Tricking Voters to Accept Racial Preferences

The margin of victory for Washington state voters who opposed the return of affirmative action has been inching up. A few days ago, it was .6%, about 13,000 votes. As of Friday night, November 15, it was 1.08%, around 21,000 votes. It should continue to increase as the remaining returns come in.

In my recent essay, “Washington State Voters Reject Affirmative Action, Again,” I noted the confusion of the ballot issue voters confronted. In the last hours of the legislative session, the Democrats, in a party-line vote, passed I-1000, which would repeal the prohibition against affirmative action in I-200, which had been approved by 58% of the voters in 1998.

I-1000 would have become law in July had not a group opposed to affirmative action, and thus in favor of keeping I-200’s repeal, secured enough signatures to place Referendum 88 on the ballot, giving voters a chance to vote again on whether they wanted affirmative action to return (a YES vote on Ref. 88) or remain prohibited (a NO vote). Thus, opponents of affirmative action needed to vote NO on the referendum they had succeeded in placing on the ballot.

In theory this structural confusion could have affected both sides of the debate equally, but in a recent email to me, Linda Yang, one of the two leaders of Washington Asians For Equality, the group that organized the opposition to I-1000, stated that a post-election survey confirmed that a preponderance of the confusion involved voters who opposed affirmative action voting YES by mistake.

Most of the ballot confusion, however, did not involve the relationship between Referendum 88 and I-1000; it was sowed purposefully by the legislators and interest groups that put forward I-1000.

They knew perfectly well that “affirmative action,” if undefined, polls well but that “preferential treatment” has been consistently opposed in polls over the years (several of which I discussed in my last essay). Thus when Gallup asked, “Do you generally favor or oppose affirmative action programs for racial minorities?” 54% favored in 2016 and 61% in 2018. By contrast, Gallup asked four times between 2003 and 2016:

Which comes closer to your view about evaluating students for admission into a college or university — applicants should be admitted solely on the basis of merit, even if that results in few minority students being admitted (or) an applicant’s racial and ethnic background should be considered to help promote diversity on college campuses, even if that means admitting some minority students who otherwise would not be admitted?

Each time between 67% and 70% chose the “solely on merit” option. As I noted here, “More recent polls have been even more unequivocal, finding 70%-80% opposition to preferential treatment.”

Since preferential treatment — rewarding some and punishing others based on race and ethnicity in order to engineer an appealingly  “diverse” mix — is at the core of all affirmative action programs, the task of those proposing I-1000 was to fashion legislative language that would present affirmative action in a gauzy, unthreatening manner while claiming to exclude preferential treatment. In other words, the language had to disguise their true intent and the predictable results if their legislation passed.

They succeeded well enough to fool roughly 20% of Washington voters — the difference between the shade over 50% who voted to preserve the state’s prohibition of racial preference programs and the average of around 70% of respondents in national polls who have always opposed racial preference.

The actual language I-1000 is a model of obfuscation and deception. Its stated  “intent,” stated in the title and description, is “to guarantee every resident of Washington state equal opportunity and access to public education, public employment, and public contracting without discrimination based on their race, sex, color, ethnicity, national origin,” etc. “This is accomplished by: Restoring affirmative action into state law without the use of quotas or preferential treatment.”

Buried later in the text that few voters (and even some journalists) would not read are the controlling definitions:

“Affirmative action” means a policy in which an individual’s race, sex, ethnicity, national origin, age … are factors considered in the selection” of individuals “in public education, public employment, and public contracting.”

“Preferential treatment” means the act of using race, sex, color, ethnicity, [etc.]  as the sole qualifying factor to select a lesser qualified candidate over a more qualified candidate.” [Emphasis added]

In my first essay on this controversy I described I-1000  as “A Duplicitous Attempt to Rescue Affirmative Action” because 1) all  affirmative action programs, as actually practiced, require preferential treatment of minorities, and 2) no preferential treatment policies use race or ethnicity as “the sole qualifying factor.” The least qualified affirmative action admit has some other qualifications besides race, such as being literate and a high school graduate.

In short, affirmative action without preferential treatment simply does not exist. Thus, much like Humpty Dumpty, who famously told Alice that “When I use a word … , it means just what I choose it to mean — neither more nor less,” I-1000’s sponsors simply defined “preferential treatment” in a way that no one else has ever done, and that violates common understanding. So defined, it was no more a restriction on what affirmative action programs could do than if its definition had stated, “Preferential treatment means lowering admission and employment standards for lovers of green cheese.” I-1000s purported exclusion of racial preference would, in fact, allow the use of every known racial preference policy.

