Goldwater Institute: Competing Discrimination Initiatives May Confuse Voters

by Clint Bolick

This November, Arizona voters will have a chance to outlaw government racial preferences. Similar initiatives passed by large majorities in three blue states: California, Washington, and Michigan.

The initiative is straightforward, forbidding discrimination or preferential treatment on the basis of race, color, sex, or national origin in public education, employment, or contracting. Because it embraces the moral imperative of nondiscrimination, it will be tough to beat on its merits.

Enter a new opposition tactic: confusion.

Rep. Kyrsten Sinema, who leads the opposition to the anti-preferences initiative, also is sponsoring a competing one. The language seems benign, forbidding employers from refusing to hire, discharge, or promote people because of religion, age, race, disability, or sex. The language is similar to existing federal anti-discrimination laws.

But as usual, the devil is in the details. Among other major expansions of government's regulatory reach, the proposal's definition of sex includes "gender, gender identity, gender expression, and sexual orientation."

The initiatives couldn't be more different: One limits the power of government to apportion opportunities on the basis of skin color; the other marks a massive new intrusion into private decision-making. Yet the summaries and core language of the two initiatives are so similar that voters may think they're signing a petition or voting for one when it's actually the other.

It's crafty strategy. But fog rarely lasts long in Arizona. In the end each proposal will be judged on its merits or lack thereof.

Clint Bolick is the Director of the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute.