The History of Women’s Right to Hold Office

In histories of women in the United States, the 19th Amendment understandably looms large. Generations of women and their allies fought hard to enshrine women’s suffrage in the U.S. Constitution, finally achieving it in 1920. But in focusing on this federal milestone, historians and legal scholars have largely missed a richer and more complicated story about women’s rights at the state level.

In my article in the Yale Journal of Law & Feminism, I uncover the forgotten history of women’s efforts to achieve legal eligibility to hold public offices. Scholars have long assumed that women’s officeholding was nearly nonexistent prior to ratification of the 19th Amendment and that it was only political obstacles that subsequently hampered women’s ability to obtain offices. Both claims rest on two incorrect assumptions: that voting necessarily preceded officeholding and that federal constitutional law is the only relevant domain.

The state law story begins in the mid-19th century, as the women’s movement gained steam. By that time, state constitutions took varied approaches to officeholder eligibility. Some contained language that clearly limited officeholding to white men, others created indirect bars by restricting officeholding to voters, while still others offered no sex-related rules at all. This variation set the stage for women to try diverse strategies to obtain offices including notary public, justice of the peace, mayor, and state legislator.

Although a handful of women held public office prior to the 1860s, officeholding became a sustained objective of the women’s movement only after the Civil War. One early symbolic move came in 1866, when prominent suffragist Elizabeth Cady Stanton ran for Congress in New York. In her words, “Although, by the constitution of the state of New York, woman is denied the elective franchise, yet she is eligible to hold office.” Since she lost the election to a man, the legal eligibility question was not settled at that time.

Women made their earliest officeholding progress in jurisdictions where they had the right to vote. For example, in 1869, after the territory of Wyoming became the first place to fully enfranchise women citizens, three women were appointed as justices of the peace. Meanwhile, in the Northeast, the governor of Massachusetts attempted to appoint prominent suffragist Julia Ward Howe as a justice of the peace, but the state’s highest court ruled that women were ineligible to hold any public offices enumerated in the state’s constitution. Though no Massachusetts constitutional provision excluded women, the justices reasoned that women’s rights were limited to those envisioned by the framers of the state’s constitution.

The divergent results in Wyoming and Massachusetts inaugurated a regional pattern that persisted for decades. Women in early-suffrage Western states obtained offices including state legislator and mayor, while women in the unenfranchised Northeast and South rallied unsuccessfully for even narrow gains. For instance, women in Massachusetts repeatedly tried to secure a state constitutional amendment to permit them to serve as notaries public. Their exclusion from this and other offices served as additional motivation to advocate for suffrage.

Advances in the Midwest were more complicated and revealing. It was here that suffrage and officeholding were most clearly disentangled. States including Illinois, Iowa, and Missouri permitted women to hold offices — including elective posts — before they could vote. Judges, attorneys general, and other legal commenters pointed to the absence of clear constitutional language forbidding this result, as well as to women’s competence and male officials’ and voters’ rights to select the candidates — including women — they preferred. Women’s successful service as notaries, school superintendents, district attorneys, and more became fodder to advocate for women’s enfranchisement in the region and beyond.

Recognizing connections between suffrage and officeholding, anti-suffragists cast women’s officeholding as a dangerous step on the path to suffrage. Politicians in conservative states that slowly and begrudgingly extended professional opportunities to women tried to limit the effect of these changes. For instance, the Georgia legislature faced proposals to permit a woman to serve as the official state librarian as early as 1877, yet legislators hesitated to authorize this because of their concern that opening even one office to women might fan the flames of the suffrage movement. It took until 1896 for the Georgia legislature to authorize women to hold this post, in a law carefully drafted to apply only to that position. 

As women’s suffrage spread from west to east in the 1910s, women obtained a greater number and variety of public offices. Several states enacted women’s suffrage amendments that included language guaranteeing the right to hold office as well. In others, suffrage brought a more contested expansion of officeholding rights, yet women ultimately prevailed. For example, after New York extended the right to vote to women in 1917, commenters questioned whether deleting “male” from the franchise law meant that women could hold more offices. After the attorney general answered in the affirmative, a woman was selected to serve as a judge for the first time in the state.

In states that continued to limit women’s political rights into the late 1910s, ratification of the 19th Amendment did not conclusively settle women’s eligibility to hold public offices. Since it was a federal amendment with language focused on the right to vote, it was debatable what the law meant, if anything, for state-level officeholding. Thus, the 1920s brought ongoing efforts to change state constitutions through judicial interpretation and in campaigns for constitutional amendments. In at least one state, Oklahoma, the effort continued into the 1940s.

Few Black women held office in the decades surrounding ratification of the 19th Amendment. Since over 80 percent of Black women lived in the South, they faced the most restrictions on women’s political rights. And while no law specifically excluded Black women from office, racism undermined their viability as candidates, even after legal eligibility technically expanded. A handful of Black women served in positions such as notary public prior to 1920, but it was only in the late 1930s that they obtained higher positions such as state legislator and judge.

A narrow focus on the 19th Amendment misses the persistent, creative, and complex efforts made by generations of women and their allies to secure political and professional equality. A full accounting requires meaningful engagement with state constitutional law.

Elizabeth D. Katz is a professor of law at University of Florida Levin College of Law.

Suggested Citation: Elizabeth D. Katz, The History of Women’s Right to Hold Office, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Sept. 23, 2024), https://statecourtreport.org/our-work/analysis-opinion/history-womens-right-hold-office.