Ward Connerly's faux Civil Right$ initiative rejected again: Utah Legislature Rejects Bid to Put Anti-Equal Opportunity Measure on 2010 Ballot

Reposted from The Leadership Conference

Last Thursday, the Utah House of Representatives adjourned for the year without voting on HJR 24, a resolution to place an anti-equal opportunity measure on the state's 2010 ballot.

The resolution, introduced in February, called for a state constitutional amendment banning equal opportunity initiatives in state public higher education, employment, and contracting.

Equal opportunity initiatives ensure equal access to educational and professional opportunities for qualified minorities, women, and members of other underrepresented communities. Equal opportunity opponent Ward Connerly, a California businessman and millionaire, has sought to enact similar bans on equal opportunity through state ballot referendums all over the country for more than a decade.

The loss in Utah is the second defeat that Connerly and his allies have been dealt by equal opportunity supporters in recent weeks. In Missouri, Connerly allies filed to withdraw their proposed measure from the ballot rather than face an ACLU lawsuit challenging its language.

To date, Connerly-sponsored measures have passed in California, Washington, Michigan, and, most recently, in Nebraska. Nebraska was one of five states Connerly targeted in 2008. Local and national equal opportunity supporters were successful in exposing his deceptive practices and tactics, which kept his measure off the ballot in three states: Arizona, Missouri, and Oklahoma. Voters in the fifth state, Colorado, became the first to reject a Connerly anti-equal opportunity measure.

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Ward Connerly and Tim Asher withdraw their latest challenge to Equal Opportunity in Missouri in the face of an ACLU Lawsuit

Proposed Ballot Initiative Withdrawn In Face Of ACLU Lawsuit

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

JEFFERSON CITY, MO – Faced with an American Civil Liberties Union lawsuit, a political operative who has failed twice before to place an anti-affirmative action initiative on the Missouri ballot has abandoned his latest attempt to rewrite the state constitution to ban equal opportunity programs.

Timothy Asher, head of the Missouri Civil Rights Initiative, which has led two unsuccessful efforts in the past two years to place before state voters an unconstitutional ballot initiative that would have rolled back an array of affirmative action programs, officially requested last week to withdraw his third attempt to qualify his initiative for the ballot. The ACLU, the ACLU of Eastern Missouri and the ACLU of Kansas and Western Missouri filed a lawsuit in August charging that Asher's latest proposed initiative sought to trick and defraud Missouri voters.

"This is a huge victory that will protect programs intended to ensure that women and racial and ethnic minorities are given an equal opportunity to compete," said Reginald T. Shuford, senior staff attorney with the ACLU Racial Justice Program. "Essential programs, including data collection requirements that help the government identify racial, ethnic and gender discrimination, will now remain in place."

All of Asher's proposed initiatives would have changed the Missouri Constitution by effectively decimating many equal opportunity programs, leading to the erosion of the participation of women and racial and ethnic minorities in public education, state contracting and employment.

"The state of Missouri has a constitutional obligation to ensure that no one is denied opportunity because of unfair and unjust discrimination," said Stephen Douglas Bonney, legal director for the ACLU of Kansas and Western Missouri. "America is the land of equal opportunity and these proposed initiatives flew in the face of some of our most cherished ideals."

Missouri was one of three states – along with Arizona and Oklahoma – in which efforts to qualify anti-equal opportunity initiatives for the ballot during the 2008 election cycle failed. A similar measure made it on the ballot in Colorado but was rejected by voters. Asher spearheaded the effort in Missouri, working as part of a largely unsuccessful national campaign targeting several states led by millionaire Californian Ward Connerly.

Asher submitted a second proposed initiative at the end of 2008, and the ACLU responded by filing a lawsuit charging that it was unconstitutional and fraudulent. In June 2009, a Missouri circuit court judge struck down the initiative, ruling that it didn't comply with state law.

After Asher submitted his third proposed ballot initiative in July 2009, the ACLU filed a lawsuit challenging it, charging that the initiative would confuse voters by unconstitutionally forcing them to vote on multiple issues in a single proposition and that the ballot summary certified by the secretary of state contained language that was unfair and misleading, in violation of Missouri law. The ACLU lawsuit also charged that Missouri's auditor failed to adequately assess the proposed initiative's fiscal impact.

Other attorneys on the case include Anthony E. Rothert of the ACLU of Eastern Missouri and ACLU cooperating attorney Arlene Zarembka of St. Louis.

• A copy of Asher's letter seeking withdrawal of his proposed initiative, and Secretary of State Robin Carnahan's approval, is available online at: www.aclu.org/racial-justice/jones-et-al-v-carnahan-et-al-asher-letter-requesting-withdrawal
• A copy of the ACLU's most recent lawsuit is available online at: www.aclu.org/racial-justice/jones-et-al-v-carnahan-et-al-petition-declaratory-judgment-and-permanent-injunction
• Additional information about equal opportunity is available online at: www.aclu.org/racialjustice/aa
• Additional information about the ACLU of Eastern Missouri is available online at: www.aclu-em.org
• Additional information about the ACLU of Kansas and Western Missouri is available at: www.aclukswmo.org

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New Haven Court Ruling Creates New Legal Standard That Restricts Equal Employment Opportunity

The Supreme Court decision in Ricci v. DeStefano is a step backward from the goal of equal employment opportunity. A narrow majority of the Court created a new legal standard that places additional hurdles in front of employers seeking to fulfill their obligations under this nation's core antidiscrimination law. The NAACP Legal Defense and Educational Fund, Inc. (LDF) is disappointed that five Justices departed from well-established precedents that were properly applied by the courts below.

"The Supreme Court's interpretation imposes new burdens on employers and makes it more difficult to maintain a discrimination-free workplace," said John Payton, LDF President and Director-Counsel.

The four dissenting Justices, who joined an opinion authored by Justice Ginsburg, accurately explained the critical need for robust compliance with federal civil rights laws, especially in fire departments, which have historically and notoriously denied employment to African Americans, other people of color, and women. Justice Ginsburg criticized the majority for telling only half the story and ignoring that "[f]irefighting is a profession in which the legacy of racial discrimination casts an especially long shadow."

Although we have made some progress as a nation, discrimination in firefighting jobs remains a significant problem. Just this year, the U.S. Department of Justice entered into settlement agreements requiring Portsmouth, Virginia and Dayton, Ohio to cease using discriminatory procedures to hire firefighters.

"Faced with the reality of continuing racial exclusion, an employer has a responsibility to abandon unfair employment practices and adopt those that are fair and effective," said John Payton, LDF President and Director-Counsel.

While the Court's ruling unnecessarily invalidates New Haven's actions, the majority opinion does not forbid employers from careful and deliberate efforts to develop employment selection procedures that fairly predict workplace success without fencing out entire groups. The Court's majority recognized that "employers' voluntary compliance efforts . . . are essential to [our civil rights laws] and to Congress's efforts to eradicate workplace discrimination." LDF believes that ultimately, employers will be able to comply with this decision and continue to take vigorous steps to ensure equal opportunity for all workers.

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Ward Connerly watch: Ward Connerly's anti-Affirmative Action initiative will be back on the ballot in Arizona

Well it appears our old friend Ward Connerly is at it again. Connerly's effort to outlaw affirmative action programs and any special programs or preferences for women and minorities will be back on the ballot in Arizona next year.

On a 17-11 vote the Arizona State Senate gave final approval to a proposed constitutional amendment which purports to prohibit preferential treatment or discrimination by government on the basis of race, sex or ethnic origin. The measure, which already has been approved by the House, will now be placed on the 2010 ballot.

A similar initiative drive in 2008 failed when backers failed to gather enough signatures.

Federal courts have long-since outlawed numerical quotas that spell out that a certain percentage of school admissions, jobs or contracts must go to minorities or women. But judges have upheld various "affirmative action' programs designed to help those whose groups have been underrepresented. And the courts also have allowed certain bid preferences if the government can show that minority or women are not getting a share of contracts.

But Ward Connerly hopes to end all that. His deceptively simple language would formally prohibit any outreach efforts to women and minority owned businesses. It would also prohibit informational forums, such as "how to do business with the City" type forums if they were at all targeted towards providing information to under-represented groups. In short, it would prohibit any official efforts to address under-representation or disproportionalities in public employment, contracting, or education.

So if 99.3% of City contracting dollars were spent with firms headed by white males (as once was the case here in Wichita) that would be fair in the eyes of Connerly. But if that same City were to host informational forums designed to encourage more Women and Minority owned firms to bid on City contracts, that would be an offense to Connerly's sense of justice, hence the need for his tireless efforts to protect the strong and connected from the tyranny of the weak or disadvantaged.

Connerly talks mo' shit than a little bit about fairness and the elimination of preferences and unfair advantage, but make no mistake, Connerly is no 'King'... Ward Connerly is the President and CEO of Connerly & Associates, a California based lobbying firm. Connerly & Associates clients have included the Roofing Contractors Association of California, California Building Officials, the California Vendors Policy Committee, the Roofing Contractors Association of Southern California, and the Associated Roofing Contractors of Northern California. C&A also originates home repair loans, does housing rehabilitation consulting and administers community development block grants.

His efforts are funded by individuals such as:

John Moores: a San Diego-based software millionaire, developer and owner of the San Diego Padres, and chairman of JMI Realty. Moores contributed $400,000 to Connerly’s losing 2003 Prop 54 campaign in California, the so-called Racial Privacy Initiative, which sought to forbid the state from collecting statistics on race and gender. Moores worked with Connerly on the University of California board of trustees, and was censured by the board for releasing his own study criticizing UC admissions policies as favoring minorities. He resigned in November 2007.

Harlan Crow: Considered by Connerly “one of the most important” of his “major allies.” Crow, son of Dallas real estate tycoon Trammell Crow, owns Crow Realty Investors and is president of Crow Holdings, a real estate company.

Thomas L. Rhodes: Co-founder and director of Connerly’s organizations, who along with Zamrzla played a key role in Connerly’s decision to launch the “Super Tuesday” campaign. Rhodes has been vice chairman since 1998 (and a board member since 1996), of the Clearwater, Florida-based American Land Lease, which is engaged in the ownership, development and financing of residential land lease communities. Rhodes sits on the board of directors of the Bradley Foundation, which has contributed millions of dollars to Connerly’s ACRI.

John Uhlmann: Chairman of the Kansas City-based Jabez Territories LLC, which provides construction, general contracting and development services, and is another major backer of Connerly’s initiatives.

John Zamrzla: President and chief executive officer of the Western Pacific Roofing Corporation and a former president of the Chicago-based National Roofing Contractors Association. Zamrzla serves as Connerly’s American Civil Rights Institute (ACRI) board chair. He has also been identified by Connerly as one of “the directors of the American Civil Rights Coalition.”

To be clear, Ward Connerly is no friend of Civil Rights, level playing fields, or fundamental fairness. He is simply a professional lobbyist, funded by Contractors, Developers, and Real Estate Executives, ALL of whom stand to benefit if Connerly can eliminate the competition by re-writing state constitutions and rolling back civil rights programs that help level the playing field for qualified minorities and women.

It is particularly telling that Connerly who publicly affects a moral opposition to preferences, never actually seeks to eliminate all preferences... His efforts in education have never addressed legacy preferences, specific geographic preferences, or preferences awarded to the alumnus of certain pre-determined 'Top" schools, all of which overwhelmingly accrue to the majority. All of which have escaped his scrutiny and his outrage in each and every campaign he's launched.

While he purports to be a man opposed to discrimination in contracting and employment, it is also peculiar that neither Connerly nor his "Civil Right$" institute have ever offered a bill, policy, or proposition to address the underlying institutional discrimination and/or disproportionalities that affirmative action plans were intended to counteract.

While appropriating the language and cloaking his agenda under the mantle of Civil Rights, Ward Connerly is merely continuing his antithetical, multi-state, highly funded, deceptive and disingenuous defense of the status-quo.

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Round 2: Ward Connerly gears up for another anti-affirmative action effort in Missouri

It was just last month that the millionaire lobbyist Ward Connerly planned his anti-Affirmative Action "Super Tuesday". He'd hoped that through his privately funded ballot initiatives, he would persuade residents of the states of Arizona, Nebraska, Missouri, Colorado, and Oklahoma to amend their State constitutions permanently banning affirmative action programs and any other current or future program designed to remediate the effects of racial or gender discrimination. His efforts on that super Tuesday were largely unsuccessful. He failed to collect enough signatures to put the issue on the ballot in Arizona, Oklahoma, or Missouri, and the ballot initiative was defeated in Colorado.

Now it seems Ward Connerly and his faux 'Civil Right$' troupe are gearing up for a second try in the State of Missouri. Connerly blamed the failure in Missouri this year in part on getting a late start in gathering signatures. So now, in his second attempt, he is starting early... On December 11th, Missouri Secretary of State Robin Carnahan approved a new petition for a ballot initiative which they hope to put before Missouri voters in 2010.

Tim Asher, executive director of the Missouri Civil Rights Initiative, is once again heading up the effort.

Anita Russell, Mary Ratliff, Clyde, Rev. Ford, Brother Crumpton, Ken Hughlon... It's time to get busy! And now, our moment of Zen...

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Ward Connerly Had Major Losses in His 2008 Effort to Abolish Race-Sensitive Admissions at Public Universities in Five States

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A year ago Ward Connerly of the American Civil Rights Institute had planned a "Super Tuesday" this November when he boasted that five states would vote to abolish the consideration of race in admissions to state universities. Connerly had previously met with success in offering similar public referenda in California, Washington State, and Michigan.

But efforts to get initiatives on the ballots in Oklahoma, Arizona, and Missouri came up short. Connerly was able to get the issue before the voters in Colorado and Nebraska.

In Nebraska, 58 percent of the voters approved the anti-affirmative action measure by a 58 percent to 42 percent margin. But in Colorado, Amendment 46 to the state constitution was narrowly defeated. In Colorado, a slim 50.6 percent majority rejected the proposal to ban affirmative action.

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Equal Opportunity: Colorado’s In For the Fight of Her Life but Governor Ritter’s on Her Side

Guest posted by Colorado Springs NAACP President Rosemary Harris Lytle

Colorado’s ballot for November is crowded and full of proposals that seem to defy logic. But none of them is as dangerous and deceptive as Amendment 46 – the anti-affirmative action proposal that would set the state back 40 years.

Supported by California millionaire Wardell Connerly, Amendment 46 is all about fooling voters and playing on their insecurities and confusion about buzz words like civil rights, affirmative action, quotas and preferential treatment. And Connerly, an African American who was himself an affirmative action baby, couldn’t be prouder. His goal is to make unconstitutional everywhere equal opportunity and affirmative action programs in state hiring, contracts and education – no matter how it must be done.

The Colorado Springs Branch NAACP is one of more than 40 organizations that comprise Colorado Unity, the equal opportunity coalition that has worked for 12 years to keep affirmative action as the law of the land in Colorado State government. With nearly 500 members, the Branch is the largest in the NAACP’s Colorado, Montana, Wyoming State Conference headed by President Beatrice Madison and has been, perhaps, the most active of the Units in Region IV (directed by Rev. Gill Ford of the National Office) when it comes to protecting equal opportunity.

But it hasn’t been easy. First, in 1996, Ed Jones, a Black, Republican, former State Legislator from Colorado Springs, tried to end affirmative action in state education -- and the voters turned him back with a vengeance. Then, those who make it their business to do business without folks of color around the table, dropped Jones (he lost his next election ) and got a bigger gun – Wardell Connerly.

