Affirmative Action: Vandenberg Challenges Connerly

Ward Connerly of California is involved in a petition effort in Colorado to end affirmative action at the level of state government. Bill Vandenberg is the “Co-Executive Director” (though there seems to be only one director) of the Colorado Progressive Coalition. Vandenberg is also the co-chair of the Colorado Unity Coalition, an organization that supports affirmative action. The upshot of the story is that Vandenberg’s coalition has challenged the initiative with the Secretary of State, claiming that petitioners deceived some people who signed it.*

Let us first turn to the specific complaints lodged by Vandenberg’s organization.

The story has been covered by The New York Times, the Associated Press, and The Denver Post. The Post also made available a document described as “the formal complaints that have been filed with the secretary of state.”

Following are the specific allegations of deceit reported by those stories and the “formal complaints.”

* From the Post: a petition circulator “implied it was a pro-affirmative-action amendment.” Implied? Those are weak grounds for a legal challenge.

* From the AP and the “formal complaints:” Candace Frie claims in the complaint, “[T]he petitioner… explained that it was an initiative to help end discrimination against all people.” According to the AP, “She said she signed a petition outside a grocery store in Arvada when a man approached her saying the initiative would promote civil rights.” But the petitioner described the initiative exactly correctly in this case. The initiative states, “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.” Affirmative action is a form of discrimination. Its supporters claim that it is a good form of discrimination, but it is discrimination nonetheless.

* From the Times: “Freddie Whitney was walking out of a King Soopers supermarket here this winter when she was approached by three young men. They politely asked if she was against discrimination and, if so, if she would sign a petition that would legally end the practice in the state.” Again, the petitioners explained the initiative correctly in this case.

* From the Times: “People were told that this would end discrimination, in some cases that it would actually support affirmative action,” Mr. Vandenberg said. If people were told that the measure would “support affirmative action,” then that was indeed deceitful.

* From the “formal complaints:” Tracy Seat writes, “The first petition collector… [was] explaining that the petition was for a ballot issue that would restore ‘equality in the workplace.’ … I asked the petitioner if this petition was to eliminate affirmative action, because that was what the language of the petition sounded like. He replied that it ‘could’ eliminate some of the provisions. I had to ask very specifically a couple of times and press him for an answer before he would admit that the measure would in fact eliminate affirmative action.” A second petitioner “stated that she believed we don’t need affirmative action any more.” In other words, while the petitioners might have been coy, there were basically honest about the initiative.

Notably, Seat never claims to have signed the petition, so how exactly is this an example of a problem?

(Also, Seat complains that the petition circulators were not showing identification per statute 1-40-112(2)(B). However, if Vandenberg’s group wishes to check the statute, they will find in the Annotations the fact that the identification requirements were found to be unconstitutional.)

* From the “formal complaints:” Chloe Johnson writes, “… I was approached by a petition circulator who asked me to sign a petition that would end discrimination in Colorado… I questioned this petitioner knowing that we already had laws to prevent this but he told me that they would no longer be effective in the following months.” The first part of the petitioner circulator’s (alleged) statements is true, the second part is deceitful.

So, from the documents listed, we get a sum total of three alleged instances of deceit on the part of a petition circulator. One of the instances is a mere “implication,” and another is second-hand from Vandenberg. This leaves a single example of somebody who claims to have signed a petition after hearing deceitful claims from a petition circulator. While I suppose that others have legitimate complaints, I have to wonder why the documents listed are so short on good examples. Even one example of deceit is cause for concern, yet there is not a single initiative that would be exempt from a few complaints.

* * *

At this point I want to make some more general comments about the story.

I’ve met Vandenberg and I respect him, even though we disagree on most issues. He and I have been on the same page several times; we both supported the effort to reform Colorado’s asset forfeiture laws, and I cheered on his effort to require police officers to hand out business cards to people they stop but don’t arrest. We agree on various other polices. But in the realm of economics, we disagree about practically everything.

