Arizona Proposition 104 (2008)

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See also Arizona Civil Rights Amendment, Proposition 107 (2010)

Arizona Proposition 104, also known by its supporters as the Arizona Civil Rights Initiative (ACRI), was a citizen-initiative that attempted but ultimately failed to qualify for a spot on the November 4, 2008 ballot in Arizona as an amendment to the Arizona Constitution.

The measure was variously described as banning affirmative action or as banning racial preferences. The official language of the proposed amendment was, "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."

Supporters filed 334,658 signatures on Thursday, July 3, 2008. To qualify, 230,047 of these signatures had to be valid.[1]

Arizona Secretary of State Jan Brewer disqualified Proposition 104 from the ballot Aug. 21, 2008, due to failure to submit enough valid signatures. Brewer invalidated nearly 140,000 signatures of those submitted.

Max MacPhail, executive director of the Arizona Civil Rights Institute, announced on August 28, 2008 that the organization had decided to withdraw a lawsuit it filed to appeal Brewer's disqualification, citing as his reason insufficient time to prove their case. MacPhail also said he will launch a new initiative to place the issue on the 2010 ballot. The group had filed a lawsuit in Maricopa County Superior Court, asking that Proposition 104 be put back on the ballot. The lawsuit said that election officials in Maricopa, Pima, Pinal, and Yavapai counties incorrectly ruled as invalid a number of signatures that were valid.[2][3][4][5]

The ACRI is one of three Arizona ballot initiatives in 2008 that filed signatures but failed to make the ballot. Initiative petition sheets that are said to be flawed to a possibly criminal degree have been referred to the state's attorney general for investigation.[6][7]

The state has very tight time frames. State and county officials have trouble meeting the deadline to verify signatures. Early voting means ballots must be printed earlier than ever. That leaves almost no time for judicial review. It's almost impossible to appeal a decision disqualifying petitions. This inefficient system is the reason that those three petitions were not on the ballot this year.[8]


Bolick, director of the Goldwater Institute, debated Dennis Shields, dean of the Phoenix School of Law, on how to decrease institutional racism in Arizona.

The American Civil Rights Institute, a national organization established in 1996 by Ward Connerly and Dusty Rhodes, is sponsoring the ACRI. Maricopa County Attorney Andrew Thomas is the honorary chairperson of the initiative campaign.

Republican Presidential candidate John McCain reversed himself on affirmative action in a "This Week" interview with ABC News' George Stephanopoulos on July 27, 2008, and endorsed Proposition 104, which would end race and gender-based affirmative action in McCain's home state.[9]

McCain said, "I support it. I do not believe in quotas... I have not seen the details of some of these proposals. But I’ve always opposed quotas."[9]

The American Civil Rights Institute supported similar measures in other states in 2008, including Colorado, Missouri, Oklahoma and Nebraska. The combined effort was called Super Tuesday for Equal Rights.

The Goldwater Institute issued a paper arguing that there are three dozen government contracting, hiring and university programs in Arizona that give preferences based on race and gender, and that this is the result of an executive order from Gov. Janet Napolitano that would have to be rescinded if the ACRI passes.[10]

Reasons for supporting

Reasons put forward by supporters to adopt the initiative include:

  • The assertion that "Tucson Unified School District has a quota system that keeps minority schoolchildren out of certain magnet schools."[11]
  • Reports that local governments use racial preferences in government contracts.
  • Arizona has separate court systems for Hispanics and non-Hispanics charged with driving under the influence of alcohol.[12]

Signature collection

In April, the Arizona Republic wrote an article raising the possibility that the petition drive to place the measure on the ballot was falling short. The Republic quoted Andrew Chavez, owner of a petition drive management firm in the state, saying that organizers of the ACRI were "having difficulty recruiting circlators and are short on cash." Max McPhail, ACRI's executive director, dissented from the picture that was painted.[13]


A group called Protect Arizona's Freedom was the umbrella organization for the coalition opposing the ACRI. Opponents included the Arizona chapter of the ACLU and Rep. Kyrsten Sinema. The Associated Students of The University of Arizona (ASUA) unanimously passed a resolution officially opposing the initiative.[14]

By Any Means Necessary

BAMN, which originated in 2006 in Michigan in opposition to the Michigan Civil Rights Amendment, Proposal 2 (2006), actively opposed the ACRI. BAMN brought members into Arizona to disrupt the process of collecting signatures. BAMN used methods ranging from physically blocking initiative signature gatherers to yelling while they were trying to collect signatures to scare people from signing. Various allegations about BAMN's role in the ACRI petition blocking effort included:

  • They were required to leave the DMV (Department of Motor Vehicles) location in South Phoenix after a disruption.
  • When ACRI signature gatherers attempted to turn in batches of signed petitions to the management of the Arizona Civil Rights Initiative, a van of BAMN workers pulled up and started screaming at them, calling them racists.[15]

BAMN filed a lawsuit on Monday, June 30th, claiming that the practices of the signature gatherers were deceptive and misleading.[16]

Shanta Driver, national chair of BAMN, said she wanted to block the measure from getting on the ballot in part because she fears a majority of Arizonans will vote for it.

"You have a situation in which you're asking a white majority to decide whether a Latino or black minority have equal rights," she said. "And that is something that we think cannot be put up to a vote."

