When California's board gender quota bill, SB 826, was introduced last January, I raised several questions:
- Would such a requirement be constitutional?
- Can the requirement be constitutionally applied to foreign publicly held corporations?
- Will this bill be followed by other bills mandating board composition based on other elements of diversity such as race, sexual orientation, ethnicity, marital status, or age?
- What about California's new, third gender category (See California Law May Spur Rewriting of Gender Boilerplate)?
As the bill wended through the legislature, most of these questions were debated, but none were resolved. Yesterday, Governor Brown signed the bill into law. His signing message acknowledged that the bill may never be implemented:
"There have been numerous objections to this bill and serious legal concerns have been raised. I don't minimize the potential flaws that indeed may prove fatal to its ultimate implementation."
It turns out that Governor Brown's approval, which came on the last day on which he could sign bills enacted in this session, may have been influenced by the battle in the U.S. Senate Judiciary Committee over the nomination of Judge Brett Kavanaugh:
"Nevertheless, recent events in Washington, D.C.--and beyond--make it crystal clear that many are not getting the message."
Lest there be any doubt about this reference, Governor Brown copied the United States Senate Judiciary Committee on his signing message.
Although SB 826 may be challenged on several unrelated constitutional grounds, I wouldn't be surprised to see a successful challenge mounted in the Delaware courts on the basis of the "internal affairs doctrine". See Why California's Gender Quota Bill Is More Likely To Be Unconstitutional Than California's Pseudo-Foreign Corporation.