5 More States May Curb Use of Race in Hiring and Admissions

The prominent affirmative-action critic Ward Connerly appears well on his way to getting up to five states to vote in November 2008 on ballot measures banning the use of racial, ethnic, and gender preferences by public colleges and other state and local agencies.

And, according to political analysts who monitor the states that are the targets of Mr. Connerly’s planned “Super Tuesday” on affirmative action—Arizona, Colorado, Missouri, Nebraska, and Oklahoma—he stands a very good chance of getting measures passed in all of them.

All five states, which together account for 7.4 percent of the nation’s population, have laws that make it fairly easy to place such referenda before their voters.

They also share several characteristics that suggest they will approve limits on affirmative action by solid to overwhelming margins. All have populations that are well over three-fourths white, and all lack the presence of minority-advocacy groups strong enough to easily mount large-scale opposition campaigns.

The only state among them that is not known for social conservatism is Colorado, where conservatives nonetheless account for a large enough share of the ideologically polarized electorate to have scored some key ballot victories in recent decades, passing term-limit and tax-limitation measures.

Perhaps as important, each of the five states has witnessed a recent backlash against illegal immigration—a sentiment that reflects, and has worsened, tensions between their white and Hispanic populations.

Links to Immigration Debate

The organizations behind the proposed bans on affirmative-action preferences—the American Civil Rights Institute, which is led by Mr. Connerly, and its campaign-focused arm, the American Civil Rights Coalition—have already made some effort to tie the issues of affirmative action and immigration together by raising the prospect of illegal immigrants receiving amnesty and then being favored over American citizens in the competition for jobs and college slots.

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“I have seen Republican message testing that shows that the illegal-alien issue can move voters,” says Ronald Keith Gaddie, a professor of political science at the University of Oklahoma and president of the Southwestern Political Science Association. In Oklahoma, Mr. Gaddie says, the illegal-immigration issue “is fertile ground for exploiting” because the state’s predominantly Protestant non-Hispanic white population and its predominantly Catholic and rapidly growing Hispanic population are clashing “across the board—on language, on culture, and on religion.”

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Rocky Start

Like the three state referenda that have already been passed, the latest ballot measures cover public employment, public education, and public contracting, and call for agencies of the affected states to be barred from discriminating or granting preferential treatment in those areas based on race, sex, color, ethnicity, or national origin.

The ballot measures provide exceptions for situations where gender is a valid occupational qualification, where court orders require some consideration of the traits the measures cover, or where public agencies or institutions need to continue granting certain affirmative-action preferences to qualify for federal funds.

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The American Civil Rights Institute and its state campaign affiliates also have a winning record in the many court battles that have been fought over their ballot measures. Just last month they persuaded the Colorado Supreme Court to narrowly uphold the language of the proposed Colorado Civil Rights Initiative in the face of opposition from affirmative-action supporters, including the Colorado Women’s Bar Association and the American Civil Liberties Union of Colorado, who argued that the measure violated a constitutional requirement that such referenda deal with only one subject.

Picking Battles

Mr. Connerly says that, mainly for financial reasons, he selected his five targets for 2008 based primarily on the ease with which he could get measures on their ballots and fend off legal challenges. He opted not to go into some other states, such as South Dakota, Utah, and Wyoming, because he believed getting measures on their ballots would be more difficult and costly.

In the case of South Dakota, Mr. Connerly says, he also took into consideration that “the Indian tribes are very influential” (partly as a result of the money they derive from operating casinos) and benefit heavily from federal programs that seek to award contracts to minority-owned companies.

The three states that have already passed such bans, California, Michigan, and Washington, together account for about 17.7 percent of the nation’s population. If the five states being eyed by Mr. Connerly pass such measures, the share of the U.S. population living in states with such bans will rise to just over 25 percent.

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A Hot Topic

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He says that he has “not decided what influence illegal immigration will have” on his campaigns, but that he perceives some convergence of the debates over illegal immigration and affirmative action in the minds of many Arizona voters. “People see it as part of the same regime, if you will,” he says. “As it happens, many of those who defend granting rights to illegal immigrants happen to be, coincidentally, those who support race-based affirmative action.”

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If the debate over the measure in Colorado “comes down to race, given the current climate of anti-immigration, it probably has a good chance of winning,” says Michael Kanner, an instructor in political science at the University of Colorado at Boulder. He expects the measure to encounter substantial resistance in the Denver area while being supported by many residents of suburban and rural areas, many of whom criticize the state’s flagship university as a hotbed of liberalism and, he predicts, may seize upon the opportunity to deny it the ability to consider ethnicity, gender, and race in hiring and admissions.

The Colorado campaign is being led within the state by Valery Pech Orr, who was one of the plaintiffs in the lawsuit that led to the U.S. Supreme Court’s landmark 1995 decision Adarand Constructors v. Peña, which limited the consideration of race in federal contracting. Linda Chavez, the prominent conservative pundit who established the Center for Equal Opportunity, a leading advocacy group opposing affirmative-action preferences, is also expected to play a prominent role in the campaign there.

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Plains Politics

Missouri, Nebraska, and Oklahoma all have comparatively small Hispanic populations but nonetheless have experienced rising resistance to immigration as some of their rural communities have seen large influxes of Hispanic laborers drawn to jobs on farms and in meat-processing plants.

In Nebraska, State Sen. Ernie Chambers, who is black and represents parts of northern Omaha, last week denounced Mr. Connerly as “a tool of Jim Crowism” and expressed confidence that Nebraskans “will see through his shell game.”

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