Women Have Made Many Strides, But Dangerous Voting Trends Remain

On this Law Day 2020, we celebrate the 100th anniversary of the 19th Amendment granting women across America the right to vote. The long and difficult campaign for women’s suffrage had its start in 1848, in Seneca Falls, N.Y., where hundreds of women and men attended the first Women’s Rights Convention to discuss the “social, civil, and religious condition and rights of women.” For the remainder of the 19th century, New York was the central battleground in the fight for women’s suffrage and home to the movement’s great early leaders, including Elizabeth Cady Stanton, Susan B. Anthony and Kate Stoneman—New York’s first woman lawyer.

In 1872, Ms. Anthony gained national notoriety when she refused to pay bail following her arrest for unlawfully casting a vote and later refused to pay the fine imposed on her by the judge who tried her case. Ms. Anthony was supported by countless women who year after year delivered speeches, participated in demonstrations and petitioned their elected representatives in the halls of state capitols across the country. Over 70 years these suffragettes built a massive and relentless movement that prepared public opinion for the passage of the 19th Amendment to the federal Constitution, ratified in New York 100 years ago on June 10, 1920.

Over the ensuing decades, women have honored these pioneering efforts by consistently turning out to vote in higher numbers than men. Their participation at the polls and in civic affairs has helped change attitudes and promote a more inclusive society, awakening public awareness to injustices and disparate treatment in the home and in the workplace, including issues of divorce, domestic violence, child support, workplace discrimination and sexual harassment.

Today, more women than ever are seeking elective office. The current 116th Congress set a record with 131 women seated in the House and Senate—nearly a quarter of those serving. But while the pioneers of women’s suffrage would certainly be pleased with the progress of women in American society, they would no doubt be alarmed at the overall state of political participation and civic knowledge.

Voter turnout in the United States is significantly lower than in most established democracies. Ironically, in 2016, the first presidential election with a woman nominee of a major political party, voter participation dropped to 55%, a 20 year low. Relatedly—and equally concerning—are woefully low levels of civic knowledge and public trust in government institutions. A 2016 survey by the Annenberg Public Policy Center found that only 26% of Americans can name all three branches of government. When so few people understand the basic foundations of our democratic system of government, it is not surprising that a 2017 Pew Research Center study found that public trust in government was a dismal 18%.

As members of the legal profession, we are especially attuned to how dangerous such trends are to the future of our justice system and the rule of law. As I stated during last year’s Law Day remarks at the Court of Appeals:

The founders of our great nation recognized from the outset that we cannot have a viable democracy without an informed electorate. A public lacking basic literacy about the roles and functions of the three branches of government, or constitutional imperatives like the separation of powers and judicial independence, is at great risk of falling prey to propaganda and the kinds of outrageous attacks on judges that we have witnessed recently.

I followed these remarks by announcing that the court system would join with the New York State Bar Association in hosting a Convocation to harness the power of the legal profession to deliver civic education in New York’s classrooms. While the coronavirus emergency has forced us to postpone the Convocation, the bench and bar are determined to take a leadership role in strengthening civic knowledge and engagement among our young people. As soon as it is safe and practicable to do so, we will implement a statewide outreach program in which lawyers and judges will collaborate with local educators around the state to engage students and improve their understanding of the courts, the legal system and the rule of law.

The timing of these efforts is made more urgent by the ongoing coronavirus pandemic and the fact that the next election will be critical to our nation’s future. Americans will have the opportunity to elect competent national and local leaders who will be charged with guiding our nation’s recovery and implementing safe, smart and effective policies to restart our stalled economy and prevent future outbreaks of this devastating virus. We must make good choices, of course, but more importantly we must make sure that our elections are free from foreign interference, that every person will be able to exercise his or her right to vote and that our election systems will be in a position to count every vote cast.

In the coming weeks and months, members of our legal profession will be called upon to play a very urgent role—ensuring that Americans are not disenfranchised during the ongoing public health emergency which potentially could disrupt our election schedule. While states have flexibility to move back their primary election dates (New York has already done so to June 23, 2020), the 20th Amendment to the United States Constitution provides very little flexibility to do so for the national election.

Now is the time for our lawmakers and boards of elections to develop reliable plans to carry out our elections on time in the event that the coronavirus pandemic has not run its course by the scheduled primary and general election dates. If current social distancing policies are still in effect in November, it may be dangerous to have voters standing on lines at polling stations or interacting with poll workers at close quarters. We must prepare contingency plans now and identify any amendments in the laws, rules and voting procedures that will be necessary to ensure reliable alternative voting methods in the event that in-person voting is not practicable.

This year of celebration of the 100th anniversary of the 19th Amendment is likely to be remembered as the year of the coronavirus pandemic, which has caused unprecedented societal and economic disruption. Our ability to recover from this shock and quickly and safely return to the normalcy we all crave will require wise leadership and sound, fact-based policy action on the part of our elected leaders. It will also require smooth and effective elections in November. As members of the Bar who swore an oath to uphold the Constitution, we have an obligation to lead the way in preserving the cherished right to vote in the midst of the ongoing public health emergency. By committing ourselves to this vital goal, we will help our nation get back to normal and honor the suffragettes who fought so long and hard to secure the precious right to vote.