Ruling on Prop. 209 Description Voided

Reversing a lower court decision as well as a short-lived victory for opponents of Proposition 209, a state appeals panel ruled Monday that the term “affirmative action” need not be included in ballot language describing the initiative.

Acting just hours before the language was due at the state printers, the appeals court rejected arguments that Atty. Gen. Dan Lungren should have included the phrase in his official title and summary of the measure, which would end state affirmative action programs for women and minorities.

The opinion, a major setback for Proposition 209 foes, settles for now an intense legal wrangle over the wording used to describe the proposition on the Nov. 5 ballot and in the official pre-election information pamphlet mailed to voters.

Both sides in the initiative contest have gone to court to challenge various aspects of the language, with most of the dispute centering on where and how the phrase “affirmative action” should be used.

The two words have taken on heightened importance because polling indicates they have a dramatic effect on voters.

If the phrase is omitted in descriptions of the initiative, a solid majority of the state’s prospective voters say they would approve Proposition 209. If prospective voters are told that the measure would eliminate state-run affirmative action programs, support in polls taken to date falls significantly, to below 50%.

Thus, opponents have fought to have the official ballot title and summary changed to include mention of affirmative action. Proponents, in turn, sued to alter parts of the legislative analyst’s official ballot discussion of Proposition 209 because they said it overstated the initiative’s impact on affirmative action policies.

More than a week ago, Sacramento County Superior Court Judge James T. Ford gave opponents a victory, ruling that Lungren’s wording was misleading because his title and summary failed to include the term “affirmative action.”

Lungren immediately appealed Ford’s decision to the state’s 3rd Appellate District, which temporarily blocked it pending Monday’s ruling.

In a 13-page ruling issued Monday afternoon, a three-judge panel of the appeals court overturned Ford’s decision, landing firmly on Lungren’s side.

The attorney general, the appeals court noted, had essentially repeated the language of the initiative itself, which contains no reference to affirmative action. Instead, the measure says the state shall not “grant preferential treatment” on the basis of race, sex, ethnicity or national origin.

“The electorate can hardly be deceived by this essentially verbatim recital of the straightforward text of the measure itself,” the appeals panel wrote.

Citing a number of different definitions of affirmative action, the panel added that even if most or all of the initiative’s impact falls on affirmative action programs, “we cannot fault the attorney general for refraining from the use of such an amorphous, value-laden term.”

Proposition 209 foes turned to the state Supreme Court in a final effort to get the affirmative action phrase on the ballot. But in a brief statement issued late Monday the Supreme Court declined to take the case, letting the appeals ruling stand.

Both sides expected the language debate to continue outside the legal arena.

“We hope to get [209’s] real purpose out in a lot of other ways,” said anti-209 attorney Jeffrey Gordon. “Voters have a right to know what they’re going to vote on.”

Initiative backers lauded the decision, saying affirmative action was too imprecise a term to use.

“It means different things to different people,” said Jennifer Nelson, spokeswoman for the Proposition 209 campaign. “That’s precisely why [the proposition] doesn’t include affirmative action in its language. The initiative is about preference and preference is a term that the people of the state and the courts . . . understand. “