Voting by Sex

No, this is not a post about Obama/Clinton and gendered support patterns. Rather, this is a post about something else related to sex difference and voting that some, if not all, Pennsylvanians are facing today.

When I voted this morning, after choosing who I wanted for the Democratic Presidential nominee, I also had to vote for individual delegates for my district to send to the convention. I had to vote for 7 out of a group of 12. If I remember the ballot correctly, 7 of the delegate options were aligned with Obama while 5 were aligned with Clinton. If I understand Pennsylvania rules correctly, the individual delegates are bound to vote according to their district’s popular vote . . . for the first vote at the convention only. If the convention vote goes beyond a first round, then they can vote for whoever they want.

But that’s not the point of this post. What was interesting about voting for the individual delegates was that we were required to vote for 4 men and 3 women. If I had wanted to vote for a 4th woman or a 5th man, I wasn’t allowed to because of this sex-based voting requirement. (Luckily, all the names of the delegate candidates were seemingly-obviously linked to one sex or the other because even though there was a sex-based requirement, the sex of the individual candidate was nowhere noted on the ballot.) I don’t know if this is a local rule or if this is true for all individual delegate voting (in PA or across the country), but it struck me as quite odd, although interesting legally.

As a matter of constitutional law, if this is a Democratic Party (whether local or national) requirement, then there’s questionable state action. The White Primary cases are different, as the winner of those primaries went on to win the local Texas office, so the state was said to be keeping blacks out of state political office. But here, there’s a classification based on sex for the private Democratic Party’s own convention and nothing else. Is that constitutionally significant for state action purposes? Of course, if this is a state of PA requirement, then there is state action in the classification.

Beyond state action and onto the actual classification itself, it would seem that this would have to be justified by an exceedingly persuasive justification and the means be substantially related to that justification. I’m guessing that the purpose of the requirement is to have an equal number of men and women among the delegates electing the Democratic Presidential nominee. Further, I’m assuming there’s been a lopsided number of men in the past and this is an attempt to make up for that. Is having an equal number of men and women among the delegates an exceedingly persuasive justification for classifying based on sex?

I don’t know the final answer to this question, partly because I don’t know enough about this requirement. But, I do know that, even though I could guess what the purpose of the requirement was and even though I support that goal, I was awfully uncomfortable in the voting booth this morning being required to vote strictly based on sex.

– David S. Cohen