Lawsuit Challenges Gender Designation Rule in Party Committee Elections

Colleen O'Dea | April 12, 2019 | Politics, Primary 2019
The one-male/one female rule for each district was an attempt to ensure that women could play a role in politics

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Gender
A New Jersey grassroots Democratic organization filed a lawsuit in Superior Court on Thursday that could upend the 70-year-old state law requiring seats on county political committees to be divided equally between men and women.

Central Jersey Progressive Democrats, which was founded in the wake of the 2016 election, is asking a state judge to force Middlesex County to change its primary election ballot for committee seats and allow for the election of members regardless of gender. Yael Bromberg, the attorney who filed the suit in the name of the group and a number of its members, said Mercer County Assignment Judge Mary C. Jacobson agreed to consider the case on an expedited basis and scheduled a hearing for Monday afternoon.

The suit which names both Middlesex County Clerk Elaine M. Flynn and New Jersey Secretary of State Tahesha Way as defendants, claims the state law requiring voters to choose one male and one female to represent each district on the Democratic and Republican county committees constitutes “sex and gender discrimination, a violation of the fundamental right to vote, and a violation of associational rights.”

It seeks to require Flynn to design ballots for the June 4 primary that allow CJPD candidates to be bracketed together on the same line even though they are, in some cases, both women and, in another case, a candidate who does not identify as either male or female.

“The binary gender quota … imposes severe burdens on the fundamental right to vote for a candidate for elective office of one’s choosing as guaranteed by the New Jersey Constitution,” the suit contends. “Specifically, the binary gender quota assigns unequal treatment to votes by ranking votes on the basis of sex, therefore abridging the fundamental right to vote secured by the state
and federal constitutions … The gender quota pits candidates to compete for office on the basis of
sex alone, and is an outright exclusion on the right of nonbinary candidates to run for and obtain
office.”

Old rule sought to boost female political participation

Earlier this month, the organization filed petitions to run four committee slates of two women each. Another candidate identifies as non-binary and is looking to run without any gender label.

The one-male-and-one-female rule for each district is enshrined in state law that predates the state’s current constitution, written in 1947. The requirement was an attempt to ensure that women, who held few elected positions at the time, could play a role in politics through the county committees.

Most New Jersey counties still use this rule in designing their ballots. At least five — Cumberland, Essex, Hunterdon, Mercer and Passaic — do not. They cite a 1997 decision known as Hartman v. Covert in which a Superior Court Judge in Burlington County ruled that the one-male-one-female statute, which also required that the chair and vice-chair of each committee be members of opposite sexes, was invalid.

That different counties have different rules for county committee elections is unfair, the suit contends. “In addition to treating ballots unequally within the same county, the current
electoral scheme treats ballots unequally intrastate by allowing voters in some counties such as
Mercer County to vote for candidates of their choosing independent of sex or gender, and by
disallowing voters in Middlesex County from doing so.”

Robert F. Giles, director of the state Division of Elections, issued a memo to all county clerks a week ago that cites the Hartman v. Covert decision without telling the clerks to ignore the one-man-one-woman rule.

“Please be reminded that the Superior Court of New Jersey issued the attached published decision … declaring N.J.S.A. 19:5-3 (the county committee election statute) unconstitutional insofar as it bases the election of members on gender,” Giles wrote. “Please consult with your county counsel concerning the upcoming primary election and the proper format of the primary election ballot and the placement of county committee candidates.”

A spokeswoman for Secretary Tahesha Way, who oversees the Division of Elections, said Way would not comment because of the pending litigation.

Matter affecting a ’pivotal’ position in politics

CJPD members filed their ballot petitions in Middlesex by the April 1 deadline, knowing both that in some cases, they did not meet the state statute and that other counties ignore the one-male-one-female rule. They say they weren’t specifically trying to overturn the rule, which they consider to be anachronistic, but had trouble finding men interested enough to run for the committee positions.

“I think the county committee person is a pivotal seat,” said Kamuela Tillman, one of the CJPD candidates who filed for a seat along with another female candidate. “We have the opportunity to put our neighbors right in touch with political leaders. It’s very important we have a voice to speak to our leaders.

“That’s really all it’s about,” she added. “There’s no reason to think that to be effective one has to be a man or a woman.”

The lawsuit notes that there is no other gender quota in any other part of the state’s election code: “The State has no legitimate interest in maintaining a binary gender quota. What was once progressive in the 1950s and the 1960s is regressive today. The quota is no longer a cap, but a ceiling to representation and an outright bar to the right of nonbinary candidates to run.”

Tillman noted that if she lived in one of the five counties that no longer limits voters to choosing one male and one female for the committee positions, she would be able to run with another woman.

“I want my chance to serve in this Democratic process,” she said. “Now I have to drop out or she (her running mate) has to drop out because of this rule?”

Binary rule, non-binary candidate

Especially problematic is the candidacy of Em Phipps, who identifies as non-binary. The suit states that by following the statute, Middlesex “limits access to the ballot on account of sex and gender identity” and as a result, “Plaintiff Emm Phipps is barred from running for this office altogether
based on their nonbinary gender identity.”

Bromberg said the county acknowledged that Phipps’ candidacy was a concern but offered no solution, absent further guidance by a court or the State.

“Em Phipps, as a non-binary person, can run for school board, mayor, town council, sheriff, freeholder, surrogate, either chamber of the NJ Legislature, Governor, U.S. Congress, the U.S. Senate or even President of the United States of America,” said Bromberg, the group’s lawyer. “It defies logic and the law that they cannot run for Middlesex County Democratic Committee. This law is discriminatory on its face, and clerks who uphold it are violating the civil and voting rights of candidates and voters.”

Bromberg said there is a simple answer to Phipps’ concerns and those of the female committee candidates.

“This lawsuit is not complicated,” she said. “There is an easy solution already in progress around New Jersey. Simply removing the gendered designation, as has been done in other counties, allows all candidates to run and those with the highest vote totals to win. It is basic democracy.”

Middlesex County is going ahead today with the drawing of ballot positions for the parties and other candidates, the process that determines the placement of candidates on the ballot.

The county is set to begin designing its ballot on Monday and Bromberg said she received assurances that CJPD’s concerns will be considered in the ballot design. But it’s unclear how a ballot would be designed to allow two CJPD female candidates to run together — on the same line — if they are forced to compete against one another should the one-man-one-woman rule be upheld.