California poised to reject affirmative action measure despite summer of activism

By Alexander Nieves
·9 min read

OAKLAND, Calif. — California voters are poised to reject an affirmative action measure despite a summer of racial justice activism and overwhelming support for Black Lives Matter in one of the nation's most diverse states.

The surprising mood of the California electorate is confounding state lawmakers and political strategists, who believe the moment is riper than ever to repeal a 1996 statewide ban on racial and gender considerations in public hiring and college admissions. A defeat now could delay the return of affirmative action for years, squandering a 2020 opportunity with racial justice top of mind for voters across the U.S.

In the 24 years since 1996, Latino residents have surpassed white Californians as the state's largest ethnic group. The affirmative action ban, Proposition 209, inspired a generation of Latino and Black politicians to run for office and diversify a state Legislature that now features Democratic supermajorities in both houses for the first time.

Yet polls suggest that same Legislature may have miscalculated when it placed a measure on the November ballot to reinstate affirmative action. They called for a repeal of Prop 209, and repeals of laws have been known to confuse voters. Meanwhile, any election measure is at the mercy of the state Attorney General's Office, which writes the language that voters read to decipher ballot questions.

“I think a vast majority of people voting don't know what this is,” said Assemblymember Lorena Gonzalez (D-San Diego), a vocal backer of the measure. “They're suspicious of what we're trying to do. People who would normally be absolutely supportive, just don't understand it.”

For social justice advocates and Democratic lawmakers, California’s affirmative action ban has long been a blemish on the record of a state that turned deep blue in the years since voters passed the law.

The state is first in the nation on numerous left-leaning fronts, from forcing automakers to build more efficient cars to asserting that college athletes have the right to be paid. But California also was first in banning affirmative action thanks to a Republican governor and conservative activists who appealed to a mid-1990s electorate uncomfortable with the state's fast-changing ethnic makeup. That set off a cascade of similar measures in other states.

While lawmakers believed the national dialogue on racism and inequality sparked by George Floyd’s police killing provided obvious momentum, voters are responding with a head scratch.

A poll conducted last month by the Public Policy Institute of California that presented voters with ballot titles and summaries found that just 31 percent of likely voters planned to vote yes on Prop 16, while 47 percent leaned no and 22 percent were undecided. Conventional wisdom says that any measure struggling that badly weeks before an election is doomed.

The numbers are counterintuitive based on polls that PPIC conducted in July and September, said Mark Baldassare, president and CEO of the nonpartisan polling and research organization. A significant majority of Californians identified racial inequality as a major problem in America and nearly 70 percent said they support the Black Lives Matter movement.

“Clearly, the other poll questions that we've been asking in recent months indicate that there are a lot of concerns about racism, a lot of concerns about discrimination,” Baldassare said. “So, there seems to be a basic disconnect right now [for voters] between what Prop 16 does and how it could impact issues having to do with racial justice and discrimination.”

In the years since Prop 209 passed, businesses owned by women and people of color potentially lost more than $1 billion per year in government contracts, according to a 2015 study by the Equal Justice Society.

Meanwhile, the share of Black and Native American student enrollment in the University of California system has declined. Though the proportion of Latino students has increased — they were the largest share of admitted freshmen for the first time this fall — critics say that rise has not kept pace with their share of the overall state population, especially at the most selective Berkeley and Los Angeles campuses.

Because Prop 209 was a voter-approved constitutional amendment, it takes another ballot measure to repeal or change it. Democratic state lawmakers tried six years ago to place such a measure on the ballot but ran into internal caucus opposition as Asian American parents feared that affirmative action would hurt their children's chances at the state's most elite public universities.

But the Floyd killing galvanized residents into social action, taking to the streets to protest inequality and racism against Black residents in particular. Within weeks, the Legislature agreed to place a measure on the ballot that would reinstate affirmative action, this time with support from the Asian and Pacific Islander Legislative Caucus.

The actual question for voters in the bill was brief: "That Section 31 of Article I thereof is repealed." The citation, of course, refers to Prop 209.

But for voters to repeal Prop 209, they have to understand what the 1996 initiative did. And they have to know that their "yes" vote will cancel out another law in the constitution.

