All the votes cast on November 5 in the “duplicitous attempt” to bring affirmative action back to Washington state have not been counted, but since the counties with large numbers of uncounted ballots all voted heavily against affirmative action it is now all but certain that attempt fell short. As of Monday morning, November 11, the vote opposing the return of affirmative action is leading by about 13,000 votes, 50.35% to 49.65%, and late Friday night the Seattle Times reported that “as votes continue to stream in over the coming days, the remaining math for affirmative action advocates looked [sic] increasingly difficult.”

The official returns are updated and reported here.

In what was no doubt a rude shock to what can fairly be called the ruling class in the state of Washington — leaders of both political parties and nearly all Democrats, editorial boards of virtually all the state’s newspapers, Microsoft and other large corporations, labor unions, the university leadership and faculties, cultural organizations, rich urban and suburban liberals — more than half the voters strongly opposed the campaign of their betters to foist affirmative action on them again.

Stunned observers in Seattle and elsewhere wonder why the rubes rebelled, but the more interesting question is why the opponents of affirmative action didn’t win by even larger numbers. Recall that in 1998 I-200, which prohibited the state government “from discriminating or granting preferential treatment based on race, sex, color, ethnicity or national origin in public employment, education, and contracting,” passed with over 58% of the vote despite being vastly outspent by the pro-preference campaign. The current campaign was an attempt to repeal I-200 and make affirmative action — and with it racial preferences and “underrepresentation”-curing quota-like polices — legal again.

Has Washington become much more liberal than twenty years ago? Has Seattle — where most of the support for affirmative action is concentrated — become noticeably more “diverse”? Are Washington voters substantially different from voters in other states?

[Four Contrarian Universities]

Over the years polling and survey data have consistently shown overwhelming public opposition to racial preference policies. Although “affirmative action” polls well so long as it is undefined, when it is defined respondents consistently reject it by large margins. Four times between 2003 and 2016, for example, Gallup asked the following question:

Which comes closer to your view about evaluating students for admission into a college or university — applicants should be admitted solely on the basis of merit, even if that results in few minority students being admitted (or) an applicant’s racial and ethnic background should be considered to help promote diversity on college campuses, even if that means admitting some minority students who otherwise would not be admitted?

Each time between 67% and 70% chose the “solely on merit” option. More recent polls have been even more unequivocal, finding 70%-80% opposition to preferential treatment. And even more recently, about two weeks before the Washington vote, the Marquette University Law School released the results of its national survey of opinion regarding some controversial Supreme Court rulings. On the question of whether it is appropriate for colleges to “use race as one factor in deciding which applicants to admit,” 77% opposed (56% strongly; 21% somewhat) and only 15% favored (4% strongly;11% somewhat).

A close examination of the Ref. 88 campaign and its results, however, does not confirm the view of Washington voters as very liberal outliers. First, note on this county map of returns that the support for racial preference was limited to four counties, King (Seattle and home of the University of Washington), two rich suburban counties near Seattle, and Whatcom (Bellingham), where Ref. 88 won by 52%-48%. Ref. 88 lost convincingly in the other 35 counties, with average support of only 37%.

[A Duplicitous Attempt to Rescue Affirmative Action]

Another explanation for the reduced vote against racial preference was the confusing posture of the ballot initiative. In the last hours of the last day of the session the legislature passed I-1000 on a party-line vote (except for two stray Democrats) to bring affirmative action back. It would have automatically become law had opponents not gathered enough signatures to place Referendum 88 on the ballot challenging it. Thus, to block the return of racial preference opponents had to vote NO on the very matter they had placed on the ballot.

This inevitable confusion was compounded by two other factors (discussed at greater length here) that, taken together, largely explain why the vote against affirmative action was not larger, more in line with the consistent series of national polls.

The dishonesty of those who framed the attempt to bring back affirmative action.

The Ballot Summary of I-1000 (all most voters read, if that) stated that if passed, it would restore affirmative into state law so long as it did not employ “the use of quotas or preferential treatment.” In fact, an unwary voter could reasonably think I-1000 no different from I-200, which it would replace, since Part II was headed “PROHIBITION OF DISCRIMINATION AND PREFERENTIAL TREATMENT,” and its Section 3 stated “(1) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, national origin [etc.].”

Voters, however, would have to have delved deeply into the buried fine print (Section 3,11(D)) to find the counter-intuitive definition of preferential treatment: “the act of using race, sex, color, ethnicity, national origin, age, sexual orientation, the presence of any sensory, mental, or physical disability, an honorably discharged veteran or military status as the sole qualifying factor to select a lesser qualified candidate over a more qualified candidate for a public education, public employment, or public contracting opportunity.” [Emphasis added]

In short, its rhetorical camouflage to the contrary, if I-1000 had become law, it would have allowed any racial preference ever used anywhere, since no one has ever relied on race as the “sole qualifying factor.”

Since it would have allowed the correction of “underrepresentation,” I-1000’s claim to bar quotas was equally specious.

[Why Harvard’s Affirmative Action Victory Should Be Overturned]

The incompetence or equally duplicitous complicity of the press.

Most newspapers across the state editorially called for a YES vote on Referendum 88, removing the ban on affirmative action that had been imposed 21 years earlier by I-200. I said “most” only because I did not examine every newspaper in the state, but I did not find one that recommended a NO vote on Referendum 88, nor did I find a single one that acknowledged I-1000’s claim to permit only affirmative action without racial preference was bogus. One or two did quote the “sole qualifying factor” language, but even they did not point out the mendacious toothlessness of the claim that I-1000 would not authorize any affirmative action that employed racial preference.

For example, Joseph O’Sullivan, the Seattle Times political columnist, noted that the I-1000/Referendum 88 vote is so “convoluted” that he offered a “quick primer on the affirmative action debate.” He’d have been more informative saying nothing, since he asserted that “I-1000 is geared toward boosting diversity in public education, employment and contracting, without the use of preferential treatment or quotas.” It would have been helpful if he, or any other reporter, had, asked the advocates of bringing back affirmative action to give one example of any actual racial preference policy where race or ethnicity was the “sole qualifying factor.”

It is not clear whether O’Sullivan’s misleading “primer” was the result of bias or incompetence. Whatever the reason, press commentary on Referendum 88 was rife with errors. For example, the Tacoma News Tribune’s recommendation of a YES vote on Ref. 88 claimed I-1000 would allow the consideration of race, etc., “as long as it’s not the deciding factor.” The text of I-1000, however, buried in the fine print with definitions of its terms [Section 3, 11(D)], says only that race, ethnicity, etc., cannot be the “sole factor” in selecting individuals.

In fact, a preferential treatment policy where race could never be the deciding factor has never existed. How could it? “Considering” race means that some individuals will be admitted or hired who would not have been but for their race. If race were only “one factor,” if as preferentialists like to claim it never is the deciding or determining factor, then nothing would be lost by eliminating consideration of it.

One can almost excuse the Tacoma News this error since Ballotpedia, a recognized authority on all state initiatives and referenda, also got it wrong. Its Overview of I-1000 stated:

…. I-1000 was designed to ban preferential treatment, meaning those characteristics could not be the sole or deciding factor when considering a person for education or employment opportunities. [Section 3, 11(D)]

Or I should say, stated until a day or so ago. Since there is nothing in the actual text of I-1000 that prevents race, ethnicity, etc., from being the “deciding” or “determining” factor, I emailed an error notice to the Ballotpedia editor on November 6, the day after the election. I have not received a reply, but the Ballotpedia Overview now reads, correctly:

I-1000 was designed to ban preferential treatment, meaning those characteristics could not be the sole factor when considering a person for education or employment opportunities.

Of course, since this correction appeared after the vote, it was like closing the barn door after the horses had escaped.

[The Garden of College Excellence Is Growing Weeds]

A good friend, a retired journalist who spent his career with a major news organization, says that I exaggerate the importance of the press’s incompetence or mendacity because nowadays, no one reads newspapers. Perhaps not, but any Washington voters who out of desperation turned to a newspaper, or several, trying to sort out the complexity of Referendum 88 vs. I-1000 would have been very poorly served by what he found there, and I strongly suspect the misinformation in the press had some effect in reducing the proportion of voters who voted to retain the ban on affirmative action.

Lessons?

Everyone who takes pleasure in ordinary people underdogs in the fight for justice prevailing over great odds against powerful interests should rejoice in the stunning success of Kan Qiu, Linda Yang, and what the Seattle Times snidely called their “group of Chinese immigrants,” as though standing up for colorblind equality — a principle liberals abandoned long ago — is somehow alien, un-American. Their victory should make everyone feel good about our country.

We should take heart, in short, that all those polls showing opposition to racial preference have once again — after California, Washington, Michigan, and now Washington again — been proven accurate by actual voters.

A friend who lives in Seattle emailed me as the closeness of the vote became apparent that whoever won would have received no mandate. That’s true, I replied, as far as it goes, but it doesn’t go very far. Here, I think, is the leading lesson to be learned from the Washington vote over racial preference:

Any group planning to protect or re-introduce affirmative action will have to ensure that it has the following:

Strong support from the leaders (governors, senators, etc.) of both political parties. Strong support of the major employers in the state, local equivalents of Microsoft, etc. Strong support of labor unions, teacher organizations, etc Strong support of higher education leadership, faculty “experts,” organizations, etc. Strong support of cultural and opinion leaders in the arts and elsewhere. Strong support of rich people in the suburbs and fancy urban neighborhoods. Voting arrangements designed to maximize the number of voters who are least likely to vote (and who, conveniently, can be rounded up by paid organizers) — procedures such as Washington’s same-day registration and all ballots by mail only, no polling places (making it more difficult to check voter IDs).

Those, however, would not be enough — in my view, not nearly enough — without the following absolutely essential requirements:

Official ballot/legislative language claiming that the proposed affirmative action will not employ benefitting some applicants and burdening others because of their race. A compliant or biased or lazy statewide press that can be relied on not to point out that the ballot/legislative language is a fraud, that affirmative action programs where no applicants are accepted or rejected who would not have been but for their race are somewhat less common than catfish who can walk.

So, no, the vote was close; there will be no mandate, but that does not mean that the future prospects of the pro- and anti-preference forces were equally affected by the Washington contest.

Consider: which side will be most pleased and energized by Washington’s vote, groups in other states contemplating defending/introducing affirmative action or groups contemplating prohibiting it? Which side do the Washington results suggest has a much harder row to hoe?

Perhaps even the Supreme Court should take note of this watershed event in Washington if it reviews the case of Harvard’s discrimination against Asians. If ever there was a time for the Court to confirm the wisdom of Mr. Dooley, Finley Peter Dunne’s fictional character, that “th’ supreme coort follows th’ illiction returns,” this is it.