Missouri judge strikes down affirmative action measure

Saturday, June 27, 2009

JEFFERSON CITY, Mo. -- A state judge Friday struck down a proposed constitutional amendment limiting affirmative action programs in Missouri, and supporters may have to start from scratch to get it on the 2010 ballot.

Cole County Circuit Judge Richard Callahan said Secretary of State Robin Carnahan should have rejected the proposal because of a technical flaw in its wording. The judge also said the ballot summary approved by Carnahan was inadequate and unfair.

The most likely consequence is that supporters will have to submit a revised version of the initiative to Carnahan's office, which then would have to write a new summary to appear on petition-signature sheets and the ballot.

The ruling also could be appealed either by the state or supporters or opponents of the ballot measure, both of whom had sued.

The Missouri ballot proposal would bar the state from granting preferential treatment to individuals based on race, ethnicity or sex in public employment, education or contracting. It allows exceptions for some federal programs and court orders.

The proposal is similar to one that failed to get enough signatures to qualify for Missouri's 2008 ballot. Other similar measures passed last year in Nebraska but failed in Colorado.

The 2010 version of the initiative says it would create a new section in the Missouri Constitution.

But Callahan noted in his ruling that a section with the same number was created by a 2008 voter-approved measure declaring English the official language for government proceedings.

In striking down the affirmative action measure, the judge said its supporters could submit a revised proposal creating a section with a different number. If the intent was to replace the English language amendment with the affirmative action amendment, that must be stated in the text of the measure, the judge said.

Affirmative action initiative sponsor Tim Asher, a former admissions director at North Central Missouri College in Trenton, did not immediately return a telephone message Friday.

Carnahan's spokesman Ryan Hobart said the office is considering an appeal. The ruling about the numbering of the ballot measure runs contrary to an earlier court order, he said. He also defended the summary written by Carnahan.

"We maintain that our language is sufficient and fair and describes how the proposed amendment would affect state law and the constitution," Hobart said.

Callahan ruled the original summary was unfair because it wrongly implied the measure would address two separate goals -- one banning certain "affirmative action programs" and another allowing certain types of "preferential treatment."

He revised the summary to say the measure would ban affirmative action, "unless such programs are necessary to establish or maintain eligibility for federal funding, to comply with an existing court order, or consists of bona fide qualifications based on sex."

Callahan's revised summary may moot if initiative supporters decide to submit a new proposal to the secretary of state's office.

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