Capital Editorial

Editor’s notebook: Stampede for a seat, July 26, 2017

Snider Comment

“It will be interesting to see who is picked as the last through the appointive gate before the era of school board elections starts.”

Not quite. The era of the School Board Appointment Commission will continue after the era of school board elections starts, so the proper description would be the mixed era of appointment and elections.

Since it is more than ten hours since I submitted the following online comment to the Capital’s July 24 article on the new commission without the Capital publishing it, I will resubmit it here. It was submitted in response to a question to me from another commenter.

@JH_Sinder: Why, in your judgment, is the new School Board Appointment Commission, “much more corrupt”?

On the corruption issue, six of the eleven previous commissioners were appointed by elected officials. That was a majority of the School Board Nominating Commission. This time it is only two of thirteen. That’s 15% of the School Board Appointment Commission. The American system of democracy is not to delegate elections to private organizations. It’s fine for unelected stakeholders to be on advisory committees. But it’s taboo for them to control electoral bodies. That’s a very important red line to cross, and this body crosses it with abandon. That’s the democratic theory answer to your question.

There is also a legal theory that is ultimately derived from such democratic norms. I believe that if it was in someone’s interest to sue about this appointment system, there would be a high probability that courts would view it as a violation of the Equal Protection Clause of the U.S. Constitution (the principle of one-person, one-vote) and possibly a clause in Maryland’s Constitution. But it’s in no powerful organization’s self-interest to bring such a suit, so it won’t happen. For details, see my extended discussion on of the Baker v. Carr line of U.S. Supreme Court Cases implementing the Equal Protection Clause beginning in the early 1960s.

Three additional points: First, the previous system by statute only required a majority for nomination. This time a supermajority (8 of 13) are statutorily required, giving a minority veto power over election to a general purpose public body (school boards have traditionally been considered a general purpose public body). I know of no other electoral body in Maryland where a minority is statutorily empowered to control the election to a general purpose public body–but I could be wrong about that. Second, in the previous system the commission only had nominating power; this time it has appointment power–a big enhancement in its power. Third, previous appointments were subject to a retention election at the next general election; that requirement has been removed. On the other hand, the new commission won’t control the entire school board’s selection.