The Clerk of Middlesex County and political parties in Middlesex can no longer force voters and candidates to choose only one man and one woman as party committee members, according to an order by the Honorable Mary C. Jacobson, A.J.S.C..  The ruling grants permanent relief sought by Central Jersey Progressive Democrats (CJPD).  Nine CJPD candidates won preliminary relief allowing them to run free from gender discrimination for County Committee in the 2019 Middlesex County Democratic primary, in which three of them won.

“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. What was once a floor became a ceiling, and the Plaintiffs in this case prove the point – they are women, and women of color, who want to serve their communities without limitation. 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,” said Yael Bromberg of Bromberg Law LLC, who argued the case before the Court.

Judge Jacobson, in discussing N.J.S.A. 19:5-3 the statute governing the election of County Committee members, found: “One effect of the statute is that, should two women receive the first and second highest number of votes out of all candidates, while a male candidate receives the third highest number of votes, the male candidate in third place would be elected over the female candidate in second place, despite having received fewer votes. The statute also effectively bars gender non-binary candidates from county committee positions.”

In finding for the Plaintiffs, Jacobson relied in part on Hartman, a 1997 Burlington County decision and other legal precedents, writing: “Clearly, taking N.J.S.A. 19:5-3, the Supreme Court’s pronouncement in Eu and the policy in this State against discrimination together, N.J.S.A. 19:5-3 is rendered unconstitutional and invalid. 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. Furthermore, N.J.S.A. 19:5-3 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.”

Plaintiff Kamuela “Nikki” Tillman, a 2019 CJPD candidate who also won her County Committee seat alongside another female candidate due to the preliminary restraint initially gained, said on the final ruling, “One of my many She-Roes, Shirley Chisolm, once said, ‘If they don’t give you a seat at the table, bring a folding chair.’ She knew then the difficulties of access to civic and political opportunities for Blacks and women. When I filed my petition to run for Middlesex County Democratic Committeewoman for Piscataway Ward 3, District 2, alongside my running mate and friend, Staci Berger, I did so with the expectation we had successfully satisfied the requirements to run. Imagine how disappointed I was to find that I could be denied the right to exercise our civic duty because neither Staci nor I was a man.  Neither of us were willing to give up our right to run or to have our seats at the table. Along with the other plaintiffs, we took our folding chairs right to court.”

Judge Jacobson’s order also denied a motion for summary judgement sought by retiring Middlesex County Clerk Elaine M. Flynn, and denied a motion to dismiss sought by the Middlesex County Democratic Organization.  MCDO had been included in the case as an interested party, and recently changed its own rules to end the one-man, one-woman rule in response to being included in the CJPD’s amended filing earlier this year.  The opinion notes that none of the Defendants so much as offered a compelling state interest to justify the discriminatory rule. What’s more, the State participated in the case as an interested party, and articulated early on the need for uniformity through invalidation of the statute. Despite this, the County pressed on to challenge the law, and the MCDO sought to dismiss the action.

Judge Jacobson wrote, “Defendant has not demonstrated how the statute furthers a compelling state interest, whether that interest be to ensure a fair and orderly election process, or to remedy gender discrimination. The State itself has offered no defense of the discriminatory provisions of N.J.S.A.

19:5-3. Indeed, the State has taken the position that following Hartman will further a state interest in uniformity of elections throughout the state. Therefore, because neither the State nor the Defendant have demonstrated that the statute is narrowly tailored to advance a compelling state interest, N.J.S.A. 19:5-3 is rendered unconstitutional and invalid. Accordingly, the court holds that future ballots must be prepared and drawn by the Middlesex County Clerk in a non-discriminatory manner, without regard to the sex or gender of candidates.”

Laura Jill Leibowitz, a plaintiff who won her seat 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, said, “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. I am grateful to my fellow candidates and the hard work of our amazing legal team.”

As a result of this decision, Middlesex joins a growing list of counties where party members can run for office without facing sex or gender discrimination. Clerks in Mercer, Hunterdon, Passaic, Cumberland and Cape May counties allow candidates to run as “committee members;” in Essex County, the rule is not enforced uniformly by the Party chairs.

“It is especially gratifying to receive this decision as we celebrate the 100th Anniversary of the 19th Amendment.  Women and LGBTQ individuals have so much at stake in the upcoming election and beyond. This ruling breaks the glass ceiling so everyone can fully participate in our democracy,” said Bromberg.

CJPD is a grassroots, volunteer organization launched immediately after the November 2016 election, to fight Trumpism and restore the values of the Democratic Party. CJPD has run candidates in the 2017 and 2019 Democratic Primaries, causing the MCDO to cancel its 2021 elections unjustly and extend its members’ terms of offices retroactively.  CJPD is building an alternative to business as usual in the Democratic Party, mobilizing residents around the values of democracy, inclusion and transparency.