8
Stumbling to the Finish Line
Dole Grasps for Proposition 209 and the Opposition Reaches for David Duke
We've got to get to the point in this country where we can let some of this stuff go.
PRESIDENT BILL CLINTON
October 31, 1996, in Oakland, California
Set to Risk All
On the weekend of October 12 Senator Dole's campaign team huddled in Washington to figure out how a victory could be fashioned from what looked like certain defeat. To win the White House a candidate needed 270 of the 538 electoral college votes. The campaign team calculated that Dole had 123 and Clinton had 195. Many analysts had already given the race to Clinton, but it was too early for Dole to accept that finality. The campaign team developed a game plan. The discussion focused on two blocs of electoral votes. One included New Jersey's 15 electoral votes, Pennsylvania's 23, Delaware's 3, and Connecticut's 8, for a total of 49. The other consisted of California's 54 electoral votes. The campaign couldn't go for both; that would cost too much money. But winning either bloc along with a string of states where the media spots were not as expensive could put Dole over the top.
At first it was a coin toss. The states included in the two blocs of electoral votes polled about the same. But slowly Dole's numbers for Pennsylvania and New Jersey started to slip while California remained steady, at around a 10 percent gap. The Republican hold on Congress was also looking weak, making California's many congressional races the trove that could best help to secure the GOP's majority in the House of Representatives. California was an increasingly favored option for another reason as well: Proposition 209. "Given the matrix of issues that was left to play, it was one of the few that looked as if it might help," said Tony Fabrizio, Dole's pollster.
Dole staffer Dennis Shea had been pushing the candidate for months to take up affirmative action. So had California advisors Governor Pete Wilson and Ken Khachigian. But Dole had been reluctant to embrace either Proposition 209 or illegal immigration. He knew the rhetoric surrounding both issues, but he lacked the passion that gave the rhetoric zing. Sources close to him said Proposition 209 was too overreaching for his taste. He wanted to get rid of set-asides and, like every other American, he disavowed quotas, but ending all affirmative action? That was another matter. Kemp was even more ambivalent. Until he was tapped to be Dole's running mate, the former HUD secretary had advised against acting too hastily to eliminate affirmative action. And depending on the day of the week, Kemp still supported race-based preferences. Nevertheless, Dole and Kemp acquiesced to their advisors' urging. The San Francisco Chronicle announced on Monday, October 14, that Dole was set "to risk all" on California.
Even if Dole and Kemp could stay on message supporting Proposition 209—and evidence to the contrary quickly emerged—the strategy was risky at best. First of all, California in 1996 was a far different place from California in 1994. The economy was on the rebound. In 1994 it had been easy for Wilson to make anxious voters feel that if the state wouldn't spend $3 billion on illegal workers, there would be more money and jobs for unemployed Americans. Economists and
political analysts felt in early 1995 that unemployed white workers could be made to feel equally shortchanged by the perceived benefits minorities received from affirmative action. But by 1996 many of the unemployed had found work.
Moreover, Dole was not Wilson. The governor retained the discipline of a marine. He began his attacks on undocumented workers years before Proposition 187 had been introduced. And from late 1991 on the governor consistently stayed on message, questioning the money California spent to educate and care for undocumented workers. By the time Proposition 187 emerged, Wilson was identified with its provisions. "The California electorate had spent the previous two years debating immigration outside of an election context," said Dan Schnur, Wilson's former aide.[1]
Dan Schnur, interview, March 13, 1997.
In contrast Dole supported affirmative action until March 1995. When he switched sides, he did so unenthusiastically. And when he turned to it in mid-October to salvage his presidential campaign, he appeared desperate. "Lots of times issues become good issues because you make them good issues," said Lyn Nofziger, a Republican political consultant.[2]Lyn Nofziger, interview, March 18, 1997.
"Dole should have been on 209 from the very beginning and certainly from the start of the fall. When you get into something in the last two or three weeks that you have deliberately been ignoring, it looks like panic."Given their situation, Dole and Kemp had to be especially convincing. They had to hit hard. They had to sound like true believers. But there was also a legitimate concern that, if they hit too hard, they could alienate voters in other states. "There were two schools of thought," said Fabrizio.[3]
Tony Fabrizio, interview, March 18, 1997.
"One said that if you are going to play California to win, you had to do 209 early. The other mind-set said that if you play 209, it may hurt you in some marginal states like New Jersey and Pennsylvania because it was clearly not as deeply supported in those states. Those states had not had two years of media about affirmative action, and there was the feeling that you could shoot yourself in the foot in places like Pennsylvania and New Jersey." Despite Dole's diminished prospects in those states, they continued toconcern him. Nevertheless, he pushed ahead with the California strategy, and on Monday, October 14, he arrived in San Diego and gave his first major campaign speech on affirmative action and Proposition 209. "A hundred years ago, defending against the unjust Supreme Court decision that affirmed segregation, Justice John Harlan wrote that the law regards man as man and takes no account for his color. And that was the spirit and the promise of the 1964 Civil Rights Act, which I voted for as a member of the House of Representatives, guaranteeing equal access to opportunities—not equal results, but equal access. And opportunity to participate."[4]
Transcript 96101501U68, Cable News Network, Special Campaign '96 Event, October 15, 1996.
Even if one disagreed, it was a coherent argument.On the following night, however, Dole debated President Clinton in San Diego, and the confidence and moral authority he had projected the day before disappeared. When asked about affirmative action on national prime-time television, he was sheepish—failing to clearly endorse Proposition 209 by name, offering a muddled explanation for his turnaround on affirmative action, and managing to sound both wistful and flippant as he joked about a disability preference in the presidential race:
Dole: Well, we might not be there yet, but we're not going to get there by giving preferences and quotas. I supported that route for some time and again, I think it gets back to experience—a little experience, a little age, a little intelligence. And I noticed that nobody was really benefiting except a very small group at the top. The average person wasn't benefiting. People that had the money were benefiting. People that got all the jobs were benefiting. It seems to me that we ought to support the California Civil Rights Initiative. It ought to be not based on gender or ethnicity or color or disability. I'm disabled and I shouldn't have a preference. I would like to have one in this race, come to think of it. But I don't get one. Maybe we can work that out. I get a 10-point spot.
