The Volokh Conspiracy

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California Voters Reject Race, Sex, Ethnic Preferences in Government Employment, Education, and Contracting

California is vastly further Left today than it was in 1996 when it generally banned such preferences—yet even California voters rejected a repeal of the ban, by a 56-44% margin.


In 1996, California voters passed Prop. 209, which generally banned race, sex, and ethnic preferences in government employment, education, and contracting, by a 54½-45½% vote. That year, the California Assembly was nearly divided (switching from 41-39 Republican to 43-37 Democrat); the Senate went 23-16 Democrat; Republican Pete Wilson had been reelected governor the year before.

In 2020, the California Assembly is more than ¾ Democrat; the Senate is almost ¾ Democrat; the Governor has been a Democrat for nearly 10 years; it has close to the highest percentage of Biden votes among all the states. The Legislature had put an attempt to repeal the preferences ban on the ballot (as Prop. 16), and the attempt got a massive array of endorsements from political and business leaders. The Yes on Prop. 16 forces outfundraised the No by more than 15 to 1 ($27 million to $1.6 million). But Prop. 16 has just failed, apparently by 56-44%.

Even Deep Blue California doesn't think that race, sex, or ethnicity should generally be factors in allotting places at public universities, jobs in state and local government, or government contracts—whether under the rubric of "diversity" or "affirmative action" or whatever else. And this is so in a year when much elite opinion was endorsing notions of "anti-racism" that expressly call for a massive return to racial preferences.

California, besides being Deep Blue, is also less white (and especially less non-Hispanic white) than ever before. Yet according to the latest pre-election poll (the Berkeley IGS Poll), many nonwhites as well as whites oppose these preferences.

The no-preferences side had an 18% lead among non-Hispanic whites, an 11% lead among Asians, and a 2% lead among Hispanics (basically a tie); and while the no-preferences side was losing by 25% among blacks, that still means 33% of blacks were on the no-preferences side. Indeed, nationwide, according to, 51% of blacks oppose the view that "preferential hiring and promotion of Black people should be allowed." (We don't have the estimated demographic breakdown of the vote from the actual election, but the Berkeley IGS Poll margin in favor of the No side was 11 points, at 49-38%, close to the 12 points by which the No side actually seems to be winning.)

Now I was a legal advisor to the 1996 Prop. 209, and helped draft it, and I also helped slightly with the opposition to Prop. 16; I'm not an impartial observer here. And of course this is one election in one state.

Still, I think the message is pretty solid, and likely to carry the day in more moderate and conservative states as well: The public wants solutions to America's racial problems that don't further classify people by race, and divide people by race.