California Repeal Proposition 209 Affirmative Action Amendment (2020)

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California Repeal Proposition 209 Affirmative Action Amendment
Flag of California.png
Election date
November 3, 2020
Topic
Affirmative action
Status
On the ballot
Type
Constitutional amendment
Origin
State legislature

The California Repeal Proposition 209 Affirmative Action Amendment is on the ballot in California as a legislatively referred constitutional amendment on November 3, 2020.

A "yes" vote supports this constitutional amendment to repeal Proposition 209 (1996), which prohibited the state from discriminating against or granting preferential treatment to persons on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting.

A "no" vote opposes this constitutional amendment, thereby keeping Proposition 209 (1996), which prohibited the state from discriminating against or granting preferential treatment to persons on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting.


Overview

The ballot measure would repeal Proposition 209 (1996), which added the following provision to the California Constitution: "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."[1]

Text of measure

Constitutional changes

See also: Article I, California Constitution

The measure would repeal Section 31 of Article I of the California Constitution. The following struck-through text would be repealed:[1]

Note: Use your mouse to scroll over the below text to see the full text.

(a) 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.

(b) This section shall apply only to action taken after the section's effective date.

(c) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.

(d) Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.

(e) Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the State.

(f) For the purposes of this section, "State" shall include, but not necessarily be limited to, the State itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the State.

(g) The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.

(h) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.[2]

Support

The Opportunity for All Coalition is leading the campaign in support of the ballot measure.[3]

Supporters

Officials

Organizations

  • University of California Board of Regents[10]
  • Los Angeles County Board of Education[11]
  • Asian Pacific Islander Legislative Caucus[12]

Arguments

  • Asm. Shirley Weber (D-79), the principal sponsor of the constitutional amendment and chairwoman of the Legislative Black Caucus, stated the following:
    • "Californians have built the fifth largest and strongest economy in the world, but too many hardworking Californians are not sharing in our state’s prosperity—particularly women, families of color, and low-wage workers. Assembly Constitutional Amendment 5 will help improve all of our daily lives by repealing Proposition 209 and eliminating discrimination in state contracts, hiring and education. [ACA 5] is about equal opportunity for all and investment in our communities."[6]
    • "We have all survived and endured Proposition 209, and it has not been a luxury. It has been a hard journey. And it has caused a lot of losses."[13]
    • "Since Proposition 209’s passage, California has become one of only eight states that do not allow race or gender to be among the many factors considered in hiring, allotting state contracts or accepting students into the state’s public colleges and universities."[14]
    • "As we look around the world, we see there is an urgent cry — an urgent cry for change. After 25 years of quantitative and qualitative data, we see that race-neutral solutions cannot fix problems steeped in race."[15]
    • "The ongoing pandemic, as well as recent tragedies of police violence, is forcing Californians to acknowledge the deep-seated inequality and far-reaching institutional failures that show that your race and gender still matter."[16]
  • State Sen. Steven Bradford (D-35) said, "I know about discrimination. I live it every day. We live it in this building. Quit lying to yourselves and saying race is not a factor... the bedrock of who we are in this country is based on race."[5]
  • U.S. Rep. Karen Bass (D-37) wrote a letter to Gov. Gavin Newsom, Senate President Toni Atkins, and House Speaker Anthony Rendon, asking them to support the constitutional amendment. Rep. Bass stated, "Proposition 209, deceptively titled the California Civil Rights Initiative, passed by referendum in 1996 amidst an orchestrated campaign of dog-whistle politics attacking all attempts to level the playing field for women and people of color. Before Prop 209, those efforts at advancing equity had made real progress. But the Wall Street-backed authors of the initiative saw a threat to their economic stranglehold from an increasingly diverse and highly educated population in California; a population better situated to compete in jobs, education, government contracts and other areas of the state’s economy. In passing Prop 209, those groups limited competition in their industries and benefited their own businesses by erecting new institutional barriers burdening the ability of California’s women and people of color achieve positions of economic and business leadership."[4]
  • University of California President Janet Napolitano said, "It makes little sense to exclude any consideration of race in admissions when the aim of the University’s holistic process is to fully understand and evaluate each applicant through multiple dimensions. Proposition 209 has forced California public institutions to try to address racial inequality without factoring in race, even where allowed by federal law. The diversity of our university and higher education institutions across California, should — and must — represent the rich diversity of our state."[10]
  • Varsha Sarveshwar, president of the University of California Student Association, wrote, "Today, colleges can consider whether you’re from the suburbs, a city or a rural area. They can consider what high school you went to. They can consider your family’s economic background. They can look at virtually everything about you – but not race. It makes no sense – and is unfair – that schools can’t consider something that is so core to our lived experience. Repealing Prop. 209 will not create quotas or caps. These are illegal under a Supreme Court decision and would remain so."[17]