These were the words of no clear-eyed believer, but they were more in line with the nature of Dole's campaign—a random set of thoughts and asides. On some days, Dole attacked Clinton's character, on other days the press, and on still other days illegal immigration. Proposition 209 became the Dole campaign's stepchild—sometimes fought over, mostly ignored. "The campaign was completely inept," said Mike Schroeder, then vice chair of the California Republican Party.[5]
Michael Schroeder, interview, March 19, 1997.
"The Dole campaign never had a message on 209 or anything. They never developed any traction on any message, and when they adopted 209 no one believed them. It was too late, and their message had a very hard-edged racist approach."Collision at the California Border
Arnold Steinberg, Proposition 209's campaign manager, had long wooed Dole, but when Dole finally came around, his belated presence was irritating at best—and "best" was rarely the case. If Dole had been more convincing about 209, Steinberg might have been happy to see the candidate cross the state line. He was, after all, coming with money, a commodity that Steinberg desperately needed. But Dole equivocated, and Steinberg was no longer anxious to do business with his team. The Republican National Committee had asked Steinberg in early October to make Proposition 209 commercials pitting Dole against Clinton, and Steinberg refused. "It would have compromised the campaign—my interest was in 209 and not Bob Dole, and there was no reason for me to diffuse 209 with something about the presidential campaign," Steinberg said.[6]
Arnold Steinberg, interview, November 19, 1996.
Instead, Steinberg had been running a nonpartisan radio campaign for Proposition 209. The first ad, which began to appear after Labor Day, featured Ward Connerly. The second ad, appearing in early October, cleverly undercut the gender arguments against the initiative. It featured Janice Camarena, who purported to be a young white female victim of reverse discrimination. The ad was timed to start running just as the
Claremont Institute released a study on white victims of reverse discrimination and as Assemblyman Bernie Richter geared up to hold hearings on discrimination against whites in higher education. These stories turned emotional anecdotes into potent political messages. And despite the power of personal stories, the opposition never countered the dozen or so cases of reverse discrimination that the Proposition's supporters had at their disposal with any of the hundreds of thousands of discrimination cases civil rights advocates had at theirs.
Steinberg's ability to make the most of the available cases of reverse discrimination was apparent in the Camarena ad. At twenty-six, Camarena was not glamorous. She was a sad, blue-eyed blond whose life in San Diego, and later in Crestline, had been touched more than once by tragedy. A working single mother with three young children, she enrolled in San Bernardino Valley Community College to realize her ambition to become a nurse. In January 1994 she was denied entrance into an English 101 class reserved for students in the Bridge Program, a remedial course designed for African American students. The teacher, she said, told her to leave because she was white, and as she walked out the other students laughed. A year later she sued the college, and in 1996 the case was settled. The college reimbursed her legal fees and agreed to remove any language in course descriptions implying that a certain class was "designed" for any specific group of students.
College officials disputed key facts, including the classroom scene, and argued that the Bridge Program, as well as a similar program designed for Latino students, did not exclude any students. Camarena was not accepted in that particular class, they said, because she had not preregistered, nor had she taken the prerequisite class. Moreover, they argued, another English 101 class, open to all students, was available in the same time slot. The settlement, they insisted, was a financial decision rather than an admission of wrongdoing.
From Camarena's story, Steinberg produced the following ad.
Male Announcer: The following actually happened January 19th, 1994.
Camarena: The teacher said to me, "You have to leave."
Male Announcer: Because you're white.
Camarena: Yes. The I left. (door slams shut—sound undercurrent)
Male Announcer: As she went out the door, students laughed. (laughter fades) But for this young, widowed mother trying to enroll in a class at a public college, racial quotas were no laughing matter.
Camarena: I thought that discrimination was illegal.
Male Announcer: But the law allows preferential treatment.
Camarena: Another class was for Mexican American students only.
Male Announcer: These programs are based not on merit, or even on need, but on race. Janice Camarena Ingraham is white. Her deceased husband was Mexican American.
Camarena: Recently our public school asked the race of my children. I said the human race.
Male Announcer: Janice now is one of many women and men leading the campaign for Proposition 209. Proposition 209 prohibits discrimination and preferential quotas. It protects men and women of all races.
Female Announcer: Equal opportunity without quotas. Yes! Proposition 209. Bring us together.
The Camarena story, a classic example of reverse discrimination, set white women off from racial minorities and undermined the opposition's argument that women and minorities had a shared interest in maintaining affirmative action. The commercial stresses that Camarena's "whiteness" excluded her from educational opportunities. The radio spot also heightens its emotional appeal to a white audience by showing Camarena not only excluded, but humiliated by the minority students, who laugh as she leaves the classroom. Camarena does not claim racial superiority but moral superiority ("I said the
human race"). The advertisement promises that Proposition 209 will protect victims against any such future incidents.
Nonpartisan ads did not interest the Dole campaign, and when the candidate was ready to spend money in California the Republicans did not bother to ask Steinberg again for help. To cut the ads the RNC wanted, John Herrington, chair of the state Republican Party, called Sal Russo, a Sacramento-based Republican media consultant. Within days, Russo had prepared two ads—one with Herrington as the spokesperson and the other with an unknown middle-aged woman. When focus groups nixed Herrington, the second commercial went out to television stations to begin running October 23.
The commercial opens with a montage of faces.
Female Narrator: We should be judged on merit, not by gender or the color of our skin.
A solo piano melody plays in the background as a middle-aged white woman with blond hair steps out from a group of thirteen people, including some Latinos and Asians. The camera focuses on the woman.
Female Narrator: Job quotas and preferences are wrong. Proposition 209 ends quotas and special treatment. But Bill Clinton opposes Proposition 209, just like he opposed Proposition 187.
As she speaks of Clinton, his image comes on screen in grainy black and white. It is the image of a callow Bill Clinton, in shirt sleeves, sitting in front of a microphone, crossing his arms. He looks like he's listening to someone else talk and he doesn't look happy. The commercial then cuts to footage of Martin Luther King's 1963 speech at the Lincoln Memorial in Washington.
Martin Luther King, Jr.: … where they will not be judged by the color of their skin but by the content of their character. I have a dream today!
The ad cuts back to a close-up of the woman.
Female Narrator: Martin Luther King was right. Bill Clinton is wrong to oppose Proposition 209. Let's get rid of all preferences.
The commercial ends with a plug to vote "Yes" on Proposition 209 in white letters against a backdrop of the Declaration of Independence and a waving American flag.
As soon as word leaked out that the California Republican Party was to run a television commercial linking Proposition 209 to Martin Luther King, Jr., civil rights leaders exploded. Many who had previously avoided Proposition 209 now spoke out with bitterness and anger. "Those who suggest that [King] did not support affirmative action are misrepresenting his beliefs, and indeed, his life's work," Coretta Scott King said in a joint statement with her son, Dexter Scott King. Even Proposition 209 co-author Thomas Wood—who along with Glynn Custred, Connerly, and others speaking for the campaign had been using King's line in debates—acknowledged that the ad crossed the line of propriety. "The problem is that there is plenty of evidence that King thought that blacks were entitled to preferences," Wood said, adding that there was also evidence that King would have included poor whites.[7]
Thomas Wood, interview, February 21, 1997.
"He probably would have been somewhere around 'mend it don't end it.'" Worse than the misinformation the commercial conveyed, Wood said, was its tactical error in shifting the debate on Proposition 209 to Martin Luther King. "That couldn't possibly be to our advantage."Steinberg was furious. He had lost control of the campaign he had shepherded for nearly two years. Compounding his problems was his lack of leverage. None of the state Republican officials who had supported him before could help now. Earlier in the Proposition 209 campaign Wilson had directed money from the state party to the Proposition 209 campaign because
he had been responsible for raising it and because Herrington, the party's chair, agreed. Now the former Secretary of Energy's loyalty was to the Dole campaign. If Dole won, Herrington hoped for a cabinet position. If Dole lost, he wanted Haley Barbour's seat as chair of the RNC. Such goals made him eager to curry favor with the Dole campaign and the RNC. "Whatever was needed to be done, Herrington would do it," said a high state Republican Party official.[8]
Interview, December 1996.
Moreover, Herrington had reason to feel that the California Republican Party owned the Proposition 209 campaign. It had been responsible for nearly half of the initiative's bankroll, with much of the balance coming from national Republican donors. If Dole wanted to use the proposition to salvage his campaign or if the RNC believed it could increase their congressional victories, Herrington felt it was theirs to use. If Govenor Wilson disagreed, he would not win in a showdown with Herrington. "The chair has the power to make unilateral decisions and that's it," said Schroeder, who became chair in 1997.[9]
Michael Schroeder, interview, March 19, 1997.
Although Wilson might have been able to persuade a close political ally to listen to Steinberg, Herrington did not fit that bill. Their differences went back to 1976, when Wilson endorsed Gerald Ford for president instead of Ronald Reagan, and it continued into the 1990s with Wilson's tax hike and his support of gay rights. Nor was Connerly able to help Steinberg. The U.C. regent had been a compelling spokesperson, and his access to the governor had been critical in promoting Proposition 209, but his political influence within the state Republican Party was only as strong as Wilson's.Steinberg, however, refused to back down. Making Proposition 209 partisan so late in the game, Steinberg feared, would lose it votes. The initiative's financing may have come primarily from Republican Party sources and donors, but its popular support came from Democrats as well.[10]
The field poll showed that one-third of those who supported Proposition 209 and one-quarter of those undecided on 209 also planned to vote for Clinton.
When Wilson failed to dissuade Herrington, Steinberg attacked. He fired off faxes to officials in the state party callingfor Herrington's resignation. Then he jumped into a public shouting match with Scott Taylor, the liaison with the RNC. "I cannot stress enough how strongly we feel that Prop 209 has been mismanaged by the staff," Taylor told the Los Angeles Times . He praised Connerly and damned Steinberg.[11]
Dave Lesher and Bettina Boxall, Los Angeles Times, October 23, 1996, p. A3.
The "only decision we have made is that we would never give the money directly to the initiative campaign because we're afraid of how it would be managed," he added. Steinberg retaliated. "The use of King was juvenile at best and counter-productive at worst," Steinberg told the Sacramento Bee .[12]Ken Chavez, Sacramento Bee, October 25, 1996, p. A1.
"People who don't know the issue probably shouldn't be creating ads about the issue. … This was an unnecessary controversy." To add punch, he filed a defamation lawsuit against Taylor.Steinberg, party officials decided, was out of control. Connerly asked him to lie low, but Steinberg refused and Connerly was insulted. "The chair of the campaign was telling him to do something and he was rejecting it," Connerly said, referring to himself in the third person. Such insubordination was "unforgivable," he said.[13]
Connerly made this comment in response to a question I asked when the U.C. regent visited a U.C. Berkeley course on March 31, 1997. Connerly also said that Steinberg was upset because he would not get the 15 percent commission from the television commercials. However, Steinberg had turned down earlier offers to do commercials that included Dole and Clinton.
"I fired him." Technically, Connerly lacked the authority to fire Steinberg, but he didn't even bother to ask Custred and Wood for their opinions. Dismayed, for a few short days they considered firing Connerly. But how would it look? Two white men firing their black spokesperson? They let it pass.Steinberg, however, had made his point, and after all the bad press the RNC and Herrington sent Russo back to the studio to revise the commercial.
As before, a white woman steps out of a multi-ethnic group of people, and the same Clinton image appears on the screen. But King has been eliminated. Instead, the commercial cuts to the initiative's text, which is shown in black letters on a piece of ivory paper. The first words of the proposition, "The State shall not discriminate," are extracted from the text and shown in blue against a stark white background.
Female Narrator: Proposition 209 is only 37 words and it says we shall not discriminate. It's right for California.
Again there is a close-up of the woman as she finishes speaking.
Female Narrator: Bill Clinton is wrong to oppose Proposition 209. Let's end all discrimination. Vote yes on Proposition 209.
The commercial concludes, as before, with the message to vote "Yes" on Proposition 209 in white letters against a backdrop of the Declaration of Independence and a waving American flag.
Steinberg didn't like the revised ad any better; mentioning Proposition 187 showed that Herrington was "in a time warp," he snapped. More significantly, voters were revising their views on Proposition 209. The field poll released on October 30 showed that the race had narrowed to 46 percent for 209, 41 percent against, and 13 percent undecided. The following day Connerly, echoing Steinberg, asked the state Republican Party to pull its television ad. "We have ads that are more powerful, that are nonpartisan, and that accentuate the fact that this is about preferences," Connerly pleaded.[14]
Edward W. Lempinen, San Francisco Chronicle, October 31, 1997, p. A15.
Herrington refused and told reporters, "Ward Connerly is a very good spokesman for Proposition 209, but he doesn't run the Republican Party.[15]Eric Brazil and Annie Nakao, Fresno Bee, November 2, 1996, p. A5.
