Lawmakers Push to Repeal Anti-Black Housing Law in California Constitution

California lawmakers are trying again to get rid of the nation’s only law that lets voters veto public housing projects, a provision added to the state constitution in 1950 to keep Black families out of white neighborhoods.

Most everyone in the Capitol agrees the provision should be repealed, both for its racist roots and because it makes it much harder to build affordable housing in a state where the median price for a single-family home is nearly $800,000.

But the latest repeal attempt has hit a snag — not because of organized opposition, but for lack of financial support. It costs a lot to change the California Constitution, and supporters have not found anyone willing to pay for it.

While the state Legislature can pass and repeal laws, it can't change the constitution unless voters also approve it. Putting a proposal on the ballot is pointless unless it is accompanied by a statewide campaign aimed at persuading people to vote for it. Those campaigns can cost $20 million or more because California has some of the nation's most expensive media markets.

“It’s not the type of ballot measure that automatically draws in money,” said state Sen. Scott Wiener, a Democrat from San Francisco who is backing the repeal along with fellow Democratic Sen. Ben Allen. “The polling is not rock solid. It’s a winnable campaign. We can win. But it will require strong funding.”

Support in the Legislature is not a problem, as a proposed repeal passed the state Senate 37-0 earlier this year. But public support is another matter, and carries a big risk.

In 2020, with support for racial justice causes soaring in the aftermath of George Floyd's murder, backers spent more than $22 million on a campaign to change the California Constitution so public universities could consider a person's race when deciding whom to admit. They failed, with 57% of voters voting against the proposed change despite opponents spending only $1.7 million.

Once a campaign fails, it often takes years for supporters to muster enough support to try again. The last time supporters tried to repeal California's affordable housing law was nearly three decades ago, in 1993, when it failed, with only 40% voting in favor.

Supporters were prepared to put the proposal on the 2020 ballot, believing a presidential election year would increase turnout of younger voters and give it a better chance of passing. But they abandoned the effort because they could not secure funding for a sufficient campaign, Wiener said.

Lawmakers have to decide by June 30 whether to put it on the ballot this year or wait until 2024.

California's law requiring voters to approve publicly funded affordable housing projects came after a 1949 federal law that outlawed segregation in public housing projects. In 1950, a local housing authority in Eureka — 230 miles north of San Francisco — sought federal money to build lower-income housing.

Some residents tried to stop the project, but city leaders refused. So the residents put an amendment to the constitution on the ballot saying the government had to get voter approval before using public money to build affordable housing. The California Real Estate Association paid for the campaign, and it passed.

HISTORY THREAD: I spent a lot of time in the state archives and library for my piece on Article 34, the California constitutional provision passed in 1950 that requires a public vote before building public housing. The background is fascinating. https://t.co/fprD0RGxjv (1/10)

— Liam Dillon (@dillonliam) February 4, 2019

California is now the only state that has this law, and it applies only to public funding for affordable housing, which is disproportionately used by people of color.

“It's racist, classist," Wiener said. “I think it’s shocking to a lot of people that this is in our actual constitution.”

The provision has had a major impact on the state's development as California missed out on much of the federal government's abundant public housing spending in the 1950s and 1960s, according to Cynthia Castillo, a policy advocate for the Western Center on Law and Poverty.

“It has tied our hands in exploring solutions to the affordable housing crisis and homeless crisis in a sense by taking public housing off the table,” Castillo said.

There are some ways around the law. State lawmakers tweaked the definition of “low-rent housing project” to mean any development where more than 49% of the units are set aside for people with lower incomes. Anything less than that doesn't require an election.

In some progressive cities, local leaders ask voters for broad authority to build a set amount of affordable housing throughout the city. In 2020, San Francisco voters gave city leaders permission to construct 10,000 affordable housing units. But that type of voter support doesn't exist everywhere.

One potential source of funding for the campaign to repeal the law is the California Real Estate Association, now known as the California Association of Realtors. The group was largely responsible for getting the law passed in 1950. Now, it strongly supports repeal, a stance it has maintained for decades, according to Sanjay Wagle, the association’s chief lobbyist.

Wagle said the association has an obligation to help repeal the law. But he said it can't afford to do it alone. Most people like having a say in what's built near their homes. Still, he said, polling suggests people change their minds once they learn about the issue — but that would require a sophisticated, expensive campaign.

“Most people think, ‘Oh, yeah, I like the idea of voting on any project. That’s going to take it away from me.' They're not thinking about the broader implications,” he said. “You have to overcome that by really going into the weeds of this, which is difficult, or would be very costly."

Wagle said it would take multiple groups to fund a successful campaign, something he doesn't think would be difficult to find because “there is a lot of money on the progressive side in California.”

But that hasn't happened yet. Wiener said he thinks the funding will come eventually, which is why he's pushing to put it on the ballot soon.

“There are a lot of groups that want to engage," he said. "And I think once we give them confidence that it’s real, they can do that.”