Opposition

Opponents

Arguments

  • Ward Connerly, a proponent of Proposition 209, responded to the proposal to repeal the 1996 constitutional amendment, saying, "I believe we would win by a landslide once we let people know what affirmative action is really about."[19]
  • Former U.S. Rep. Tom Campbell (R) said, "Nevertheless, if more spaces are to be made for the under-represented, they must come from the over-represented. Asian Americans are 15.3 percent of Californians, yet 39.72 percent of UC enrollees. Those numbers are why bringing this issue forward now would inevitably divide Californians racially: Latino Americans and African Americans on one side, Asian Americans on the other. The politics are inescapably racial."[18]
  • Wenyuan Wu, director of administration for the Asian American Coalition for Education, stated, "Built on partial evidence and shallow prescriptions for an unrealistic utopia, ACA-5 is in essence divisive and discriminatory. Its overarching goal to undo Proposition 209, a bill that won the popular vote in 1996 and has withstood legal scrutiny over time, is misguided in that ACA-5 proposes instant but wrong solutions to persistent social ills."[20]
  • Wen Fa, an attorney with the Pacific Legal Foundation, said, "We’re definitely going to take a hard look at that and see whether it complies with the 14th Amendment, or whether it violates the constitutional principle of equality before the law. Racial preferences are wrong, no matter who they benefit."[21]
  • Asm. Steven S. Choi (R-68) stated, "Is it right to give someone a job just because they are white, or black or green or yellow? Or just because they are male? Repealing Proposition 209, enacted by voters 24 years ago, is to repeal the prohibition of judgment based on race, sex, color, ethnicity and national origin. We are talking about legalizing racism and sexism."[22]
  • Sen. Ling Ling Chang (R-29) said, "I have experienced racial discrimination so I know what that’s like. But the answer to racial discrimination is not more discrimination which is what this bill proposes. The answer is to strengthen our institutions by improving our education system so all students have access to a quality education, and give opportunities to those who are economically disadvantaged. ACA 5 legalizes racial discrimination and that’s wrong."[23]
  • Haibo Huang, co-founder of San Diego Asian Americans for Equality, wrote, "Race is a forbidden classification for good reason, because it demeans the dignity and worth of a person to be judged by ancestry instead of his or her own merit and essential qualities. Racial preference is not transformed from patently unconstitutional into a compelling state interest simply by relabeling it racial diversity. ... Judging people by their skin color is morally repugnant. Equal opportunity is referenced to individual merits, it never guarantees equal results. To the contrary, enforcing equal outcome regardless of qualification and effort bears the hallmark of communism."[24]
  • John Fund, national-affairs reporter for the National Review, wrote, "Liberals in California’s one-party state are on an ideological crusade to continue a racial spoils system forever. They should realize how much of the country disagrees with them and how the politics of the issue could once again surprise them and blow up in their face."[25]
  • Richard D. Kahlenberg, a senior fellow at the Century Foundation in Washington, D.C., stated, "Because it is much cheaper to provide racial preferences to upper middle class Latino and African American students than it is to do the hard work of recruiting economically disadvantaged and working-class Latino and African American students, I fear that many of these progressive reforms could be diluted if 209 is repealed."[26]

Campaign finance

The campaign finance information on this page reflects the most recently scheduled reports processed by Ballotpedia, which covered through March 31, 2020, and interim reports available as of June 17, 2020. The deadline for the next scheduled reports is July 31, 2020.

