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Federal judge urged to block gender-balance rule for Iowa judicial selection panel

Iowa’s requirement that half of the members elected to the state’s judicial nominating commission be male and half female is unconstitutional, two commission hopefuls argue.

DES MOINES, Iowa (CN) — A lawyer representing a pair of Iowans suing the state urged a federal judge Tuesday to issue a preliminary injunction barring enforcement of a law mandating an equal number of male and female elected members of the commission that interviews applicants for the state’s Supreme Court and Court of Appeals.

The state, meanwhile, argued the injunction should be denied and the suit dismissed. U.S. District Judge Stephanie Rose said at the close of Tuesday’s hearing in Des Moines that she would take the case under advisement and issue a ruling "as soon as possible.”

Eight of Iowa’s 17-person State Judicial Nominating Commission are elected by Iowa lawyers, two from each of the state’s four congressional districts. A state statute enacted in 1987 requires that one elected member from each district must be male and the other female to achieve gender balance. The governor appoints the remaining nine members of the commission and is limited to appointing no more than a simple majority of those members from the same gender.

Rachel Raak Law of Correctionville and Micah Broekemeier of Iowa City — who would like to be elected to serve on the commission — argued in a May 24 lawsuit that the gender-balance requirement means they are not eligible simply on the basis of their sex, not on the basis of their qualifications.

Their attorney, Wencong Fa of the Pacific Legal Foundation, told Rose on Tuesday that what he characterized as a “gender quota” is an unconstitutional violation of his clients’ equal protection rights under the 14th Amendment .

“The plaintiffs want to run in their districts and serve their districts if elected to the commission,” Fa argued. “The state’s gender quota denies them their ability to do that,” and he said such quotas have been found to be “patently unconstitutional” by the U.S. Supreme Court.

Rose questioned Fa regarding the state's motivation for enacting the gender-balance statute due to the historic lack of women elected to the commission.

“My understanding is that in first the 25 years of the commission, not a single woman was elected to the commission,” the judge said. “Is that something you dispute?”

Fa did not dispute that number, but he said the state has not produced any evidence of how many women ran for seats on the commission prior to 1987. Over time, he said, as women entered the legal profession it is reasonable to expect that more women would run to be on the commission.

Iowa Assistant Attorney General Sam Langholz pointed out that male members of the Iowa State Bar Association currently outnumber women two to one, so the justification for the gender-balance requirement “has not gone away.”

“Is that the right group to look at?” Rose asked. “Non-lawyers can run too, and half of Iowans are women.”

While acknowledging the point, Langholz said that doesn’t mean the gender balance of Iowa lawyers is irrelevant because only lawyers are able to vote for candidates for the commission.

The state says in a brief filed with the federal court the plaintiffs may run in a different district, where their sex would not prevent their candidacy. The statute governing elections to the State Judicial Nominating Commission does not require elected commission members to live in the district they represent. Because there are open seats in two districts for a male and female, the plaintiffs are not barred from running there, the state argues.

In a brief filed in opposition to the state's motion to dismiss, the plaintiffs say it is not clear they could run in a district in which they do not reside. In requiring that commission members be elected from the state’s four congressional districts, they argue legislators intended the commission to be geographically diverse.

Moreover, they argue, they have strong ties to their home districts.

“Yet they are both denied the opportunity to run to represent their friends and family members and their communities on the State Judicial Nominating Commission solely because the State of Iowa has determined that they are the wrong gender,” their brief states. “Instead, they would be required to compete in and represent a Congressional district where they lack ties and connections. This unequal treatment constitutes a legally cognizable equal protection injury.”

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