Colorado Discrimination and Preferential Treatment by Governments, Initiative 46 (2008)
The Colorado Discrimination and Preferential Treatment by Governments Initiative, also known as Initiative 46, was on the November 4, 2008 ballot in Colorado as an initiated constitutional amendment, where it was defeated. The measure would have prohibited discrimination or preferential treatment by the State of Colorado in public employment, public education, and public contracting.
Despite having been certified to appear on the November 2008 ballot by the Secretary of State's office opponents of the measure filed a lawsuit challenging the signatures.
- See also:Legal battles)
On December 17, 2010 the University of Colorado at Boulder released a report analyzing the factors that led to the defeat of Amendment 46. According to the study, "...Coloradans overwhelmingly intended to support affirmative action on Election Day; arguably, were Amendment 46 a clearly worded referendum on attitudes toward affirmative action, it would have failed by a much wider margin: 66 to 34 percent." Among the reasons stated in the report for the measure's defeat it stated that few voters knew what the measure would do; voters who followed the measure in the media were more likely to oppose it; and proposed alternative initiatives in support of equal opportunity contributed to the measure's defeat.
|Colorado Initiative 46 (2008)|
Election results via: The Colorado Secretary of State
The language appeared on the ballot as:
|“||Shall there be an amendment to the Colorado constitution concerning a prohibition against discrimination by the state, and, in connection therewith, prohibiting the state from discriminating against or granting 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; allowing exceptions to the prohibition when bona fide qualifications based on sex are reasonably necessary or when action is necessary to establish or maintain eligibility for federal funds; preserving the validity of court orders or consent decrees in effect at the time the measure becomes effective; defining "state" to include the state of Colorado, agencies or departments of the state, public institutions of higher education, political subdivisions, or governmental instrumentalities of or within the state; and making portions of the measure found invalid severable from the remainder of the measure?||”|
- 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 the Arizona Civil Rights Initiative, which would end race and gender-based affirmative action in McCain's home state. Presumably, McCain's support would follow for the nearly identical measures to be voted on in Colorado and Nebraska as well.
"I support it," McCain said when asked about the Arizona Civil Rights Initiative. "I do not believe in quotas... I have not seen the details of some of these proposals. But I’ve always opposed quotas."
McCain had long opposed quotas, but his new support for ending affirmative action programs which stop short of quotas contradicts the Arizona senator's own position from 1998. In that year, when the Arizona legislature was considering sending the voters a measure to end affirmative action, McCain spoke out against it, calling it "divisive."
- The measure was sponsored by the American Civil Rights Institute (ACRI), a national organization established in 1996 by Ward Connerly and Dusty Rhodes.
- Where the issue had been put to a vote—California, Washington state, and Michigan—it had won overwhelmingly, with strong support across party lines. According to an article in the Manhattan Institute's City Journal:
"In fact, so powerfully does the issue resonate with voters as a matter of elementary fairness that its support everywhere cuts across traditional party lines. In liberal Washington State, for example, the anti-preferences initiative was backed not only by 80 percent of Republicans and 62 percent of independents, but by 41 percent of Democrats; this in the face of liberal opposition that—abetted by such local corporate behemoths as Eddie Bauer, Microsoft, and Starbucks—massively outspent supporters of the measure. The Michigan Civil Rights Initiative similarly passed despite the fierce opposition of a liberal-left coalition of 180 groups, ranging from the League of Women Voters and the United Auto Workers to the Arab-American Institute. After the Michigan initiative’s passage, the leader of the most radical of the opposition groups, By Any Means Necessary, declared that the only way to stop anti-preference measures was to ensure that they never reached the voters."
- Colorado Unity, a statewide coalition "dedicated to preserving and promoting equal opportunity," according to the group's press release, launched a "Decline to Sign" campaign in hopes of keeping the initiative off the ballot, but the effort was unsuccessful.
