 3 lawyers is a woman, compared to 1 in 4 in 1993 and 1 in 25 in 1960. While these numbers represent a positive and growing trend, they must be juxtaposed against the number of women in law school.

In 2016, according to an American Bar Association study, the number of women attending law school eclipsed the number of men for the first time: 50.32 percent of law school students were women. And in 2019, women represented 53.31 percent of the law school population; this figure represents a sustained increase since 2016. Today, the number of women attending law school mirrors, if not slightly exceeds, current general population figures by gender in the United States. Suddenly, the upward trend of women lawyers in the United States at a figure of slightly one-third of the total lawyer population does not seem so grand if one compares 38 percent to the 53.1 percent of women attending law school. This disparity echoes the gender divide for elective office in the United States, as discussed above, and is evident in both state and federal courts.

The Gavel Gap (Gavel Gap Report), a report published in 2016 by the American Constitution Society for Law and Policy, found that, despite a law school attendance rate for women that has grown in the last 40 years, women are underrepresented in state courts, hence the “gavel gap.”8 Statistics from the National Association of Women Judges back up this finding.9 In 2008, 4,179 women sat on state court benches, representing 25 percent of all state court judges; 5,049 women sat on state court benches, representing 29 percent, in 2014; and in 2019, 6,056 women presided over state courts, representing 34 percent of 17,778 state court judges. Regrettably, the gavel gap is also wholly apparent at the federal level as well, as is evidenced by a Center for American Progress report on the lack of diversity in the federal judiciary.10 As of 2019, women judges make up only 27 percent of sitting judges and 33 percent of active judges on the federal bench; 25.9 percent of U.S. courts of appeals judges are women; women comprise only 27.3 percent of district court judges; and data from circuit courts illustrate a gap between the representation of female and male judges in the range of 11 to 45 percent.

Make no mistake, women have made great strides in law and the judiciary. We have come a long way from 1638, when Margaret Brent, the first woman lawyer in America, arrived in Maryland from the United Kingdom. The time span of a century and a half, from 1870 when Ada Kepley became the first woman to graduate with an LLB from Union College of Law in Chicago (now known as Northwestern University), has brought us to a present day where women now outnumber men at just under 54 percent of the total law school population. Nearly a century ago, Florence Ellinwood Allen was elected to the State Supreme Court of Ohio and Genevieve Rose Cline, also of Ohio, was the first Article I judge, and 70 years ago, Burnita Shelton Matthews, appointed by President Harry S. Truman, became the first female judge to serve on a federal district court. These judicial pioneers and their successors have paved the way for the twenty-first century woman’s role on state and federal benches, which embodies roughly one-third of all seats. In 1981, Sandra Day O’Connor was nominated by President Ronald Reagan to become the first woman justice on the U.S. Supreme Court. Today, in 2020, there are three women justices on the Supreme Court—Justices Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Elena Kagan, representing exactly one-third of the nine seats on the U.S. Supreme Court.

The United States seems to have plateaued around the 33.3 percent mark with respect to women in the judiciary. This figure, when compared globally, is neither overly high nor low. A 2019 report, Promoting Gender Equality in the Judiciary, by the United Nations Development Programme,11 promotes gender equality and women’s representation in the judiciary as a global responsibility.

There is hope that a sustained upward trend of women attending law school will result in increased numbers of women being appointed or elected to judicial office. But hope is not enough; there must be an acknowledgment and commitment to inclusion and diversity in the judiciary that will result in equal justice for all and increased confidence in our judicial system.

Achieving True Gender Parity

Gender parity in our electoral process is the twenty-first century raison d’être for the Nineteenth Amendment. Having identified the problem, what is the solution? How do we close the gender gap in politics and the quest for equal justice for women in the United States?

Barriers to Women’s Political Empowerment

What are the barriers to women’s political empowerment that are creating the gender gap? Some posit that women do not feel confident enough in their abilities to run for office. Such an opinion is dated and highly stereotypical. The better answer is that it is simply harder for a woman to run for office. Most of the greatest factors can be attributed to simple economics and gender discrimination, from both men and women. Despite a woman’s success in the workplace, she is generally considered to be the de facto primary caretaker of her family. Thus, there is often a need for a cost-benefit analysis of weighing not only work and a political career, but also balancing home life as well.

We’ve all heard of the 1 percent in the United States, the wealthiest of the wealthy. Well, when it comes to politics, meet the 2 percent. According to a 2014 Pew Research Center study,12 2 percent represents the percentage of the U.S. population that has run for elective office; they are generally characterized as white, male, and holding post-graduate degrees. Again, economics play a large role, as the sheer cost of running for office is prohibitive to some, and then the weight of gender discrimination can be a hard burden to bear and overcome for some women as well. Historically, women’s abilities have not been considered equal to those of men, and they often must work harder to prove themselves. If the United States is to overcome the gender gap in political representation, we must explore options and solutions that will encourage women to run for political office. We must take greater strides to raise the number of individuals running for office to a greater number than 2 percent.

