Tuesday, October 21, 2008

Is the SBNC illegal?

[Note: On October 21, 2008, this post was emailed to all elected officials representing Anne Arundel County in the Maryland legislature and in the Anne Arundel County Council]

Dear Anne Arundel County Elected Official:

It has come to my attention that Anne Arundel County’s School Board Nominating Commission (SBNC), created during the Maryland General Assembly’s 2007 legislative session (see House Bill 1114), may violate the law of democracy as interpreted by the courts. This may help explain why the SBNC’s method of selecting school board members is unique and unprecedented among the more than 14,000 school board electoral systems in the U.S.

Three court cases, two by the U.S. Supreme Court and one by the Illinois Supreme Court, have held that the democratic law of one person, one vote must apply to school board elections. Does this law apply to the Anne Arundel County School Board Nominating Commission (SBNC), which does not follow one person, one vote because it delegates binding electoral authority to private interest groups? If so, the SBNC would violate the U.S. Constitution.

Clearly, if the SBNC only had advisory powers (like Maryland’s judicial nominating commissions), it would not violate the law. Nor would it violate the law if elected officials or duly appointed administrative officials directly appointed all its members. But neither of these two standard checks on the delegation of authority to an independent public body was included in the law creating the SBNC. (Note that I have been told the Maryland Attorney General classifies the SBNC as an “advisory” body. If so, I don’t know how that squares with the binding authority it is granted under statute. Perhaps the word “advisory” has multiple legal definitions.)

You might specifically want to investigate the legality of delegating four of the eleven votes on the SBNC to four membership-based private interest groups. As an analogy, consider the legal and public reaction if Congress allocated 40% of the presidential electors to member-elected representatives of business and union trade associations. Alternately, consider the reaction if Congress attempted to create a public body with binding veto authority over government appropriations—and then appointed the largest incumbent government contractors to serve on it. As for the other seven SBNC members, I don’t see a problem with the delegation of electoral authority to the six members appointed by elected officials and the one member appointed by the Anne Arundel Community College (an administrative agency). Note also that the SBNC adopted a supermajority rule giving the private interest groups veto power over the SBNC’s decisions.

It is possible that there are other provisions in the law creating the SBNC that may exempt it from the law upholding one person, one vote. For example, the fact that it is a nominating body rather than a general election body could provide it some legal protection. But it is an extraordinarily powerful nominating body: through strategic voting (nominating two individuals to the Governor, one of whom it knows the Governor will not select), it can exercise de facto, if not de jure, general election powers. Thus, it is a binding nominating body with general election like powers.

Historically, courts have been hesitant to rule on election law. But when the core principles of representative democracy have been at stake, the courts have made an exception.

With the first set of SBNC nominated and Governor approved school board members on the ballot for an up or down vote on November 4, 2008, now is an opportune time to ascertain the legality of the electoral powers delegated to the SBNC. Note that the school board members have been serving in office since July 1, 2008; if the November election had come before the school board members took office, the principle of one person, one vote would not have been violated.

Attached is a summary of the three court cases taken 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. . Another source you might want to check is Samuel Issacharoff et al., The Law of Democracy, New York: Foundation Press, 2002 (see Section B of Chapter 3: The Reapportionment Revolution, pp. 185-208).

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.

The underlying reason the SBNC may violate the law of democracy is that it violates the core democratic principle of political equality (e.g., see Yale Professor Robert Dahl’s On Political Equality). However, the law of democracy only covers a small subset of good democratic practice; there are many undemocratic practices that are not illegal. Until the 1960s and the emergence of the civil rights movement, for example, the courts did not apply the Constitutional principle of one person, one vote to local government elections. Case law since the 1960s, however, indicates a very different court mindset. If elected officials pass laws violating the democratic principle of one person, one vote, the courts will not necessarily uphold those laws.

--Jim Snider, M.B.A., Ph.D.
Editor, MyAACPS.net

P.S. Please ask the School Board Nominating Commission to stop violating both the spirit and the letter of Maryland’s Open Meetings Act. In May 2008, Maryland’s Open Meetings Compliance Board ruled that the SBNC violated the Open Meetings Act. The SBNC has nevertheless continued to violate the law and its own bylaws with impunity. If the Maryland General Assembly is not to convey the impression that it considers the Open Meetings Act a cruel joke inflicted on the public—a set of democratic values to be espoused in public but in practice ignored whenever they prove inconvenient—then it must investigate this pattern of abuse and take steps to ensure that the Open Meetings Act has credible penalties.

“All tyranny needs to gain a foothold is for people of good conscience to remain
-- Thomas Jefferson.

Addendum Posted October 22, 2008
An additional legal argument has come to my attention since writing the above email. It turns out that the way the statute creating the SBNC was written, the SBNC has been granted veto power over the wishes of the electorate. That is, the SBNC has the power to ignore the results of a retention vote by simply indefinitely postponing its selection of a replacement. Here is the relevant statutory language.


What this means in practice is that the five SBNC members appointed by private interest groups can veto the wishes of the electorate. In other words, not only has the SBNC been granted binding, general election like nominating powers, but it has also been granted veto power over the wishes of an electorate that embodies the democratic principle of one person, one vote.

A delegate to the Maryland General Assembly has forwarded a copy of the above e-mail to Maryland's Attorney General and requested a legal opinion.

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