Missouri has always prided itself on being the “Show Me” state. Robin Carnahan, the Missouri Secretary of State, even has a web page explaining the origins of that semi-official sobriquet. Now, however, Ms. Carnahan has given an entirely new meaning to that term: by flagrantly violating her official responsibility, she has shown that Missouri officials need to be shown how to obey their own law.
As Tim Asher, Executive Director of the Missouri Civil Rights Initiative, explained today in a press release describing the legal challenge MoCRI has just filed (I’ll provide a link as soon as one is available) objecting to Ms. Carnahan’s extreme makeover of the ballot language it submitted,
Secretary of State Carnahan exercised tremendous liberty in drafting this language. Her directive as outlined by Missouri Statute is to prepare ballot title language that is “true and impartial” and “neither intentionally argumentative nor likely to create prejudice.”
You decide whether she has met that legal obligation.
Here is the language submitted by MoCRI to Secretary of State Carnahan:
Shall the Missouri Constitution be amended to prohibit any form of discrimination as an act of the state by declaring:
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?
Here, by contrast, is what Secretary Carnahan has certified as the official ballot language:
Shall the Missouri Constitution be amended to:
- ban affirmative action programs designed to eliminate discrimination against, and improve opportunities for, women and minorities in public contracting, employment and education; and
- allow preferential treatment based on race, sex, color, ethnicity, or national origin to meet federal program funds eligibility standards as well as preferential treatment for bona fide qualifications based on sex?
This official dissembling, of course, is not limited to Missouri Democrats. As Mr. Asher stated in the press release,
[m]isleading statements like this ballot title are standard practice for those who support preferences and unequal treatment. They are afraid to let people vote on the true language since the people always choose fair and equal treatment.
Ward Connerly, who has some experience in these matters, was also appalled, stating:
This is one the most appalling abuses of a Constitutional Office I have ever seen. In California, Washington, and Michigan where identical measures have already been passed by the voters, the Secretaries of State and Attorneys General did not play politics with their sworn duty to protect the voting process. I am alarmed and believe the citizens of Missouri should be worried that their duly elected officials are misleading the voters with false and unfair information.
A petition challenging Secretary of State Carnahan’s attempt to undermine the MoCRI has just been filed in Cole County Circuit Court. Perhaps a judge will respond to Ms. Carnahan’s plea to “Show Me” how to perform her duties.
The Missouri Civil Rights Initiative press release quoted above can be now found here. It quotes Section 116.025, Missouri Revised Statutes.
UPDATE II [30 July]
On his new blog, Peter Schmidt, deputy editor of the Chronicle of Higher Education, makes the same point that the perceptive Chetly Zarko, who worked on the Michigan Civil Rights Initiative, makes in this comment below.
One prominent higher-education lawyer privately notes that any college affirmative-action program “designed to eliminate discrimination against, and improve opportunities for, women and minorities” in higher education would run afoul of the limits the Supreme Court placed on such policies as far back as its landmark Bakke decision of 1978. The court specifically held in that ruling that colleges cannot use race-conscious admissions policies to remedy societal discrimination. For discrimination to be the justification, it must be discrimination that the college in question perpetrated. In both the Bakke decision and its Grutter v. Bollinger decision of 2003, the only justification for race-conscious admissions allowed by the Supreme Court was the desire to foster levels of racial and ethnic diversity that will provide educational benefits to all students. So, in essence, if the proposed amendment to the Missouri Constitution bans what Ms. Carnahan says it bans, it bans what the Supreme Court says the U.S. Constitution already bans. Any Missouri college that has is operating a program like the ones she describes is vulnerable to lawsuit unless it has admitted to, or has been found guilty of, discrimination against minorities and women.
Allow me to suggest a corollary (or rather to suggest again a corollary I first suggested here): not only would Secretary Carnahan’s language limit the proposed initiative to outlawing programs that are already illegal (an admission, as Zarko suggests, that Missouri has such programs?), but, as I read it, it would not bar any racial or ethnic preference policy that was “designed to” promote diversity.
Does Secretary Carnahan really think that the organizers of the Missouri Civil Rights Initiative intend to leave “diversity”-justified racial preference programs untouched? But if she does not think that, what becomes of her legal obligation to certify neutral, unbiased, un-argumentative language? Secretary Carnahan is under no obligation to use the summary language submitted by initiative organizers, but she does have an obligation to summarize fairly and objectively their initiative, not the initiative she would have written or the dumb one she would prefer initiative supporters to have written.
Perhaps the more relevant question is, does Secretary Carnahan think?