How Group Quotas Lost in California

In 1996 California became the first state to ban preferential admissions, hiring, and contracting policies intended to bolster the prospects of groups that are underrepresented or the victims of discrimination. Since the 1960s the shorthand for such policies has been “affirmative action.” Voters passed Proposition 209, which amended the California constitution to stipulate that the state “shall not discriminate against, or grant 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, or public contracting” (emphasis added).

Prop. 209 prevailed by a margin of 54.6% to 45.4% on the same Election Day that saw Bill Clinton win a second presidential term. In 1996, California was a purple state turning blue: Clinton received 51.1% of its votes that year, slightly better than the 49% he got in the rest of the country. Not coincidentally, it was also a white-ish state turning brown, on its way to becoming “majority-minority.” According to a Los Angeles Times exit poll, 74% of the 1996 California general election ballots were cast by whites, 10% by Latinos, 7% by blacks, and 5% by Asians.

The demographic distribution of the vote is pertinent, given that 209’s opponents portrayed it as a sinister measure to reverse California’s progress toward racial concord and fairness. Proposition 209 “Harms Equal Opportunity for Women and Minorities,” according to the title of its opponents’ official argument, provided to all voters as part of the ballot initiative process. Rosa Parks was one of that argument’s signatories, and it included a statement from Colin Powell, then at the height of his prestige. Prop. 209, he said, “puts at risk every outreach program” and “puts the brakes on expanding opportunity for people in need.”

Although California’s white voters could, in theory, have enacted 209 without a single vote from any other group, the Times exit poll showed that the proposition’s winning coalition was more…well, inclusive. Its finding that 63% of whites voted in favor of 209 means that of the 54.6% of the total vote it received, 46.6 percentage points came from white voters and the other eight percentage points from non-whites. The Times poll also showed that 39% of Asian voters supported 209, as did 26% of blacks and 24% of Hispanics. All told, then, some 31% of non-white voters supported Proposition 209, which means that the idea of banning race preferences was twice as popular with whites as non-whites.

Twenty-four years later, California voters once again passed judgment on affirmative action. This time the ballot number was Proposition 16. The question it posed in November 2020 was whether to repeal Proposition 209. The ballot title for 16 was, “Allow Diversity as a Factor in Public Education, Employment, and Contracting Decisions.” “White men are still overrepresented in positions of wealth and power,” the official argument in favor of the proposition read, even though California was America’s “most diverse state.” Therefore, “By voting YES on Prop. 16, Californians can take action to push back against racism and sexism and create a more just and fair state for all.”

Prop. 16 was submitted to voters by a Democratic legislature confident that the “racial reckoning” many were calling for following George Floyd’s death in Minneapolis that summer had made Prop. 209 vulnerable. Moreover, nearly every newspaper in the state endorsed it, many with impassioned editorials. The Times urged voting yes on 16 to help “dismantle the racism baked into our institutions.” Its supporters contributed $25.7 million for the campaign, while 16’s opponents raised less than $1.8 million. And by 2020 California had become one of the most Democratic states in America. Joe Biden received 63.5% of its votes, better than he did in all but four other states and the District of Columbia, and 13.7 percentage points more than the 49.8% of the vote he won in the nation outside the Golden State.

Above all, demographic changes were widely expected to put Prop. 16 over the top. According to CNN’s exit poll, white voters accounted for 49% of California’s 2020 electorate, a third less than in 1996. Black voters accounted for 9%, Asians 6%, and “other” voters 5%. Hispanics were 31% of the state electorate, three times greater than in 1996. If all these groups voted for 16 by the same proportions in which they had voted against 209—37% among whites and 69% among non-whites—the repeal would have won with 53% of the vote.

In fact, however, California rejected affirmative action more emphatically in 2020 than it had in 1996. The final count was 57.2% against Prop. 16 and 42.8% in favor. How did this happen? Some disconsolate Prop. 16 supporters contended that many voters favorably disposed to reinstating affirmative action found the proposition’s ballot language confusing, and ended up voting against affirmative action when they meant to vote for it. But there’s no reason to believe, or evidence to suggest, that confused voters were all confused in the same direction. It is a virtual certainty that, in the nation’s largest state, some number of people favorably disposed to affirmative action ended up voting against 16, even as some people skeptical about affirmative action voted for the ballot proposition. Nor is there any basis to contend that the net loss resulting from voter confusion amounted to one out of every eight votes against Prop. 16, which is what its victory would have required. In any case, a post-election survey by Strategies 360 found that giving respondents a thorough explanation of what Proposition 16 would have done, and why its proponents felt it necessary, made no discernible difference to the number of people who favored and opposed it.

