Last week I wrote about the need for change in portions of California water law that permit large landholders to call the shots, whether in drought or flood, to the disadvantage of smaller-scale farmers, farmworkers and other rural residents, as well as the public servants we elect and hire to protect our interests—i.e., the ordinary people we live among. This week I want to tell you why there’s hope for that change.

The primary reason is that the arguments are coming apart that they’ve used to hold those legal provisions in place. The sections of California water code which say that certain water districts can be governed by 1) only people (including corporations) who own agricultural land within the district boundaries and that 2) their votes will be weighted by how much property they own were initiated in the 1913 California Water District Act. That act was passed to take power away from the irrigation districts formed earlier under the Wright Act of 1887, the state legislature’s first comprehensive enabling act for water district organization. The Wright Act defined all registered voters to be eligible in district formation, not just property owners, and their votes were counted equally, i.e., one-person, one-vote. We currently have both kinds of districts in the Central Valley, although the issue of non-landowners’ voting rights has become clouded.

Most of us take offense when we hear that, in some places, decisions over water are made according to how much land you own rather than by how many people are affected. It’s un-American, and certainly reduces America’s greatness. For people of wealth, of course, who believe their bounty trickles down to us eventually and so is good, it seems natural and right. However, understanding that we have both forms of district organization built into our water code—a democratic form and an undemocratic one—is the first step in seeing the possibility for undoing the harmful one.

The second step is understanding the influence of time. The most important judicial decision about the legality of property-weighted voting came from our region in the court case Salyer Land Co. v. Tulare Lake Basin Water Storage District (1973.) The case derived from the Tulare Lake flood of 1969, in which the Boswell corporation, which held the majority votes in the TLBWSD, flooded out their neighbors first, including Salyer, the other ag giant—at which point the inequity of even Salyer’s large-but-lesser votes became apparent. Salyer, being feisty, organized the neighbors and took the case all the way up to the U.S. Supreme Court, where they lost, 6-3.

Justice Rehnquist, who wrote the majority opinion, declared that the disproportionate effect of the district’s activities on the landowners meant that the weighting of votes according to property was appropriate; the decision also said that the Equal Protection Clause of the Fourteenth Amendment was not violated “by totally excluding those who merely reside within the district.” Justice Douglas, who wrote a scathing dissenting opinion, detailed the impacts on those who were flooded out, as well as other costs of Boswell’s corporate control, and then said this: “The result has been calamitous to some who, though landless, have even more to fear from floods than the ephemeral corporation….Landowners—large or small, resident or nonresident, lessees or landlords, sharecroppers or owners—all should have a say. But irrigation, water storage, the building of levees, and flood control, implicate the entire community. All residents of the district must be granted the franchise” (to vote.)

In subsequent cases, courts have meandered toward a tipping point at which the property-weighted voting system must shift to the one-person, one vote requirement: the degree to which the district serves more than just irrigation of farmland. With the passage of the Sustainable Groundwater Management Act in 2014, in which any public agency may self-appoint and serve as the groundwater management agency, those conditions have arrived. Writing in 2017, historian and legal scholar Louise Dyble argued that districts with property-weighted voting should not be allowed to act in that capacity, although many GSAs already have such districts participating, if not dominating. “The powers that the California legislature has delegated through SGMA trigger the ‘one person, one vote’ standard, and therefore landowner-elected special districts and agencies governed by their delegates may not serve as GSAs.”

There are two issues here, entangled together. The first is who qualifies as a voter: only owners of agricultural land, or all registered voters of the county in which the district is formed (which excludes absentee owners of land). The second is how those eligible voters’ votes are distributed: one-person, one-vote, or weighted by how much property is owned. The second is the most flagrant violation of American principles of equality; it harkens back to the English feudal system most of our ancestors fled, seeking someplace to be free of the inequities it wreaks on the countryside and its people. The first, however, is probably the one that will take us back to the Supreme Court, or beyond to the great judge under which we claim to live, indivisible, with freedom and justice for all.

Trudy Wischemann is a rural researcher who writes. You can send her your Fourteenth Amendment concerns c/o P.O. Box 1374, Lindsay CA 93247.

This column is not a news article but the opinion of the writer and does not reflect the views of The Sun-Gazette newspaper.

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