Friday, September 12, 2008

SBNC May Violate the Law of Democracy

The School Board Nominating Commission (SBNC) has widely been recognized as a travesty of democratic practice because it violates basic democratic norms of political equality, including one person, one vote. But until this summer it never dawned on me that it might also violate the U.S. Constitution and the series of Supreme Court cases beginning in the 1960s applying the democratic principle of one person, one vote to local elections, including school board elections.

What follows are excerpts from Professor Richard Briffaultt's law review article, "Who Rules at Home?: One Person/One Vote and Local Governments," published in the University of Chicago Law Review, Vol. 60, N. 2, Spring 1993. Professor Briffaultt describes three key cases, two decided by the U.S. Supreme Court and one decided by the Illinois Supreme Court, that apply the law of one person, one vote to municipal and school board elections.

The fundamental premise of federal voting rights law is that democratic government means government by consent of the governed. As the Supreme Court observed in Wesberry v Sanders, "[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live."

Avery v Midland County
Twenty-five years ago, in Avery v Midland County, the United States Supreme Court extended the one person/one vote requirement to local governments. Avery and subsequent decisions applying federal constitutional standards to local elections suggested a change in the legal status of local governments and appeared to signal a shift in the balance of federalism. Traditionally, local governments have been conceptualized as instrumentalities of the states. Questions of local government organization and structure were reserved to the plenary discretion of the states with little federal constitutional oversight. In contrast, Avery assumed that local governments are locally representative bodies, not simply arms of the states. Avery and its progeny, therefore, imposed new restrictions on state provisions for the organization of local governments.

Kramer v Union Free School District No. 15
In Kramer v Union Free School District No. 15, the Supreme Court again presumed that a local government's action has a community-wide impact. Kramer involved a New York law that limited the right to vote in school board elections to the owners or renters of taxable property in the school district and to the parents of children enrolled in the district's schools. The plaintiff was an otherwise eligible voter who had no children, lived with his parents, and neither owned nor leased taxable property.

Fumarolo v Chicago Board of Education
In Fumarolo v Chicago Board of Education, the Illinois Supreme Court… found that Kramer and Hadley continued to apply… when it invalidated the franchise and representation provisions of the Chicago School Reform Act. The Act provided for the creation of local school councils with a variety of powers for each of the grammar and high schools in the Chicago school system. Each council was to consist of ten members, with parents of children enrolled in the local school to elect six of their number, community residents to elect two residents, and local school teachers to elect two teachers. In invalidating the exclusion of non-parent residents from the electorate for most council seats, the Illinois Supreme Court determined that the councils' role in local education … mandated the application of strict scrutiny.

In defending the restricted franchise, the Chicago Board of Education contended that the local school councils were advisory rather than governing bodies. The Court determined that, although the district councils lacked the power to levy taxes or set basic educational policy for local schools, their functions were more than advisory, and the councils had considerable authority over local school operation.

Note that these cases do not hinge on whether an elected body approved a particular local electoral system. It would not matter, for example, whether the Maryland legislature unanimously approved a system of election that violated one person, one vote. For the courts, one person, one vote is a constitutional right that supersedes the right of legislatures to make laws.

Note also that these cases only indirectly apply to the structure of the SBNC. For example, the SBNC only has nominating powers, not general election powers. However, the SBNC is a very powerful nominating body because its recommendations are mandatory rather than advisory and because it only nominates two individuals to the Governor. If the SBNC acts strategically and nominates one individual who it knows the Governor will not appoint, then it has de facto general election powers.

Another question is whether the SBNC is an electoral body or an appointed/administrative body. As I read the case law above, it would be defined as an elected body with a restricted franchise, even though the SBNC is characterized in popular discourse as an appointed/administrative body (if all the members were appointed by elected officials, I would agree it was an appointed/administrative body, but by delegating membership in SBNC to the votes of special constituencies, it functions as an elected body).

Assuming that the SBNC does indeed violate the law, a simple solution would be to make its recommendations advisory rather than mandatory. But this would undercut the primary public rationale for the SBNC, which is that in the old School Board Nominating Convention process the Governor could override the preferences of the nominating body. Note that the recommendations of the judicial nominating commissions, a much cited precedent for the SBNC, are advisory only.

I am not a lawyer and have quite possibly overlooked some important considerations. This case may be especially tricky because, to the best of my knowledge, the school board electoral system in Anne Arundel County is unique and unprecedented in the United States (there are more than 14,000 school boards in the U.S., so this is saying a lot). Perhaps there is a legal reason why this is so. My hope is that there is at least one sharp legal mind out there who can shed some light on the applicability of this case law to the SBNC.

Note that even if the SBNC is violating the law, that doesn't necessarily mean much in the real world. For example, even after Maryland's Open Meetings Compliance Board found in May 2008 that the SBNC violated the Maryland's Open Meetings Act, there were no negative consequences. The press decided the story wasn't newsworthy (as a Baltimore Sun reporter told me, "this happens all the time, so it's not newsworthy"). When the Capital's Eric Hartley wrote about the SBNC's propensity to secrecy and the Capital's editorial board editorialized against it, neither even mentioned the SBNC's repeated violations of the law even though they were well aware of it. The general public also appears all but indifferent to Open Meeting violations.

Moreover, assuming that the SBNC does indeed violate the law of democracy (again, an assertion that is still speculative at this point), it's not clear to me who would have sufficient incentive to take the necessary steps to enforce the law. In the Fumarolo case above, for example, it was the school principals who brought the case because they were directly harmed by the law. What similar highly motivated constituency would do the same here? Not any existing parental organization that I know off. On the other hand, I can readily imagine some politicians or a political party getting a few good sound bites out of this. But concerted, effective action or a court challenge seems much less likely to me.

Additional Resources
An authoritative textbook on the law of democracy is Samuel Issacharoff et al., The Law of Democracy, New York: Foundation Press. I have the 2001 edition. See Section B of Chapter 3: The Reapportionment Revolution, pp. 185-208.

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