I support the initiative to end state-sponsored affirmative action. First, I believe that state-sponsored affirmative action (as opposed to affirmative action by organizations not part of or funded by the state) violates or at least strains the “equal protection” clause of the Fourteenth Amendment. Second, I believe that the proper way to advance the interests of minorities is to achieve a quality education system for minority youth. (I further hold that market education is the only way to achieve such quality, but that topic is too far afield for this post.) College is simply too late. Third, I believe that, where state funds are concerned, employees should be hired because they are the most qualified applicants, not because of their race or gender.

But the present story is about the proper way to put initiatives on the ballot, not about the fact that Vandenberg obviously opposes the measure, while I support it.

I would like to suggest that Vandenberg show restraint. Nearly every initiative uses paid petition circulators. Indeed, the same circulator might, at different times, collect signatures for two opposing measures.

The fact is that politics is complicated. Legislators, lawyers, judges, and juries regularly disagree about the meaning of statutes. It is inevitable that petition circulators will present a petition in a way that others can call into question. If Vandenberg is successful at challenging Connerly’s initiative, does he imagine that the tactic will stop there? It will not. If Vandenberg can imagine any future initiative that he himself might support, I encourage him not to create a hyper-litigious atmosphere in which activists are trailing petition circulators in the hopes of catching some misstatement on tape.

Of course, while petition circulators can make honest mistakes and can honestly disagree about various elements of various petitions, outright deceit is clearly out of bounds. It should be most strongly discouraged by the sponsors of the initiative. There are three main reasons for this. First, dishonesty is morally wrong, and it fosters a generally less-honest society. Second, petition circulators should truthfully represent the nature of the initiative in order to advertise its existence. Third, as the present story demonstrates, dishonest circulators can create extremely negative publicity for the initiative in question.

What, then, is the proper remedy? First and foremost, it is the responsibility of people who sign petitions to read the language. If you trust the lingo of the circulator over the actual language of the initiative, then frankly you are the person most at fault. If you can’t take an initiative seriously enough to read its language, then why are you signing the petition in the first place? Do you sign contracts without reading them, too?

Indeed, the petitions themselves urge signers to read the language. Following is the relevant statute:

1-40-110. Warning – ballot title.

(1) At the top of each page of every initiative or referendum petition section shall be printed, in a form as prescribed by the secretary of state, the following:

For anyone to sign any initiative or referendum petition with any name other than his or her own or to knowingly sign his or her name more than once for the same measure or to knowingly sign a petition when not a registered elector who is eligible to vote on the measure.


Before signing this petition, you are encouraged to read the text or the title of the proposed initiative or referred measure.”

Iif you do sign a petition without bothering to read and evaluate it, then don’t blame somebody else for your own civic failure.

That said, if petition circulators are genuinely found to use deceit in favor of some initiative, then organizations are right to go after them in the public arena. But I maintain that lodging legal challenges is usually not the proper way to go, unless the level of deceit is egregious or somebody is actually physically altering the petitions or some such.

According to The Denver Post, “Penalties for fraud could include disqualifying the batches of signatures collected by canvassers found to have misled voters. Errant petitioners could also face $500 fines and up to a year in county jail, [Rich] Coolidge [spokesman for the secretary of state] said.” I believe that Coolidge is referring to 1-40-130, which is rather vague.

My read is that Vandenberg’s group has a legitimate complaint, but not a legitimate legal challenge. Vandenberg earned publicity for his cause, but if he successfully presses the legal challenge he may make it more difficult — and more expensive — for any group to gather signatures. It would indeed be ironic if the result of Vandenberg’s “progressive” challenge was to further advantage those with more money.

* April 6 update: While I originally claimed that Vandenberg’s group challenged the measure “in court,” that’s not quite right. The Post reports that the challenge sets “the stage for a potential lawsuit,” and that the “three formal complaints… have been sent [by the Secretary of State] to administrative law judges for evaluation, Coolidge said.”