Connerly retorted that if 209 lost, it would be Herrington's fault. "To the extent that our lead might have diminished a few points it is directly a response to an ad that, to be charitable, does not accentuate the core of this debate. And to the extent that this initiative is endangered, let it be at the doorstep of John Herrington."[16]Ibid. In the final two days of the campaign, Steinberg's Proposition 209 television ads began running in the Los Angeles market. Their run, however, was very limited, and the main 209 ad continued to be the one produced by Russo. Steinberg's ads highlighted the themes of equal opportunity without quotas—once the opposition's slogan for the alternative initiative. They ended with the "bring us together" tag line and were strictly nonpartisan. The ads featured Connerly, Janice Camarena, and Pam Lewis, a white woman who was one of the co-chairs.
Connerly, however, didn't matter to Herrington, and the ad stayed on through the end of the campaign.Clinton Ducks
While Dole bounced around on the issues, Clinton consistently kept his distance from Proposition 209. Tom Umberg,
who was in charge of the Clinton campaign in California, recalled that Dole was "constantly trying to goad us into making the campaign into one about 209."[17]
Tom Umberg, interview, March 6, 1997.
Clinton, however, refused to advise voters against the proposition. If opponents were distressed, Republicans admired the president's political savvy. "When we hit him with 209," said Fabrizio, "Clinton came back with medicare—he was attacking us on more salient issues."[18]Tony Fabrizio, interview, March 18, 1997.
On his own, Clinton never brought up Proposition 209. When a voter asked him about affirmative action during the San Diego presidential debate, Clinton made the civil rights program sound like one for the disabled:I am against quotas. I'm against giving anybody any kind of preference for something they're not qualified for. But since I still believe that there is some discrimination and that not everybody has an opportunity to prove they're qualified, I favor the right kind of affirmative action. I've done more to eliminate programs—affirmative action programs—I don't think were fair. And to tighten others up than my predecessors have since affirmative action's been around. But I have also worked hard to give people a chance to prove that they are qualified. Let me just give you some examples. We've doubled the number of loans from the Small Business Administration, tripled the number of loans to women businesspeople. No one unqualified—everybody had to meet the standards. We've opened 260,000 new jobs in the military to women since I've been president. But the joint chiefs say we're strong and more competent and solid than ever. Let me give you another example of what I mean. For me, affirmative action is making that extra effort. It's sort of like what Senator Dole did when he sponsored the Americans with Disabilities Act and said to certain stores, OK, you've got to make it accessible to people in wheelchairs. We weren't guaranteeing anything—anybody anything except the chance to prove they were qualified, the chance to prove that
they could do it. And that's why I must say I agree with General Powell that we're not there yet. We ought to keep making those extra affirmative action programs the law and the policy of the land.
The president had understood from the beginning that an aggressive stand against Proposition 209 could cost him too many white voters. This was reflected in the constituency outreach reports for ethnic groups that Clinton's deputy chief of staff, Harold Ickes, prepared in early 1995. Only the documents for white ethnics mentioned affirmative action. Along with abortion, Ickes pointed out, it was a "hot button issue" in white ethnic communities.[19]
Harold Ickes, "1996 Ethnic Constituency Proposed Outreach Plan," February 27, 1996.
Better not to mention it. The message in California was jobs, education, and the environment. Period.Although the early signs from the Democratic Party had never been encouraging, the opposition campaign was severely let down. Connie Rice, from the NAACP Legal Defense and Education Fund, recalled a conversation she and Donald Flower, co-chair of the Democratic National Committee, had in early 1995. "I asked him whether they were going to sell us down the river," she said. "I should have asked him how far. I had no idea the Democratic Party was this corrupt in representing its constituencies."[20]
Connie Rice, interview, October 18, 1996.
At least Custred and Wood, she noted, could depend on the Republican Party for funds.San Francisco Mayor Willie Brown and other African American leaders said they asked Clinton's campaign staff for help but got none. "No, I don't think they did enough," Brown said, referring to the Clinton operatives.[21]
Mayor Willie Brown, interview, December 1996.
They listened politely and said 'We do what we can.'" But neither Brown nor other African American leaders chose to pursue the issue with much vigor. "The formal civil rights movement is in disarray," said Roger Wilkins, a professor at George Mason University. "The only good thing you can say is that the NAACP didn't do much because they were trying to get out of bankruptcy."[22]Rogers Wilkins, interview, September 11, 1997.
Black executives took credit for Clinton's mend-it-don't-end-itpolicy but did little or nothing to raise funds or contribute their own to defeat Proposition 209.
The quiescence of prominent African Americans was startling to one member of the opposition, who listened in on a teleconference Clinton had in early October with some forty African American leaders in as many cities. Five cities enjoyed two-way communication with the president; in San Francisco Mayor Brown was on the line. "Brown didn't mention 209 by name," said the opposition member. "He said he was deeply grateful to Bill Clinton for 'mend it don't end it' and nothing about the Democrats helping us with funds. He gave the administration a complete pass. What it says is the African American leadership is so weak they couldn't do anything—about affirmative action or the welfare bill."
Hope flared briefly when George Stephanopoulos, Clinton's senior advisor, agreed to appear at an anti–Proposition 209 fund-raiser. But the affair gave new meaning to the term lip service. Peter Barker, one of the sponsors, read his Wall Street Journal . Asked what had interested him in the issue of affirmative action, he barely looked up from his stock tables. "Molly," he said, referring to Munger, at the NAACP Legal Defense and Education Fund, who had called in chits with all of her friends. Bill Wardlaw, the other sponsor, and Clinton advisor, appeared only on the printed announcement. Most of the forty or so people gathered to hear Stephanopoulos and eat the lox, bagels, and fruit were Democratic Party officials. "They're probably all here to make sure we don't get any money," said Rice, plainly disgusted.[23]
Connie Rice, interview, October 18, 1996.
Stephanopoulos put a brilliant spin on Clinton and Proposition 209. Because the president had omitted Proposition 209 from his campaign speeches, the young man reached back to July 1995 to remind those assembled of the president's support. It was on that day, in his mend-it-don't-end-it speech, that Clinton defended affirmative action. "Something memorable happened then," Stephanopoulos said with wonder. "Bob Dole stopped talking about it." By Stephanopoulos's account,
the debate over affirmative action had died fifteen months earlier. Fund-raising etiquette prevented anyone from reminding the honored guest that, following Clinton's speech, the U.C. regents had ended affirmative action at the University of California, Dole had introduced legislation in Congress to end it at the federal level, and the state Republican Party had poured enough money into Proposition 209 to put it on the ballot.