Another possibility, that white voters were a smaller portion of the electorate than in 1996 but had grown overwhelmingly opposed to affirmative action, doesn’t hold up either. California was, after all, a state where white voters favored (by an estimated 51% to 47%) Biden over Trump, something that was not true in most other states, including some Biden carried only because of strong support from non-white voters, such as Arizona, Georgia, Pennsylvania, and Wisconsin. And although no published exit poll drilled down on the question of which Californians voted for and against Prop. 16, a Public Policy Institute of California (PPIC) poll taken in October 2020 came very close to calling the result in advance. It found that, among likely voters, 50% opposed Prop. 16, 37% favored it, and 12% were undecided. If 50 of every 87 undecided voters ended up voting against 16, it would have received 56.9% of the vote, three tenths of a percent less than the final total of 57.2%.

Allocating undecided voters in the same way indicates that affirmative action was, if anything, a bit more popular with whites in 2020 than it had been in 1996: about 61% voted against Prop. 16 compared to 63% who had voted in favor of Prop. 209. (The October 2020 PPIC poll found that, among likely voters, whites were opposed to Prop. 16 by 53% to 34%, with 13% undecided.) So, unless every poll taken before and after the election missed an unprecedented anti-affirmative action landslide among white California voters, the only remaining explanation is that Prop. 16 lost because of non-white voters. A slight majority, around 53%, appears to have voted against it, compared to the minority of less than one third who voted for Prop. 209 in 1996. In other words, affirmative action was nearly as unpopular with non-white California voters in 2020 as it had been with all California voters in 1996.

To assess this counterintuitive development and its political implications outside California and beyond affirmative action, we need to ask two related questions. First, what are the elements of a majority coalition that will support or at least tolerate affirmative action and, ultimately, even more ambitious policies like reparations? What political affinities can bring and hold such a coalition together?

This leads to the second question: what are the practical and moral arguments about compensatory or restorative justice that recommend affirmative action and more sweeping initiatives? In particular, how do they allay misgivings about the justification for affirmative action Supreme Court Justice Harry Blackmun acknowledged in Regents of the University of California v. Bakke (1978), misgivings which large numbers of people apparently still harbor? “In order to get beyond racism, we must first take account of race,” Blackmun wrote in defense of a medical school’s policy that set aside 16 of its 100 admissions slots for non-white applicants. “And in order to treat some persons equally, we must treat them differently.” There is, he concluded, “no other way.” But a majority of California voters, in 1996 and again in 2020, appear to believe that affirmative action is neither the only nor the best way, an assessment shared by majorities in Washington, Michigan, Nebraska, Arizona, and Oklahoma—every state but one (Colorado) where the question has been put to a popular vote.

The Coalition of the Ascendant

The first thing to be said about the Democratic Party’s efforts to secure electoral support for affirmative action, and redistributive social justice measures in general, is that Democrats have been confident for 20 years that this problem was solving itself. The Emerging Democratic Majority (2002) by John Judis and Ruy Teixeira told Democrats the best possible news: just by waiting as America’s demographic ratios shifted, Democrats were sure to inherit majority support for their candidates and agenda without ever needing to make difficult choices or disagreeable compromises.

Astute observers interpreted Barack Obama’s election in 2008 as both a vindication of this thesis and the beginning of a long era of Democratic hegemony. Journalist Ronald Brownstein said that Obama secured his “commanding” victory “by tapping into growing elements of American society: young people, Hispanics and other minorities, and white upper-middle-class professionals,” combined with “unprecedented margins among African-Americans.” In Brownstein’s shorthand, this was the “coalition of the ascendant.” Or, as the New Democrat Network founder Simon Rosenberg said, Democrats are “surging with all the ascending and growing parts of the electorate.”

From the perspective of 2022, however, there are increasing doubts that the coalition of the ascendant can be made to coalesce or is destined to ascend. Most importantly, there’s evidence that Hispanic voters are shifting right. A Wall Street Journal poll in December 2021 found that this segment of the electorate—13% of all 2020 voters and rising, already more in some battleground states—is now evenly divided between the two parties. Democratic presidential and congressional candidates got more than 60% of the Hispanic vote in 2020 but, the Journal found, would struggle to get a bare majority today. Sixty percent or more of the Hispanic vote is not only Democrats’ historical norm, but an assumption crucial to every strategy they have about winning electoral majorities. New York magazine’s Eric Levitz says that an equally divided Hispanic voting bloc would put Republicans “in position to dominate American politics for the foreseeable future.” Or, as Jack Herrera wrote in Texas Monthly, a descent to parity among these voters would be an “extinction-level event” for the Democratic Party.

The problem, in Levitz’s unhappy but candid assessment, is that large numbers of Hispanic voters, even ones who consider themselves Democrats, “are quite ideologically conservative.” Many, of course, are pro-life Catholics, indifferent if not hostile to the Democratic agenda on social issues. Levitz also cites studies showing that Hispanics favor more vigorous border security, lower immigration—illegal and legal—and fear that under socialism or social democracy, “people will become lazy/dependent on government.” Ruy Teixeira, increasingly distressed at the triumphal complacency many Democrats took away from reading his book of 20 years ago, offers the same assessment and warning. Hispanics “are heavily oriented toward upward mobility,” he says, and do not “harbor particularly radical views on the nature of American society and its supposed intrinsic racism and white supremacy.”

