State ballot initiatives are a multiedged sword

THIS WINTER AND SPRING, as primary season engaged the nation, a quieter campaign was under way in Arizona, Colorado, Missouri, Nebraska and Oklahoma. Squads of paid "volunteers" fanned out across cities, towns and neighborhoods, clipboards in hand, asking voters for their signatures on petitions that would undo decades of civil rights progress in America.

The signature gatherers don't put it that way, of course. They ask people to sign on to putting a measure called the Civil Rights Initiative (CRI) on the ballot for November. But the name, like the language of the measure itself, is misleading and deceptive.

On the surface, CRI seems to prohibit discrimination on the basis of race, sex, ethnicity or national origin (see sidebar). But its unstated intent is to end affirmative action in employment and education, and return this country to the so-called "colorblind" policies that served to disadvantage women and minorities for much of our history.

The Civil Rights Initiative already has passed in three states. In 1996, California passed it as Proposition 209. In 1998, Washington state passed the same model initiative, as Proposition 200. In 2006, despite the opposition of a bipartisan coalition of labor, civic, religious, education and business groups in Michigan and the governor, the Michigan Civil Rights Initiative (MCRI) passed by a discouragingly large margin.

One person, Ward Connerly, is the primary force behind the initiative, but he is bankrolled by some of the most prominent conservative foundations in the country (see "Who is Ward Connerly?). Their multimillion-dollar investments, year after year, allow Connerly to go into a state, hire companies to gather signatures—often through fraudulent means—and pay himself a handsome fee.

Wedge issues move the base

Twenty-four states and the District of Columbia allow voters to skip the legislative route and go directly to the poll box to change policy or the state constitution. Yet increasingly, we've seen ballot initiatives used as a political tool to serve other—often nefarious—ends.
One obvious example is the same-sex marriage ban that swept battleground states in 2004. Kristina Wilfore, executive director of the Ballot Initiative Strategy Center, notes that every state that had this wedge issue on the ballot already had a gay marriage ban on the books. Ballot initiatives, which she describes as a "dog whistle that pushes voters to their own base," have become a potent tool in the right-wing GOTV arsenal.

Gaining signatures under false pretenses

Qualifying a measure for the ballot is not easy. Theoretically, fired-up citizen activists gather signatures from a percentage of the state population, and the state secretary of state certifies the signatures as valid. While states set the bar high for certifying the signatures, in practice, initiative opponents have found, states do not always enforce their laws rigorously. This has made it possible for right-wing groups to hijack the ballot initiative process for a distorted use.

Thus, Connerly has encouraged fraud in the signature-gathering process by paying gatherers from $1.25 to as much as $5 per signature. With this kind of incentive, signature gatherers have been known—or even instructed—to copy the signatures on multiple petitions, sign the names of deceased people and, most commonly, get the signatures through misrepresentations. In addition, most states require the people who gather signatures to reside in the same state—a requirement that Connerly and other signature-gathering companies have been found to violate.

In 2006, Connerly was sued for defrauding Michigan voters by lying about the nature of the initiative and using questionable methods to secure the signatures. In August 2006, the U.S. District Court found that MCRI proponents "engaged in systematic voter fraud by telling voters that they were signing a petition supporting affirmative action."
But the court also said that the process for qualifying on the ballot is "a poor system and each state should fix it."

"You should not be able to commit fraud in getting people to sign petitions," says Julie Matuzak, AFT Michigan political coordinator. But people presented with a petition have a civic responsibility, too. "People have to read the whole petition."

The lessons of Michigan

"We had two years to prepare," says Matuzak. In 2004, the U.S. Supreme Court handed down its decision in Gratz v. Bollinger and Grutter v. Bollinger, upholding some parts of the University of Michigan's affirmative action program in admissions. The same day, Matuzak heard Ward Connerly interviewed on the radio. He said he would come to Michigan to fix the court decision.

AFT Michigan and other groups formed a broad bipartisan coalition called One United Michigan. The coalition started fundraising and polling early. It noted fraudulent practices in the gathering of signatures and challenged them. It raised and spent $5 million on educating coalition group members and the public.

