I have questioned the “diversity” on the Alabama Constitutional Reform Commission (see here, here and here) before. An article in the Tuscaloosa Times, with the headline “Alabama Constitutional Revision Commission doesn’t reflect mandated diversity” raises the same issue today:
According to the resolution, commission membership “shall be inclusive and reflect the racial, gender, geographic, urban/rural, and economic diversity of the state.”
. . .The appointees as a group — lawyers, mostly white urban residents, and three women — don’t appear to strictly conform to the resolution’s membership requirement.
Marsh said the diversity language is fairly standard and he had several applicants, including a minority female, whom he appointed.
“I tried to follow the intent of the law,” Marsh said. “I think the intent was to do that, but you can’t maintain that every time.”
Hubbard spokesman Todd Stacey said Speaker Hubbard had “good intentions.” For Sen. Marsh and Speaker Hubbard: “It’s the thought that counts.”
The catch: the resolution used the word “shall.” According to Alabama law (for instance, see Ex Parte Joe Looney, Jr. 797 So.2d 427 Ala. 2001),
The word ‘shall’ has been defined as follows: “ ‘As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term “shall” is a word of command, and one which has always [been given] or which must be given a compulsory meaning; as denoting obligation. The word in ordinary usage means “must” and is inconsistent with a concept of discretion.’
With only one African-American member out of 16, I doubt any court would find that the diversity mandate has been satisfied. Considering the history of the current Constitution and its racist origins, you would think Hubbard/Marsh would try to avoid even the appearance of impropriety.
But it the make-up of the commission also fails to satisfy the elements of diversity in “gender,” (
3 4 out of 16), “geographic,” (only one north of Birmingham if you count Gov. Brewer), “urban/rural” (only one rural if you count Gov. Brewer again), or “economic.” (no one from the Black Belt.)
Where are the calls for public hearings on appointments of this commission from Republicans as in May? Where are the inquiries into financial contributions into these appointees? Since Alabama Power has their registered lobbyist on the commission, is it improper to explore how much the company contributed to Hubbard, Marsh, Bentley, and GOP?
Sen. Marsh said he had “several applicants.” Who were these applicants? How were applications submitted? In what manner was the applications solicited? What was the criteria for appointment. Were interviews even conducted?
Just two months ago, Senator Marsh was so concerned about “process” that he demanded a do-over of the selections by Gov. Bentley of appointees to the Auburn Board of Trustees, Marsh said:
‘I’m not pleased with the process that got us here, and I’m not alone,” said Marsh, a Republican from Anniston. ‘I think we can do better.’
The problem that I and other senators have is that the process was conducted way too quickly, and it wasn’t as transparent as it could have been,” he said.
Because of a lack of transparency, he threatened to shut the whole the process down in the Senate.
Marsh said his decision to force a do-over was strictly about the process, and that he had no objection to any particular nominees.
“Nothing personal against any of them. In fact, they could all be re-submitted if that is the will of the university,” he said. “But they need to take a more open approach. The consensus for that is strong.”
Senator Marsh, we need a do-over on this Commission as well: a more transparent process, a more open approach, and one which conforms to the requirements of the enabling resolution. We need a process that establishes a commission which is “inclusive and reflect the racial, gender, geographic, urban/rural, and economic diversity of the state.