Atty. Gen. Jerry Brown has told the California Supreme Court that Proposition 209, the anti-affirmative action measure passed by voters in 1996, violates the U.S. Constitution.
The state attorney general's stance marks the second time in six months that he has determined that ballot measures approved by California voters were unconstitutional.
Brown, who is contemplating a run for governor, appears to be trying to woo more liberal voters for the Democratic nomination. San Francisco Mayor Gavin Newsom has already declared his intention to seek the nomination, and Los Angeles Mayor Antonio Villaraigosa also is expected to run.
Brown decided late last year to join the legal fight against Proposition 8, the November ballot measure that reinstated a ban on same-sex marriage. After initially saying that he would defend the constitutional amendment, his office argued that it was unconstitutional. A ruling is expected within the next several weeks.
Brown gave his position on Proposition 209's constitutionality at the request of the court, which is considering a challenge to a San Francisco law that gave minorities and women an advantage in bidding for contracts.
The court's request mystified Sharon Browne, one of the lawyers challenging the San Francisco ordinance, because she said it came a year after all the briefs in the case had been filed.
"It would be incredibly strange for the California Supreme Court, 13 years after Prop. 209 was adopted, to say at this time it is unconstitutional," said Browne, a lawyer with the Pacific Legal Foundation, a conservative public interest law firm.
The state high court unanimously ruled in 2000 that Proposition 209 prohibited a San Jose outreach program. That ruling cited a 1997 decision by the U.S. 9th Circuit Court of Appeals that found Proposition 209 constitutional.
But Brown said the state court's decision was overly broad. His office argued in a letter to the court that Proposition 209, a state constitutional amendment, "closes a door to race- and gender-conscious programs that the 14th Amendment allows."
"The 14th Amendment allows such remedies in limited circumstances, and therefore, requires that all groups be accorded equal access to the political process to obtain those remedies, without regard to race or gender," said Brown's brief, written by state Solicitor General Manuel M. Medeiros.
The California Supreme Court is not bound by the 9th Circuit ruling, but any decision that involves federal law can be appealed to the U.S. Supreme Court.