Judge rewrites ballot language on proposed affirmative action ban

Tuesday, January 8, 2008

JEFFERSON CITY, Mo. -- A judge on Monday rewrote the ballot language for a proposal banning most government affirmative action programs in Missouri, striking down a version originally crafted by Secretary of State Robin Carnahan as unfair.

Supporters of the ballot measure rejoiced in the ruling, but Carnahan vowed to appeal.

Cole County Circuit Judge Richard Callahan called Carnahan's description of the ballot proposal "troubling." It wrongly gave the impression that voters would be authorizing new kinds of preferential treatment programs, if they passed the measure, instead of doing away with them, the judge said.

The ruling came in response to a lawsuit filed by backers of the proposed constitutional amendment. Opponents had filed a legal challenge against the ballot measure's financial estimate, claiming it failed to account for potential costs. But Callahan rejected their claims.

Missouri is one of five states -- along with Arizona, Colorado, Oklahoma and Nebraska -- where affirmative action critic Ward Connerly and his supporters are pursuing ballot initiatives this year.

Connerly, a former University of California regent, was a key force behind that state's successful ballot measure banning considering of race and gender in public hiring, contracting and school admissions in 1996. Since then, similar proposals have passed in Washington and Michigan.

The sponsors of the Missouri ballot measure had been waiting to gather the petition signatures necessary to make the November ballot. As a result of the ruling, canvassers will soon begin soliciting signatures from registered voters, said Tim Asher, executive director of the Missouri Civil Rights Initiative.

The ruling appears unique. No appeals court has ever changed the ballot language for a Missouri initiative, said Jefferson City attorney Alex Bartlett, who has handled numerous initiative petitions over the past several decades but is not involved in the affirmative action case. Bartlett said he also does not know of any previous circuit judge who has rewritten a ballot summary.

Nonetheless, Connerly called it "a decisive ruling" that should be upheld by the Missouri Court of Appeals and ultimately by the state Supreme Court.

Attorneys for opponents "and the secretary of state were trying to keep this off the ballot with perverse language," Connerly said.

Carnahan issued a written statement defending her stricken ballot summary as fair and accurate.

Some opponents claimed the judge's version is more misleading than the original.

"I think Callahan's language gets overly simplistic," said Jim Kottmeyer, an attorney and adviser for an informal opposition coalition that he said includes labor unions and the Washington, D.C.-based Leadership Conference on Civil Rights.

The proposed constitutional amendment never uses the words "affirmative action." But it would prohibit state and local governments from discriminating against, or granting preferential treatment, to people on the basis of race and sex in public employment, education and contracts. It includes a few exceptions, such as for program eligibility guidelines necessary to receive federal funding.

Although supporters of initiative petitions write the language of their own measures, the secretary of state's office writes the summaries that actually appear on the ballot. Consequently, supporters and opponents of controversial measures frequently file suit on claims that the state's summary is unfair or insufficient.

In this case, Carnahan's summary said the measure would "ban affirmative action programs designed to eliminate discrimination against, and improve opportunities for, women and minorities in public contacting, employment and education."

Callahan upheld the general description of the measure as banning affirmative action programs. What the judge cited as troubling was a second bullet point in Carnahan's description, which said the measure also would "allow preferential treatment based on race, sex, color, ethnicity, or national origin to meet federal program funds eligibility standards as well as preferential treatment for bona fide qualifications based on sex."

The judge said the language suggested the amendment would do away with one class of preferential treatment programs and then replace it with some other kind.

Callahan ordered new ballot language, which asks whether the constitution should be amended to: "Ban state and local government affirmative action programs that give preferential treatment in public contracting, employment or education based on race, sex, color, ethnicity or national origin, unless such programs are necessary to establish or maintain eligibility for federal funding or to comply with a court order."

Kottmeyer claimed voters could be confused because the judge removed the description of affirmative action programs as being "designed to eliminate discrimination against, and improve opportunities for, women and minorities."

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