LINCOLN, Neb.—Supporters of a proposed ban on preferential treatment to minorities and women will essentially get the message they wanted on ballots expected to be read in voting booths across the state.
But opponents of the ban can claim at least one small victory that they hope will sway voters in November: A language change approved by a judge could increase awareness among voters that the ban could create more lawsuits.
“Voters might say ‘I don’t want to do all of this,'” said J.L. Spray, attorney for the plaintiffs that challenged the ballot language.
On Friday, Lancaster County District Court Judge Steven Burns mostly upheld ballot language for the controversial proposal that has ignited a bitter fight between supporters and opponents of the ban.
A lawsuit from a University of Nebraska-Lincoln student who is a member of Nebraskans United, a group opposing the proposal, alleged the current wording is misleading and could confuse voters.
The language says government entities in the state “shall not discriminate against, or grant preferential treatment to, individuals or groups based upon race, sex, color, ethnicity, or national origin” in public hiring, education and contracting.
Nebraskans United had wanted voters to be asked if the state constitution should “ban state and local programs designed to improve opportunities for and eliminate discrimination against women and minorities in public education, employment and contracting.”
Burns essentially kept the original wording proposed by supporters of the ban and approved by Attorney General Jon Bruning. Bruning decides how ballot measures are worded and was the target of the lawsuit.
Opponents have said voters wouldn’t know by reading the ballot language that they could be voting to get rid of affirmative action.
The proposed constitutional amendment, part of a multistate effort by California businessman Ward Connerly, who is black, never uses the words “affirmative action.”
“The opponents’ arguments were slapped down,” said Doug Tietz, executive director of Nebraska Civil Rights, a group pushing for the ban. “They were fighting to have the whole thing rewritten.”
Burns said in his order that he didn’t have the authority to change a statement on the ballot that helps explain the proposal. But he did take what Spray described as the rare step of changing the another description of the proposal that appears on the ballot.
A line Burns added: “A cause of action for violation is created.”
That information was not originally included so the title could be short enough to meet space limitations.
Burns said the cause of action statement “is neither incidental or procedural. It is an ultimate objective of the initiative.”
Spray said the addition makes it clear that if someone doesn’t get a state government job because of an affirmative action program, for example, “now you get to sue.”
Burns also suggested that there is a conflict between the part of the proposed constitutional amendment that provides a legal remedy and another section that says the ban doesn’t apply in cases where it might jeopardize federal funding.
“A possible interpretation,” Burns wrote, “… would be that the state may have to choose to either have an affirmative action plan in order to obtain federal funds and subject itself to liability … or not have an affirmative action plan and lose federal funding in order to avoid liability.”
A ban like the one being considered in Nebraska is proposed in Colorado, but similar campaigns this year by Connerly have failed to put measures on ballots in Oklahoma, Missouri and, most recently, Arizona.
Backers of an Arizona ban on Friday gave up efforts to force a review of petition signatures rejected by election officials.
California, Michigan and Washington approved versions of the ban in past elections.
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