Robert Alt writes:
I disagree that Prop. 209 was “unfairly worded.” The reader assumes that there is a set definition for affirmative action–either legally or in public parlance, and that therefore the use of the terms “discrimination” and “preference” is some less fair. But there is vast disagreement in both the legal and popular uses of the term affirmative action. For example, do stark quotas constitute affirmative action? While there have been lawsuits in which employers and educators have argued that programs amounting to quotas were nothing more than affirmative action, it is not clear that the general public or the legal community views such programs as “affirmative action.” Thus, to use the term “affirmative action” would have been to use a term that was less precise, both as a matter of law and as a matter of usage.
Opponents of the measure did want to use the term affirmative action, because the term is ambiguous and sounds positive, while the terms “discrimination” and “preferences” forced voters to think about the actual operation and effect of affirmative action policies.