Read the Ms Magazine article by editor Kate Spillar to see who he really is: http://www.msmagazine.com/winter2008/WardConnerlyPart1.asp

When it comes to ending affirmative action, as he did in California, Washington and Michigan, Connerly modes operandi is always the same: trick voters by calling his proposals “civil rights initiatives” and get them to sign your petitions by telling them outright lies such as “The NAACP supports it. Why shouldn’t you?” When it comes to duping voters, Connerly is, without parallel, Public Enemy No. 1.

This time around, a group of those who signed the petitions came to Colorado Unity and the NAACP, asking how they could take those signatures back. They said they had been tricked by the Connerly petition carriers. Colorado Unity and the NAACP maintained that they represented a sample of all the petition signers, compelling enough to cast into doubt how all the other signatures were secured.

But, in short order, the Secretary of State’s office verified the Connerly signatures (even though one petition was signed by “Jesus Christ”) and after months of legal haggling, though, last week a judge threw out their suit.

Amendment 46 proceeds to voters Nov. 4.

Amendment 46 would make it unconstitutional for government agencies in Colorado to consider race and gender in most hiring, contracting or school admissions, effectively ending affirmative action-type programs dating back to the 1960s. We know, however, that racism and sexism are still real and though there has been progress, we have not yet achieved King’s dream. In order to get there, there must be a mandate with legal teeth; state equal opportunity programs and other efforts like those that support a level playing field, pay equity for women and people of color and greater diversity in higher education in a state where the largest public university has an African American student population of less than 2 percent.

If Colorado is to be all that she can be, everyone must have the opportunity to be at the table, everyone must have access to information that otherwise might only exist in a private board room or on an exclusive golf course, and everyone must have the ability to compete on a playing field that has been leveled.

If Colorado is to be great, she must protect existing affirmative action programs – and make them stronger even – so that equal opportunity is one day the real law of the land.

This just in … During a press conference on the Capitol Steps, Colorado Governor Bill Ritter will publicly voice his opposition to Amendment 46; a beautiful thing for the State of Colorado and validation of the work of Colorado Unity and the Colorado Springs Branch NAACP.

Rosemary Harris Lytle -- Communications Director for 9to5, National Association of Working Women -- is President of the Colorado Springs Branch NAACP and Co-Chair of the Speakers Bureau of Colorado Unity, the statewide equal opportunity coalition.


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From the Rocky Mountain News, Sept. 2008:

What Amendment 46 would do
Prohibit the state from granting preferential treatment to anyone on the basis of race, sex or ethnicity in hiring, education and contracts, effectively eliminating race- and gender-based affirmative action programs.

* Who is for it: The Colorado "Civil Rights" Initiative Committee
* The money behind it: $360,010 raised through Sept. 2.  ($346,870, or 96 percent of the total, comes from organizations run by California entrepreneur Ward Connerly.)
* Who is against it: Coloradans for Equal Opportunity
* The money against it: $281,050 raised through Sept. 2.  ($247,655, or 88 percent of the total, comes from the Leadership Conference on Civil Rights in Washington, D.C.)

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3 down, 2 to go... Ward Connerly's faux "Civil Rights" initiative suffers a third consecutive defeat in Arizona

from the NAACP LDF
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On Thursday, California businessman Ward Connerly was handed his third consecutive defeat in this year's five-state campaign designed to erect new barriers to equal opportunity in public education, public employment and public contracting. Connerly has been unable to get the ballot initiatives certified in the majority of the states where he and his associates have sponsored and funded efforts this year; identical measures in Oklahoma and Missouri similarly failed to qualify for the ballot.

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"Today is another important victory in the fight to preserve equal access to opportunity. As was the case in Oklahoma and Missouri, Ward Connerly's misguided and divisive effort has again fallen short, this time in Arizona. In light of the staggering disqualification rate that the Secretary of State found in its review of the signatures, the curtain has been pulled back on Connerlys attempts to abuse the democratic process," said John Payton, NAACP Legal Defense Fund President and Director-Counsel.

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Arizona's Secretary of State decertified the so-called "Arizona Civil Rights Initiative" because it did not gain sufficient public support to place it on the ballot this November. The initiative, if passed, would have amended the Arizona constitution to ban programs designed to provide equal access to women and minorities in the areas of public education, public employment and public contracting. The petitions were rife with phony or invalid signatures, fake addresses and other disqualifying factors. For example, one notarized petition included the names and "signatures" of American presidents Jimmy Carter and Gerald Ford. It also listed Libyan leader Mu'ammar al-Qadhafi with Saudi Arabia listed as his street address and Tibet as his city of residence.

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The campaigns in Arizona and several other states have been widely accused of employing deceptive and improper practices in the signature gathering process.

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The NAACP LDF has been intimately involved in challenging these targeted campaigns to roll back civil rights nationwide. The NAACP LDF worked closely with Protect Arizona's Freedom, a grass-roots volunteer coalition of Arizona citizens who monitored the state's examination of the petitions to ensure that the ballot initiative process was not manipulated. Thursday's victory was yet another sign that Connerly's efforts are being met with close scrutiny and resistance nationwide, and that the people reject his campaign to erect barriers to equal opportunity in public education, public employment and public contracting.

