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 INTRODUCTION
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)
Gender Quotas: An International Context
Achieving representational equality for women at the national legislative level is a goal that many countries struggle to achieve. On average, women comprise only 20 percent of national legislatures worldwide. (9) Many scholars agree that women must at least comprise a "critical minority" of 30 to 40 percent of the decision-making body to have an influential voice and to make substantive contributions to the legislative process. (10) The World Economic Forum's 2011 Global Gender Gap Report outlined the continued progress of women in several areas, such as health and education; (11) however, the report indicated that progress toward attaining political parity for women has remained stagnant since 2006. (12) Many countries have responded to this phenomenon by enacting gender quotas that facilitate the election of women to national legislative office. (13)
In the past few decades, the international movement for the use of electoral gender quotas gained significant momentum. Prior to 1985, only four countries had enacted some form of a gender quota; now, more than one hundred countries have followed in their footsteps. (14) Mona Lena Krook, a prominent scholar on gender quotas, attributes the rapid rise of their adoption to transnational forces, claiming that the enactment of several multilateral agreements catalyzed the use of such quotas. (15) The first of these agreements, the Convention Ending Discrimination Against Women (CEDAW) signed in 1979, called on its ratifying members to implement affirmative action programs to increase the political representation of women in national legislatures. (16) Signatories of the Beijing Platform in 1995 took this trend a step further by setting a goal for women to achieve at least 30 percent political representation in each of their respective countries. (17)
Countries that employ gender quotas typically classify them into three categories: reserved seats, legal candidate quotas, and voluntary party quotas. (18) A reserved seats quota mandates by law--either by the country's constitution or electoral laws--that a certain minimum number of seats be set aside in the legislature for women. (19) While reserved seats quotas determine the gender ratio in actual composition of the legislature, in contrast, legal candidate and voluntary party quotas regulate the number of women each party nominates as candidates. (20) In addition, legal candidate quotas are mandated by the law and apply to all political parties, whereas individual parties adopt voluntary party quotas by choice. (21) Under these two types of quotas, women still face the hurdle of being elected after being nominated by their party.
The Success of Gender Quotas Worldwide
The use of the gender quotas, overall, has been an effective and efficient method to increase the number of women at the national legislative level in several countries. Countries that implemented gender quotas without any significant loopholes, and with proper enforcement mechanisms, (22) have achieved significantly higher levels of female political representatives. For example, Rwanda incorporated a gender quota into its constitution in 2003, reserving at least 30 percent of the seats for women in every decision-making body.23 Rwanda now currently ranks highest among all countries for its level of female political representation in its national legislature, with women comprising 56 percent of the lower house and 39 percent of the upper house.24 Similarly, in Argentina, prior to the adoption of a 30 percent legal candidate gender quota in 1993, women held an average of only 5 percent in both legislative bodies;25 now women comprise 37.4 percent of the lower house and 38.9 percent of the upper house.26
The success of gender quotas can often be measured in the course of just one election. For example, in Kyrgyzstan, prior to the enactment of a gender quota, not a single woman sat in Parliament after the 2005 elections.27 After the constitutional reform process and the implementation of an electoral law that required political parties to nominate candidates that were "not more than 70 [percent] of the same sex," the number of female members of Parliament jumped to 26 percent after the 2007 elections.28
The effectiveness of gender quotas is even prevalent in post-conflict, patriarchal countries that have a long history of denying civil rights to women. Consider the five year reign of the Taliban in Afghanistan that severely curtailed women's rights.29 After the Taliban's fall from power, the U.N. "mandated that the interim government and the Loya Jirga Commission were to ensure the participation of women in both the new government and the parliament."30 Consequently, the Afghani Constitution created a gender quota that reserved 25 percent of the seats in the lower house and 17 percent in the upper house of their Parliament for women,31 a benchmark that the country has consistently hit since the quota's enactment.32 In Iraq, another postconflict country, the government did not implement a reserved seats quota to comply with the 25 percent gender quota mandated by its constitution; rather the electoral authorities instituted a legal candidate quota by requiring a female candidate at every third position on candidate lists submitted by each political party.33 Despite using a different type of gender quota, the first parliamentary elections in Iraq in 2005 resulted in women holding 25.5 percent of the seats in Parliament.34
How Quotas Help Women Overcome Barriers to Getting Elected
Opponents of gender quotas may agree on the broader goal of increasing the political representation of women in legislative bodies, but instead prefer taking an incremental approach rather than instituting a broad-based affirmative action program.35 Such opponents believe that with time, women will eventually achieve equality on this front as they have in many other areas of society.36 Running for an elected office, however, poses unique barriers for women that are difficult for them to...