In 1870, the Utah Territorial Legislature passed an act giving women the right to vote, making Utah the second jurisdiction in the United States to given women the vote. (Wyoming was the first in 1869.) In 1887, Congress revoked the territorial law in the Edmunds-Tucker Act, and women were denied the vote until Utah was admitted as a state in 1896. Less well known is that there was an 1880 judicial attack on women’s suffrage in Utah.
The case is Maxwell v. Burton, 2 Utah 596 (1880), decided by the Utah Territorial Supreme Court. Burton was the register of voters for Salt Lake County. He was sued by George R. Maxwell, who demanded that he purge “Emmeline B. Wlls, Maria M. Blythe and Mrs. A.G. Paddock, and also the names of all women whose names thereon appear on the aforesaid list.” The case came before the Utah Supreme Court on a writ of mandamus. A mandamus is an order that a court issues to some government official compelling the official to take some action that he is legally obligated to take. Most of the court’s opinion focused on the question of its jurisdiction to consider writs of mandamus. (The confusion was a legacy of the tug-o-war between Congress and the Mormon-dominated Territorial legislature over control of the territorial courts.) The court ruled that it could consider only limited questions on a writ of mandamus, and dismissed the suit.
Justice Boreman wrote a rather strenuous dissent that did reach the merits of the law enfranchising women:
Upon the merits of the case I cannot agree with a majority of the court. I deem this to be a proper case in which to issue the writ. The legislature had no authority to allow anybody to vote who were not citizens or who had not declared their intentions to become such. It has never enacted that parties who had declared their intentions to become citizens might vote. Therefore, the registering officer is not authorized to allow anybody to vote who are not citizens. The statute granting suffrage to women allows them to vote without being citizens if they are “the wife, widow or the daughter of a native born or naturalized citizen.” Such a provision is utterly void, in my opinion, and it is the duty of the registering officer to obey the law of Congress and not that of the Territory, when they conflict.
The act conferring the elective franchise upon women is unjust, as granting the franchise to women upon easier terms than upon males. Men are required to be taxpayers by the statute, but not so with women; the men are all required to be residents, but not so the women, if they be the “wife, widow or daughter;” and all men who ask to vote must be citizens, or they will be rejected, but not so with all women. This matter of citizenship is important, when we consider that the bulk of the population of this Territory is of foreign birth, or children born in this Territory of foreign parents. The statute granting the elective franchise to women destroys the uniformity and impartiality which should exist in regard to the qualifications of voters, and the act which will do this is unjust and ought not to be upheld. I do not think that it will do to say that the requirement as to male voters, which is not found amongst the requirements of the female voters, will be nugatory. We have no right to conclude that this is so. The legislature has expressed itself to the contrary. It first passed the statute allowing males to vote, requiring them to be citizens, etc. It afterwards passed the statute granting the elective franchise to women, and subsequently it enacts the registration law, wherein it retains all the qualifications originally required as to male voters. It certainly, therefore, had no intention of repealing any part thereof. The two laws in regard to suffrage show great unfairness and lack of uniformity between the requirements of male voters and those of female voters, but as the legislature so intended, what authority have we to say that the one repeals the other? This certainly does not exist by implication, as they are statutes regarding different classes. The two laws are not inconsistent further than that one is unconstitutional, unjust and unfair to the body of voters mentioned in the first, and being so, should not be upheld. If the legislature had power to make one set of qualifications for one class of voters and another set for another class of voters, then the two laws can stand; but if the legislature has no such power, its attempt to do so is nugatory and void.
The case, of course, was a Mormon-Gentile political slug match. The Gentile Liberal Party wanted to purge women from the rolls, as most of them were Mormons whose voting loyalties lay with the Church. The Mormon People’s party opposed them. Maxwell, the plaintiff in the case, was a Liberal Party activist, and he was represented by the prominent Liberal law firm of Sutherland & McBride. (Sutherland’s son would go on to become Utah’s one U.S. Supreme Court justice.)
Burton was represented by two law firms, Snow & Snow and Richards & Williams. Both were well-known Mormon law firms. In particular, the Richards in Richards & Williams was Franklin S. Richards, son of Apostle Franklin D. Richards. As a young man, Richards had studied law at the urging of Brigham Young. At the time of the Burton case he was essentially the Church’s general counsel, and a magazine article published a few years after the case strongly suggests that he was acting at the behest of Church leaders in the case.
I just like the word ‘nugatory’ and hereafter plan on incorporating it into my speech more often.
In all seriousness, I often pose the question of which state was the first to grant women the right to vote as trivia to friends. More often than not, people are appalled to learn the answer. If I am not mistaken, Texas is also high on the list. As an amateur student and admirer of the history of the American West, I often find myself enchanted with the notion of the West being so surprisingly progressive in its infancy, lazily forgetting that often the real story is much more complex, as you have elegantly illustrated here.
Just a note–I realized that with regards to Texas I was thinking of Miriam Ferguson, who became the first female governor of Texas, elected in 1924, and the second female governor in all of the United States (Nellie Ross of Wyoming was elected the same day, but inaugurated sooner than Ferguson). Sorry…
Nate, I can’t keep track of shifting naturalization laws, although it comes up all the time in family history work. In 1880, was there any way for a woman to become a citizen other than through native birth, marriage to a citizen, or having been a minor daughter at the time her father was naturalized? (I think it was later than this, but at some period native-born American women even lost citizenship through marriage to non-citizens.) Just wondering whether Boreman’s argument was worth anything, or was a distinction without a difference as an excuse to address the woman suffrage issue rather than the jurisdictional one.
It’s interesting that Mrs. A.G. Paddock was one of the named women to be struck from the voting rolls, since she was one of the most prominent Gentile women working actively against plural marriage. Any idea whether she agreed to be named here as a blow against polygamy or to guard against accusations that this suit was specifically targeting Mormons, or whether it was against her wishes and signalled a [temporary] crack in the Gentile front?
Ardis: I don’t know the answers to either of your questions. On Paddock, I suspect that it was done to provide some fig leaf so that the Liberals could claim that this wasn’t an anti-Mormon move. I’ve no idea whether she was willing, opposed, or not.
Underlying all the ignorance on the suffrage issue, of course, is ignorance about what the Constitution says about suffrage. Most people seem to assume that the Constitution barred blacks, women and 18-year-olds from voting, since the 15th, 19th and 26th amendments, respectively, forbid discrimination in suffrage on those grounds.
In fact, the constitution provided for only one federal popular election (for the House of Representatives–the President was and is elected by Electors, appointed by each state “in such manner as the Legislature thereof may direct” and Senators were, until the abominable 17th amendment, “chosen by the legislature” of each state) and the electors were to have “the qualifications requisite for electors of the most numerous branch of the state legislature.”
Thus, however broad or narrow the franchise in the states, that was the standard for the election of congressmen. And some states, like Utah, enfranchised women long before the 19th amendment.
Nate’s post raises an interesting issue about citizenship. Non-citizens are barred by statute from voting in federal elections, but I suspect it would take a state statute to bar them from voting in state elections. (New York has in the recent past permitted all parents with children in public schools to vote in community school board elections, irrespective of the parents’ citizenship.) How did this develop historically? Do the Lexis/Nexis search–there may be another law review article out there waiting for you.
Yes, the questions about citizenship seem to echo in suggestive ways with contemporary discussions about illegals and voting, children of illegals and voting, and here wives of illegals and voting. . . . Of course I understand there can be a difference between an illegal and a non-citizen. But pushing at the edges here teases out some interesting questions (assuming as I do that analogy and metaphor set up logical propositions and questions).