U.S. Details Its Legal Arguments Against Prop. 209

California’s Proposition 209 is flawed not because it repeals the official use of race and gender as factors in government programs but because it does so through a binding statewide vote, Clinton administration lawyers said Wednesday.

That vote unfairly prevents anyone from seeking new affirmative action programs “through ordinary political means,” such as appealing to city councils, county boards or the state Legislature, the lawyers said in a friend-of-the-court brief filed with the U.S. 9th Circuit Court of Appeals.

The appeals court is considering whether to lift an order by a federal judge based in San Francisco that has blocked enforcement of the anti-affirmative action measure before a trial determines its legality.

Last month, President Clinton signaled that his administration would join those who are opposing the state initiative. The brief filed Wednesday marks the administration’s first attempt to explain the legal basis for its opposition.

“A state is free under the 14th Amendment to decline to pass beneficial legislation such as affirmative action and a state is free to repeal such programs after it has enacted them, but it may not remove those questions from the normal political process,” the brief states.

In recent years, the U.S. Supreme Court has cast a skeptical eye on affirmative action programs and ruled that “racial classifications” by public agencies are almost always unconstitutional. For that reason, administration lawyers could not assert that California’s local and state agencies must, or even should, give preferences to minorities and women.

Instead, the attorneys were forced to rely on high court precedents from an earlier era involving state laws that blocked cities from adopting anti-discrimination measures. Those opinions, many of them passed by 5-4 majorities, suggested that states must leave local agencies the option of adopting anti-discrimination ordinances.

Affirmative action policies are not exactly the same as anti-discrimination laws, the brief concedes, but they are one possible remedy for discrimination. And that remedy must always be available through “the normal political process,” the brief argues.

Proposition 209 is “a distortion of the political process” because it “effectively limits the access of minorities and women to the levers of government,” the brief argues.