CARROLL: Confusing the issue

By Vincent Carroll, Rocky Mountain News (Contact)

Tuesday, March 4, 2008

Jessica Peck Corry

Why would any group subject itself to the brain damage and expense of collecting perhaps 100,000 signatures to put a measure on the Colorado ballot that would change . . . nothing?

What would be the point?

For proponents of Initiative 61, which the state title board approved late last month, the point is betrayed in the ballot title's opening line:

"Shall there be an amendment to the Colorado Constitution concerning a prohibition against discrimination by the state, and, in connection therewith, prohibiting the state from discriminating against or granting 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, and public contract- ing . . ."

Hmmm, sounds familiar, doesn't it? Why, those are also the opening words of the Colorado Civil Rights Initiative, which was approved for the ballot last year as Initiative 31 and which would outlaw government affirmative action programs involving preferences of the sort described above.

Backers of the new amendment have a very different purpose. They want to save preference programs, and they do this in the next sentence. It says the state can also take any action "consistent with the United States Constitution as interpreted by the United States Supreme Court" - which of course preserves every single program that Initiative 31 would outlaw.

So Coloradans could face two ballot measures this fall that begin with nearly identical language claiming to ban programs based on preferential treatment. Yet only one would actually do so. Confusing? You bet. Now you know the answer to the question posed at the beginning of this column. The reason a group would subject itself to the trouble of putting a measure on the ballot that would change nothing is to confuse voters and undermine honest debate. It is a strategy of remarkable cunning and cynicism, but whether it succeeds is another matter.

Last week, an attorney for Jessica Peck Corry, a proponent of Initiative 31 - the real anti-preferences measure, remember - filed a formal motion for a rehearing on the pro-affirmative action measure. The motion's arguments might provide all the fodder the title board needs to muster the courage to kill 61 when it takes up the matter Wednesday.

From the recording of the original hearing, it is clear that at least two board members were uneasy about the nature of 61. Does banning preferential programs in one sentence and then permitting them in the second really comply with the requirement for a single subject, they wondered?

And what would the measure actually do?

The attorney for the amendment, University of Colorado law professor Melissa Hart, was understandably reluctant to answer. Indeed, she was reluctant to acknowledge that preferential programs exist.

"I think there's obviously a great deal of interpretative debate about whether affirmative action programs constitute preferential treatment or don't constitute preferential treatment," she declared unhelpfully at one point. Yet if preference programs don't exist, then why the need to mimic Initiative 31 and confuse voters?

Hart prefers to call government programs granting a preference to members of one race or sex "modest equal opportunity programs." That's her privilege - she can call them purple tomatoes if she likes - but then why not directly ask Coloradans to preserve affirmative action in all of its forms rather than pretend to outlaw some of them?

I've always believed the title board and state Supreme Court should give every reasonable benefit of the doubt to citizens trying to put initiatives on the ballot - unless the measures made little sense or their advocates flagrantly violated the rules - so I don't envy the board as it takes up Corry's request. But whatever the ruling, supporters of Initiative 61 have already broken new ground in the abuse of initiative process - no minor achievement, when you think of it.

Vincent Carroll is editor of the editorial pages. Reach him at carrollv@RockyMountainNews.com.

• March 3, 2008

  9:39 p.m.

  Suggest removal

  ColoradoDave writes:

  The Colorado Constitution is a mess because of how easy it is to amend.

  I will vote against every Amendment I see except for the amendment making it more difficult to amend the state constitution.

  In order to pass, an amendment to the state constitution should require a super majority.

  In order to get on the ballot, an amendment should require a minimum percentage of signatures from each county in the state.

  Now that is an Amendment I would support. You see I really like the idea of living in a Representative Democracy. Colorado has 4,753,377 residents and the United States has 303,558,580. That is obviously too large a population to support direct democracy. This is why I am glad the founders of this country established a Representative form of government. We live in a Republic, not a Democracy.

• March 4, 2008

  7:40 a.m.

  Suggest removal

  DougH writes:

  Back in the days of the women's liberation movement, we used to hear about how Women and Minorities were disadvantaged and needed special priorities and privileges for in employment and education.
  It is interesting how women like Jessica Peck Corry are turning on their own kind now that they have achieved success through opportunities not available to their mothers and grand mothers.

  I can understand why she was hired by the Independence Institute.

• March 4, 2008

  2:37 p.m.

  Suggest removal

  politwriter writes:

  Liberals don't trust the people. So they resort to appeals to unelected judges and chicanery like this to thwart the will of the people.