Calif. affirmative action ban sets precedent Vote expected to inspire similar moves elsewhere after years of defeats

Election 1996

November 07, 1996|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Foes of affirmative action, making gains repeatedly in the Supreme Court but often stymied elsewhere in government, may have turned their political and legislative fortunes around in one giant step in Tuesday's elections.

With a margin of nearly 750,000 votes out of 8.7 million cast, California voters approved Proposition 209 -- a sweeping assault on the use of race, sex or national origin as a basis for hiring and promotions in state and local government jobs, state college admis- sions, and public works and other government contracts.

Immediately, the measure drew dueling lawsuits: Liberal groups led by the American Civil Liberties Union asked a federal court to strike it down as unconstitutional, and the conservative Pacific Legal Foundation sued in state court to put it into effect immediately.

Despite the lawsuits and the fact that Proposition 209 would operate only in California, the measure is likely to have repercussions in politics and legislation -- perhaps sooner than any reaction to other ballot measures that gained voter approval, including those legalizing marijuana for medical use, imposing term limits and creating new rights for crime victims.

Opponents of affirmative action in Congress and other states appeared poised to take up their cause anew, just months after failing on several tries.

Rep. Charles T. Canady said yesterday that Proposition 209's passage "will be seen as a crucial turning point," with "a profound effect on other states and the federal government as well." The Florida Republican, chairman of a key House Judiciary subcommittee, pushed such a proposal unsuccessfully earlier this year.

He said the California vote will "provide new momentum" for his proposed Equal Opportunity Act, generally banning affirmative action in federal programs. He said he would offer that proposal when Congress returns.

Even the strongest defenders of affirmative action conceded that the California vote will have a strong effect on the political atmosphere surrounding race, sex and ethnic preferences in government programs.

William L. Taylor, Washington civil rights lawyer and vice chairman of the Citizens' Commission on Civil Rights, a group committed to affirmative action, said yesterday:

"My overall impression is that this keeps the issue very much alive, and we're likely to see it come up again in the Congress and in states around the country."

If Proposition 209 had failed, he said, that "might have put to rest" a recent campaign to use political and legislative action to end race, sex and ethnic preferences. Now, Taylor conceded, the California vote "is going to encourage" the opposition significantly.

Up to this vote, he noted, opponents of affirmative action had met repeated defeats in Congress, in state legislatures and in attempts to get the issue on the ballot in six states. Those defeats, he said, had been "a net gain for affirmative action."

About the only signs of success for affirmative action opponents had been in the Supreme Court. That success was considerable.

Last year, the court strictly limited the federal government's power to use racial preferences.

In 1989, the court imposed similar limits on state and local governments. And, in a string of rulings up through this summer, the court curbed "racial gerrymandering" to create black-dominated election districts.

Proposition 209's political reverberations seem sure to be stronger than those in the wake of another controversial California ballot measure: the highly visible proposal to legalize marijuana as medicine for seriously ill persons.

That and a similar measure passed in Arizona are likely to be blunted by threats of federal prosecution. A federal regulation bans such uses.

Another ballot idea that won favor dealt with term limits.

The never-say-die commitment of those who want term limits imposed on members of Congress gained voter endorsement of a new approach in nine states.

Success for that approach, however, will depend upon the outcome of an Arkansas test case in the Supreme Court.

The new tactic, already being dubbed the "scarlet letter" measure, is to put an anti-term limits label on future ballots next to the name of any candidate who failed to work for or take a pledge in favor of amending the U.S. Constitution to limit the terms of members of the House and Senate. A constitutional amendment is the only approach the Supreme Court has left open for that idea.

A constitutional amendment may be started either in Congress, or at a constitutional convention if Congress agrees to call one at the request of states. Legislatures in at least five states where the "scarlet letter" referendum passed this week are now under orders from the voters to ask Congress to call such a convention.

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