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Representative Russell Pearce Proposes Ban on Student Groups Based on Race at Arizona Campuses

Russell Pearce, a Republican member of the Arizona House of Representatives, has introduced legislation that would bar students at state-operated universities from forming groups or associations based in whole or in part on racial classifications.

Under the proposal, groups such as the Black Law Students Association, the Black and African Coalition, the Black Business Student Association, the National Society of Black Engineers, the NAACP, or other groups based on race, would not be permitted on the campuses of the University of Arizona or Arizona State University.

The bill authorizes the state to withhold public funding from colleges and universities that do not comply with the provision.

What is Most bizarre is that the provision was not introduced as a stand-alone bill but rather was amended onto a routine Homeland Security bill. That his amendment was not germane to the original bill was apparently not enough to stop the Arizona House Appropriations Committee from passing it on Wednesday. It still awaits a vote by the state’s full House and Senate.

The Complete text of Representative Pearce's proposed amendment to SB 1108 can be found by clicking [HERE].
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I guess I shouldn't be surprised though. This is the same Legislator that introduced HCR 2041 - the companion bill to Ward Connerly's attempt to eliminate Affirmative Action. Only Representative Pearce takes Ward Connerly's stance a step further by introducing this 'gem'. Representative Pearce's bill contains a provision that:

Requires that an injured party’s race, sex, color, ethnicity, or national origin are not to be considered when seeking remedy for violations of anti-discrimination law.

Now tell me, if you can't consider the race of an injured party in a discrimination case, then how can you ever prove racial discrimination? The Answer? You CANT... Pearce's bill would "end" racial discrimination in Arizona by making it illegal to investigate the claims... This would be funny if it weren't so sad...
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Rep. Russell Pearce (R) Distr 18
House of Representatives
1700 W. Washington
Room 114
Phoenix, AZ 85007
Phone Number: (602) 926-5760
Fax Number: (602) 417-3118
Email Address: mailto:rpearce@azleg.gov


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... somebody ought to give Representative Pearce a call...
Arizona NAACP'ers, let me know if there's anything we can do to help...

Tech Tags: Arizona+Legislature, Russell+Pearce, Affirmative+Action,

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Ward Connerly's Anti-Affirmative Action campaign is defeated in Oklahoma!

Ballot Petition Hits Firewall in Oklahoma <--link to NAACP LDF

In a significant blow to a national effort to curtail equal opportunity in America, backers of a proposed amendment to the Oklahoma Constitution that would end equal access and opportunity programs in the state have asked to withdraw the measure from consideration. The move comes after supporters of the so-called Oklahoma Civil Rights Initiative – spearheaded by Ward Connerly's American Civil Rights Institute (ACRI) as part of a national crusade against affirmative action – failed to collect the signatures needed to get the proposal on this November's ballot.

In conceding defeat, Connerly characterized the ACRI's efforts in Oklahoma as a "miscalculation." "The hope is that this is the beginning of the end of Mr. Connerly's flawed campaign," said John Payton, President and Director-Counsel of the NAACP Legal Defense and Educational Fund (LDF). "The attempts by supporters of this initiative to manipulate the democratic process never garnered support from the people of Oklahoma, who have instead stood up to defend access to equal opportunity for all."

Oklahoma is one of five states, along with Arizona, Colorado, Missouri and Nebraska, currently targeted by Connerly and his ACRI. The deceptively worded initiatives claim to end "discrimination" and "preferences," but have been cited as the basis for rolling back a wide range of equal opportunity programs in states where similar initiatives have been adopted. "The most recent developments in Oklahoma only lend further legitimacy to the widespread concerns that have been raised about the tactics used by Connerly in each of the states he has targeted," said Reginald T. Shuford, senior staff attorney in the ACLU Racial Justice Program. "The efforts of Connerly and the ACRI are an affront to the ideals they claim to support, and my hope is that this is only the first of a string of victories on behalf of the many Americans who believe so strongly in equality and equal opportunity."

The withdrawal follows a lawsuit challenging the proposal by the NAACP Legal Defense Fund, the ACLU Racial Justice Program, the ACLU Foundation of Oklahoma and the ACLU Women's Rights Project, which raised deep concerns about the signature-gathering process and the constitutionality of the ballot petition itself. "Secretary of State Susan Savage found numerous irregularities in the signature-gathering process," said Chuck Thornton, legal director of the ACLU of Oklahoma. "We continue to find such deficiencies in our on-the-ground investigation, consistent with the beliefs of OCRI's own backers that its petition is defective and should be withdrawn."
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In discussing these campaigns with my colleague President Clyde Williams from the Mar-Saline Branch NAACP in Missouri, I have learned that Ward Connerly and his petitioners would simply ask people if they were supportive of Civil Rights. As people respond in the affirmative, they follow up by asking if those people would be willing to sign a petition to 'protect their civil rights'. The use of these deceptive practices and in some cases outright lies is shameful.


Now I will admit, that when Mr. Connerly makes his argument that he is trying to eliminate preferences that favor some at the expense of others, there is a simple surface logic to his point. However, if this campaign was truly about eliminating preferences and moving our nation towards a meritocracy, then he would have to include a multitude of preferences that his campaign willfully ignores.


