Affirmative action ballot language unfair, judge rules

Monday, January 7, 2008 | 10:02 p.m. CST; updated 2:10 p.m. CDT, Tuesday, July 22, 2008

JEFFERSON CITY — 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 also had filed a legal challenge against the ballot measure’s cost estimate. But Callahan rejected their claims.

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

“Obviously, we’re thrilled about it,” Asher said. “It gives us something we can go out and give the voters of Missouri, so they know what they’re voting on.”

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

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 contracting, 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.”

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