MCRI Survives A Deeply Flawed Opinion

U.S. District Court Judge Arthur Tarnow gave opponents of MCRI everything they wanted yesterday … except victory.

The ruling allows MCRI to remain on the ballot because, among other reasons, the argument that the signature-gathering process (508,000 were gathered; 317,000 were needed) somehow violated the Voting Rights Act was a non-starter. Still, in the very first sentence of his opinion, he swallows the canard of BAMN and other opponents of colorblind equality that MCRI is “an anti-afirmative action proposal.”

It is not. As the words of the proposal approved by the Michigan Secretary of State clearly state, MCRI would

amend the state constitution to ban affirmative action programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity or national origin for public employment, education or contracting purposes.

Private affirmative action of any kind would be untouched, and all public affirmative action programs that do not rely on racial preferences would also be unaffected. My goodness, even the Washington Post managed to get this right!

[t]he proposal would amend the state constitution to ban race and gender preferences in government hiring and public-university admissions in Michigan.

How ironic, or something, that Judge Tarnow criticizes MCRI for deception and fraud when he himself misrepresents what it says and what it would do.

Say What? (8)

  1. Xrlq August 30, 2006 at 12:07 pm | | Reply

    Other than the usual semantic quibbling over the meaning of the phrase “affirmative action,” I’m not sure what you think the judge got wrong. If the facts are as he wrote in the opinion, a number of petition circulators intentionally misled voters as to what MCRI would do. That’s fraudulent, regardless of what one thinks the meaning of “is” is.

  2. John Rosenberg August 30, 2006 at 2:13 pm | | Reply

    Well, I haven’t seen the record on which the judge based his opinion, but I do know that many of the complaints in the earlier court cases that considered the question objected to petition gatherers claiming that MCRI would protect civil rights. This was fraud, they claimed, because it would end racial preferences and all right thinking know that civil rights requires race preferences.

    It is also true that MCRI would not put an end to affirmative action, and if some signature gatherers made that statement they saying something that was true.

    Now, if some signature gatherers said it would protect ALL affirmative action programs, that would have been false and misleading, though even there my understanding is that petition signers are signing petitions with the wording of the proposal clearly printed on them and that they are responsible for reading, and understanding, what they sign.

    Finally, what I object to in the opinion I think is much more substantial than “semantic quibbling.” The judge said MCRI would “ban affirmative action.” It would not. It would, as the language of the proposal on which voters will vote clearly states, ban only “affirmative action programs that give preferential treatment.”

    My complaint, in short, is that the judge substantially misrepresented MCRI even as he complained some indeterminate number of MCRI signature gatherers for misrepresenting MCRI.

  3. Xrlq August 30, 2006 at 4:36 pm | | Reply

    I am not aware of any commonly-used definition of “affirmative action” describing anything the MCRI could reasonably be said to “protect.” If calling an anti-reverse-discrimination law “anti-affirmative action” is overly broad, describing it as pro-affirmative action is worse, as are several of the other activities MCRI proponents are alleged to have engaged in, such as telling prospective signatories that the initiative (1) will “save” affirmative action [when in fact it will kill one kind of it, without affecting the others one way or the other], (2) will help black kids get into college [when in fact it will, if anything, accomplish the opposite], or (3) is supported by a public figure who actually opposes it.

    All this assumes, of course, that the factual allegations contained in the opinion are in fact correct. I don’t put perjury past BAMN, nor do I put credulity past a judge who wrote that proponents of MCRI had been deceptive not only in their use or non-use of the phrase “affirmative action,” but also in their use of words like “discrimination” and “preferences,” which are more accurate in this context than everyone’s favorite undefined variable, “affirmative action.”

    The biggest problem I have with this case is not so much the judge calling B.S. on MCRI proponent’s clever semantics, but with the fact that his entire fraud analysis missed the point about the First Amendment. True, the First Amendment does not shield commercial fraud, or real electoral fraud (e.g., forged signatures, intentionally spoiled ballots, etc.), but it generally does protect the kind of “fraud” the judge rails against. Even if the “fraud” had targeted only blacks and minorities, I don’t think that would state a credible claim for a Voting Rights Act violation.