As the day of the election neared, Matuzak recounted during a special panel presentation at the March AFT/NEA higher education conference, polls showed how voters planned to vote on MCRI: 44 percent in support, 45 percent against and 11 percent undecided. On the day of the election, exit polls indicated the election was too close to call. But when the final count came, the vote was 58 percent yes, 42 percent no.

After such a surprising and devastating loss, Matuzak and the members of the One United-Michigan coalition have shared lessons with this year's batch of states facing so-called Civil Rights Initiatives.

First, she says, polls can't be trusted on issues of race. People tend to provide the politically correct answer but behave differently when they vote. Second, initiative opponents have to raise and invest money early to educate the public on the issue and encourage people not to sign the petition.

"Race is a complicated issue," says Matuzak. "A political campaign cannot change a racially divided culture." Finally, she says, given the goals of Michigan's higher education systems, "we need to focus on other ways of achieving the goals of affirmative action." Recently, members of the 2006 coalition gathered for a one-day seminar to brainstorm effective steps to move forward.

The fight moves to four states

Of the five states that are facing CRIs this year, one, Oklahoma, already has dropped the measure from the ballot. The issue was high on the radar screen of David Gray, president of the Oklahoma City Federation of Classified Employees and an AFT vice president. Oklahoma unions are dealing with a host of bad initiatives, he says, and are part of a coalition with 35 labor and civic groups to fight them. He says problems with the signature-gathering process were readily apparent. "They had unauthorized people running around getting signatures. There were lots of duplicate petitions," he says. On April 2, the Oklahoma secretary of state disqualified the petitions.

In Colorado, the CRI already has qualified for the ballot. Ellen Slatkin, president of the Metropolitan State Faculty Federation in Denver, says opponents of Amendment 46, as the initiative is called, are gearing up for the fight. Her union belongs to a 12-month-old coalition, Unity Colorado.

"We are looking at various mechanisms to challenge Amendment 46," she says. "One is to challenge people who feel they'd been duped into signing the petition to come forward and tell the secretary of state their story."

Coloradoans have long memories and feel they were similarly misled by Amendment 2 in 2004, says Slatkin, which banned equal rights for homosexuals and lesbians. "A lot of people didn't know what they were voting for. The language is confusing." And such is the case with Amendment 46.

In Missouri, "people are just waking up to the issue," says Byron Clemens, first vice president of AFT St. Louis. "And they are finding out that it is deceptive."

AFT St. Louis is part of a coalition called We Can, made up of labor, clergy and Civic Progress, a corporate/business group. Right now, the union is focusing its efforts on educating members in meetings, e-mails and public forums. "We've alerted them to ‘think before you ink' any petition, but this one in particular."

As another part of its strategy, We Can is helping people file affidavits to have their names removed from petitions because they feel they were misled by the signature gatherers. "I was approached by a petitioner who indicated this was supportive of civil rights," says Clemens. "This is the antithesis of civil rights!"

Finally, says Slatkin, opponents have to go out and talk about what the measure really represents. "For those who are opposed to affirmative action, it's a priority to them. It offends their basic principle of a color-blind society. But for those who support it, perhaps passively, it's hard to make it a priority.

"That's especially true in a down economy," she adds. "It's no accident that Connerly went to Michigan in 2006. When times are bad and people are worried about their jobs, their prejudices will surface. Yet, when affirmative action levels the playing field for minorities or women, small increases they have achieved result in raises across the board. They raise the base. But it's hard to get that across to people.

"These are sophisticated arguments and they don't fit on a pamphlet."

What is the civil rights initiative?

THE CIVIL RIGHTS INITIATIVE (CRI) is a ballot measure that does the opposite of what its name suggests. It undoes policies created to ensure the civil rights of those whose access to full opportunity in the United States has been blocked by the vestiges of long-term discrimination.

The CRI amends a state's constitution to explicitly outlaw affirmative action programs in public hiring, contracting and college admissions. To date, the initiative has passed in three states: California (1996), Washington (1998) and Michigan (2006). Signature-gathering campaigns are under way to put it on the ballot in Arizona, Colorado, Missouri and Nebraska. (In Oklahoma, a challenge to signatures on the petitions resulted in the initiative being taken off the ballot.)

The operative language of the initiative reads:
"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."