- The Colorado Council of Churches was also opposing the ballot measure. "Progress has been made in overcoming the effects of centuries of discrimination against women and people of color, but we are not there yet," said Jim Ryan, the council's executive director. "As people of faith, we feel called to stand with them."
- Colorado Gov. Bill Ritter was campaigning against Amendment 46. He held a press conference on Sept. 29, 2008, to announce his opposition. Ritter said the amendment "undercuts Colorado and destroys years of progress in education, in health care, in workforce development."
- State Rep. Morgan Carroll (D-Aurora) said Amendment 46 was the "worst thing we could do" and would be a big step backwards for Colorado.
"I think it's going to hurt women, minorities, and small business," Carroll said. "Affirmative action is about making sure we have the same rights as everyone else."
- Trustees of Metropolitan State College of Denver voted unanimously to oppose the ballot measure on Sept. 4, 2008.
- The Denver Metro Chamber of Commerce, the Asian Chamber of Commerce, the Black Chamber of Commerce, the Hispanic Chamber of Commerce, the Native American Chamber of Commerce and the Women's Chamber of Commerce all announced opposition to Amendment 46 in September 2008.
"The Denver Metro Chamber recognized the value of a diverse workforce and a higher-education system that reaches out to diverse populations," said Joe Blake, Denver Metro Chamber president. "This initiative does not benefit Colorado business in any way, and may harm us in the long run."
TV ad attacks Ward Connerly
A new television ad launched Sept. 24, 2008, in Colorado against Amendment 47 by the Ballot Initiative Strategy Center (BISC) claims that Ward Connerly has personally profited from his efforts to pass his civil rights ballot initiatives, receiving more than $7.6 million from his two non-profit organizations, American Civil Rights Institute (ACRI) and American Civil Rights Coalition (ACRC).
The ad also called Connerly a "fraud," who has used affirmative action policies to his own benefit in the past. Connerly is black.
"Ward Connerly has used voter fraud and deception to place his initiatives on the ballot and profited off a campaign to outlaw equal opportunity," said Kristina Wilfore, Executive Director of the Ballot Initiative Strategy Center, "Today we are revealing the truth and exposing Connerly and his campaign as a fraud."
"Why would I have to do that," Connerly responded, "when I had a very successful company from which I earned far more than I could make running a national nonprofit effort that resulted in significant abuse to me and my family?"
Connerly said he's paid about $300,000 a year by the organization he founded to take his civil rights initiative beyond California. He earned $2 million a year at his Sacramento consulting firm, Connerly & Associates, before he stopped taking a salary from the firm in 2005.
Charges of fraud
Colorado Unity and other opponents of the measure had long argued that the initiative's title was misleading to voters. "Colorado voters must know that though this is billed as the Colorado Civil Rights Initiative, signing those petitions could very well mean just the opposite—the end of even the most modest of equal opportunity and affirmative action programs in Colorado," Linda Meric, Colorado Unity co-chair, said.
Since the measure secured ballot status, charges of fraud against Civil Rights Initiative proponents had escalated. Several dozen people were claiming they were misled into signing the petition by unscrupulous petitioners, and the charges had been getting widespread coverage in the media.
Freddie Whitney, a 78-year-old African-American, signed the petition. A few weeks later, she was shocked to learn from a local newspaper that she had unwittingly lent her support to a measure that sought to eliminate state programs that give preferential treatment to minorities and women. "My reaction was, 'Oh, my God, what have I done?'" Whitney told the New York Times.
But Connerly defended the effort against accusations that signers were misled into signing because they thought the measure would end discrimination, saying that ending discrimination is exactly what the measure was designed to do.
Connerly had some defenders in the matter, who claimed that the language of the petition was clear and that only someone who does not believe preferential treatment falls into the category of discrimination could have misunderstood the measure's goals. Vincent Carroll, a columnist for the Rocky Mountain News, wrote, "It's a sad state of affairs when people must fight a ballot initiative by admitting they were bamboozled by simple English."
