One of the most important and controversial propositions on the November ballot is Proposition 16, which would overturn Prop 209’s ban on affirmative action policies that “discriminate against, or grant preferential treatment to, any individual or group, on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting.”
Democrats in the State Legislature voted to have Prop 16 appear on the ballot, leaving the fate of Prop 209—and the legality of governmental discrimination—in the hands of voters. One of the challenges that opponents of affirmative action face is that California Secretary of State Alex Padilla—who has immense authority over election procedures—is an adamant supporter of Prop 16.
This is what Prop 16 will do in California. It’s poisonous. Please vote NO. And please tell your friends. We’re fighting for California’s future generations. pic.twitter.com/q03N0dTCoy
— Gail Heriot (@GailHeriot) August 13, 2020
This is a problem because the ballot language describing a proposition can often sway voters significantly in one direction or the other. Recall that the Prop 6 effort to repeal the “gas tax” in 2018 was framed as eliminating crucial infrastructure funding. This sleight of hand is possibly because of Padilla’s power as Secretary of State.
This time, California Attorney General Xavier Becerra is also doing Padilla’s bidding, defending a ballot description that was extraordinarily misleading. Rather than acknowledging Prop 16’s clear effect of racial referencing, Padilla—with the support of Becerra—sought to include language framing it as an effort to increase “diversity.” A seemingly benign attempt to bolster diversity would likely appeal to a significant number of voters—many of whom would decisively reject legalized state discrimination if they knew that is what they were voting on.
The Superior Court of California recognized that the language proposed by Padilla and Becerra is extremely misleading, which should have resulted in its immediate dismissal. However, the presiding judge deferred discretional authority to Becerra due to his position as Attorney General, creating something of a judicial conundrum.
This egregious result has certainly not gone unnoticed, with many organizations recognizing what’s at stake. Californians for Equal Rights (CFER) is one of the leading organizations fighting against Prop 16, arguing that it eliminates true equality in favor of a perverse form of racial discrimination. CFER has been heavily involved in the battle over Prop 16’s ballot language, taking particular exception with Becerra’s attempt to strong arm the court—and voters.
“Becerra once again puts his thumb on the scale to deprive the voters of the truth,” said CFER President Ward Connerly. “The false and misleading ballot label will backfire. This brazen attempt to hide what Prop 16 really is will only embolden us to fight harder.”
While the dispute over accurate ballot language continues between the respective sides, the success or failure of Prop 16 will ultimately be determined by voters in November.
