How “Goliath” Lost: An Analysis of Proposition 16’s Downfall
In June, the California State Legislature passed a constitutional amendment ending the ban on affirmative action. The Legislature was convinced that with support from unions, corporations, racial justice groups, environmental groups, and even the San Francisco 49ers, the measure, known as Proposition 16, would easily prevail before the voters. After all, the initial ban was pioneered by California’s own Donald Trump: Governor Pete Wilson. Wilson’s political career was built on racist rhetoric, and he annihilated Republican electoral fortunes in California to this day through his support of Proposition 187, which stripped undocumented immigrants of their eligibility for public benefits. After giving increasingly more progressive Democratic presidential candidates massive margins for two decades, surely Californians would be activated by partisanship into passing Proposition 16, right?
However, despite turning out at record-setting numbers for liberal candidates up and down the ticket, California voters rejected Proposition 16 by a fifteen point margin. It was a sobering defeat for the Democrats in the Legislature, where the measure passed both Houses with more than 75% of legislators in support.
As expected, conservatives shouted from the rooftops that “the principle of equality has prevailed again.” They claimed that they had won “a David v. Goliath battle” and that the measure was “rushed on the ballot by the arrogant supermajority in the state legislature.” They further argued that the ballot language was designed to mask the true intent of the measure.
These claims are highly misleading. If either side was Goliath in this battle, it was Californians for Equal Rights, the official group registered to oppose Proposition 16. This is so for several reasons.
First, the ballot language was indeed misleading, but not in the way that Californians for Equal Rights claimed it to be. Instead, many voters either had little idea what the measure would do or assumed that the measure would continue the status quo. This was because the question on the ballot simply read “That Section 31 of Article I thereof is repealed,” forcing the voters to understand what Article I, Section 31 of the California Constitution (the anti-affirmative action section) was. In a country where most residents do not know that their state has a constitution, voter ignorance is not surprising. Given that question wording is the most important factor that voters use to decide their vote on ballot measures, had the Attorney General made reference to repealing the unpopular Proposition 209 when writing the ballot question, there would have been more support for Prop 16.
Second, there was ballot saturation. With twelve different ballot measures and hundreds of ads run in newspapers, radio, and TV, voters struggled to keep up with all of the measures and the arguments for and against each measure, says state Senator Steve Bradford. And while Californians for Equal Rights correctly note that they were outspent by a margin of 13 to 1, the $18 million raised by Yes on Prop 16 was far less than that of many other successful measures. This budget constraint meant that Yes on Prop 16 aired very few ads. To make matters worse, the ads that they did air often focused on buzzwords such as “preventing discrimination”, “equality,” and “opportunity,” instead of explaining the actual effects of the measure.
Third, Californians for Equal Rights masterfully exploited voter confusion. They ran negative advertising that masked the intent of Proposition 16. Voters were prone to fall for the scare tactics given that Yes on Prop 16 did not effectively rebut the negative advertising and instead focused on superficial, feel-good messaging. UC Davis professor Alison Ledgerwood notes that the human brain is hardwired to notice negative framing more than positive framing. Had Yes on Prop 16 ran negative advertising of its own, they may have been able to counteract negative advertising from the other side. They could have depicted the provocative comments by opponents of Proposition 16 (including Ward Connerly’s claim that systemic racism does not exist, and Darrell Issa’s support for Donald Trump) in their advertising.
Fourth, Proposition 16 was initiated by legislative referral just five months before the election. This meant voters had very little time to study the measure and proponents had little time to fundraise for the Yes on Prop 16 campaign. Had state legislators collected signatures for an initiative petition instead of holding a legislative vote, voters would have had more time to learn about what Proposition 16 would do. Circulating petitions early would have assuaged voter confusion regarding the effects of passing Proposition 16 and increased support for the measure.
In conclusion, the defeat of Proposition 16 is not an indication that liberal voters dislike affirmative action. Instead, the confusion regarding ballot language and the circumstances that gave rise to Proposition 16 played a far larger role. While Californians for Equal Rights was incorrect in portraying their win as unexpected, they were correct that an “arrogant supermajority” made matters worse by cutting corners. Lawmakers must assume that every measure will be contested fiercely and avoid saturating the ballot with too many complex and obscure ballot measures. They should avoid legislative referrals on all but the most bipartisan issues. Instead, they should have their state parties and donors set up an initiative campaign immediately after the previous general election, which would allow them more time to circulate initiative petitions, increasing voters’ exposure to each proposal.
So what lies in the future for affirmative action? If the US Supreme Court considers SFFA v Harvard and upholds affirmative action, Democrats would rally around their party’s position in support of affirmative action, as much as they did when Republican state legislatures passed abortion bans. This effect would make repealing affirmative action bans across the country easier in the unlikely event that the Supreme Court upholds affirmative action. Democrats should aggressively argue the case for affirmative action and have a set of policy proposals to address racial disparities in hiring and college admission when the Supreme Court strikes down affirmative action.
