While women have been running for elected office in the United States since 1866,[1] the growth in female[2] representation has been incremental at best.[3] Despite the fact that women represent over 50 percent of the United States’ population, women only make up 25 percent of Congress.[4] Furthermore, women occupy less than 30 percent of state mayoral seats, state legislative seats, and other state offices across the country.[5] While women’s equality rights have improved in other areas—such as in reproductive health, employment, and education—“progress towards attaining political parity for women has remained stagnant.”[6] Sexism is older than the creation of the American electoral system and remains a constant in all American democratic institutions. Given the pervasiveness of institutionalized sexism and misogyny, some suggest that the only solution to low female representation is an active approach that requires female candidates and representatives. This sort of state-mandated system often takes the form of quotas.

Advocates for quotas argue that they pro-actively “compensate” for patriarchal factors that keep women out of legislative bodies.[7] Further, quotas may not actually distort or dilute the strength of the vote given the strength of political parties in choosing nominees.[8] On the other hand, opponents argue that quotas act in direct contradiction to democracy and equal protection because they give women candidates an advantage over men. Examined through a feminist analytic, quotas clearly challenge entrenched male dominance by actively increasing women’s participation in the electorate. However, quotas may not fully address intersectional feminist concerns that push for equal opportunity for all women, not simply the most privileged. While quotas may be necessary to initially increase the sheer numbers of women in elected office, they may not fulfill the more robust feminist goal of a broad and diverse representation of women.

While over 100 international countries have adopted gender quotas[9], the United States is, as one author puts it, “quota-phobic.”[10] Critics of quotas argue that political representation should be based on merit, and that underrepresentation “can’t be solved through a positive discrimination.”[11] These arguments not only discount women’s merit, but also turn a blind eye to the barriers to entry placed by a history of sexism, racism, and class discrimination. In addition, one could argue that White men are the beneficiaries of an unspoken form of “affirmative action” that has historically given them a leg up by both assumptions of worth and enforced exclusion of others (e.g. women, people of color, immigrants) from full participation in democratic institutions. Regardless, quota systems have been met with deep skepticism in the United States courts. This rejection of quotas has mostly been developed through racial classifications jurisprudence. However, the Supreme Court has never had the opportunity to directly address the issue of gender quotas in electoral politics.

The United States Supreme Court has repeatedly rejected the use of quotas as a remedy for past racial discrimination under the Equal Protection Clause. In 1978, the Supreme Court in Regents of University of California v. Bakke established that quotas are unconstitutional race-conscious remedies under Equal Protection.[12] Though cases like Fullilove v. Klutznick attempted to get around this ban by deferring to congressional intent,[13] the Court in 2003 once again reaffirmed that “to be narrowly tailored, a race-conscious admissions program cannot use a quota system.”[14]

Like race-conscious admissions programs, gender quotas “are a form of affirmative action.”[15] Because of this, it may seem at first glance as if quotas cannot pass constitutional scrutiny under Equal Protection. However, electoral quotas have not been examined under a gender classification.[16] Gender, unlike race, is subject only to intermediate scrutiny, which means that a government program must be closely related to an important state interest.[17] As such, a quota system that requires a certain number of elected seats to be held by women “might be more tolerable than race-based action” because “the constitutional standard has been interpreted by the Court to require women’s admission to the avenues of power.”[18] Increasing the amount of women in state, local, and national legislatures can easily be construed as an important state interest, and the Supreme Court “has recognized ameliorating past harms as a substantial interest that could uphold gender-based classifications.”[19] Given the stagnation of women in politics, specific quotas may be the only solution because current remedies, especially voluntary propositions or tokenizing programs, “fail to correct action or provide incentives or leverage against discriminatory action.”[20] As one scholar writes, “after centuries of misogyny we cannot change attitudes overnight without regulations.”[21] However, the Supreme Court has never had the opportunity to definitively answer the question.

Women in politics face many barriers to entry, such as sexism and increased scrutiny from the public and media, anti-feminist norms that require women to conform to nurturing roles, and internalized sexism with respect to competency.[22] Further, political parties do not support women candidates, financially or otherwise. Rather, they protect incumbents, who are mostly White and male, at all costs.[23] Rather than rely on “incremental” solutions to low female representation in office, quotas present a “fast-track approach [that] ‘promote. . . substantive equality based on the principle of gender equality as the equality of results.’”[24] For these reasons, many feminist political theorists argue that “the United States presents an ideal case for implementing a gender quota.”[25] Quotas may provide the easiest path to increasing women in elected office. They produce a guarantee of women in office, and across the world, they are considered an “effective and efficient method to increase the number of female elected office.”[26] Further, a system that actively opens up a space for women in politics helps to facilitate descriptive, substantive, and symbolic representation.[27]