Bill Vandenberg, a co-chairman of Colorado Unity, said his group is considering taking Connerly to court and filing a legal challenge with the secretary of state. The Colorado Unity Coalition alleged that petitioners collecting signatures this year targeted black community events and led some signers to believe they were supporting affirmative-action laws. Colorado Unity urged voters who mistakenly signed the petition to speak out, setting the stage for a potential lawsuit.
The fraud charges were dismissed by an administrative judge on Sept. 19, 2008, arguing that the claims did not provide enough details.
Accused of fraud of their own
For the second time in as many days, opponents of a citizen-led civil rights initiative faced allegations that they manufactured voter fraud allegations.
An investigation by the Face The State web site, a site dedicated to coverage of Colorado political news, revealed April 14, 2008, that one of the individuals alleging voter fraud, Dara Burwell, was a longtime liberal activist with ties to multiple organizations promoting such policies.
Face The State followed up on April 15, 2008, story that a Democrat state legislative aide, Chloe Johnson, who had claimed to be a victim of voter fraud, saw her complaint dismissed after state officials learned that she was not a registered voter.
Johnson claimed to have been tricked by a petitioner into signing the measure because she was told it would end discrimination. But the FTS web site argued that Johnson's claims of being so easily misled were hard to believe.
"In addition to interning for a state legislator, Johnson is a political science major at the University of Colorado at Denver. When asked how she was confused by the petitions intent despite her background, Johnson replied, 'There was nothing in the wording that said anything about ending affirmative action; it just talked about ending discrimination.'"
Burwell's allegation of fraud was based on the fact that the young black man who approached her to sign a petition for the Civil Rights Initiative said it would help minorities. She maintains that he was being deceitful because he did not indicate that the initiative would explicitly ban race and gender preferences in state government.
"Given what he said, the language of the petition and also our shared experience as black people in this country, I believed myself to be signing a pro-affirmative action measure," she told the Rocky Mountain News.
But FTS said it learned that Burwell was very knowledgeable about diversity issues in Colorado, having been a leader in the state's pro-Affirmative Action movement. "When asked by FTS how someone so knowledgeable about race and gender-related issues could be tricked into signing the initiative, Burwell said she 'didn't associate that [ballot] language with terminating any equal opportunity programs.'"
"We have suspected all along that these claims of fraud and deception are manufactured and orchestrated by our opponents and this confirms it," Ward Connerly told Face The State.
Venita Vinson, who served as chief of staff to former Denver Mayor Wellington Webb, also filed an official complaint with the Secretary of State Mike Coffman's office alleging that she was misled about the petition she was signing. But Vinson later admitted that she failed to read the petition before signing it.
"I should have read the petition, and I didn’t," she said. Vinson was demanding that her signature be removed from the petition, but Coffman's spokesman, Rich Coolidge, previously told reporters that voters can’t get their names removed saying, "It’s kind of like casting a ballot."
An undercover investigative reporter from FaceTheState.com reports to have an audio recording of an Initiative 82 petitioner misleading potential signers about the measure and lying about the effects of the Civil Rights Initiative and how the two measures compare.
Amendment 82 was being supported by Protect Colorado's Future, a group that has levied similar charges against petitioners for the Civil Rights Initiative.
An alternate initiative, the Colorado Equal Opportunity initiative, was introduced, using very similar language, but added language that would likely make the initiative effectively impotent. Some accused proponents of that measure of using deception to try to confuse the voters. The Title Board declined to set a title for that measure at a hearing March 5, 2008, agreeing that the language was misleading and ruling that it did not constitute a single subject. The group then filed a new measure, which attempted to address the Title Board's concerns, Initiative 82. Supporters of that measure submitted signatures, but Amendment 82 did not reach the final ballot.
- See also Polls, 2008 ballot measures.
