Voters in Nebraska approved a ballot initiative last week, 58 percent to 42 percent, aimed at eliminating government-sanctioned discrimination on the basis of race and gender under the banner of affirmative action. A similar measure in Colorado, however, went down by a narrow margin, 50 to 49 percent.
Voters in three other states – Missouri, Arizona and Oklahoma – did not get the chance to vote this time.
Ward Connerly, chairman of the American Civil Rights Institute (ACRI) and the primary architect of the initiatives, hopes to qualify in those states by 2010, with plans for initiatives in several others.
“While we were disappointed we didn’t get more of the initiatives on the ballot this year, this was expected,” Connerly told CNSNews.com.
The Nebraska victory follows on the heel of victories in California in 1996, Washington state in 1998 and Michigan in 2006.
“It took us four years to succeed in California and over three years to succeed in Michigan,” Connerly said. “Likewise, we will eventually succeed in Arizona and Missouri and we could go back to Colorado depending upon what happens there. The victory in Nebraska certainly gives us added momentum.”
Both the Nebraska Civil Rights Initiative and the Colorado proposal hewed closely to California’s Proposition 209, which Connerly had launched when he was a member of the University of California Board of Regents.
In Colorado, which Barack Obama carried by a margin of 53 to 45 percent, the influx of new voters may have helped to tip the scale against the initiative, Connerly said.
Moreover, the state ballot in Colorado became too congested with voters being asked to approve or reject a total of 14 different measures.
Super Tuesday for Equality’ Tied Up in Court
The 2008 initiatives in Colorado and Nebraska were part of a larger campaign called “Super Tuesday for Equality” which did not materialize.
Backers of initiatives in Missouri, Arizona and Oklahoma were forced into time-consuming legal challenges, Connerly explained in an interview. Even after prevailing in court, they simply did not have enough time to collect the required number of signatures for the initiatives to be placed on the ballot.
Missouri’s legal battles highlighted the chief difficulty the campaign had in 2008 -- getting state officials to accurately summarize the intent of the initiatives for voters.
“It took us seven months to get a favorable decision from the judge [in Missouri] who would, in unprecedented fashion, overrule the secretary of state,” Connerly said. “The problem is the legal decision was not final till February and we only had until May 4 to get the necessary signatures and that was not enough time.”
In January, Missouri Circuit Court Judge Richard Callahan ruled in favor of Connerly’s group, which had challenged the language used by Secretary of State Robin Carnahan to describe the ballot question.
Under state law, the secretary of state is required to write up to 100 words that explain proposed constitutional changes on the ballot in a manner that is widely understood.
Carnahan’s official summary read in part as follows:
“Shall the Missouri Constitution be amended to: ban affirmative action programs designed to eliminate discrimination against, and improve opportunities for women and minorities in public contracting, employment and education . . . ”
But this wording was highly deceptive and would have been confusing to voters, Connerly said.
“It was written in such a way as to make it sound like we would ban affirmative action programs that prevent discrimination against minorities and women,” Connerly said,
“But the actual language makes it clear the initiative would prevent the state from discriminating against individuals or groups on the basis of race, sex, color, gender or ethnicity,” he added.
Tim Asher, executive director of the Missouri Civil Rights Initiative (MCRI), argued in the lawsuit that Carnahan’s summary was “argumentative, prejudicial and untrue.”
The language for the Missouri amendment was nearly identical to what voters approved in Nebraska.
It read: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.”
Though the Missouri judge allowed the phrase “affirmative action” to be inserted, he made it clear to prospective voters they would be rejecting set-asides and quotas if they approved the amendment
The re-drafted question read: “Shall the Missouri Constitution be amended to: Ban state and local affirmative action programs that give preferential treatment in public contracting, employment, or education based on race, sex, color ethnicity, or national origin . . .”
The judge’s rewording was “fair and equitable,” according to Asher.
The court victory in Missouri, meanwhile, puts supporters in a strong position to come back and try again in 2010, Connerly suggested.
“We will file the same initiative with the same language,” he said. “We don’t know which way the secretary of state will go. Will she be defiant, or will she follow the court precedent? I’m inclined to think we are in a strong position with the court ruling. We have a strong foundation in Missouri and in Arizona.”
Connerly said the campaign will try again in Arizona in the 2010 election -- but not Oklahoma where state officials use a methodology that is “fundamentally impossible” to navigate, he pointed out.
Connerly also sees prospects in Utah and anticipates adding at least one more state.
“We have already won in the hearts and minds of the American people,” he said. “This is a 70 to 30 issue with 70 percent of the public opposed to race-based affirmative action.”
More than 20 states have provisions for ballot measures that could be added to the list in future election cycles. ACRI will announce its plans for 2010 by the end of November.