Pennsylvania Advisory Opinions August 19, 1920: AGO 254

Advisory Opinion Text

THE 19TH AMENDMENT.

The effect of the adoption, of the 19th Amendment is to strike out of the Pennsylvania Constitution and laws the word "male,'' so that now the State Constitution in reality reads.. "Every citizen twenty-one years of age possessing the qualifications (enumerated in it) will be entitled to vote at all elections;" but as it does not operate to change, alter or abrogate any other qualification, it will be incumbent upon women who desire to vote to proceed to qualify themselves for the exercise of the right precisely as men must qualify for its exercise. Hence, under existing laws, the right to vote at the general election in November, 1920, is vested in all women of the State who possess the necessary qualifications, and who pay a county tax and are enrolled and registered.

Honorable William C. Sproul, Governor of Pennsylvania, Harris-burg, Pa.

Sir: Responding to your request for my opinion whether, in view of the ratification of the Nineteenth Amendment to the Federal Constitution granting suffrage to women, they can, under existing laws, qualify themselves for and exercise the right of suffrage in the Commonwealth of Pennsylvania at the general election to be held in November, 1920, I advise you as follows:

The analogy, in respect to the principle involved in the question under consideration, between the Fifteenth Amendment to the Constitution of the United States and the Nineteenth Amendment thereto is so complete that the decisions as to the effect of the former upon the Constitutions and statutes of the several States are definitely applicable and controlling in the case of the latter. It has been abundantly and decisively held that the Fifteenth Amendment nullified any constitutional or statutory provision denying to any one the right of suffrage on the ground of race, color or previous condition of servitude. In like manner we must conclude that the Nineteenth Amendment renders nugatory any provision in our State Constitution or laws limiting or restricting suffrage to male citizens, or which is repugnant to an exercise of that right by women.

Speaking of the effect upon State Constitutions and State laws of the ratification of the Fifteenth Amendment to the Federal Constitution, the Supreme Court of the United States said, in Neal vs. Delaware, 103 V. S. 370:

"Beyond question the adoption of the Fifteenth Amendment had the effect, in law, to remove from the State Constitution, or render inoperative, that provision which restricts the right of suffrage to the white race. * * *"

Further, the opinion authoritatively declares:

"The State recognizes, as is its plain duty, an Amendment to the Federal Constitution, from the time of its adoption, as binding on all of its citizens and every department of its government, and to be enforced, within its limits, without reference to any inconsistent provisions in its own constitution or statutes."

And in Guinn v. United States, 238 U. S. 347 , decided so late as June 21, 1915, the Supreme Court of the United States, citing and reaffirming Neal vs. Delaware, spoke thus through its present great Chief Justice:

"As the command of the Amendment (the Fifteenth Amendment) was self-executing and reached without legislative action, the conditions of discrimination against which it was aimed, the result might arise that as a consequence of the striking down of a discriminating clause, a right of suffrage would be enjoyed by reason of the generic character of the provision which would remain after the discrimination was stricken out. * * * * A familiar illustration of this doctrine resulted from the effect of the adoption of the Amendment on State Constitutions in which, at the time of the adoption of the Amendment, the right of suffrage was conferred on all white male citizens, since by the inherent power of the Amendment the word 'white' disappeared and therefore all male citizens, without discrimination on account of race, color, or previous condition of servitude, came under the generic grant of suffrage made by the state."

In Myers vs. Anderson, 238 U. 8. 367, the Supreme Court of the United States, again speaking through its Chief Justice, said:

"But the fifteenth amendment by its self-operative force obliterated the word 'white,' and caused the qualification therefore to be 'every male citizen.'"

The Court further said:

"The fifteenth amendment by its self-operative force, without any action of the state, changed the clause in the Constitution of the State of Maryland conferring suffrage upon 'every white male citizen' so as to cause it to read 'every male citizen,'"

and held that the effect of the amendment could not be changed by any antecedent or subsequent legislation.

The Fifteenth Amendment to the Federal Constitution provides:

"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."

The legal effect of the adoption of this amendment was to strike out of the State Constitutions and laws all provisions which confined suffrage to the white race.

The Nineteenth Amendment is worded in language similar to the Fifteenth-

"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 sex."

The effect of the Fifteenth Amendment having been decided to be to strike the word "white" out of State Constitutions and laws, it follows that the result flowing from the adoption of the Nineteenth Amendment is to strike out of Pennsylvania's Constitution and laws the word "male" so that now our State Constitution in reality reads:

"Every citizen twenty-one years of age, possessing the qualifications (enumerated in it), shall be entitled to vote at all elections."

While the Nineteenth Amendment inhibits the State from making sex a qualification for voting, and consequently as part of the supreme law of the land wholly eliminates such qualification therefor, it does not operate to change, alter or abrogate any other qualification, under our laws and Constitution, entitling a citizen to vote. It will be incumbent upon the women to proceed to qualify themselves for the exercise of this right precisely as men must qualify for its exercise. In other words, the measure of qualification will be exactly the same for men and women. These requisites, as enumerated in Section 1, Article VIII, of the Constitution of Pennsylvania are as follows: ("subject to such laws requiring and regulating the registration of electors as the General Assembly may enact")-

1. Citizenship of the United States at least one month.

2. Residence in the State one year immediately preceding the election, or having been previously a qualified elector or native born citizen of the State and having removed therefrom and returned within six months.

3. Residence in the election district two months immediately preceding the election.

4. Payment of a State or county tax if twenty-two years of age and upwards, which shall have been assessed at least two months and paid at least one month before the election.

All women, therefore, possessing these constitutional qualifications are eligible to vote. All of these requirements may be inherently possessed by a woman, except assessment, registration and the payment of a tax.

The question then arises, can women, under the law as it now stands, be assessed, pay a tax and register where registration is required.

The Acts of Assembly on the subject of assessment, liability to taxation and registration, beginning with the Act of April 15, 1834, P. L. 509, point out a method by which all citizens of the Commonwealth can be assessed, pay taxes and register. No one who- is a citizen, and, of course, women are just as much citizens as men, can be denied the right to be assessed, to pay taxes, to be enrolled or to be registered in accordance with the law. Indeed, the Constitution provides that all laws on the subject of elections "shall be uniform throughout the State," and it will now be incumbent upon county commissioners, assessors and registration officers to meet the condition which has arisen out of the enfranchisement of women, and to afford every facility to them to qualify themselves as electors.

It is urged that the women themselves shall be diligent to see that they are assessed in due time and form. They should not be content to assume that this will be done, but everywhere make inquiry to see that it actually has been done. The situation is a novel and unprecedented one in our Commonwealth, and without their vigilant and intelligent co-operation it may happen that many assessors, however faithful or anxious to do their full duty will overlook some names.

It being obvious from a reading of these Acts that women can be assessed and have the right to pay a county tax, and it being the duty of county commissioners and the assessors throughout the State to see that they are enrolled and assessed and do pay a tax, and this enrollment and tax payment, when otherwise qualified, in boroughs and townships entitling them to vote and to register in cities, I am of the opinion that under existing laws the right to vote at the general election in November is vested in all the women of the State who possess the necessary constitutional qualifications, and who pay a county tax and are enrolled and register.

Yours very truly,

WILLIAM I. SOHAFPER, Attorney General.