Terrence Pell, Wall Street Journal, August 31, 2006
Text of Judge Arthur J. Tarnow’s decision:
Detroit — A decision Tuesday by a federal judge in Detroit could set the stage for a sweeping expansion of the Voting Rights Act, which would turn the federal courts into a national campaign police.
At issue is a last-ditch effort by a group trying to prevent citizens from voting on an amendment to the Michigan constitution. Styled after similar campaigns in California and Washington, the Michigan Civil Rights Initiative would outlaw the use of racial preferences by state agencies and universities.
Just a few weeks before the deadline for Proposal 2 to get onto the state ballot, the “Coalition to Defend Affirmative Action By Any Means Necessary” (BAMN, loosely) argued that the signature gathering process used to qualify the referendum was tainted by racially targeted fraud. From the beginning, BAMN has claimed the initiative disguised an anti-black and racist agenda. But because many black individuals had signed the petition, BAMN had to show they’d been duped.
So the group launched an “investigation.” They systematically called and personally visited blacks who’d signed the petition. In some cities, they had friendly talk show hosts read the names of black signers over the radio. In all cases BAMN’s message was the same: How could you, a black person, sign a petition to roll back affirmative action?
BAMN’s high-pressure tactics worked. Some signers and even gatherers decided they’d been deceived. In some cases they recalled being told that the petition was to “support affirmative action” and to help get their “children into college.” Using pre-printed affidavits (some “signed” over the phone), BAMN collected statements from dozens of individuals and started a legal campaign to get the referendum pulled.
BAMN’s claims were hardly credible. The Michigan constitution explicitly guarantees the right of citizens to put issues on the ballot, so long as they can collect signatures of registered voters equal to 10% of the last gubernatorial election. And, in accordance with state law, the language of the referendum was printed in full at the top of each signature page, so that voters had the opportunity to read it for themselves.
In any case, even if state officials had struck every single signature BAMN claims came from a majority black city (124,000), there still were more than enough signers to get onto the ballot. In light of all this, the Michigan courts — as well as the secretary of state and the attorney general — rightly rebuffed BAMN’s litigation.
BAMN filed a new lawsuit in federal court. Although the purpose of the Voting Rights Act is to eliminate procedures that diminish participation in elections because of race, BAMN asked the courts to rule that states must invent new procedures: Namely, they must strike black participation whenever officials have an inkling some blacks might have been confused about what they were doing.
It’s hard to think of a more perverse reading of the law. Imagine if officials of Southern states had ever conducted after-the-fact telephone campaigns to make sure black voters understood what they were voting for? Or tried to filter black votes by looking into conversations they might have had in the moments before they entered the voting booth?
None of this much mattered to the federal judge assigned to the case, Arthur J. Tarnow, a Democratic appointment. He scheduled a two-day hearing last month to consider BAMN’s request for a preliminary injunction, and allowed dozens of BAMN witnesses to testify in front of a gallery packed with BAMN supporters, while just outside BAMN protesters staged a noisy demonstration.
In Tuesday’s ruling, Judge Tarnow concluded that the initiative sponsors and the state had been right all along: There was no legal basis for a claim under the Voting Rights Act. But Judge Tarnow was not convinced by any principled view of that act’s purpose and limits. Rather, he concluded that there was no violation because initiative sponsors “targeted all Michigan voters for deception without regard to race”!
In fact, Judge Tarnow gave himself the authority, even the duty, to “serve as a ‘referee’” for all kinds of state political “processes” — not just elections. In that capacity, he didn’t hesitate to give BAMN’s political campaign a big helping hand, despite his legal ruling against it.
Without the benefit of even a short trial, Judge Tarnow made the incendiary finding that “evidence overwhelmingly favors a finding that [petition sponsors] engaged in voter fraud” and that state officials had exhibited “an almost complete institutional indifference.” His Honor went on to smear the initiative’s executive director, Jennifer Gratz, by gratuitously asserting that “her lack of clarity and forthrightness seems typical of the [initiative’s] approach, which is best characterized by the use of deception and connivance.”
BAMN correctly figures that Judge Tarnow’s sweeping declaration of widespread fraud will pressure the Sixth Circuit Court of Appeals to reverse his legal ruling that the Voting Rights Act doesn’t reach fraud targeted against both blacks and whites. Even if the circuit doesn’t reverse, BAMN no doubt hopes it will grant a preliminary injunction prohibiting the state from moving forward with the referendum while Judge Tarnow’s reading of the Voting Rights Act gets sorted out.
[ Another commentator called attention to the lack of diversity among Supreme Court clerks and concluded: “My own guess is that the nation’s highest judges are demonstrating a very human fallibility: a preference to work closely with people like themselves.”
Voters Must Find Truth In Affirmative Action Debate Laura Berman, Detroit News, August 31, 2006 ]
Detroit — A federal judge on Tuesday allowed an anti-affirmative action proposal to go before Michigan voters despite agreeing that it won a place on the November ballot through widespread fraud.
Judge Arthur Tarnow said opponents proved the Michigan Civil Rights Initiative “committed voter fraud in obtaining signatures in support of the petition.” But they did not prove the advocacy group violated the federal Voting Rights Act by depriving minorities of equal access to the political process, he said.
Opponents argued that the group sought to defraud black voters in particular. “However, the MCRI appears to have targeted all Michigan voters for deception without regard to race,” the judge wrote.
If approved by voters, the proposal would amend the state constitution to ban race and gender preferences in government hiring and public-university admissions in Michigan.
Opponents said the advocacy group misrepresented the referendum’s ultimate aims while petitioning to put the issue on the ballot. The group submitted more than 508,000 voter petition signatures, far more than the 317,517 required by state law. The ballot wording approved by the state elections director twice refers to a ban on “affirmative action,” a phrase that did not appear on the group’s petition.
Witnesses testified that they were tricked into signing or collecting signatures on petitions. The judge sharply rebuked state officials whose “indifference to valid allegations of voter fraud” allowed the proposal to make its way to the ballot.
“However, the court cannot turn back the clock, and can only deal with the facts that are presented to it,” he wrote.
Jennifer Gratz, the group’s executive director, praised Tarnow’s ruling but criticized his conclusion that fraud was committed.
“We are happy that he’s ruled that the people are allowed to decide this issue,” she said. “However, the rest of his commentary is judicial activism at its worst.”