The Use of Gender Quotas in America: Are Voluntary Party Quotas the Way to Go?
Somani, Anisa A., William and Mary Law Review
TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. Gender Quotas: An International Context B. The Success of Gender Quotas Worldwide C. How Quotas Help Women Overcome Barriers to Getting Elected D. The Need for Gender Quotas in the United States 1. The Underrepresentation of Women in Congress Makes the Environment in the United States Ripe for a Gender Quota 2. American Women Face Similar Barriers in Seeking Elected Office 3. Why the United States Should Pursue the Fast-Track Route of Gender Quotas II. AMERICAN JURISPRUDENCE: THE CONSTITUTIONALITY OF A GENDER QUOTA A. Does Congress Have the Power to Implement a Gender Quota? B. Implications of the Equal Protection Clause on the Constitutionality of a Gender Quota C. First Amendment Challenges to Legal Candidate Quotas III. SOLUTION? CONSIDER VOLUNTARY PARTY QUOTAS A. Voluntary Party Quotas--Just as Effective B. Voluntary Party Quotas Are Constitutional C. Congress Should Incentivize Voluntary Party Quotas, and It Has the Power to Do So CONCLUSION
The use of gender quotas as a mechanism to increase the political representation of women is rapidly becoming a worldwide phenomenon. Why, then, is the United States not catching on? In light of the abysmal representation of women in all public offices, especially Congress, it might behoove the United States to consider them. (1) Although Americans are not often amenable to quotas, the widespread success of their use in uplifting the status of women around the world should encourage the United States to give gender quotas another look. (2)
That said, even if there is enough popular support to legislatively enact a gender quota, the issue still remains as to whether it would survive constitutional scrutiny. This Note examines the constitutional hurdles gender quotas may face and suggests how gender quotas should be structured in order to overcome them.
In Parts I.A-I.C, this Note will provide a background on the rapid, global proliferation of electoral gender quotas since 1985--quotas that were enacted with the sole purpose of increasing female political representation in national legislatures. (3) Research strongly suggests that gender quotas are an effective and efficient method to increase the number of female elected officials and that such measures are often necessary in light of the many barriers women face in running for public office. (4)
This Note in Part I.D then advocates the adoption of gender quotas as an affirmative action measure in the United States to help increase the number of women in elected office. The need for such a quota seems particularly apparent given that women's gains in other fields have far outpaced advances made by women in Congress. This discrepancy can be attributed to American women facing considerable barriers in the political process--the very same barriers found in many foreign countries that precipitated the need for those countries to enact gender quotas. Because gender quotas have helped women overcome such barriers elsewhere, a strong argument could be made that such quotas are necessary and would be effective in the United States. (5)
Next, in Part II, this Note examines whether the implementation of gender quotas could survive constitutional scrutiny in the United States. This Note argues that, based on an analysis of American jurisprudence, it is likely that the courts will determine that a system of reserved seats or legal candidate quotas is unconstitutional. (6) Thus, in Part III, this Note proposes that the political parties in the United States adopt voluntary party quotas as a mechanism to increase women's representation in Congress. (7) Even though Congress cannot directly set a requirement for parties to adopt such quotas, it is still constitutional for Congress to incentivize parties to do so by tying their use to funding under a public campaign-finance scheme, (8)