Steve Kolbert


This Article—part of the Seattle University Law Review’s symposium on the centennial of the ratification of the Woman Suffrage Amendment—examines that open possibility. Concluding that the Nineteenth Amendment does protect men’s voting rights, this Article explores why and how that protection empowers Congress to address felon disenfranchisement and military voting. This Article also examines the advantages of using Nineteenth Amendment enforcement legislation compared to legislation enacted under other constitutional provisions.

Part I discusses the unique barriers to voting faced by voters with criminal convictions (Section I.A) and voters in the armed forces (Section I.B). This Part also explains how existing efforts to address the voting rights of these two populations have fallen short.

Part II covers the Nineteenth Amendment itself. This Part explains why the Woman Suffrage Amendment protects men’s voting rights (Section II.A). It also examines the congressional power to enforce those rights (Section II.B.1), including how Congress is most justified in targeting voting barriers which impact electoral outcomes, full participation in society (especially in a war effort), or caregiving and the family (Section II.B.2).

Part III demonstrates that the Nineteenth Amendment empowers Congress to tackle the barriers to voting posed by felon disenfranchisement (Section III.A) and military service (Section III.B). This part shows that men make up the overwhelming majority of both military servicemembers and disenfranchised felons, and that the barriers attendant to both criminal convictions and military service correspond to all three areas of legitimate Nineteenth Amendment enforcement action.

Part IV addresses possible objections. First, this part establishes that, whether or not the Nineteenth Amendment (like its Fifteenth Amendment constitutional counterpart) prohibits only purposeful discrimination, such a requirement poses no barrier to Nineteenth Amendment enforcement legislation (Section IV.A). Second, this Part demonstrates that courts may subject Nineteenth Amendment enforcement legislation to only deferential “reasonable relation” review, not the more stringent “congruence-and-proportionality” review courts apply to Fourteenth Amendment enforcement legislation (Section IV.B). Third, this Part discusses the disadvantages of relying on other constitutional authorities to address felon disenfranchisement and military voting and examines how the Nineteenth Amendment fills the gaps left by these other provisions’ shortcomings (Section IV.C). Fourth, this Part explains why the sparse though potentially adverse Nineteenth Amendment caselaw does not impact the analysis in this Article (Section IV.D). Finally, this Part contests the theory that the decreasing political popularity of felon disenfranchisement and the sustained popular support for military voters preclude the need for Nineteenth Amendment enforcement legislation (Section IV.E).