Proponents of Prop. 209 Misled California Voters It Sought to Repeal Affirmative Action, Said a Judge

Article excerpt

The day before Thanksgiving, Federal Judge Thelton Henderson made national news by blocking California's controversial anti-affirmative action measure, approved by a margin of 54-46 on Nov. 5.

Gov. Pete Wilson denounced Judge Henderson's decision as "absurd," saying "the will of the voters ultimately will prevail." Judge Henderson said "it is not for this, or any other, court to lightly upset the expectations of voters," but insisted "the issue is whether {Proposition 209} complies with the laws of our Constitution."

Governor Wilson and Judge Henderson, apparently on opposite sides of the issue of Proposition 209's constitutionality, nevertheless share a fundamental - and dubious - assumption: that a referendum on affirmative action took place in California and voters there decided the time had come to end it. A Los Angeles Times exit poll of more than 2,000 voters strongly suggests that many Californians mistakenly thought a vote for 209 was a vote for affirmative action. According to data provided by the Times, 27 percent of those who voted for 209 - well over 1.3 million voters - also voiced support for "affirmative-action programs designed to help women and minorities." If even half of these pro-affirmative action Californians voted for 209 - dubbed the "California Civil Rights Initiative" by its proponents - out of confusion, their numbers alone would have reversed the outcome, bringing the vote against 209 to more than 53 percent. Had 209 been forthright about its anti-affirmative action intent, Californians would have rejected it. The myth that Proposition 209, whose text never mentions affirmative action, was a referendum on the issue has been embraced by both Democrats and Republicans. President Clinton referred to being "on the losing side of that referendum out in California on affirmative action." Offering the same interpretation from a different political perspective, conservative Republican Linda Chavez opened a post-election essay on 209 with the claim that "for the first time in the 30-year history of affirmative action programs, voters finally got their chance to voice their opinion on the controversial policy." Proposition 209's sponsors fought ferociously to keep the very words "affirmative action" off the ballot. In July, an alliance of civil-rights organizations, including the NAACP Legal Defense Fund, filed suit, claiming the title and summary of the measure written by California's Republican Attorney General Daniel Lungren failed to disclose the measure's "actual purpose and point." "Objective, nonpartisan polling," the suit claimed, showed that many voters "did not realize that the measure eliminated affirmative action." Superior Court Judge James T. Ford agreed, ruling that Proposition 209's "aim and chief purpose is to repeal affirmative-action programs in California as they have developed over the past 25 or so years. …