Barriers to Women’s Ability to Vote

We have established that there is currently no gender gap in women voting. However, a brief discussion of some of the remaining barriers affecting a woman’s ability to vote would not be remiss. Studies have consistently shown that a voter identification requirement is more likely to affect women, especially those with low incomes, minorities, the elderly, or married women, as they may have greater difficulty proving change in legal name.13 Additionally, the United States has one of the largest women prisoner populations in the world, and it is growing steadily; women have been incarcerated at double the rate of men since 1980.14

States continue to grapple with felon disenfranchisement laws.15 Only Maine and Vermont do not suspend voting rights during incarceration; 16 states allow automatic reinstatement of voting rights once a sentence has been served; 21 require the cessation of probation or parole or the clearing of all fines before allowing former felons to vote; and 11 will not allow felons to vote unless they have been pardoned by the governor. As the number of women in prison continues its upward trend, there will be consequences that will affect the right of some women to vote.

Barriers to Women’s Role in the Judiciary

Despite record numbers of women attending law school, in percentages equaling the number of women residing in the United States, we see a roughly 20 percent gavel gap regarding gender in our judiciary. Pipeline programs have been created to enhance and boost women’s opportunities in law practice, legal education, government, and the courts. Unfortunately, the “leaky pipeline” has reared its head in the field of law. A leaky pipeline is not just a legal phenomenon; it exists in most fields that seek to even out gender disparities and inequities, such as science and research, academia, and medicine. Regrettably, almost any workplace experiences such imbalance. The pipeline is disrupted or leaks when women leave the workplace sooner than expected. Some causes for leaky pipelines are not dissimilar to barriers for women’s political representation, as described above, as well as lower salaries as compared to men, less opportunities for promotion, and hostile work environments for successful women. We must make a commitment to fix and strengthen our pipelines, we must take steps to enhance and nurture diversity and inclusion in our workplaces. We must create environments where all employees are encouraged and able to succeed and to be treated equally.

We can and must do better. As in political representation, we must strive for more equal representation of women in our judiciary. The reasoning and rationale are not difficult concepts to grasp. Judicial decision making affects a multitude of individuals with varying backgrounds and interests and thus is best rendered by a judiciary that is diverse in its composition and outlook. The most telling and simple description of the consequence of a lack of diversity of the judiciary can be understood best from the Gavel Gap Report itself: “courts are not representative of the people whom they serve—that is, a gap exists between the bench and the citizens.”16


The Nineteenth Amendment, ratified in 1920, was a great boon to women’s rights in the United States. The long struggle for women’s suffrage was an important part of our nation’s history and an important part of the advancement and strength of our democracy. Now, nearly a century later, we must look at the amendment through a scope that represents today’s time and society. Under this twenty-first century lens, we see that there is a large gender gap regarding political and judicial representation.

We have made great strides, but there is still far to go. We must be vigilant in striving for gender parity in civic engagement and our judicial process. We must do what we can as a society, regardless of party affiliation, to ensure that more women are elected to political office, that barriers to vote are dismantled, and that our judiciary is more representative of our population. Our great nation was created under the notion that we are all created equal; this has been reaffirmed with each amendment to the Constitution. The achievement of gender parity in political and judicial representation will prove that we really are all equal and that the Nineteenth Amendment has fulfilled its promise.


1. Nancy Gertner & Gail Heriot, The Nineteenth Amendment, Interactive Const.,

2. Leser v. Garnett, 258 U.S. 130 (1922).

3. World Econ. Forum, Insight Report: Global Gender Gap Report 2020 (2019) [hereinafter Gender Gap Report].

4. Mind the 100 Year Gap, World Econ. F. (Dec. 16, 2019),

5. Gender Gap Report, supra note 3, at 52.

6. Women in Elective Office 2019, Ctr. for Am. Women & Politics (2020),

7. A.W. Geiger & Lauren Kent, Number of Women Leaders Around the World Has Grown, but They’re Still a Small Group, Pew Res. Ctr.: Fact Tank (Mar. 8, 2017),

8. Tracey E. George & Albert H. Yoon, Am. Const. Soc’y for Law & Pol’y, The Gavel Gap: Who Sits in Judgment on State Courts? (2016),

9. Statistics, Nat’l Ass’n of Women Judges,

10. Danielle Root, Women Judges in the Federal Judiciary, Ctr. for Am. Progress (Oct. 17, 2019),

11. Evelyn Edroma, Promoting Gender Equality in the Judiciary, UN Dev. Programme (July 5, 2019),

12. Seth Motel, Who Runs for Office? A Profile of the 2%, Pew Research Ctr.: Fact Tank (Sept. 3, 2014),

13. Research on Voter ID, Brennan Ctr. for Just. (Apr. 11, 2017),

14. Incarceration of Women Is Growing Twice as Fast as That of Men, Equal Just. Initiative (May 11, 2018),

15. Felon Voting Rights, Nat’l Conf. of State Legislatures,

16. Gender Gap Report, supra note 3, at 2.

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By Elizabeth M. Yang

Elizabeth M. Yang is president of WStrong LLC, a strategic business coaching and consulting firm dedicated to individual and institutional well-being and advancement. She is a national expert in election law and is currently a member of the American Bar Association Standing Committee on Election Law and its Commission on the Nineteenth Amendment.