Consider the University of Michigan, which was ground zero for Ward Connerly's Anti-Affirmative Action Campaign. The ACRI initiative was designed to eliminate the 20 points that were awarded to African American applicants to the University of Michigan. Mr. Connerly and the ACRI argued that these points discriminated against White applicants and should therefore be eliminated. Mr. Connerly and the ACRI argued that such preferences had no place in our contemporary society. However, the University of Michigan also awarded points for applicants who lived in the Upper Peninsula of Michigan, they awarded points for applicants who were the children of alumni, they awarded points for applicants who attended one of a number of preselected High Schools, there were preferences in place for the children of donors and supporters of the schools, etc etc... All in all, while Mr. Connerly ravaged on the unfairness of the 20 points awarded to African Americans, he willfully ignored the 37 points being offered to the Prep School kids from Ann Arbor. And now that the program intended to increase diversity at the University of Michigan has been disbanded, so has his outrage; and the 37 points of preference reserved for the affluent and connected remain in place.


I could respect his argument if it were consistent (though I'd reserve my right to disagree). If you are against preferences, be against ALL preferences... If if diversity programs are discriminatory, then so are Legacy programs. If it's wrong to use points to achieve racial diversity, then it is equally wrong to use points to achieve geographic diversity. If its discriminatory to award points to members of a certain race, then it is equally discriminatory to award points to members of a certain family. But the ACRI campaign is not concerned with any of that... they are concerned about race and race alone. Ironically, Ward Connerly's campaign displays a peculiar inverse form of Color-Blindness; one where he is apparently blinded by color. And he's hoping to blind the rest of us with BS...

(Clyde Harold & Anita out in Missouri, Rev. Ratliff in Iowa, Bea Madison out in Colorado, and to our folks out in Arizona... Keep up the Fight! We've got 1 down - and 4 more to go)

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Legal Update: The Missouri State NAACP & Ward Connerly's Anti-Affirmative Action initiative

Ward Connerly and his "Civil Rights" institute have been traveling the country trying to end Affirmative Action programs. Currently, he is attempting to place measures on the ballot in Missouri, Colorado, Oklahoma, Nebraska, and Arizona.

Connerly uses ballot petitions to amend State constitutions using misleading language and evoking Civil Rights imagery. The language he is attempting to amend into the Missouri constitution 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"

To place the language on Missouri's ballot in November '08, Connerly has until May 4th, to gather 139,000 signatures. His volunteers ask would be petitioners to sign a petition in support of a new civil rights initiative. Signatories are often unaware of the fact that the petition they've been presented is actually an anti-affirmative action measure, carefully worded to obfuscate its singular intent.

Thankfully, in the state of Missouri, the Secretary of State and Attorney Generals Office have to approve the wording of any ballot petitions. The Secretary of State did not accept the language submitted by Asher and Connerly and proposed new language that clearly describes the propositions intent. In response Connerly and Asher have filed suit to retain their obscure and misleading language.

The Missouri State Conference of the NAACP has been working through the courts to try and stop this latest effort. The following is an update regarding the litigation pending in the Circuit Court of Cole County involving the proposed anti-civil rights initiative petition. [Warning, this is a long post...]

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FACTUAL BACKGROUND
On June 15, 2007, Tim Asher ("Proponent Asher") and a group called the Missouri Civil Rights Initiative filed with Secretary of State Carnahan a proposed Initiative Petition to change Missouri's Constitution ("Proposed Initiative"). Proponent Asher is a representative of Ward Connerly and his American "Civil Rights" Institute.

On July 19, 2007, the Secretary of State certified the Official Ballot Title for circulation to voters. The Summary Statement of the Official Ballot Title reads:

"Shall the Missouri Constitution be amended to:

• ban affirmative action programs designed to eliminate discrimination against, and improve opportunities for, women and minorities in public contracting, employment and education; and
  
• 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 a fide qualifications based on sex?"

The Fiscal Note Summary portion of the Official Ballot Title prepared by State Auditor Montee reads:

"The total cost or savings to state and local government entities is unknown. Most state governmental entities estimate no costs or savings. Moreover, costs or savings related to future contracts are unknown. Some local governments estimate no costs or savings but prohibition of certain municipal policies may result in unknown costs."

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LITIGATION
A. Proponent Asher's Suit:

On July 26, 2007, Proponent Asher filed suit against Secretary of State Carnahan claiming that the Summary Statement prepared by her was insufficient, confusing and/or misleading. Proponent Asher is seeking a court order to change the Summary Statement to the following:

"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?"

[The title challenge is Proponent Asher's only claim.]

B. Shufeldt and Isrealite suit:

On July 30, 2007, Greg Shufeldt of St. Louis and Steve Isrealite of Kansas City (collectively "the Opponents") filed suit against the Secretary of State and the State Auditor regarding their preparation of the Official Ballot Title for the Proposed Initiative. On August 28, 2007, the Opponents amended their Petition. In their amended Petition, the Opponents raise six separate claims.

Count I alleges the Secretary of State's Summary Statement, while accurate, is legally insufficient as it is underinclusive and fails to summarize all material provisions of the Proposed Initiative. The Opponents' claim that the Summary Statement fails to mention the authorization for preferential treatment based on religion, disability, veteran status and age. The Opponents also claim that the Summary Statement also fails to discuss the effect of the proposed amendment would have on court orders. Finally, Opponents claim the Summary Statement fails to state that the Proposed Initiative authorizes new lawsuits for enforcement of its provisions and abolishes remedies currently available to minority and women victims of discrimination.

