Middlesex County Gender Rule for Political Party Committees Unconstitutional. Practice to End in NJ?

Colleen O'Dea, Senior writer | September 11, 2020 | Politics
For decades, membership of the powerful committees has been limited by sex or gender
Credit: ShuaiGuo from Pixabay
Judge Mary Jacobson ruled that “Under the statute, some candidates will lose to those who received fewer votes, solely because of the genders of the candidates.”

A 65-year old law requiring that New Jersey’s county political party committees be split evenly between men and women, is unconstitutional, according to a Superior Court judge.

The committees are particularly powerful in New Jersey because of their candidate endorsements and the ability to choose a “party line” on primary ballots, a position that usually means victory.

While Mercer County Assignment Judge Mary Jacobson’s ruling is specific to Middlesex County, it could finally end statewide the practice of limiting candidates for county committees to run for either a seat set aside for a male or female. A judge in Burlington County had found the same law unconstitutional in 1997, but the law remains on the books and Middlesex and some other counties have continued to follow it in designing their ballots.

“The statute burdens the freedom of association by preventing candidates of the same sex from running on the same slate or from obtaining office within the same election district,” Jacobson wrote in her Sept. 2 decision. The law “discriminates on the basis of sex or gender. Under the statute, some candidates will lose to those who received fewer votes, solely because of the genders of the candidates. The text of the statute also effectively bars non-binary candidates from running for or obtaining office.”

She ordered Middlesex to design all future nominating positions and ballots without regard to sex or gender and to allow for the election of any combination of men, women and nonbinary individuals.

“Middlesex County has now joined several counties in the state which elect two committee-members for office, rather than one committee-man and one committee-woman,” said Yael Bromberg, who represented members of the Central Jersey Progressive Democrats organization that brought the suit. “What was once a floor became a ceiling … This decision is a victory for the plaintiffs, the voters of Middlesex County, and other New Jersey residents who expect democracy to be available to all free of sex and gender discrimination.”

CJPD, a grassroots organization launched in the wake of the November 2016 presidential election, and nine of its members had originally brought the suit against Middlesex Clerk Elaine Flynn in April 2019 and won a temporary injunction that required the clerk to design the county’s committee election ballots that year irrespective of sex or gender. Three CJPD members won.

Grassroots Democratic group sought to overturn

Last February, the group renewed its action, seeking to permanently change the committee election rules and ballot design in Middlesex County.

In her ruling on that action, Jacobson said that the law initially was designed to involve women in the political process, but that is no longer necessary because of anti-discrimination laws and a “dramatic cultural change and a broad acceptance of women in politics that has occurred since gender references were first inserted into N.J.S.A. 19:5-3 in 1955.”

Data shows that women are still not equal in New Jersey politics, however. According to a report from the Center for American Women and Politics at Rutgers University, men still hold more elected offices than women at all levels of government and only nine of 42 county Democratic and Republican county chairs are women.

Jacobson also wrote that the language of the law requiring one male and one female be elected in each district discriminates against nonbinary individuals, who do not have an option on such a ballot. One of the plaintiffs, Em Phipps, is nonbinary.

“I am excited to know that candidates around the county — and hopefully, soon around the whole state — can now support their neighbors based on their interest and community engagement, regardless of gender,” said Laura Jill Leibowitz, a CJPD plaintiff who won her seat last year and, due to the preliminary relief initially gained, is serving with another woman who ran on an opposing ticket to represent the Possumtown neighborhood in Piscataway.

Elections for seats on county Democratic and Republican committees are held every other year during primary elections, with some counties holding these in odd-numbered years and others in even-numbered years. Committee members represent sections of municipalities within each county.

In counties where one or both party committees endorse candidates — which is most counties in the state — committee members have a powerful voice in choosing elected representatives from freeholder to Congress. Research has found that candidates who receive the party line and get preferential ballot treatment typically win the primaries in those counties.

One man, one woman

Despite the 1997 ruling by then-Burlington County Superior Court Assignment Judge Harold B. Wells in the case known as Hartman v. Covert invalidating the statute containing the one-man/one-woman committee rule, county clerks have continued to use that rule in designing their ballots. In April 2019, the head of the state Division of Elections sent a memo to county clerks reminding them of the decision and urging them to consult with their county counsels on how to properly format primary ballots. There is no uniform statewide ballot; each of the 21 county clerks drafts the format and language of the ballots used in their counties.

Cape May, Cumberland, Hunterdon, Mercer and Passaic counties are among those that no longer use the one-man, one-woman language on their ballots.

Jacobson noted in her opinion that neither the Middlesex County clerk, nor the county Democratic organization — which was included in the lawsuit as an interested party and has changed its own rules to end the use of one-man, one-woman district representation — offered arguments for upholding the statute. The state wrote to the court and suggested that declaring the law unconstitutional would provide “uniformity on an important constitutional issue for elections conducted throughout the state.”

Bromberg of CJPD said that while Jacobson specifically ordered Middlesex to change its nominating petitions and ballots, she sees no grounds for other counties to ignore the ruling.

“If there are recalcitrant county clerks, they might be opening themselves and their taxpayers up to lawsuits,” she said. “I’m not sure what a county clerk would find to argue.”

She added that statewide guidance about this issue “would be helpful.” But a spokeswoman for the Secretary of State’s office, which oversees elections, said she did not expect any guidance to be issued.

A Middlesex County spokeswoman said the county will comply with the ruling and has no plans to appeal it.