  4. Chetly Zarko August 30, 2006 at 4:59 pm | | Reply

    Xrlq,

    The judge got a number of things “wrong,” in addition to mere facts. You obviously have read some depth on the case given your appreciation of the First Amendment.

    But you’re right – had there been widespread use of the phrase “protect all affirmative action”, that would be troubling (though perhaps still within the First Amendment rights of a circulator). The problem is BAMN presented hundreds of witnesses, and most reaffirmed that MCRI circulators did NOT mention AA at all, with only a half dozen or so (highlighted) cases where they claimed it “protected” AA. Aside from the fact that some of these claims were rebutted by internal inconsistencies (at one point the judge simply declares the testimony to be factually correct despite evidence that the person circulating was female when the witness said it was a male, but such “findings” are within a judge’s power).

    This whole thing is precisely about semantics – and the “clever” ones are found not with MCRI proponents, but with its opponents. The big lie is about who’s lying.

  5. John Rosenberg August 31, 2006 at 1:08 am | | Reply

    I think there are quite a few examples of affirmative action that MCRI would not disturb, such as various kinds of outreach and taking aggressive action to see that no discrimination occurs (the very meaning of AA in the two presidential executive orders), but I agree that it would not have been proper for signature gatherers to stress “protection” of AA. As for any claim that MCRI would “help black kids get into college,” I wouldn’t have said that either. But note that insofar as racial discrimination is still a virulent problem, which opponents of MCRI claim to believe, any measure that effectively bars discrimination would indeed help black kids.

    The problem with the judge’s opinion, I believe (and as Chetly points out), is that documented cases of “real” abuses — such as the ones that properly concern you — appear to have been far too few and isolated to justify the calumny the judge heaped on MCRI and its organizers. That, and I still consider his mischaracterization of what MCRI is and would do to be outrageous misrepresentation.

    Finally, let me note that the language proposed by the MCRI organizers was much clearer and less open to mischaracterization than the language substituted by the Secretary of State that will appear on the ballot. As I’ve quoted here too many times to cite now, the language proposed by MCRI never mentioned “affirmative action.” It would simply, and clearly, have forbidden the state to “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

  6. David Nieporent September 1, 2006 at 3:59 am | | Reply

    That was a pretty awful opinion. My favorite part of the judge’s idiocy is where he claims that discrimination is a vague word. He actually treats their failure to use the phrase “Affirmative action” in the text of their initiative as fraud — but then criticizes their signature gatherers for using the phrase.

    MCRI debunked the claims of the “report” showing fraud — the quotes were selectively edited and didn’t say anyother other than that some people may have mistakenly assumed that affirmative action = race preferences, and that race preferences != discrimination.

    (I’m sure there was some misrepresentation by the signature gatherers — these are private individuals who are often paid by the signature, so there’s not really much effort at quality control. This is true for all initiatives. But every one of the people supposedly “defrauded” had the option to read the text. There was no indication in any of the testimony, even as selectively edited by the Civil Rights Commission folks, that they were denied that chance.)

    Still, the judge got the right result, so I can’t be too upset. Are there any more desperation moves that the BAMN gang can try to keep people from being allowed to vote?

  7. David Nieporent September 1, 2006 at 4:04 am | | Reply

    I forgot to mention that the judge’s claim that the VRA applied was absurd. He argues that because a ballot initiative petition process is analogous to nominating a candidate, and because primaries nominate candidates, the ballot initiative process is governed by the VRA to the same extent that primaries are.

    But that’s wrong. He was told why it was wrong, he even acknowledged it, but completely misunderstood the issue.

    To the extent that primaries are governed by the VRA — and he got the law right on that point, although I don’t think the precedent is right — it’s because primaries act to restrict the choices of voters. If A wins the primary and B loses, then A is on the ballot and B isn’t. Voters can’t vote for B.

    The same simply isn’t the case for ballot initiatives. Even if the signatures were obtained by racially-targeted fraud — and even this judge can’t twist the evidence to claim that this is the case — nothing prevents people from voting the initiative down. Their choices are expanded, not restricted.

  8. Chetly Zarko September 1, 2006 at 4:49 pm | | Reply

    David, their “desperation moves” are only limited by their creativity and willingness to do anything (any means) and lie, neither of which I think they are in short supply of (yes, I compliment BAMN on its creativity, in the sense that I would compliment fiction writers).

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