Count II claims that the fiscal note prepared by the State Auditor does not estimate the measure's cost or savings to governmental entities covered by its provisions. Count II also claims that the Auditor did not properly gather or verify information to make her determination.

Count III challenges the fiscal note summary as it fails to estimate the costs or savings and is based on a flawed fiscal note.

Count IV claims that the procedure used by the State Auditor to evaluate fiscal impact of the measure should have been promulgated as an administrative rule but was not.

Count V claims that the proposed measure violates the constitutional requirement that proposed initiative petitions not contain multiple unrelated topics.

Finally, Count VI claims that the Proposed Initiative exceeds the Initiative Power because its terms violate the Equal Production Clause of the United States Constitution. The Opponents claims the provisions of the Proposed Initiative which allows for preferential treatment for suspect classes and others in some circumstances but not for others in similar circumstances is an illegal classification without a sufficient state interest.

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LITIGATION UPDATE

On January 7th, Judge Callahan issued his ruling

DISCUSSION

A. Summary Statement Portion of the Official Ballot Title
Plaintiffs’ first complaint about the summary statement is the use of the term “affirmative action.” Although the proposed amendment does not use the term affirmative action, an examination of the purpose of the amendment, together with an examination of the definition of affirmative action, makes it clear that the purpose of the proposed amendment is to ban programs that fit the definition of affirmative action.

The equal protection clause of the Missouri Constitution, Art. I, Sec. 2, already severely limits any discriminatory practice by the State. Race, national origin and gender are suspect classifications that are subject to heightened scrutiny. See Powell v. American Motors Corp., 834 S.W.2d 184 (Mo. banc1992); State v. Stokely, 842 S.W.2d 77 (Mo. banc 1992).
The proposed amendment would therefore ban programs that are currently allowed under the state constitution’s equal protection clause and which are intended to improve opportunities or eliminate the lingering affects of past discrimination against women and minorities. These types of programs are commonly referred to as “affirmative action” programs. For example, Webster’s Third New International Dictionary defines affirmative action as “an active effort to improve employment or educational opportunities for members of minority groups and women.” Webster’s Third New International Dictionary of the English Language (Philip Babcock Gove, Ph.D. ed., Mirriam-Webster Inc. 1993). Black’s Law Dictionary defines “affirmative action” as “a set of actions designed to eliminate existing and continuing discrimination, to remedy lingering effects of past discrimination, and to create systems and procedures to prevent future discrimination.” Black’s law Dictionary 60 (7th ed. 1999).

The use of the term “affirmative action” allows those reviewing the ballot title to know the issue that the proponents of initiative seek to put before the voters. Regardless of whether a voter is for or against affirmative action programs, that voter will be aware of why they are being asked to sign the petition and what they may ultimately be voting on. The most significant provision of the amendment would ban affirmative action programs in Missouri, as the first bullet point in the Secretary’s summary states. Accordingly, the Court finds nothing “insufficient or unfair” from the use of the term “affirmative action programs” in the ballot summary.

The second bullet point in the Secretary’s summary states that the proposed
amendment will:

“allow preferential treatment based on race, sex, color, ethnicity, or national origin to meet federal program funds eligibility standards…”

It is this second bullet point which the Court finds troubling because it suggests that the proposed amendment is first going to do away with one class of preferential treatment programs, i.e. affirmative actions programs, and then replace the affirmative action programs with some other kind of preferential treatment programs. The purpose and effect of the proposed amendment is to ban certain preferential programs unless a particular program is necessary to qualify for federal funding. The federal eligibility exception, as well as the court exception, only serves as an exception to programs that are being banned by the amendment.

While the Secretary argued, and this Court agrees, that the term “affirmative action programs” may be utilized to describe in the first sentence what is being banned, the second sentence containing the exception must then grammatically utilize the same subject to which the exception applies. The Court finds no merit to the Secretary’s argument that it would be “confusing, unfair, and misleading to voters to state in one bullet point of the summary that the petition bans affirmative action programs; and state in the very next bullet point that it allows affirmative action programs”, pages 12-13 of Defendants’ Post-Trial Brief.

B. Fiscal Note
Plaintiffs Shufeldt and Israelite claim that the Auditor’s fiscal note fails to meet a statutory requirement that the note actually provide an estimate of the measure’s cost or savings.
Section 116.175.3 provides that the fiscal note must state the measure’s estimated cost or savings, if any, to state and local governmental entities. The fiscal note prepared by the Auditor meets § 116.175.3’s requirements. Each individual entry in the fiscal note states a particular entity’s estimate of the cost or savings of the measure, if any, as to that entity. The Auditor’s decision to have the fiscal note consist of a collage of estimates of costs and savings from individual governmental units is a choice of form of presentation for the Auditor. Given the time constraints and lack of subpoena power, this Court cannot say that her choice of form fails to comply with the statute. While the Auditor could have included a combined net estimate of cost or savings for all entities in the note, § 116.175.3 did not require her to do so.

Aside from form, Plaintiffs failed to show that the Auditor’s fiscal note was insufficient or unfair. In Overfelt v. McCaskill, 81 S.W.3d 732, 737 (Mo. App. W.D. 2002), the court held that establishing insufficiency or unfairness of a fiscal note required a plaintiff to prove “that a better estimate was available” to the Auditor. 81 S.W.3d at 737. “Without such evidence,” the court held, the plaintiff “could not establish that the [fiscal note] was insufficient or unfair…” Id.

