My name is Jim Snider, and I’m here to talk about the historic number of bills introduced into the General Assembly regarding the Anne Arundel School Board Nominating Commission. I’ve been closely following the School Board Nominating Commission since it was created in 2007. I think it’s fair to say that I’ve attended more meetings of the SBNC than anyone other than a handful of commissioners themselves. I’ve also attended about twice as many SBNC meetings as any member of the press. In terms of coverage, I’ve probably written twenty to forty times as much about the SBNC on my blog, MyAACPS.net and the Countywide CAC’s discussion forum, as any local newspaper.
I also am the chair of the Countywide CAC, which represents the local Countywide CAC reps from the approximately 120 public schools in Anne Arundel County. Although I have written extensively about the SBNC to Countywide CAC members, I’d like to be clear that I’m speaking personally here today and not on behalf of the Countywide CAC.
Lastly, I’m a political scientist by training who has worked in the academic and Washington, DC think tank communities on issues of democratic reform.
I’m generally in support of five of the SBNC bills, including HB 220, HB 399, HB 991, SB 78, and SB 114. Although these bills conflict with each other in parts and although I would add or change many provisions to improve them, I generally believe they are an improvement over the status quo.
As you review these bills, I hope you will keep the following facts and democratic values in mind:
First, the citizens in a democracy have a right to be able to understand, without unreasonable effort, the laws under which they are governed.
I believe that this is not currently possible with the laws regulating the SBNC. The SBNC embodies a novel method of electing school board members. Of the more than 14,000 school boards in the U.S., I don’t believe that in 2007 there was one with an electoral process that even remotely resembled the SBNC. Perhaps it should be no surpise, then, that many key issues in electoral design were not clearly specified or in some cases not included at all in the statute creating the SBNC.
The result has been that the SBNC and other government agencies responsible for enforcing the statute have had to make it up as they went along over the last four years. The key SBNC laws are now scattered across SBNC minutes, SBNC bylaws, Maryland Board of Elections rulings, and, arguably most important, a long series of opinions issued by Maryland’s Attorney General. To understand the laws, one must also now consult a broad array of other statutes and regulations that are education or election related but not obviously related to the SBNC, except for the fact that the SBNC statute didn’t clarify certain questions so that other laws had to be consulted to fill in the gaps. There is thus a crying need to codify the key provisions of these laws into a single statute so that a reasonably diligent citizen could get an overall sense of how the SBNC operates from reading the statute. Currently, many prospective candidates for the SBNC and even incumbent school board members call me asking me what the rules of the SBNC actually are. They shouldn’t have to do this.
The problem has been compounded by the SBNC’s generally awful record keeping. Not only does the SBNC have no physical and public location where it stores its records, but it often only posts publicly online the public records for the current year, with the balance needlessly placed behind a firewall granting access only to insiders. I am pleased to report that the SBNC is now selectively posting on its website its meeting minutes from prior years, but many other critical public documents specifying the rules under which the SBNC operates are not similarly available.
I hope the entire delegation will agree that democracy requires not only the rule of law but also laws that a reasonably diligent citizen can locate and understand. I believe that a number of the SBNC related bills that have been introduced mark a significant improvement in the codification of SBNC law.
Now to the second point: the SBNC that we have now is not the SBNC that the public was promised in 2007.
When the public eventually finds out what has happened, I think we could have an ugly situation. For example, last spring the Maryland Attorney General ruled in an opinion that incumbent school board members elected under the new system would not have to seek re-election either by going through the School Board Nominating Commission or seeking reappointment by the Governor. All they would have to do to serve another term in office is survive an uncontested retention vote. This is a remarkable reinterpretation of the law, which was most certainly not stated in any public announcement by the SBNC’s advocates or reported in the newspapers in 2007.
How remarkable is this reinterpretation? I’m not aware of any local school board or town council in the United States—and there are approximately 40,000 scattered across the U.S.—where incumbents can go for more than twelve years (two full five year terms plus a partial term) without facing a competitive re-election process.
What do you think the public will think when they find out about this? Perhaps you should imagine how they’d react if you proposed making your own seats similarly uncontestable.
Last spring you had a reprieve. The Capital education reporter was leaving the Capital and didn’t attend most of the SBNC meetings, let alone do due diligence other than calling the chair of the SBNC for official summaries of the meetings. Even now, I understand that some of the delegates here don’t believe that the Maryland Attorney General has interpreted the law as I have described. But at some point word will get out, and even the local newspapers will have to report on what’s happened.
What I’d suggest to you is that you fix the problem before word gets out and it becomes a political embarrassment. Indeed, there are many other embarrassments in the law that have cropped up and that I believe you should also fix, but I don’t have enough time here to go into them, and, in any case, I doubt they’re as politically dangerous as the problem I’ve just described.
Lastly, as my third point, I’d like to reiterate a point that I’ve made to most of you before: the current SBNC statute violates the essential democratic principle of political equality, as embodied in the widely understood phrase of one-person, one-vote.
In America, we’ve had a 200+ year struggle to expand suffrage to poor whites, blacks, women, and other disenfranchised groups. Even today, Maryland has a strong civil rights community dedicated to preventing vote dilution, so that all citizens are treated equally. But by giving private groups a disproportionate share of the vote on a general purpose public body, the SBNC violates this sacred democratic principle.
Advocates of this violation of one-person, one-vote have countered that the SBNC models judicial nominating commissions, water district commissions, and other special purpose districts. But there is a qualitative difference, as the courts have recognized, between those types of public bodies and a general purpose public body such as the SBNC. Whether the SBNC not only violates one-person, one-vote but is unconstitutional is admittedly a much more difficult matter to assess. Based on a series of U.S. and state Supreme Court cases regarding the application of one-person, one-vote to school boards, I believe there is a high likelihood that a high court would indeed rule that the SBNC statute violates the political equality principle embedded in the U.S. Constitution. But I cannot imagine who would bring such a case, and I’d agree that the circumstances of the SBNC are unique and unprecedented, thus making prediction very difficult. But regardless of the legality of the SBNC’s violation of one-person, one-vote, it indisputably conflicts with core democratic principles.
This observation by no means implies that there is any inherent problem with an appointed nominating body such as the SBNC; only that there is a distinction between nominating bodies that conform to democratic principles and others, such as the SBNC in its current form, that do not.
In conclusion, the bills I’ve endorsed above improve on the status quo school board electoral process in a least one of the following three ways: by codifying the law, by fixing the politically embarrassing reinterpretations and evolution of the law since 2007, or by mitigating the effects of the law’s violation of one-person, one-vote through the addition of auxiliary mechanisms to enhance political competition and popular sovereignty.
Even if you’re an advocate of the current SBNC process, I hope you will agree that the law should be written in such a way that it is reasonably accessible to the public. The current laws regarding the SBNC, scattered as they are in so many inaccessible places, clearly do not meet that test.
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