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.