While some view quotas as a necessary remedy to the “elitist character of existing electoral systems,” others view quotas as an elitist system of its own.[28] As one author puts it, “it is crucial to consider which women manage to gain political office.”[29] Because quotas rely on a broad—yet limited—category of women within a gender binary, gender quotas “tend. . .to downplay the significance of the diversity of women’s experiences.”[30] In fact, some advocates for gender quotas rely on sexist tropes to advance their cause, often arguing that quotas are necessary to elect women to office because women’s “general nature is characterized as more ‘communal.’”[31] Regardless of whether this is or is not true, quotas do not force theorists to critically examine the different experiences between women, which is especially necessary because “women are not a monolithic group.”[32] As such, quotas may advantage the most priviledged within the group, and women elected to office through quotas will not necessarily be diverse or representative of women in the United States. For this reason, “political gender quotas may uphold certain feminist aims, while undermining others.”[33]

Emma Walters: Publishing Editor for the California Law Review and member of Berkeley Law Class of 2021.

1. Elizabeth Cady Stanton ran for the U.S. House of Representatives in 1866, despite the fact that she herself could not vote. She won 24 votes out of 12,000 in New York State. Milestones for Women in American Politics, Center for American Women in Politics, 2019, https://cawp.rutgers.edu/facts/milestones-for-women. ↑

2. I use the term “women” and “female” to refer to all people who identify as such, including trans and cis women. ↑

3. History of Women in the U.S. Congress, Center for American Women in Politics, 2019, https://cawp.rutgers.edu/history-women-us-congress. ↑

4. Women in Elective Office, Center for American Women and Politics, 2019, https://www.cawp.rutgers.edu/women-elective-office-2019. ↑

5. Id. ↑

6. Anisa A. Somani, The Use of Gender Quotas in America: Are Voluntary Party Quotas the Way to Go?, 7 Wm. & Mary L. R. 1454, 1461 (2013). ↑

7. Gender Quotas Database, Institute for Democracy and Electoral Assistance, (2009), https://www.idea.int/data-tools/data/gender-quotas/quotas. ↑

8. Id. ↑

9. Mona Lena Krook, Quotas For Women In Politics: Gender And Candidate Selection Reform Worldwide 4 (2009), https://perma.cc/W3R6-VP7W ↑

10. Tracy A. Thomas, Reconsidering the Remedy of Gender Quotas, Harv. J. of L. & Gender Online 2 (Nov. 2016). ↑

11. Dan Mihalache & Sabin Dragulin, Gender Quotas in Politics: A Short Analysis, 8 Cogito: Multidisciplinary Res. J. 50, 57 (2016). ↑

12. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 323 (1978). ↑

13. Fullilove v. Klutznick, 448 U.S. 448, 472, 480 (1980). ↑

14. Grutter v. Bollinger, 539 U.S. 306, 334 (2003). ↑

15. Carol Bacchi, Arguing for and against quotas: Theoretical Issues 32 in Women, Quotas, and Politics (ed. Drude Dahlerup 2006). ↑

16. Somani, supra note 6, at 1474 (“The Supreme Court has yet to provide guidance as to the appropriate standard of review for gender-based affirmative action programs.”) ↑

17. United States v. Virginia, 518 U.S. 515, 533 (1996) (“The State must show at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”) [internal quotations omitted]. ↑

18. Thomas, supra note 10, at 24. This is assuming that Congress has the power the pass an electoral quota. However, some argue that “it is unlikely that the Constitution vests Congress with the authority to pass an electoral gender quota” under either the Elections Clause or Article I, Section 5. Somani, supra note 6, at 1470, 73. For the purposes of this paper, I assume that Congress has the power to enact a gender quota in the first place, or that a constitutional amendment has been initially approved. ↑

19. Somani, supra note 6, at 1477. ↑

20. Thomas, supra note 10, at 9. ↑

21. Mihalache & Dragulin, supra note 11, at 58. ↑

22. Somani, supra note 6, at 1458-59, 1463-64. ↑

23. Id. at 1460. ↑

24. Id. at 1466. ↑

25. Id. at 1462. ↑

26. Somani, supra note 6, at 1452. ↑

27. Susan Franceschet, Mona Lena Krook, & Jennifer M. Piscopo, Conceptualizing the Impact of Gender Quotas 4 in The Impact Of Gender Quotas (Susan Franceshet et. al, eds. 2012). ↑

28. Bacchi, supra note 15, at 38. ↑

29. Id. ↑

30. Id. at 32; see Rebecca Kuperberg & Haley Norris, Are Quotas Feminist? A Theoretical Approach, European Conference on Politics and Gender 2 (June 2017). ↑

31. Somani, supra note 6, at 1467. ↑

32. See id. ↑

33. Kuperberg & Norris, supra note 30, at 2. ↑