SANDAG: Not Only Undemocratic, but Nearly Unconstitutional.

In the last post, I wrote about how SANDAG's structure makes in undemocratic.  In a nutshell, the way that the Board of Directors is structured under state law makes it so the tiny cities have just as much power as the large cities, meaning that the a small-city resident's "vote" for their SANDAG representative means more than the "vote" of a large-city resident.  The gist of the post is that this is generally unfair and results in skewed results that do not reflect the wishes of the majority of San Diego County residents.

I looked at the issue a little more, and it turns out the SANDAG seems to be pushing the very limits of being constitutional.  To illustrate, let me tell you a few stories.  But first, a warning:  this is pretty wonky.  If you came here to read about bike lanes or stadium plans, turn around now.  No one will blame you.  Also (spoiler alert), it seems the laws creating SANDAG would pass muster in courts; I'm not trying to say that SANDAG should be struck down by a court.  If you want a real legal opinion, find a lawyer that specializes in constitutional law.

First, the California State Senate.  Like many state legislatures, California's legislature consists of two houses, originally modeled on the federal Congress.  Since 1862, the State Senate has 40 members and is the "upper house" of the bicameral state legislature. Whereas assembly members represent equal districts, the state Constitution mandated that each county could have no more than one Senator.  Thus, by the 1960s, Los Angeles County (population around 6 million people) has one senator, as did the 14,000 residents of tiny Alpine County.  Not exactly fair.  The United States Supreme Court, however, changed all that when it decided the case of Reynolds v. Sims in 1964.

Reynolds involved the Alabama Senate, which was similar to the California Senate.  The Supreme Court held that such a system is unconstitutional.  As the court explained, the Equal Protection Clause found in the Fourteenth Amendment enshrined the principle of "one person, one vote."  The court explained that "Since the achieving of fair and effective representation for all citizens is concededly the basic aim of legislative apportionment, we conclude that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators. Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race . . . or economic status... . Our constitutional system amply provides for the protection of minorities by means other than giving them majority control of state legislatures. And the democratic ideals of equality and majority rule, which have served this Nation so well in the past, are hardly of any less significance for the present and the future."

After Reynolds, the Senate districts were reapportioned to create districts of roughly equal size.  Result: when it comes to the state legislature, the constitution requires each senator to represent roughly the same number of people.

Second, a story about a regional association based on geographical representation.  In New York City, there was this thing called the Board of Estimate.  The Board had various powers, including deciding zoning issues, negotiating city contracts, setting water rates, and many other functions.  Its members included the Mayor, Comptroller, and City Council President.  Each of those members were given two votes.  Also, the Board included the Borough Presidents from the City's five boroughs, each having an equal vote.  Thus, Brooklyn, with a population over 2 million people, had the same power as Staten Island, with a population of about 350,000.

No one "voted" for a Board of Estimate member directly, they just voted for their Borough President, who was then automatically appointed to the Board.  Despite the lack of a direct election, the Supreme Court again decided that such a structure violated the Equal Protection Clause of the Constitution.  The Court again explained, "If districts of widely unequal population elect an equal number of representatives, the voting power of each citizen in the larger constituencies is debased, and the citizens in those districts have a smaller share of representation than do those in the smaller districts. Hence, the Court has insisted that seats in legislative bodies be apportioned to districts of substantially equal populations."

The court explained that even though the Board of Estimate was a relatively  low-level entity, that did not insulate it from the "standard of substantial voter equality."  Also, even though the citizens did not directly elect the Board of Estimate members, the fact that they became members "as a matter of law" upon their various elections means that the "one person, one vote" requirement applies.  Result: local boards with members representing areas of unequal populations are unconstitutional if the law mandates that the representatives are certain elected officials from those areas.

Third, a story about SANDAG.  As explained in the last post, SANDAG has a wide range of authority, presiding over a budget of more than a billion dollars.  Like the Board of Estimate, SANDAG is controlled by a Board representing each smaller geographic entity inside the county, with each Board member generally having an equal vote.  Given the hugely disparate sizes of the cities, some SANDAG Board members have power, when based on the population they represent, that exceeds 162 times that of other Board members.  This is far more extreme than the voting disparity for the New York Board of Estimate. 

Unlike the unconstitutional New York Board of Estimate, however, the state law creating SANDAG does not mandate, as a matter of law, that the mayor of each city become a member of the SANDAG Board.  Instead, each city council gets to pick.  It seems this minor distinction makes SANDAG's structure constitutional on its face.  Maybe an expert lawyer could tell us otherwise.

But this does not mean the effect, in real-world application of SANDAG, is any different than the unconstitutional Board of Estimate.  A majority of the SANDAG Board consists of mayors of the respective cities, and it seems that usually over 70% of the member cities appoint their mayors.  If the SANDAG law required mayors to automatically be board members, it would probably be unconstitutional.  But because a city could conceivably appoint someone else (and, admittedly, they often do), SANDAG is probably ok in the courts.  However, even if SANDAG structure, on its face, is legally permissible, does that mean that we should be ok with SANDAG when the reality is that it operates in a fashion nearly identical to entities that have been defined as unconstitutional?

And that's just considering the issue of constitutionality on the "one person, one vote" metric.  The structure also offends other notions of equal opportunity.  As I discussed, the state law limits the possible members of the Board of Directors to current city mayors or council members (or members of the County Board of Supervisors).  For current elected officials, that means there is a pool of 95 potential candidates for the SANDAG Board.

Of those 95 potential candidates, only 32 percent are women, only 17 percent are non-white, and only 14 percent are hispanic.  Looking at the actual appointed Board members, the representation is no better.  This is in stark contrast to the entire county population, which is 49.8 percent female, 52 percent non-white, and 32 percent hispanic.  

No one would say that elected officials must mirror the demographics of the electorate, this is of course not true either under the law or in practice.  But it is a problem when state law makes it impossible for minorities to achieve equal representation.  If the California state law mandated that the SANDAG Board could not be more than 17 percent non-white, everyone would protest.  But this is the reality today.  The fact that is it obscured in procedural rules shouldn't change the effect.

By its structure, SANDAG dilutes the votes of citizens of the larger cities and denies the opportunity of women and minorities to serve on the Board. To me, this seems like a problem.  Perhaps it also explains the problems with the transportation system in our county.