Unfortunately, this duplicity was not exposed by the press. Most newspapers in the state-endorsed I-1000, repeating its claim that the affirmative action it would bring back would exclude preferential treatment. A few quoted the “sole qualifying factor” definition of preferential treatment, but so far as I know no reporter asked a simple question that would have revealed the purposeful deception of that definition: “Could you name one actual racial preference program anywhere that I-1000 if enacted, would prohibit?”

The press’s generally poor performance was thus disappointing but hardly surprising since many of us don’t expect much from it these days. But there was one surprise: Ballotpedia, a respected non-partisan organization that has been an authoritative source of information on state legislation and ballot initiatives for years, also made an uncharacteristic blunder. Its Overview of I-1000 stated:

I-1000 was designed to ban preferential treatment, meaning those characteristics could not be the sole or deciding factor when considering a person for education or employment opportunities.

The problem here is that or deciding appears nowhere in the text of I-1000. Ballotpedia’s editors simply added it, thus inserting a seriously misleading description of the measure’s definition of preferential treatment.

On November 6, I sent a query to Ballotpedia’s editor seeking an explanation, and I received a thoughtful reply on November 11 from Ballotpedia’s Ballot Measures Project Director attempting to explain and justify their decision to claim that “sole qualifying factor” actually meant “sole or deciding” factor. “We used that word,” he wrote, after looking at the language in the text saying that race could not be “the sole qualifying factor to select a less qualified candidate over a more qualified candidate.” In looking at that phrase “as a whole,” he continued, “we took it to mean a single factor without which the other candidate would be selected, which is exactly what a deciding factor is.”

In the context of affirmative action, however, the deciding factor is completely different from sole factor. Every affirmative action program uses race as a “deciding” factor in many cases; that’s precisely why eliminating affirmative action reduces the number of admitted minorities and why proponents fight so hard to keep it. I-1000’s definition of affirmative action states that race, etc., can be “considered,” but considering race at all means that some individuals will be admitted or hired who would not have been but for their race. If Ballotpedia’s rendition of I-1000’s definition of preferential were correct, then it would fatally conflict with its definition of affirmative action.

I think Ballotpedia slipped up here not out of bias or sloth (like much of the press), but ironically because of its own experience and its commendable desire to be neutral and non-partisan. Washington state, after all, was far from its first dance with an affirmative action ballot measure. In 2006, for example, it covered a very similar battle over the Michigan Civil Rights Initiative, which was modeled on California’s Proposition 2009 and Washington’s I-200. In its definition of Key Terms it stated:

Preferential treatment occurs when an applicant is more likely to be selected than another applicant with similar or better qualifications due to other factors, such as race and ethnicity. The terms affirmative action and preferential treatment or racial preferences are sometimes used interchangeably.

In short, my sense is that Ballotpedia knew perfectly well that I-1000’s authors and proponents — if they had been acting in good faith — could not possibly have meant to define preferential treatments as policies using race as the sole factor in selection. It thus attempted to save the definition, substituting its own more reasonable view. Reasonable, but wrong, since those proponents were purposefully deceptive and not acting in good faith.

In the recent case involving Harvard’s discrimination against Asians, voluminous evidence was introduced showing that eliminating the “consideration” of race would dramatically reduce the number of admitted blacks and Hispanics (and, not incidentally, dramatically increase the number of admitted Asians). Thus race was clearly the deciding (but certainly not the sole) factor in the admission of a significant proportion of blacks and Hispanics, as Harvard happily acknowledged.

In her opinion endorsing Harvard’s policy of “intentionally provid[ing] tips in its admissions process based on students’ race,” Judge Burroughs used “tip” or “tips” 47 times, recognizing that they often made the difference between acceptance and rejection. If Ballotpedia had been correct in its contention that I-1000 defined preferential treatment as using race as the deciding factor in selection, then if it had become law Harvard’s admission policy would be illegal in Washington, since race was often the deciding factor in admissions decisions.

In fact, if Ballotpedia had been correct, I-1000 would not only have prevented Harvard’s admission policy but also any affirmative action policy where race is often the deciding factor, i.e., all of them. Presumably, on this reading of their intent, I-1000’s authors also rejected Justice Powell’s holding in Bakke that “the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases.”

Ballotpedia, in short, was clearly wrong. I-1000’s authors defined preferential treatment, purposefully if absurdly, as relying on race as the sole factor in selection precisely because they wanted to legalize and protect all affirmative action policies where it could be the deciding factor.

Now imagine that I-1000 had become law in Washington, and Asian applicants, producing similar evidence from the University of Washington, filed suit, claiming that race had been the “deciding” factor in admitting a large number of lesser qualified blacks over more qualified Asians. The University would reply, “So what? The law only prevents race being the sole factor, not the deciding factor.”

And, if I-1000 had become law, it would be right.