It should not surprise us that voters committed to working hard and playing by the rules are dubious about allocating opportunities based on demographic happenstance and historical grievance. Teixeira cites a study by the Democracy Fund’s Voter Study Group showing that Hispanic Democrats are significantly less sympathetic to central tenets of racial liberalism than either black or white Democrats. Among Democrats in 2020, for example, 77% of whites and 72% of blacks rejected the proposition that black people could be just as well off as white people if they “would only try harder.” Only 54% of Hispanic Democrats disagreed with that contention. Similarly, 68% of black Democrats and 67% of whites disagreed with the statement, “Other minorities overcame prejudice. Black people should do the same without any special favors.” Forty-eight percent of Hispanics objected to it. There’s every reason to think that including Hispanic Republicans and independents would significantly lower the percentages rejecting these claims…and lower the support for affirmative action.

Meritocracy and Asian-Americans

The Asian-American voting bloc is smaller—4% of the 2020 electorate according to the exit polls—and recently disposed, like Hispanics, to cast 60% or more of its ballots for Democrats. As with Hispanic voters, however, Asian voters gave a larger portion of their votes to Donald Trump in 2020 than in 2016: 7 percentage points more, according to the Washington Post. (Trump’s share of the Hispanic vote increased by 4%.)

Asians’ strongest connection to the issue of affirmative action, and distributive justice in general, lies in their conspicuous success under the prevailing meritocracy. Census Bureau data shows that in 2017, median household income for Asians was $81,331, compared to $68,145 for non-Hispanic whites, $50,486 for Hispanics, and $40,258 for blacks. It’s doubtful that Asians have gamed the system—of admission to selective colleges, for example—since they had so little role in devising it. The Pew Research Center found that, as of 2016, 78% of Asian-American adults were foreign-born, compared to 47% of Hispanics, 12% of blacks, and 5% of whites. They arrived too recently, in other words, to have been able to shape for their own benefit measures like scholastic aptitude tests, where they have had significantly higher scores than every other demographic cohort since the late 20th century. Asians go on to lead all other groups in completing high school and earning bachelor’s and advanced degrees.

Having also worked hard and played by the rules, with great success, Asians have an obvious reason to oppose affirmative action policies that change or simply waive the rules in ways that will penalize them and benefit others. Asians were, for example, instrumental in defeating New York Mayor Bill DeBlasio’s plan to do away with a standardized test as the sole criterion for admission to the city’s most academically demanding high schools. Under the test system, blacks and Hispanics are underrepresented in such schools as Stuyvesant High and Bronx Science while Asian students are overrepresented by a factor of four.

Asians’ success in gaining admission to selective colleges also means that the biggest consequence of affirmative action policies is to reduce the number of Asians at these schools. A lawsuit by Students for Fair Admissions (SFFA) against Harvard University has examined data, turned over in pre-trial discovery, on the institution’s practices and concluded that Asian applicants are evaluated more stringently than all others. Using Harvard’s “academic index,” a metric combining standardized test scores and high school grades, SFFA determined that 12.7% of Asian applicants in the top 10% of the index (the tenth “decile”) were admitted, compared to 15.3% of whites in that decile, 31.3% of Hispanics, and 56.1% of blacks. Indeed, black applicants below the median, with index scores in the fourth and fifth deciles, were more likely (12.8% and 22.4%, respectively) to get into Harvard than Asians in the tenth decile.

The dean of admissions at the other famous university in Cambridge, the Massachusetts Institute of Technology, put the attitude behind Harvard’s numbers into words by describing a Korean-American applicant to his school as “yet another textureless math grind.” In the New York Times, essayist Wesley Yang, author of The Souls of Yellow Folk (2018), wrote that Asian-Americans, “the highest achieving group of students in America,” have been “systematically denigrated” by Harvard, rendering them “collateral damage in the university’s quest to sustain its paradoxical mission to grow its $37 billion endowment and remain the world’s most exclusive institution—all while incessantly preaching egalitarian doctrines.”

Given that Asians account for 9.3% of students enrolled in California public elementary and secondary schools, but 33.5% of students at the University of California, it’s not surprising that many Asian voters saw Proposition 16 as a threat, a measure that would allow Berkeley and UCLA to emulate Harvard and MIT’s admissions practices. Ling Kong, a Silicon Valley engineer, explained to the Los Angeles Times that her ethnic Chinese family had been disadvantaged in Malaysia, where she grew up, because of preferential policies to help indigenous groups. It was the main reason she came to the United States to study. Having emigrated, “I don’t want my kids to be treated differently on the basis of race.” …

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