An October 2008 poll conducted by Quinnipiac University indicated that the Civil Rights Amendment would pass 63% to 21%. The poll got responses by telephone during Oct. 8-12 from about 1,000 likely voters. The margin of error was plus or minus 3%.
A Quinnipiac University/Washington Post/Wall Street Journal poll conducted June 17-24 also indicated that the amendment would pass easily, with 65% saying they would support the constitutional amendment and only 15% indicating they would vote against it. That poll had a margin of error of plus-or-minus 2.7%.
Opponents of the Colorado Civil Rights Initiative filed a court challenge in May 2007, arguing that the initiative as written violated the state's single-subject rule. In mid-September, a split Colorado Supreme Court upheld the initiative's language.
On April 23, 2008, opponents filed a post-certification signature challenge lawsuit, this one challenging the signatures filed. The suit challenged the validity of 68,948 names, claiming there were duplicate signatures, some collected by non-residents, and others that did not match names on Colorado's voter list.
Jessica Corry, a spokeswoman for the Amendment 46 campaign and a member of the libertarian think tank Indepdendence Institute, said all petitioners were Colorado residents.
The Secretary of State's office checked about 5% of signatures and found about two-thirds to be valid. If that ratio held up, there would be about 10,000 more valid signatures than required. Opponents said they used a computer program to check all signatures against voter records.
Proponents of the amendment asked a district court judge on June 27, 2008, for permission to collect additional signatures for their petition, in order "to add to the petition in the (event) that the current petition is determined to be without sufficient valid signatures."
Denver District Court Judge William D. Robbins agreed July 7, 2008, in response to the request from "Vote No on 46," for a court to review a 6,403 sample of signatures submitted by amendment proponents to see if they were valid. The court gave no timeline for reviewing the validity of the signatures.
"Colorado voters expect if something is put on the ballot, it will be done in law," said Craig Hughes, spokesman for the No on 46 Campaign. "You've got to respect the law and process for putting an initiative on the ballot."
The Colorado Civil Rights Institute (CCRI) called No on 46's attempt to have a court review the signatures deceptive. "We are extremely confident we that we will remain on the ballot this November," said CCRI spokeswoman Jessica Peck Corry. "I think they are desperate."
Path to the ballot
Proponents turned in nearly 128,744 signatures on petitions in March 2008, more than 50,000 more than the number of valid signatures required to place the amendment on the November ballot. The petitions were certified by the Secretary of State March 25, 2008, as Amendment 46, finding sufficient signatures valid in a random sampling.
Petition drive management company
National Ballot Access was the signature vendor for this petition drive.
Similar ballot initiatives
- Colorado 2008 ballot measures
- 2008 ballot measures
- List of Colorado ballot measures
- History of Initiative & Referendum in Colorado
- Full text of the initiative
- 2008 State Ballot Information Booklet, English version (Blue Book)
- 2008 State Ballot Information Booklet, Spanish version (Blue Book)
- Colorado Civil Rights Initiative campaign web site
- Colorado Unity web site
- Colorado Unity's campaign against the initiative
- Colorado Council of Churches web site
- Super Tuesday 2008: web site for 2008 ballot initiatives supported by Ward Connerly
- Race Blind: blog on "Super Tuesday" civil rights initiatives
- Adversity.Net: "Perfect Storm for Equality"
- Colorado 2007-2008 I & R Procedures and Guidelines from Secretary of State
- FaceTheState.com recording of Initiative 82 petitioner