Stephanopoulos did call Proposition 209 a "critical issue in a critical state" and promised that the president would soon unveil a commercial to address it. The new commercial, he explained without embarrassment, featured Jim Brady talking about Clinton and gun control. No one asked him to explain the logic.
Following Stephanopoulos, Pat Ewing, campaign manager for the opposition, also alluded to a new commercial. "The campaign has designed a nuclear bomb," she told the potential donors. "We've got money for four days. If we can get the ad up for seven days, we can win." It was a hard sell, and few were buying. When Assemblywoman Marguerite Archie-Hudson got up to call for checks, it felt as if the room were filled with bidders at an auction and Proposition 209 was the item that no one wanted to buy.
Nuclear Fusion, Southern Style
In a different world, the trajectory of the Dole campaign, the infighting, and the fiasco with the King footage would have helped the opposition. But Ewing had on blinders. Instead of taking advantage of the controversies in the 209 campaign, she kicked up one of her own. The "nuclear bomb" she referred to at the Stephanopoulos fete was Klan Grandmaster David Duke.
Using Duke wasn't what their polling material advised the coalition to do. "Fundamentally, the arguments that move voters
are about moderation," wrote Diane Feldman, the opposition's Washington, DC, pollster in June.[24]
Diane Feldman, "Strategic Memorandum, No on CCRI Campaign," The Feldman Group, Inc., June 1996, p. 7.
"Language like 'goes too far,' 'mend it don't end it,' and 'we are not where we have got to be' are each more convincing than language about trickery or conspiracy. African Americans respond to the language of conspiracy but other voters do not. The No on CCRI must be the voice of moderation."Earlier Bob Shrum, the campaign's Washington media consultant, had argued unsuccessfully that the coalition should follow this advice. But with funds for only a week's worth of television, he was starting to come around to the view that moderation wasn't enough. He agreed with Ewing—Duke was their man.
The Duke ad, cut in early October by Shrum, was anything but moderate. It began and ended with burning crosses and Klan regalia. Colin Powell and President Clinton were wedged in between—both had rated high with voters in the list of Feldman's arguments against Proposition 209—but the enduring image was the burning cross.
(David Duke walks onto a stage waving and smiling)
Male Announcer : He's not just another guy in a business suit.
(cut to a burning cross with Duke in front wearing a white robe)
Male Announcer : He's David Duke, former head of the Ku Klux Klan. And he's come to California to support Proposition 209.
(cut back to Duke speaking, then to a series of quick images of work and classroom)
Male Announcer : Proposition 209 would close education and job opportunities to women and minorities, close magnet schools, lock women out of government jobs, end equal opportunity.
(cut to photos of Newt Gingrich, Pat Buchanan, and David Duke)
Male Announcer : Newt Gingrich, Pat Buchanan, and David Duke want you to vote Yes on 209.
(cut to photo of Colin Powell and Bill Clinton at the White House)
Male Announcer: President Clinton and Colin Powell say you should vote No.
(cut back to Duke speaking, then finish with the burning cross)
Male Announcer: Don't be fooled. David Duke didn't come to California to end discrimination. Vote No on 209.
Playing the "race card" generally means appealing to white voters' fears and resentment of minorities. In this ad, the roles are reversed; Shrum evokes the fear of virulent white racism. The most shocking image, a burning cross, graphically evokes the Klan's atrocities as well as the recent wave of arson against Southern churches. Nothing is left to the viewer's imagination. Lest there be any mistake, film clips of Duke, Gingrich, and Buchanan receive special lighting effects to emphasize their "whiteness." The primary targets for this commercial were minorities and white liberals who believe themselves to be racially tolerant. Liberals, however, are least receptive to negative advertising, which may explain the almost universal condemnation this ad received.[25]
Stephen Ansolabehere and Shanto Iyengar, Going Negative: How Political Advertisements Shrink and Polarize the Electorate. New York: The Free Press, 1995.
Many in the coalition were ambivalent about the Duke commercial. Jerome Karabel, the U.C. Berkeley sociology professor, was one of them. "But what did I know," Karabel said.[26]
Jerome Karabel, interview, December 23, 1996.
Instead of relying on his own judgment, Karabel arranged to have UCLA political science professor Shanto Iyengar, a leading expert on the political effects of television commercials, test the Duke ad for free. Ewing, however, would have none of it. Iyengar, she argued, wanted to publish his results after the election.As the day to run the Duke ad approached, however, Ewing's coalition members became insistent about dumping it. Wasn't the King disaster in the other camp an opportunity? "It seemed like an opening to take the high road," said Dorothy Erlich, director of the ACLU in San Francisco.[27]
Dorothy Erlich, interview, January 10, 1997.
Ewing, however, wasadamant. Rice backed her up, and Ewing reassured others. "We were told that if we didn't like the commercial we could pull it and put something else on the air," said Eva Paterson, executive director of the Lawyers' Committee for Civil Rights.[28]
Eva Paterson, interview, December 27, 1997.
The ad began running on October 28, and the reaction was almost uniformly negative. "When we wanted to pull it, we were told there was no way to do it," said Paterson. "It was one of the things that pissed me off most."Ironically, the Duke ad found its greatest support at the Democratic National Committee. The commercial accomplished precisely what the Democrats had envisioned in early 1995, when Ickes wrote his constituency outreach proposals. The report on African Americans noted that "Democrats only win statewide elections in California when they maximize black voter turnout."[29]
Harold Ickes, "African American Working Group, Principles for African American Outreach."
The report never mentioned affirmative action or the California Civil Rights Initiative as rallying points, but it noted, "In the 1996 Presidential election, we might find that some blacks may well be more inspired to go to the polls in greater numbers to vote against the 'enemies of civil rights' than for the Democratic candidate."[30]Ibid.