See also: Campaign finance requirements for California ballot measures

The Opportunity for All Coalition was organized as a political action committee (PAC) to support the ballot measure. The campaign had raised $114,000. Elizabeth Cabraser, the largest donor, contributed $50,000. Cabraser is a lawyer and founding partner of Lieff Cabraser Heimann & Bernstein, LL.[27]

Ballotpedia had not identified PACs opposed to the ballot measure.[27]

Cash Contributions In-Kind Contributions Total Contributions Cash Expenditures Total Expenditures
Support $114,000.00 $0.00 $114,000.00 $12,500.00 $12,500.00
Oppose $0.00 $0.00 $0.00 $0.00 $0.00

Support

The following table includes contribution and expenditure totals for the committee in support of the initiative.[27]

Committees in support of California Repeal Proposition 209 Affirmative Action Amendment (2020)
Committee Cash Contributions In-Kind Contributions Total Contributions Cash Expenditures Total Expenditures
Opportunity for All Coalition $114,000.00 $0.00 $114,000.00 $12,500.00 $12,500.00
Total $114,000.00 $0.00 $114,000.00 $12,500.00 $12,500.00

Donors

The following were the top three donors who contributed to the support committee.[27]

Donor Cash Contributions In-Kind Contributions Total Contributions
Elizabeth Cabraser $50,000.00 $0.00 $50,000.00
Chinese for Affirmative Action $34,000.00 $0.00 $34,000.00
Silicon Valley Community Foundation $15,000.00 $0.00 $15,000.00

Media editorials

Support

The following media editorial boards published an editorial supporting the ballot measure:

  • San Francisco Chronicle: "Nearly a quarter of a century ago, California voters passed the deceptively named California Civil Rights Initiative. But Proposition 209 was not about advancing civil rights. It was about prohibiting the consideration of race and gender in public education, employment and contracting. ... It was just about shutting the door on efforts to overcome those institutional barriers to the full participation of women and minorities. It was wrong in 1996, when it was passed by 55% of California voters, and it is wrong now. It should be repealed."[28]

Opposition

The following media editorial boards published an editorial opposing the ballot measure:

  • The Wall Street Journal: "Now it’s up to the voters. Last November voters in Washington state narrowly defeated a similar amendment, though opponents were vastly outspent by those favoring racial preferences. California is a more liberal state and its political class and nearly all media will support repeal. But judging individuals by the color of their skin is antithetical to equal justice under the law. Let’s hope Californians hold on to this American principle of equality that goes back to the Declaration of Independence, the 14th Amendment, and the civil-rights movement."[29]

ACA 5

The following media editorial boards took positions on whether ACA 5 should be placed on the ballot in 2020:

  • Los Angeles Times: "We wish race didn’t matter in hiring and college admissions. We wish that everyone had an equal opportunity to access quality education and achieve economic prosperity. But they didn’t in 1996 and still don’t in 2020. Race and gender are still automatic disadvantages that are difficult to overcome. Helping to shrink the opportunity gap with a tiny leg up doesn’t give them an unfair advantage over those born already ahead, just a slightly better chance than they have now. That’s not discrimination. That’s justice. And it’s time Californians had another debate about how to achieve it."[30]
  • The Sacramento Bee: "In 1996, Prop. 209 passed with nearly 55 percent support from California voters. That year, Republicans seized on affirmative action as a wedge issue to inflame racial division and drive voter turnout in an effort to unseat incumbent President Bill Clinton. Masquerading behind civil rights language, it abolished a key tool for addressing systemic discrimination people of color and women. Then-Gov. Pete Wilson endorsed it, as did Republican presidential nominee Bob Dole. The California State Legislature should strongly support ACA 5 and let the people decide in November."[31]

Path to the ballot

See also: Amending the California Constitution

In California, a two-thirds vote is needed in each chamber of the California State Legislature to refer a constitutional amendment to the ballot for voter consideration.