Baldassare explained that the electorate is typically disinclined to overturn past voter decisions. He pointed to Washington state, where a predominately liberal voting base last year narrowly rejected a referendum repealing the state’s own affirmative action ban.

“Just because people don't support something doesn't mean that they don't believe in the concept,” he said. “It's very easy for people to say no or I don't know unless they're absolutely sure that they're doing the right thing. And at this point, at least until they know more, they're not sure they're doing the right thing.”

Dave Metz, president of FM3 Research, which conducts opinion research for political races and ballot measure campaigns nationally, said the high number of undecided voters on Prop 16 is a telltale sign that they are unfamiliar with the proposal and confused by it.

He said that the wording of the ballot summary — written by the state Attorney General's Office — is particularly tricky and likely to trip up the average voter. “In ballot measure campaigns, the wording of the question on the ballot is usually the single most important factor in how voters make up their minds,” Metz said.

This November's election poses particular problems for complicated measures. Twelve proposals are on the ballot, and battles are being waged by campaigns that have tens of millions of dollars, in some cases close to $200 million.

Besides that, California counties sent ballots in early October to all 21.2 million voters. That put the onus on campaigns to get their messages out early and often — which meant deep-pocketed gig companies, real estate interests and dialysis clinics flooded the airwaves and drove up prices.

“People are fatigued on advertisements on both TV and internet. I've heard that constantly,” said state Sen. Steve Bradford (D-Gardena). “Every time you turn on the TV, you get more advertising for propositions and initiatives than you do regular commercials now. So, there's a lot of burnout and there are just so many propositions right now on the ballot that people are totally confused.”

Backers of Prop 16 have raised $18 million so far, a decent sum in some election cycles, but dwarfed by campaigns around other initiatives this fall. Without a bigger war chest, Prop 16 supporters couldn't run wall-to-wall ads in September to explain their measure before ballots reached mailboxes.

The Yes on Prop 16 campaign over the last week launched a high seven-figure television and digital ad buy in its first major voter education effort, campaign manager Andy Wong said. He acknowledged that the campaign has to overcome confusing ballot language.

Proponents say combating voter confusion is particularly important in the critical 18-34 age group. While it is the most liberal voter base, it also has little historical knowledge of affirmative action and lower turnout.

“If you're under 42, you’ve never had the chance to consider voting on this,” said Assemblymember David Chiu (D-San Francisco). “That does require us to engage in an incredibly robust campaign to educate this generation.”

Wong said that the campaign likely doesn’t have time to explain the nuances of affirmative action policy, but it does have the opportunity to clarify who is for and against the measure. Prop 16 has so far received endorsements from Gov. Gavin Newsom and vice presidential candidate Kamala Harris, every statewide elected official, and more than 100 community, labor and business organizations, including sports franchises like the Golden State Warriors and San Francisco 49ers.

“We're going to lean on all of the endorsers, and make sure that they're getting the message out,” he said.

Recent polling conducted by the Latino Community Foundation, a San Francisco-based nonprofit, found that among more than 1,200 registered Latino voters surveyed, about 50 percent said they’d vote yes after reading just the ballot title and summary for Prop 16. However, when provided statistics about how UC enrollment of Latinos significantly trails their share of the overall population, total support for affirmative action jumped to 76 percent.

Proponents have a distinct fundraising advantage with $18 million, compared to only $1 million raised by Californians for Equal Rights, the opposition group led by Ward Connerly, a retired African American businessman who was instrumental in Prop 209's passage, along with then-Republican Gov. Pete Wilson. That $1 million figure effectively limits the opposition's ability to run ads in a state of nearly 40 million people.

Metz said that while Prop 16 is running out of time, the campaign has a couple of advantages that should keep it in contention. Based on current polling on race and gender equity issues in California, he believes there is already a large enough base of voters who should support affirmative action policies on their merits.

“The message they have to deliver isn't that complicated,” he said. “Simply explaining what [Prop 16] would do sounds like it has a lot of potential to move voters. And if all you have to do is resolve confusion, and not persuade people that this is a good idea, you don't require the same amount of repetition to get there.”