Duke's effectiveness had been tested with blacks and Latinos and, as Ewing said, "the response was off the charts." To African Americans and Latinos Duke was a clear "enemy of civil rights." If he insulted moderate voters, that was okay with the Democrats; they already had a goodly number in the Clinton camp. They needed to ensure, however, that blacks and Latinos dispirited by the welfare bill would get angry enough to go to the polls. Duke could do it. The DNC even came up with money that kept Duke on the air.In retrospect the Stephanopoulos fund-raiser took on new meaning. Stephanopoulos and the president's California advisor, Bill Wardlaw, knew then what the opposition's commerical looked like, and by Stephanopoulos appearing at the event and Wardlaw sponsoring it, they were telling donors that it was finally okay to give money to the opposition. There was, after all, a logic to Stephanopoulos's claim about the compatibility of
the Jim Brady commercial on Clinton's support of gun control and the Duke ad. An election was about winning, and Brady would appeal to Reagan Democrats and Duke would rally minority voters.
From Kitchen Chats to Striptease
The high road hadn't been completely forsaken. Around the time that the Duke ad began running, the Feminist Majority and NOW began running a series of six radio spots targeted at different audiences. The ads, thematically similar, emphasized gender and called explicitly for a defense of affirmative action programs.
Unlike the Duke ad, the radio commercials had a soft edge. All of the ads had a chatty, conversational tone, a quality that made the speakers sound reasonable and moderate—two attributes that Feldman and others felt were crucial to persuading swing voters.
Candice Bergen: I find political advertising very confusing. Take Proposition 209. They say it prohibits discrimination, but 209 will eliminate affirmative action for women and people of color. That's like the Ku Klux Klan calling itself "The Martin Luther King Society." Anyone who depends on a working woman's wage should listen carefully. If 209 passes, we could lose maternity benefits. … 209 will cut funding for rape crisis centers. … Don't make a permanent change to the constitution that will hurt young girls, women, and minorities. Vote No on 209.[31]
Because these ads are straightforward expositions of the No position, only excerpts are presented here for illustrative and thematic purposes. In these ads the ellipses signal where cuts have been made.
Dolores Huerta: I am Dolores Huerta, co-founder of the United Farmworkers. Proposition 209 is a lie. It aims to take away our civil rights. It aims to close the doors of opportunity that have opened for us. … Many people gave their lives so that we could better ourselves—César
Chávez, Rubén Salazar. Together, we can defeat this Proposition 209. Sí Se Puede!
Bruce Springsteen: This is Bruce Springsteen. Working men and women are the backbone of California, and their livelihoods and their opportunities to compete fairly in the work place and at school are in serious jeopardy if Proposition 209 passes this November. … Proposition 209 will eliminate affirmative action programs for women and people of color. Proposition 209 will legalize discrimination against women and girls in jobs, in education, and in sports. … If you count yourself among the Californians who support civil rights for all people, then you'll join me in voting NO on Proposition 209.
Alfre Woodard: This is Alfre Woodard with five reasons to vote No on Proposition 209: Newt Gingrich, Pete Wilson, Pat Buchanan, Jesse Helms, and David Duke. They're all for 209. Here are some people I trust a little more when it comes to defending equal opportunity. Jesse Jackson asks that you vote NO on 209 to keep the dream alive. … The League of Women Voters, the NAACP, the National Organization for Women, and the Rainbow Coalition are all against 209. … This message was paid for by Stop Prop 209. I'm talking for free.
Ellen DeGeneres: Hi, I'm Ellen DeGeneres. Don't you think it's odd that the people most against a woman's right to choose are usually men. Turns out the same anti-choice boys are trying to wipe out affirmative action for women and people of color. That's right: Pat Buchanan, Newt Gingrich, David Duke—all anti-abortion—all supporting Proposition 209. … The religious right has donated about half a million dollars to Proposition 209. I guess they figure, once they stop those young girls from playing softball, they're gonna march right over
and sign up for prayer in schools. Yeah, it's all kind of funny, till you realize they might get away with it.
Jesse Jackson: This is the Reverend Jesse Jackson. We've fought too hard, bled too much, and died too young, to see the precious gains of the civil rights movement snatched away. Vote No on Proposition 209. It's misleading. It is not civil rights. It's civil wrongs. They tried to manipulate Dr. King's words and make him stand against us with David Duke, Pat Buchanan, and Pete Wilson. How vulgar. … Protect affirmative action in education, jobs, and contracts, for women and people of color. … This is a majority issue for all, not a minority matter for a few. … Keep Hope Alive—Vote November Five.
The ads tested the power of the gender argument. Feldman's June poll showed that women had yet to buy the arguments that Proposition 209 would end maternity leave, girls' sports, tutoring, and girls outreach. However, the Feminist Majority believed that with a long enough campaign, voters could be convinced.
On the final weekend before the election, the Feminist Majority and NOW put on their only television commercial. The ad, conceived and produced in twenty hours by a group of volunteer screenwriters, producers, and editors orchestrated by Lorraine Sheinberg, was designed to be provocative, and it didn't disappoint. If the other opposition ad insinuated that the Klan was behind Proposition 209, the Feminist Majority's ad suggested that women might fare better under Afghanistan's Taliban than under 209. It showed male hands stripping a woman of a diploma, a stethoscope and medical lab coat, a police officer's cap, and a hard hat.
Chorus of Male Voices: Take it off. Take it all off.
Female Announcer: Want to be a doctor? Police officer? Hard hat? Forget it.
Chorus of Male Voices: Take it off. Take it all off.
Female Announcer: How about women business owners? Forget it! Want your daughter going into math, science, or sports? Counting on a pension? Or just a job? Well, there's always …
(cut to woman in black lingerie, a black jacket dangling from her right shoulder, while a man's hand reaches in and yanks her chin sideways)
Female Announcer: Don't strip away our future. Vote No on Proposition 209. Save affirmative action for women.
Like the Duke ad produced by Shrum, this commercial left little to the viewer's imagination. Unlike the Steinberg ads, which invited the viewer to "Bring us together," this commercial took an "us against them" direction. Also, like the Duke ad, it appeared to be aimed more at getting out people who'd already made up their minds rather than trying to convince undecided or swing voters.
The ad was intended to reframe affirmative action from an issue of race to one of gender. Coming so late in the campaign, the Feminist Majority and the National Organization for Women wanted the ad to call attention to itself and to amplify its message through any controversy it might spark. The problem was that its play was so brief, viewers were as unaware of the controversy as of the ad.
