The Baltimore Sun, Capital, and Washington Post all reported on the veto of HB172/SB144. Snider’s recent comments on the constitutional illegality of the legislation can be found here and here and here. The relevant clip from the Governor’s veto message can be found here; see 2:02 to 2:27 beginning: “There is one bill, for legal reasons, we must veto….”
Baltimore Sun News Article
Cox and Michael Dresser, Hogan avoids confrontation with Maryland General Assembly over vetoes, April 5, 2016. (The Capital also published this article.)
“The attorney general says the legislation is constitutional, and that’s the official word for the state.”
The Attorney General’s legal interpretation is not credible on a question like this. The Attorney General, like U.S. Supreme Court justices, often interprets the law in highly partisan and otherwise self-serving ways. That’s partly why the courts, and not the Attorney General, has final say on what’s constitutional and not.
I should add–although the Governor did not make this legal argument–that the legislation passed by the General Assembly violates the Equal Protection Clause of the U.S. Constitution’s 14th Amendment. It’s hard to know who would be motivated to pursue such a lawsuit, but perhaps if the governor is already pursuing a case on Maryland Constitutional grounds he could add an Equal Protection claim.
Capital News Article
Yeager, Amanda, Hogan vetoes changes to school board nominating process, April 5, 2016.
Since it was introduced, I have argued that the School Board Nominating Commission was unconstitutional (e.g., see my public testimony at the SBNC’s March 14, 2016 public hearing, available at eLighthouse.info). The Governor is only making the argument that it violates Maryland’s Constitution. He should also make the argument that it violates the Equal Protection Clause of the U.S. Constitution’s 14th Amendment, with its embodiment of the core democratic and widely accepted principle of political equality as understood since the Civil Rights Revolution of the 1960s. You can farm out lots of advisory and other government positions to private stakeholders, but the Federal courts won’t let you do that with a school board nominating commission with binding powers.
In his comment, Governor Hogan alluded to the violation of political equality when he said: “In addition to the serious legal problems, the bill would also create a panel made up almost entirely of unelected, unaccountable advocacy organizations, lobbying groups and political operatives, who under this bill would then select the members of the Anne Arundel County Board of Education.” But he doesn’t seem to know that the courts have since the Civil Rights Revolution interpreted the Equal Protection Clause to guard against just this type of abuse (admittedly, it’s a pretty obscure application of the new Equal Protection jurisprudence).
As for the claim, “Clearly the bill is constitutional — the attorney general found that from the outset,” the AG’s opinion on the original SBNC bill was a political hack job. There is a reason why the courts, not an attorney general, has final say on what is and is not constitutional.
Washington Post News Article
Witte, Brian, Gov. Hogan largely bypasses veto showdown with legislature, April 5, 2016.
This article doesn’t report that Hogan vetoed the Anne Arundel school board elections bill because, according to his legal advisors, it violates Maryland’s Constitution. I believe it also violates the Equal Protection Clause of the U.S. Constitution’s 14th Amendment, with its embodiment of the core democratic and widely accepted principle of political equality as understood since the Civil Rights Revolution of the 1960s. You can farm out lots of advisory and other government positions to private stakeholders, but the Federal courts won’t let you do that with a school board nominating commission with binding powers.
Capital News Article
Yeager, Amanda, Anne Arundel lawmakers have mixed reactions to overrides of Hogan vetoes, April 7, 2016.
Darryl Barnes, D-Prince George’s County, noted that Hogan’s five appointments to the nominating commission were all white, “even though 40 percent of the enrollment of the school system is made up of minorities.”
This statement by Barnes, while technically true, is nevertheless misleading. For only three of the five appointments did the Governor have any influence on the nominees submitted to him. The first two were nominated by the previous SBNC appointed by the previous governor. When the decision framework is recast that way, two-thirds (67%) of Hogan’s appointments were minorities.
Del. Pam Beidle, D-Linthicum: “My hope is that the changes to this nominating commission will take the politics out of the nominating commission…”
The contempt for the democratic process revealed in this statement is remarkable. The notion, widely accepted by representatives of both political parties in our county (as well as by this newspaper), that appointment to an electoral body by private stakeholder groups is better than by elected officials, literally takes my breath away. This is the type of democratic theory I’d expect to see in countries like Russia, Iran, and Cuba, not the United States. Here is how I’d rephrase the statement, focusing on its practical effect: “My hope is that the changes to this nominating commission will take democratic accountability out of the nominating commission…”
@Snider I believe Mr. Barnes is referring to the governor appointments to the nominating commission itself, not appointments to the school board. Hogan appointed 5 white commissioners to the nominating commission.
@bucketlist Yes, upon rereading, I think you are right. As it turns out, Hogan has appointed five members to both the nominating commission and the board of education. I would suggest that it would be most appropriate to apply the diversity rationale to the final appointments rather than the commissioners. After all, the final appointments are the bottom line.
The new interpretation creates its own set of logical problems, which I believe are more severe than in the previous interpretation. Notably, four of the five stakeholder groups have appointed no minorities since 2008. The stakeholder groups make annual appointments rather than four year appointments, so have now had nine opportunities each (for a total of 36 opportunities among the four groups) to appoint a minority. If Barnes is talking about commissioners, which I now think he is, I don’t know why his logic shouldn’t also apply to the stakeholder groups. With this new interpretation, he seems to be applying a double standard: one standard for the governor and another for four of the five stakeholder groups. I would be very interested to see how Barnes would defend this double standard in a public forum. Given that it probably couldn’t survive the light of day (assuming my facts are correct, and I’m relying on my memory here), my guess is that he would say he really meant something else.
An additional irony is that during all his years in office Republican Leopold appointed a minority for his one representative on the commission, as did Republican Schuh during the first election cycle during his first year in office.
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