- Transcript of FaceTheState.com recording of Initiative 82 petitioner
- TV ad by BISC attacking Ward Connerly
- Summit Daily News: "Affirmative Action: The Numbers Don't Lie," Oct. 25, 2008
- Wall Street Journal: "Social Issues Dominate 2008 Ballot Initiatives," Aug. 7, 2008
- National Journal: "Wild Cards In The Deck," July 28, 2008
- Wall Street Journal: Opinion: "The Far Left's War on Direct Democracy," July 26, 2008
- Rocky Mountain News: "Ballot measure to dismantle affirmative action moves ahead," June 6, 2007
- Rocky Mountain News: Opinion: "A labelling challenge," July 7, 2007
- Discriminations Blog: John Rosenberg responds to above opinion column in "Salzman: A challenged Rocky columnist"
- Denver Post: "Initiative Relies on Race Card," June 24, 2007
- Discriminations Blog: "Colorado Civil Rights Initiative clears one hurdle," June 2007
- Colorado State Legislative Council, "Ballot History," accessed February 26, 2014
- The Leadership Conference on Civil and Human Rights,"Report Analyzes Successful Campaign to Defeat Colorado’s Anti-Equal Opportunity Ballot Measure," December 17, 2010
- ABC News, "McCain Reverses Himself on Affirmative Action," July 27, 2008
- Super Tuesday 2008
- Chronicle of Higher Education, "Four states are new targets for bans on affirmative action preferences," April 23, 2007
- City Journal: "Racial-Preference Ballots Go National," April 16, 2008
- Colorado Unity press release
- The Examiner: "Church group opposes anti-affirmative action measure," June 10, 2008
- Peoples Press Collective: "Ritter Campaigns Against Amendment 46," Sept. 29, 2008
- Denver Daily News: "Lawmaker blasts A. 46," July 17, 2008
- Denver Business Journal: "Metro State board backs energy-tax measure," Sept. 4, 2008
- Denver Post: "Business-group opposition to measure grows," Sept. 24, 2008
- MatchWatch.com, "New TV Ad and Website Expose Ward Connerly," September 24, 2008
- Colorado Independent, "Anti-Ward Connerly TV spot debuts in Colorado," September 24, 2008
- Associated Press: "Black businessman spars against affirmative action," Oct. 4, 2008
- Colorado Unity press release
- The Daily Voice: "Blacks unintentionally sign petition to eliminate affirmative action," April 2, 2008
- New York Times: "Colorado Petition Draws Charges of Deception," April 1, 2008
- CBS-Channel 4, Denver: "Some Claim They Were Misled Into Signing Petition," April 1, 2008
- Rocky Mountain News: Opinion: "Confused by English," April 4, 2008
- Denver Post: "Fraud alleged in ballot petitions," April 2, 2008
- Ms. Magazine: "Anti-Affirmative Action Initiative Faces Charges of Fraud," April 2, 2008
- Colorado Independent: "Judge dismisses complaints that anti-affirmative action petitioners misled voters," Sept. 24, 2008
- Face the State: "Democrat Operative Alleging Voter Fraud Never Registered to Vote," April 15, 2008
- Face the State: "Woman Alleging Voter Fraud a Prominent Diversity Activist," April 14, 2008
- Face the State: "Woman alleging voter fraud says she never read petition language," May 22, 2008
- FaceTheState.com: "FTS Investigation: Signature Gatherer Caught Lying About Civil Rights Initiative," July 9, 2008
- Denver Daily News: "Ballot smear campaign?," July 11, 2008
- Discriminations Blog: "Deviousness And Duplicity From Colorado Preferentialists"
- KETV-TV News: "Poll Shows Anti-Affirmative Action Initiative Should Pass In Colorado," Oct. 15, 2008
- Rocky Mountain News: "Voters favor amendment to eliminate racial, gender preferences," June 27, 2008
- Examiner: "Affirmative action backers challenge ballot proposal," April 24, 2008
- Denver Post: "Right-to-work group wants to collect back-up signatures," June 30, 2008
- Denver Daily News: "Ballot issue under fire," July 8, 2008
- Rocky Mountain News: "Petitions submitted to ban race, gender preferences," March 11, 2008
- Face The State: "Civil rights Initiative backers turn in 128K signatures", March 10, 2008
- Rocky Mountain News: "Affirmative action measure on Nov. ballot," March 25, 2008