The Duke and stripper ads were desperate tactics, but, given the polls and the opposition's lack of money, desperation was understandable. Less fathomable was the lack of leadership from a popular Democratic presidential candidate who had said he believed affirmative action was still necessary. Since the early 1960s the Democratic Party had championed civil rights, but Clinton held his beliefs on Proposition 209 so closely that there was no chance he would inspire anyone to follow his lead. Clinton's reluctance to reveal his opposition to Proposition 209 was abundantly clear a few days before the
election, when he appeared in Oakland. it was a beautiful evening at the city's Jack London Square, and the crowd—a mixture of black, white, and Latino supporters—had waited hours to go through the security and emerge on the square. Most people seemed pleased when Clinton arrived. But when he brought up Proposition 209 near the end of his speech—his first mention of the initiative in California—the disappointment in what he had to say was palpable.
"My problem with this 209," said Clinton, "I know it's maybe popular, maybe not. But, let me tell you …" He hesitated as he heard the crowd boo. Supporters who had been ready to hoist banners held back and Clinton continued. "Let me tell you what I know. I'm old enough to remember in my home state when I could go into county courthouses and the restrooms were divided between white and colored. I'm old enough to remember when people had to buy a poll tax to vote. I'm old enough to know that if my skin were a different color I could not have been born to a widowed mother in a tiny town in Arkansas who married my stepfather, who did not have a high school diploma, and become president."
These were vivid memories of discrimination, and Clinton believed that affirmative action was still needed to combat ongoing discrimination. Nevertheless, he could not bring himself to denounce an initiative that would end state affirmative action programs. Instead he reminded the crowd that he was against quotas—that he'd actually gotten rid of some affirmative action programs. "We've got to get to the point in this country where we can let some of this stuff go." It was typical Clinton—he managed to leave light footprints in both camps.
Election Day
On November 4, the day before California voters would decide whether the state still needed affirmative action programs, local television stations featured a story that might have been
scripted by the opponents of Proposition 209.[32]
The story was first published on November 4 by the New York Times.
It was the painful illustration of racism in mainstream America that their campaign had so lacked. The story focused not on the predictable racism of David Duke, but on the surprising hatefulness in Texaco, the giant U.S. oil company. It revealed a picture that looked a lot different than that of the inclusive new society Ward Connerly had drawn in debates and speeches. At a secretly taped meeting Texaco managers had derided their African American employees and colluded to destroy evidence to protect Texaco from a discrimination case.If the story had an impact on California voters, however, it was not apparent at the polling places. By the end of the day 9,657,195 California residents had split their votes in favor of Proposition 209, 54.6 percent to 45.4 percent; the initiative won by 9.2 percent or 879,429 votes. The wedge issue that had so frightened the Democrats in 1995 and so empowered the Republicans during 1995 didn't put a nick in Clinton's support. The state favored the president over Dole 51 to 38 percent. Neither presidential candidate was directly helped or hurt by Proposition 209, but Clinton and the Democrats got plenty of indirect help. The minority vote in California surged, and it voted overwhelmingly Democratic.
Californians for Justice
At 4:40 A.M. at the Oakland headquarters of Californians for Justice, Jan Adams contemplated the bad start of a worse day: no one had made coffee to offer volunteers before they drove out to their precincts to slip door hangers on the homes of potential voters. In the last year and a half, Californians for Justice had become active in 1,350 precincts, close to Adams's goal of 1,500. "We did what we could," she said, predicting accurately that the precincts CFJ had worked would vote against 209, but that the state overall would not. "We had an opportunity in this election to occupy the middle ground, and we were screwed by Clinton and the donors; we couldn't amplify the message," Adams said
flatly. She and Anthony Thigpen had been right, however, that minority neighborhoods could be energized.
Although Proposition 209 failed to play as a wedge issue, the vote broke down along racial lines. The Los Angeles Times exit poll showed that 74 percent of African Americans, 76 percent of Latinos, and 61 percent of Asians voted against Proposition 209. In these numbers were two surprises. The first was California's Latinos, who finally showed some measure of their potential strength and increased their share of the voting bloc to 13 percent from 10 percent. The second was the Asian vote. Most analysts had expected Asians to support Proposition 209 because affirmative action hurt them in competitive admissions at the top public schools. But most analysts don't read or see the ethnic press, said Kathay Feng, a lawyer for the Asian Pacific American Legal Center. The ethnic media—print and cable stations in Chinese, Vietnamese, and Korean—stressed the employment rather than the education value of affirmative action.
Asians, she said, understood that they were affected much more by the many jobs they failed to get because of discrimination than by the few spots in colleges or top high schools that they might miss because of affirmative action.[33]
Kathay Feng, interview, March 4, 1997.
And although U.C. Berkeley Chancellor Chang-Lin Tien had failed to convince the regents to retain affirmative action in July 1995, he was more persuasive with Asians, Feng said. "He is so high up on the academic ladder that in several Asian communities he is a household name," said Feng. "So when he came out opposed on 209 and explained the benefits of affirmative action, it had a very strong impact." The Asian Pacific American Legal Center's exit poll in Los Angeles showed an even greater Asian turnout against Proposition 209 than the Los Angeles Times exit poll: 76 percent of the Asians polled by the Legal Center rejected Proposition 209. Asians registered as Democrats voted against it by 78.5 percent, and Asian Republicans rejected it by 73 percent. Even in conservative Orange County a majority of Asians voted against the initiative.The white vote reflected the predictions of pundits: 63 percent supported Proposition 209. But it was not as high as the 70 percent in earlier polls, and it was not as high as the 66 percent who supported Proposition 187.
The South Los Angeles Affirmative Action Project
More than 350 miles to the south Anthony Thigpen shared Adams's state of mind—optimistic about his own precincts, resigned to statewide defeat. As he prepared boxes of campaign literature and tally sheets for volunteers to take to churches to set up get-out-the-vote centers for nearby precincts, the phone rang. A voter wanted to know what Thigpen had been trying to make clear for nearly two years: If he voted for Proposition 209, was he voting for or against affirmative action? The look of pain on Thigpen's face was noticeable as a volunteer patiently explained Proposition 209.
The caller wasn't the only mystified voter. The Los Angeles Times exit poll asked voters whether they supported affirmative action programs "designed to help women and minorities get better jobs and education." Fifty-four percent said yes, and 46 percent said no—nearly the reverse of Proposition 209's vote.
Even early in the day Thigpen knew the opposition would not win, and he was already trying to figure out what the coalition could have done better. "The original gender strategy campaign should have continued," he said. He was disappointed that the two women's groups had been asked to leave the main coalition. African Americans in California are not going to beat "racist initiatives without alliances," he said. The returns bore him out: the vote in the precincts where the Metropolitan Alliance had worked overwhelmingly opposed 209. And just as Thigpen, Rice, and Ridley-Thomas had told volunteers on that very first morning at St. Brigid's, it did not change the outcome.