The constitutional amendment was introduced into the California State Legislature as Assembly Constitutional Amendment 5 (ACA 5) on January 18, 2019. On June 10, 2020, the California State Assembly voted 60 to 14 to pass ACA 5. As one seat was vacant in the Assembly, 53 votes were needed to pass ACA 5. On June 24, 2020, the California State Senate voted 30 to 10 to pass ACA 5. At least 27 votes were needed in the Senate. With approval in the Assembly and Senate, ACA 5 was placed on the ballot for the general election on November 3, 2020.[1]

Vote in the California State Assembly
June 10, 2020
Requirement: Two-thirds (66.67 percent) vote of all members in each chamber
Number of yes votes required: 53  Approveda
YesNoNot voting
Total60145
Total percent75.95%17.72%6.33%
Democrat5803
Republican1142
Independent100

Vote in the California State Senate
June 22, 2020
Requirement: Two-thirds (66.67 percent) vote of all members in each chamber
Number of yes votes required: 27  Approveda
YesNoNot voting
Total30100
Total percent75.00%25.00%0.00%
Democrat2900
Republican1100

See also

External links

Footnotes

  1. 1.0 1.1 1.2 California State Legislature, "ACA 5," accessed May 6, 2020
  2. Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  3. Opportunity for All Coalition, "Homepage," accessed June 24, 2020
  4. 4.00 4.01 4.02 4.03 4.04 4.05 4.06 4.07 4.08 4.09 4.10 4.11 4.12 4.13 4.14 4.15 4.16 4.17 4.18 4.19 4.20 4.21 4.22 4.23 4.24 4.25 4.26 4.27 U.S. Rep. Karen Bass, "Rep. Bass Sends Letter Urging Repeal Of Prop 209," June 22, 2020
  5. 5.0 5.1 5.2 5.3 5.4 The Sacramento Bee, "Affirmative action will be on California’s ballot in November," June 24, 2020
  6. 6.0 6.1 California State Legislature, "ACA 5 Committee Analyses," accessed June 2, 2020
  7. Asm. Shirley Weber, "Lawmakers, Business Community Announce California Act for Economic Prosperity," March 10, 2020
  8. Twitter, "Buffy Wicks," June 10, 2020
  9. Twitter, "Kevin de León," June 10, 2020
  10. 10.0 10.1 University of California, "UC Board of Regents unanimously endorses ACA 5, repeal of Prop. 209," June 15, 2020
  11. Los Angeles County Board of Education, "LA County Board of Education votes to support bill to repeal ban on affirmative action," June 23, 2020
  12. Asian Pacific Islander Legislative Caucus, "Asian Pacific Islander Legislative Caucus Announces Support for ACA 5," June 22, 2020
  13. San Francisco Chronicle, "California’s affirmative action ban, Proposition 209, targeted for repeal," March 10, 2020
  14. The San Diego Union-Tribune, "Commentary: Why California should repeal Prop. 209 and allow state institutions to consider race," June 9, 2020
  15. San Francisco Chronicle, "California bill asking voters whether to repeal anti-affirmative action Prop. 209 advances," June 10, 2020
  16. Los Angeles Times, "Plan to restore affirmative action in California clears hurdle after emotional debate," June 10, 2020
  17. The Sacramento Bee, "State Legislature must let Californians vote on whether to restore affirmative action," June 6, 2020
  18. 18.0 18.1 The Orange County Register, "California doesn’t need a new fight over Proposition 209," March 30, 2020
  19. Wall Street Journal, "Ward Connerly Rides Again," June 1, 2020
  20. The Orange County Register, "A hasty hearing on a constitutional amendment that would overturn Prop. 209," May 6, 2020
  21. Bloomberg, "California Proposal Could Bring Back Affirmative Action," June 10, 2020
  22. The Sacramento Bee, "California Democrats moving to reinstate affirmative action after nearly 25 years," June 10, 2020
  23. Sen. Ling Ling Chang, "Senator Chang Issues Statement on ACA 5 Vote," June 17, 2020
  24. The San Diego Union-Tribune, "Commentary: Why California should keep Prop. 209, which prohibits state institutions from considering race," June 9, 2020
  25. National Review, "California Democrats Want to Bring Racial Preferences Back," May 24, 2020
  26. EdSource, "California universities prepare for possible return of affirmative action in admissions," June 22, 2020
  27. 27.0 27.1 27.2 27.3 Cal-Access, "Homepage," accessed June 24, 2020
  28. San Francisco Chronicle, "Editorial: California should reconsider affirmative action ban," March 16, 2020
  29. The Wall Street Journal, "A Vote for Discrimination," June 25, 2020
  30. Los Angeles Times, "Editorial: Of course race matters. Put affirmative action back on California’s ballot," June 12, 2020
  31. The Sacramento Bee, "To dismantle systemic racism, California Legislature must let voters consider Prop. 209," June 10, 2020