There is a little reported story out of the Democratic National Convention where two Sanders delegates have been barred from attending the event. The problem was not their credentials or their conduct. State Sen. Tim Ashe (right below) and Ken Dean are men and the DNC ruled that there were simply too many of that kind in the delegation. Vermont was ordered to replace them with women, any women, so long as the delegation was equal. Ashe and Dean have filed challenges for good reason.

Coupled with a growing controversy over the determined effort of the Democrats not to release a list of donors to the media, this is hardly a good story to trigger days before the opening of convention. The national party appears to be imposing a quota system on delegates based on gender despite the fact that such delegates can claim that they are qualified through the democratic process. After all Dean and Ashe were elected as delegates on June 11. Then, on July 5, the state party was ordered to remove them due to their gender deficiency.

Of course, the infamous superdelegates remain untouchable. It is just those elected by the people that can be negated solely on the basis for their gender. Notably, eight of 10 Vermont superdelegates are men.

The Democratic party leadership appears to be moving away from the fight against gender discrimination in guaranteeing equal opportunity to the fight for gender equality with the use of quotas to force gender balance. Ironically, it was Associate Justice Ruth Bader Ginsburg in United States v. Virginia (1996) who warned that “Today’s skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history.” Not only are these delegates saying that they are being denied position due to their gender, but the DNC is negating the choice of Vermont voters — male and female. There is such a thing as individual achievement and choice. The Vermont voters are allowed to select people on the basis for their individual merits rather than categorical exclusions based on race, gender, religion, or other immutable characteristics.

This point was made by the Supreme Court in University of California v. Bakke (1978):

[R]ace, like gender and illegitimacy, . . . is an immutable characteristic which its possessors are powerless to escape or set aside. While a classification is not per se invalid because it divides classes on the basis of an immutable characteristic, see supra at 355-356, it is nevertheless true that such divisions are contrary to our deep belief that “legal burdens should bear some relationship to individual responsibility or wrongdoing,” . . . and that advancement sanctioned, sponsored, or approved by the State should ideally be based on individual merit or achievement, or at the least on factors within the control of an individual.

Those concerns are heightened in my view when alleged gender discrimination negates the results of a democratic process like delegate selection.

What do you think?