Jefferson City – A ballot initiative that seeks to ban affirmative action programs in Missouri encountered a hurdle Monday in Cole County Circuit Court, where Judge Richard G. Callahan heard two cases concerning the proposed constitutional amendment bundled into one, day-long hearing.
In one case, the Missouri Civil Rights Initiative, which is proposing the ballot initiative, claims that the summary language and title for the initiative provided by Secretary of State Robin Carnahan (and approved by Attorney General Jeremiah “Jay” Nixon) is inaccurate and unfair.
In the other case, two Missouri citizens claim that the fiscal note attached to the ballot initiative, prepared by state Auditor Susan Montee, is inadequate and inaccurate.
The Missouri Civil Rights Initiative claims Carnahan is misleading voters. Its counsel, David G. Wasinger, argued Monday that Carnahan’s summary language includes the phrase “affirmative action,” which is not used in the language of the proposed constitutional amendment.
Jack McManus, who was chosen by Nixon to represent Carnahan, argued that the language of the ballot summary represented the intent of the proposed amendment, if not its verbatim language.
The Missouri Civil Rights Initiative had suggested the following ballot summary:
“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?”
Presented with this language in court, Judge Callahan pointed out that such discrimination already is prohibited by existing law.
McManus built upon the judge’s observation by saying Carnahan had crafted ballot language that reflects what actually would change if the amendment were to be voted into law on the November 2008 ballot.
“The amendment is geared to eliminate considerations of race, ethnicity and gender – those programs commonly known as ‘affirmative action,’” McManus argued.
“That’s what it is, and people will know what this is about when they look at the summary.”
Carnahan’s ballot summary language reads:
Shall the Missouri Constitution be amended to:
1. ban affirmative action programs designed to eliminate discrimination against, and improve opportunities for, women and minorities in public contracting, employment and education; and
2. 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?
Wasinger did not dispute the fact that the amendment would eliminate a large number of affirmative action programs, such as scholarships earmarked for minority students and requirements for a minimum amount of participation in development projects by minority-owned and women-owned businesses.
However, Wasinger argued that affirmative action also describes “outreach efforts to find the most qualified candidates” that do not mandate any minimum amount of placement of minority or women candidates. The amendment would not ban any such outreach effort that was not tied to minimum goals based on race or gender.
Wasinger said that his client thought including the phrase “ban affirmative action programs” in the ballot summary would hurt the likelihood of the amendment being passed into law.
“The vast majority of Missourians are for affirmative action,” Wasinger said, without offering any evidence.
The judge said he did not share that assumption.
Partisan politics play a crucial backdrop to these cases. The Missouri Republican Party is expected to use this ballot initiative – which is part of a well-funded, national effort spearheaded by Ward Connerly – to drive people to the polls in an effort to re-elect incumbent Republican Governor Matt Blunt and keep a Republican in the White House.
Carnahan, who wrote the ballot summary, is a Democrat from one of the most important Democratic families in the state. Nixon, who approved it, will be the Democratic challenger to Blunt for governor.
Wasinger was appointed by Blunt to the University of Missouri Board of Curators in 2005. Ample evidence was presented in court on Monday that, if passed, the amendment would end many affirmative action programs at the University of Missouri.
In its formal “Statement of Nondiscrimination,” the university system that Wasinger still serves declares itself “an Equal Opportunity/Affirmative Action institution.”
Judge Callahan told the American on Tuesday not to expect a ruling on the two cases before the end of the year. Depending on the rulings, Carnahan may have to provide a new ballot summary and title, and Montee may have to provide a new fiscal note and summary.
Even if the Missouri Civil Rights Initiative resolves its case with a ballot summary that it deems more fair and more likely to succeed, the court process will have delayed strategically the signature-gathering effort that must be completed before the amendment gets placed on the November 2008 ballot.
To make it on the ballot, the initiative will need 8 percent of the gubernatorial votes cast in the last election (2004) in six of nine Congressional districts. Depending on which districts are targeted, this would require 140,000 to 150,000 signatures of registered Missouri voters.
Then, of course, a majority of Missouri voters would then have to vote for the amendment – to ban affirmative action programs – for it to become part of the state Constitution.
Next week, the American will report on and analyze the case challenging the fiscal note and summary, which yields interesting information about minority participation in state government and the St. Louis and Missouri economies.