Driver said it is improper to push the measure as a "civil rights" initiative, because she believes that term connotes something to help minorities.[17]

Debating the issue

Clint Bolick, director of the Goldwater Institute, participated in a debate with the dean of the Phoenix School of Law, Dennis Shields, about ways to decrease institutional racism in Arizona. Bolick said,

"I'm going to focus my comments on the practical side of what has come to be known as affirmative action," he said. "But what I refer to as preferential treatment... Even though we don't have legal segregation, there are other things dividing us. Identities should not be dictated by ethnicity."[18]

Bolick argued that financial assistance in the form of scholarships or programs should not be based on one's ethnicity but rather on financial need.

Shields argued that minorities were at a larger disadvantage than simply financial assistance and that the initiative over simplified the problem. "This is a hard problem," he said. "You don't solve it by waving a wand."[19]

Legislative effort fails

A bill in the Arizona Legislature to legislatively-refer a measure similar to ACRI to the ballot failed in mid-April.

Rep. Russell Pearce, R-Mesa, introduced the 2008 legislation. His measure would have amended the state constitution to prohibit government from considering "race, sex, color, ethnicity or national origin in employment, contracting and education."

The bill was rejected by a 32-27 vote in the House.

Pearce later said, "it's pretty outrageous when we think the government has the power to pick winners and losers, when the government has the right to decide you get something based on who you are and not (because) you've earned it."[20]

Lawsuit to keep ACRI off ballot

BAMN, a Michigan-based activist group, filed suit June 30, 2008, to invalidate signatures gathered by proponents of the measure.[16][21]

The lawsuit, filed in Maricopa County Superior Court on behalf of former Phoenix Councilman Calvin Goode and 12 other county voters, claims that petition circulators misled potential signers. The suit asks the court to throw the initiative off the November 2008 ballot, assuming the initiative gets enough valid signatures to qualify.[16]

Goode said he lent his name to the court challenge after listening to a signature gatherer make a presentation at a Juneteenth celebration that "was certainly misrepresenting the intent."[16]

County Attorney Andrew Thomas, honorary chairman for the initiative, called the allegations groundless. "It's a frivolous lawsuit from a radical organization that is true to its name," Thomas said.[16]

Second lawsuit

A second group, Protect Arizona Freedom, filed a signature challenge lawsuit against Prop. 104 on August 18, 2008. The lawsuit said that 100,000 signatures on the petition are invalid. Prop. 104 supporters filed 323,000 signatures. Since 230,047 are required to make it to the ballot, the initiative had a cushion of about 93,000 signatures so, if 100,000 were determined to be invalid, it wouldn't make the ballot.

The named plaintiffs on the lawsuit were Kathleen Templin and Michael Slugoki.[22]

Arizona was an active environment for ballot access court cases in 2008, with the Ninth Circuit deciding Nader v. Brewer and the Arizona Supreme Court deciding Jenkins v. Hale.

Supporters of two other initiatives, Prop. 103 and Prop. 203, filed lawsuits against the Arizona Secretary of State saying that the signature validation process used by that office improperly threw out signatures that were in fact valid.

See also

External links


  1. Arizona Republic: Affirmative action ban makes ballot, July 3rd, 2008
  2. KPHO-TV: "Backers Of Ariz. Initiative Fight For Ballot Spot," Aug. 27, 2008 (dead link)
  3. Arizona Republic: "Affirmative-Action initiative fails to make ballot," Aug. 21, 2008
  4. U.S. News and World Report: "Arizona Affirmative-Action Ban Off Ballot," Aug. 22, 2208
  5. Arizona Daily Star Affirmative-action foes give up on 2008 ballot August 30, 2008
  6. Arizona Republic, "'Flawed' election petitions face review," September 13, 2008
  7. Phoenix New Times, "Citizen initiatives have been kicked off the ballot this year in record numbers, and the problems could go much deeper than invalid signatures," August 21, 2008
  8. Editorial, "Time to reform unwieldy process prone to fraud," Arizona Republic, February 13, 2009.
  9. 9.0 9.1 ABC News: "McCain Reverses Himself on Affirmative Action," July 27, 2008
  10. Goldwater IDs preference programs as ballot measure takes shape, Phoenix Business Journal, Dec. 4, 2007
  11. The Goldwater Institute (dead link)
  12. The Goldwater Institute (dead link)
  13. Arizona Republic, Civil rights measure may be adrift, April 20, 2008
  14. Arizona Wildcat, Senate slams initiative, April 17, 2008
  15. Sonoran Alliance: "Ward Connerly to speak to CCM on AZ Civil Rights Initiative; BAMN opposition terrorizing signature gatherers," June 4, 2008
  16. 16.0 16.1 16.2 16.3 16.4 Arizona Republic: "Group fights affirmative-action ban," July 1, 2008
  17. East Valley Tribune: "Group fighting potential vote on affirmative action," July 1, 2008 (dead link)
  18. The Wildcat, Speakers debate civil rights bill, April 22, 2008
  19. The Wildcat, Speakers debate civil rights bill, April 22, 2008
  20. Yuma Sun, Preference in hiring issue may still go to voters, April 13, 2008
  21. KVOA-TV News: "Group wants affirmative action ban off ballot," July 1, 2008
  22. PolitickerAZ, "PAF files suit to keep Civil Rights Inititiative off ballot," August 18, 2008

Additional reading

Additional information about ballot litigation in 2008