Thoughts from
San Diego on Law, Politics, and Culture

 
One More Thing to Consider in the Recall Election
By Gail Heriot

Karl Marx isn't one of my favorites, but he nailed one thing: History repeats itself--first as tragedy and then as farce. The continuing battles over affirmative action and California's Proposition 209 are a case in point.

The original tragedy occurred when the Civil Rights Act of 1964, which offered so much hope for racial reconciliation, was transformed in part into an instrument for discrimination. All too quickly after it became law, its clear ban on race discrimination was interpreted to apply only to members of certain races. The country was forced to be satisfied with only half a measure. Discrimination against whites and Asians was fine, even encouraged.

It took almost three decades for Californians to draw the line, but they finally did. Crystal clear language was drafted: No race discrimination may be practiced by the State of California or its subdivisions, not against any person, no matter what his or her race, not even for superficially well-meaning reasons. With the passage of Proposition 209 in 1996, voters put a stop to preferential treatment based on race (or sex or ethnicity).

Or at least they thought they did. Members of California's Legislature have frequently voiced dissatisfaction with Proposition 209's requirement of race neutrality. And recently with Gray Davis's blessing, they took action. They passed a statute that purports to interpret, but that in reality twists, Proposition 209 into somethings more to their liking. If the courts accept this new law as an authoritative interpretation of Proposition 209, it will "interpret" the initiative right into oblivion.

A.B. 703--taken from the U.N.'s International Convention on the Elimination of All Forms of Racial Discrimination--exempts from the definition of race discrimination "measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups." In other words, it exempts precisely the kind of case voters were thinking of when they passed Proposition 209 in the first place. Proposition 209's opponents could not ask for a more complete and dramatic back-from-the-grave victory.

Fortunately for the strong majority of voters who cast their ballots for Proposition 209, the whole enterprise is a fool's errand. California's comically out-of-control legislature has no power to bind the courts to an interpretation of a voter initiative, particularly when, as here, the interpretation is so obviously contrary to the voter's understanding of the initiative.

No one can argue that Proposition 209 was a stealth initiative. It was debated in newspapers and magazines, on radio and television, in churches and meeting halls and over breakfast room tables all over California. Its basic purpose was well known. If Proposition 209 doesn't apply to the kind of affirmative action measures described in the new law, then the Migratory Birds Act doesn't apply to creatures with feathers. The courts are unlikely to view this legislative escapade as anything more than another reason to be embarrassed for their state government--though I suppose anything is possible.

Gray Davis was never a friend to Proposition 209. But at least in the past he could be counted upon to veto the more ridiculous excesses of the Legislature. These days, however, Davis evidently thinks he cannot afford to antagonize any Democratic constituency. The result has been a feast of special interest legislation of which A.B. 703, which Davis signed into law, is just one one example. For some Californians unsure of how to vote on the recall, it may be one example too many.

posted by Gail at 9/29/2003 10:09:00 AM