Confusing affirmative action initiative a product of long back-and-forth about best way to afford opportunity

Here’s a two-part quiz about the November ballot for fans and foes of affirmative action:

If you signed petitions this spring to put Referendum 88 on the November election lot because you oppose affirmative action laws, should you mark it “Approved” or “Rejected” on your ballot?

If you signed petitions last fall to send Initiative 1000 to the Legislature because you support affirmative action laws, should you vote “Approved” or “Rejected” on Referendum 88?

The correct answers may be counterintuitive.

People who oppose changes to the state’s restrictions on affirmative action programs and signed Referendum 88 would vote “Rejected,” even though the measure was put on the ballot by a group opposed to those changes.

People who want to change the law to allow affirmative action programs would vote to approve Referendum 88, because by doing so they are actually approving Initiative 1000.

That’s one of the confusing things about Referendum 88, a rare effort to strike down an initiative brought to the Legislature in January, approved in April on a partisan vote, but put on hold when opponents gathered a new round of signatures to put it on the ballot.

If that seems like a double shot of the state’s initiative process that gives voters some control over legislation, it’s actually a triple shot, since the state’s ability to offer affirmative action programs was sharply curtailed in 1998 through another initiative, I-200, which the Legislature sent to the ballot and was approved by 58 percent of the voters.

The affirmative action provisions were proposed by then-Gov. Dan Evans in the 1970s. Jim Waldo, a Tacoma attorney who was on Evans’ staff at the time and later worked in state and federal government, said there were concerns that some programs and agencies were trying to meet quotas for different groups and were awarding contracts or enrollment slots to people who wouldn’t otherwise qualify. That wasn’t fair to people who were qualified but didn’t get a contract or a position.

“It was ripe for someone to come along and say this wasn’t working,” Waldo said.

I-200 forbade the use of quotas based on gender, race, religion or ethnicity in government contracting, programs and public college admissions. Among the few exceptions were some slight advantages for veterans in qualifying tests for some government positions.

The Legislature made some minor changes over the next 20 years, but by 2018, some minority and labor groups were concerned about declining numbers of Native Americans, African Americans, Latinos and women in government contracting and colleges.

Initiative 1000 allows affirmative action programs or procedures like participation goals and outreach efforts that “do not utilize quotas and do not constitute preferential treatment.”

Those programs can consider race, sex, ethnicity, national origin, age, disability, honorable military discharge or military status as a factor in selecting qualified people. But that can’t be the sole factor, the initiative says.

Using paid-signature gatherers, supporters of I-1000 turned in nearly 400,000 signatures in January, and easily qualified for legislative consideration. But the proposal languished in the Legislature for months. Republicans were almost universally opposed, arguing that contracts, programs and college slots should be determined solely by ability. Democrats were generally supportive, but many were leaning toward the option of not voting on the proposal, which would allow it to go directly to the November ballot.

I-1000 didn’t get a committee hearing until 10 days before the end of session. When it did, Evans and former Govs. Gary Locke and Chris Gregoire were among its supporters. A group of mostly Asian American residents, Washington Asians For Equality, was among those arguing that changes would disadvantage those who work hard by allowing less-qualified people to be considered. The group urged legislators to let the proposal go to the ballot so voters could decide.

Until the final day of the session, it looked like I-1000 was so contentious that time would run out before lawmakers could vote, which meant it would wind up on the ballot. But in the closing hours before lawmakers adjourned, a deal was struck to consider the proposal with minimal debate.

Rep. Sharon Tomikos Santos, D-Seattle, argued I-200 was “devastating” opportunities for women and minorities. Rep. Matt Shea, R-Spokane Valley, called the proposal “anti-veteran” because it could affect current regulations that give former service members extra points when being considered for jobs.

“It also takes away the American dream of hard work and equal treatment under the law,” Shea said.

The Washington State Veterans Bar Association also contends I-1000 would hurt existing laws that give veterans some preference in employment and promotions. In test scores for some jobs, including in law enforcement, a veteran can receive an added five to 10 points, and the initiative would remove that, the group says.

But University of Washington law professor Hugh Spitzer, a noted expert on state constitutional law, disagrees. Those preferential programs would not be affected, Spitzer said, because they are not the sole criteria for hiring but one of many factors being considered.

For example, Spitzer said in a memo on I-1000, a veteran who scores an 80 on the test would be considered with nonveterans who scored 90. But the extra 10 points aren’t the sole factor, because the veteran had to first score 80 points to make the extra points matter; if he or she scored 50, the extra 10 points wouldn’t be a factor if other applicants scored higher than 60.

“Pre- or post I-1000, individuals will ultimately be selected for public hiring or promotion based on a variety of factors,” Spitzer wrote.

I-1000 passed, and was scheduled to become law in July. But Washington Asians for Equality and other opponents gathered nearly 200,000 signatures on a referendum that gives voters a chance to reject it.

Several new groups then sprang up, to either support or oppose the ballot measure.

Some members of the One Washington Equality Campaign – which owes some $1.3 million, primarily to the signature-gathering companies – filed papers with the Public Disclosure Commission to change its name to Approve I-1000 but so far has not recorded any contributions.

Former allies unhappy with the way One Washington’s chairman, former state Rep. Jesse Wineberry, managed the campaign, formed a separate organization, originally called R-88 / Opportunities for All. It changed its name to the Washington Fairness Coalition this month. Its biggest donors are Microsoft and the Washington State Labor Council.

Let People Vote, which raised nearly $1 million to send the issue to the ballot, added “Reject R-88” to its name in August. It also took over the website of yes1000.com, formerly used by the I-1000 campaign, and routes potential donors to a site to contribute to Reject R-88. Grassroots against I-1000, a separate group with donors from suburban King County, formed in April. Both groups lean heavily on donations from Asian Americans.

Evans, who has been a supporter of affirmative action for nearly five decades, continues to be one of the spokesmen for the initiative and appears in one of the few commercials so far either for or against the ballot measure. I-1000 may not be perfect, he said recently, but it’s an improvement on I-200.

“People should give it a chance to see how it works,” Evans said. The Legislature could make changes if any problems arise, he said.

Or, as history shows, the voters could make them with yet another initiative.