Here, Plaintiffs Shufeldt’s and Israelite’s attack on the Auditor’s fiscal note fails for a lack of proof, just like the plaintiff’s claim in Overfelt. The testimony of their expert did not prove that there was available to the Auditor an estimate that was better than what the Auditor obtained from the state and local governmental entities. Plaintiffs’ expert did not have an opinion as to what the correct estimate of cost or savings of the measure would be and she also admitted that she did not know how the proposed amendment would affect any particular state and local governmental entity.

C. Fiscal Note Summary
Plaintiffs Shufeldt and Israelite failed to prove that the Auditor’s fiscal note summary was insufficient or unfair. Hancock v. Secretary of State, 885 S.W.2d 42, 49 (Mo. App. W.D. 1994), held that “[a]s applied to the fiscal note summary, insufficient and unfair means to inadequately and with bias, prejudice, deception and/or favouritism synopsise in [50] words or less, the fiscal note.” As with the summary statement portion of the official ballot title, the Auditor’s fiscal note summary is not required to present “the best language for describing the [measure’s] effect.” Id. The important test is whether the language fairly and impartially summarizes the fiscal note. Within the 50-word limit, the summary need not set out the details of the fiscal note. See Bergman, 988 S.W.2d at 92.

Here, the Auditor’s fiscal note summary fairly and impartially summarizes the fiscal note within the 50-word parameter. Indeed, Plaintiffs’ expert agreed at trial that the fiscal note summary accurately or fairly summarized the responses from the state and local governmental agencies that were listed in the fiscal note.

D. Requirement of a Rule (Shufeldt/Israelite Petition – Count IV)
In Count IV of their petition, Plaintiffs Shufeldt and Israelite make the claim that Defendant Montee was required to promulgate a rule for preparation of fiscal notes.

Plaintiffs cite no statutory provision that would require the Auditor to promulgate a rule for fiscal note preparation, and Chapter 116 does not impose one. As such, their claim fails as a matter of law. “An administrative agency need not promulgate rules … simply because it has the power to do so.” Missouri National Education Assoc. v. Missouri State Bd. Of Education, 34 S.W.3d 266, 287 (Mo. App. W.D. 2000), citing Artman v. State Bd. of Registration for the Healing Arts, 918 S.W2d 247, 251 (Mo. banc 1996). “In the absence of a statutory restraint the choice whether to develop policy by rule, ad hoc adjudication, or both, rests with the discretion of the agency.” Greenbriar Hills Country Club v. Director of Revenue, 47 S.W.3d 346, 357 n.32 (Mo. banc 2001).

E. Single Subject Violation
Plaintiffs Shufeldt and Israelite claim in Count V that the proposed amendment violates Article III, § 50’s single-subject requirement.
This claim is not ripe until petition signatures have been gathered and the Secretary of State certifies the petition for inclusion on the ballot. See Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990). Accordingly, the Court dismisses this claim without prejudice.

F. Federal Law and Equal Protection Violations
Plaintiffs Shufeldt and Israelite claim in Count VI that the proposed amendment, if adopted, would violate various federal statutory and constitutional provisions.
These claims are not ripe either. As the Missouri Supreme Court held in State ex rel. Dahl v. Lange, 661 S.W.2d 7 (Mo. banc 1983):
Until the people have voted on the initiative, judicial assessment of the constitutional validity of the proposal would be premature and an encroachment on the legislative function. Should the voters reject the amendment, the Court’s decision as to constitutionality would be an advisory opinion. Courts in Missouri will not render advisory opinions.
Id. at 8 (internal citations omitted). See also Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990) (Missouri courts do not “give advisory opinions as to whether a particular proposal would, if adopted, violate some superseding fundamental law, such as the United States Constitution.”).

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ORDER - of Judge Richard Callahan

IT IS HEREBY ORDERED that Plaintiffs’ request for alternative summary language is granted and the following Summary Statement portion of the Ballot Title is certified to the Secretary of State:

Shall the Missouri Constitution be amended to:

"Ban state and local government affirmative action programs that give preferential treatment in public contracting, employment, or education based on race, sex, color, ethnicity, or national origin unless such programs are necessary to establish or maintain eligibility for federal funding or to comply with a court order ?"

IT IS FURTHER ORDERED that the Fiscal Note and Fiscal Note Summary is certified as previously prepared by the Auditor and certified by the Secretary of State. Plaintiffs Shufeldt and Israelite’s claims with respect to the Fiscal Note and Fiscal Note Summary are denied.

IT IS FURTHER ORDERED that all remaining Plaintiffs’ claims are denied.

SO ORDERED THIS 7th Day of January, 2008.

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We in the Wichita Branch NAACP applaud the legal efforts of the Missouri State Conference and stand ready to assist you in any way requested or necessary. We recognize that while this ruling was favorable, this fight is far from over; Mr. Connerly and his group will continue gathering signatures and there is a real chance that this question could end up on the ballot. Hopefully, through this blog and the combined efforts of concerned members and friends, we can spread the word about the real intent of Mr Connerly and his multi-state faux civil rights initiatives...

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