Missouri Asks a Loaded Question

Leading the attack on him in Missouri is the Michigan-based group By Any Means Necessary (BAMN), whose national co-chair Shanta Driver summed up the attacks on Connerly:

BAMN is the most vocal and extreme of Connerly’s opponents–leading demonstrations that have turned violent and disrupting public meetings, labeling Connerly “the most notorious and fanatical right wing opponent of civil rights in California” and filing suit to invalidate the Michigan voters’ decision, claiming Connerly and his supporters engaged in voter fraud. BAMN repeatedly tried to remove Connerly from his position as a regent of the University of California because of his effort to remove race-based admissions. “We want to deprive him of his ability to promote racism and segregation using the University of California name,” says Driver. (His twelve-year term ended in 2005.)

BAMN is having success in Missouri thanks to the Democratic secretary of state Robin Carnahan (daughter of former governor Mel Carnahan) and the attorney general, Jay Nixon. The ballot initiative that Connerly sought to qualify in Missouri is identical to the successful Michigan one and reads as follows:

That’s not what will be in front of voters as they go into the voting booth if Carnahan has her way. After reviewing Connerly’s language, she prepared the required state “ballot title”–the summary of the initiative that appears on the ballot. Carnahan’s summary reads:

Connerly sees the re–vamped language as “designed to prejudice the initiative.” “This was clearly not un–der-taken in good faith,” says Roger Clegg, general counsel of the Center for Equal Opportunity and longtime opponent of racial preferences. He notes that the initiative “does not ban all affirmative action–only that which uses preferences based on race, ethnicity, and sex.” Clegg concludes that what Carnahan is doing is “to distort the language in the initiative so people won’t vote for it.”

Mindy Mazur, chief of staff for the secretary of state, told me that Carnahan complied with the state requirement of a 100-word summary without “prejudice for or against” the initiative. She repeatedly denied that the use of the term “affirmative action” represented any significant change from the original language (even though it refers only to “preferential treatment”). Mazur insisted that the effect of the initiative would be to “ban affirmative action” and that voters need to know “what they are voting on.”

Connerly finds it ironic that opponents of the initiative now equate “affirmative action” with “racial preferences”–something defenders of affirmative action went to great lengths to deny for many years, claiming to be interested only in “equal opportunity.” They have now dropped the fig leaf. In the past Connerly has defended affirmative action that is not race based, such as efforts to reach out to the economically disadvantaged, but if the secretary of state insists all affirmative action is really race-based then he will have no choice but to “characterize affirmative action the way they do.” “If the public sees affirmative action and race preferences as coterminous,” he says, “this does not accrue to the benefit of affirmative action proponents.”

The ballot title is now the subject of two lawsuits. Tim Asher, executive director of the Missouri Civil Rights Initiative–the measure’s local sponsor–has filed suit claiming that Carnahan’s language violates state law, which requires that the ballot title use “language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure.”

Opponents of the initiative have filed suit against both Carnahan and the state auditor claiming the ballot title is insufficient in that, among other things, it fails to mention that preferences on the basis of age, veteran status, and disability would be banned (none of these classifications were included in the language proposed by Connerly); that the fiscal note prepared by the auditor was insufficient; that it runs afoul of the single subject rule for initiatives; and that it violates federal statutes and the Constitution. The two suits are set for trial on October 30. Appeals–possibly all the way to the State Supreme Court–will keep both sides busy.

Mazur is confident that Carnahan will prevail, citing previous lawsuits in Missouri in which the courts deferred to the secretary of state’s summary language. The court has already denied the Missouri Civil Rights Initiative’s request to have Carnahan deposed. (Attorney General Nixon, who approved Carnahan’s language and is defending it in court, did not respond to requests for comment.)

Connerly knows that he faces an uphill battle to restore his original language to the ballot. When I ask him whether he will go forward with the initiative if the court challenge to Carnahan’s summary fails, he says that this is the “billion dollar question.” If he drops his efforts after the courts have upheld the objectionable language, he knows his opponents will claim a victory and assert that it is he who won’t go before the voters unless he gets to use “fraudulent language.” “My gut–but I have not come to the end of the road–tells me I think we’ll go [forward] anyway,” Connerly concludes.

He is committed to raising sufficient funds to “make the case that this perversion [of his initiative language] bespeaks of the larger issue about what affirmative action means.” He thinks “most people in the privacy of the voting booth will read between the lines. With only a little expectation, I think they’ll discern the facts.” He contends the vote will be close, “but we can still win on the language” crafted by the secretary of state. Tim Asher knows that voters are generally not familiar with a ballot initiative until they go to vote, and if the language seems extreme, or even confusing, they will be inclined to vote against it.

Connerly’s opponents, most particularly BAMN, are candid that their strategy is to keep these measures off the ballot because when they go before voters they have proven popular. By year’s end, it will be clear whether Connerly’s opponents in the Missouri ballot fight will succeed “by any means necessary” in preventing an up or down vote on the future of racial preferences.

Jennifer Rubin is a writer living in Virginia.