Ewing and the Coalition
Most members of the coalition went their own way on election day and then gathered in the evening at the downtown Biltmore Hotel for a celebration. Molly Munger took the day off from work at the NAACP Legal Defense and Education Fund and returned to the Pasadena neighborhood where she had grown up. She was there as the polls opened, at lunch time, and again in the evening. For two hours at each turn she stood the legal distance from the polling place—a converted garage—wearing a sandwich board asking voters to reject Proposition 209. "I would like this to never happen again," she said. To her, opposing Proposition 209 was a "big tent issue" with an "obvious centrist opposition." Yet it had slipped away. Why? The Democrats, she said, "ran screaming from the room." How could the opposition have kept the Democrats in? She had no answers.
Munger's colleague Rice found cause for optimism in the final numbers. The issue had divided the Republican Party, and the worst had not happened: blacks had not supported Proposition 209. "We did better than we thought," said Rice. "They did not get the minority vote." Like the others, she felt betrayed by the Democratic Party. "The advocacy groups ran the campaign because no one else would," she said. "We would have gladly handed this over." But after a long tradition of taking on civil rights causes, the Democratic Party took a pass. "The Democrats," she said, "would rather have Republican women than blacks. They have no principles, no integrity."
Ewing put her own unique spin on the vote. "What 209 did and what 209 accomplished was outstanding and amazing," she said, referring to the opposition campaign. Although it might have been news to others in the coalition that they had any goal other than defeating the initiative, Ewing claimed victory on "all but one goal."
"We created an environment in which people are going to look at affirmative action twice before attacking; the Democrats
took back the assembly and it was not the steam-roller that Pete Wilson had expected," she reported enthusiastically.
The Feminist Majority and NOW
On the third floor of the Bubble Factory, the Feminist Majority's president, Eleanor Smeal, was in the kitchen. When she had finished up the dishes from the election eve meeting, she walked out onto the open floor that had been transformed into an election day war room. It was a classy war room, with large flower bouquets atop television sets tuned to CNN, computer printouts on the walls, and a bag of gourmet lemon drops spilling out onto one of the tables.
By the end of the day Smeal and Katherine Spillar would be forced to concede that the Feminist Majority and NOW had failed to turn Proposition 209 into a rallying point for white women: 58 percent of white women (compared with 66 percent of white men) had supported Proposition 209, according to the Voter News Service Poll.[34]
The Voter News Service Poll differed slightly with the Los Angeles Times poll in finding that Proposition 209 was supported by 52 percent of all women and rejected by 48 percent. The margin of error in both polls is plus or minus 3 percent, so the split between all women was probably close to 50-50.
The Clinton Administration, as it turned out, had been right. The women's rights groups could get the vote of many professional women, but the majority of white women were unwilling to back affirmative action. Spillar, Smeal, and Ireland had been unable to change their minds.Never one to accept defeat, Spillar still insisted they had been right. The campaign's tactics, she argued, had been too little too late. "I wish that women had been included all along, and instead we were treated as an add-on or an afterthought," Spillar said. "There was a tone that somehow the attempts to get the debate on gender was just a tactical decision to offset the race issue, and that was never the intention. We are impacted by what happens with affirmative action. Women had benefited significantly by affirmative action. We should not be treated as an add-on, but as an equal partner in this debate."
Custred, Wood, Connerly, and the Proposition 209 Campaign
The Proposition 209 campaign closed up shop early on election day. The fact was, there was no grassroots campaign. The staff headed up to Sacramento for the victory celebration, held in a large ballroom at the Raddison Hotel. Nearly everyone who had helped along the way was there. Wood and Custred, the initiative's two authors, were agog, buzzing around the ballroom in constant motion, hardly able to believe they had won. The campaign's petition gatherer, Bill Arno, was there, and Connerly had made sure Steinberg was invited. Even Gelman, the campaign manager who had been fired in December 1995, had flown in from Las Vegas for the occasion. "It's kind of creepy," he said jokingly as he surveyed the mostly male, mostly white crowd. "We're a lot of white men in suits." Indeed, one of the strangest lines of the evening came from Ward Connerly, who asked the nearly all-white crowd to indulge him for a moment as he had "a conversation with my fellow black Americans."
Connerly's speech on November 5 was a measure of how far the politics of affirmative action had changed in the last ten years. Connerly said he had had no doubt that he would be giving a victory speech. "The reason lies in an editorial endorsement of one of this state's most important newspapers—U.C. Berkeley's Daily Californian ," he said, referring to the campus paper that had once been a dependable liberal voice. Later in the speech, he drew not on Senator Dole's argument against affirmative action, but on President Clinton's. "I do not often quote President Clinton, but last week, speaking to a predominantly black audience," Connerly said, referring to the president's speech in Oakland, "the president said something which was extremely significant. In reaffirming his support of affirmative action, the president reminded the audience that there comes a time to let go. For black people and
our reliance on affirmative action, the time has, indeed, come to let go."
Twelve hours after the polls closed ACLU lawyer Mark Rosenbaum filed a lawsuit in federal court in San Francisco asking for an immediate order blocking Proposition 209. The ACLU attorney argued in the lawsuit, which was joined by other opposition groups, that Proposition 209 violated the Fourteenth Amendment's equal protection clause by singling out minorities and women. On December 23 Judge Thelton Henderson, chief U.S. District Court judge for the Northern District of California, granted a preliminary injunction that prevented state government entities and the University of California from implementing the initiative until the conclusion of a trial or a final ruling from a higher court. The ACLU, he argued in a sixty-seven-page ruling, had a "probability of success" in proving their claim that the initiative was unconstitutional. "It is not for this or any other court to lightly upset the expectations of the voters. At the same time, our system of democracy teaches that the will of the people, important as it is, does not reign absolute but must be kept in harmony with our Constitution."
Henderson's decision was overturned on April 8, 1997, by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. "A system which permits one judge to block with the stroke of a pen what 47,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy," wrote Judge Diarmuid F. O'Scannlain. On Monday, November 3, 1997, without comment the U.S. Supreme Court let O'Scannlain's decision stand. The following day Houston voters rejected an initiative to ban affirmative action, and that same week the House Judiciary Committee killed federal legislation to end affirmative action.