Prometheus 6

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 proposed amendment to Missouri's constitution is sponsored by the Missouri Civil Rights Initiative, spawn of Ward Connerly.

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.

The Solid South has its own rules for racial issues.

The "ballot language" is the description of a measure that is next to the lever or checkbox. Let's take a look at that language.

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.

The proposed amendment to the state constitution bans affirmative action, except in those cases where it is profitable to the state. I don't think I need to pass judgment on the idea this embodies. You know where I'm at with it.

This is the language the Connerly-Spawn would present to voters.

“Shall the Missouri Constitution be amended to prohibit any form of discrimination as an act of the state by declaring:

“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?”

No mention that you can still do it when the state gets paid to do so. This is how Robin Carnahan would describe it.

“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; and

“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?”

This is exactly the provision under discussion, and I think those who want to vote to end affirmative action should know they are not closing the door with this vote...and that closing that door will prevent them from participating in a great number of federal programs.

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.

This is cool because we WANT folks to know they're banning affirmative action, right? But the judge decided to actually rewrite, rather than reject, the ballot language.

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."

I can see the judge rejecting the original language...well, not really, but there's other ways of writing it up that meet the full disclosure standard while addressing Judge Callahan's concern.

“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; while (a) retaining those necessary to meet federal program funds eligibility standards (b) creating new ones as necessary to meet future federal program funds eligibility standards and (c) recognizing preferential treatment for bona fide qualifications based on sex?”

You think that would pass?