By Terence J. Pell
Wall Street Journal, August 31, 2006
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 constitu¬tion. 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 gath¬ering process used to qualify the refer¬endum 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 “investiga¬tion.” 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 fed¬eral 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 prelimi¬nary 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 of¬ficials 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 [initia¬tive’s] approach, which is best character¬ized by the use of deception and con-nivance.”
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 pro-hibiting the state from moving forward with the referendum while Judge Tar¬now’s reading of the Voting Rights Act gets sorted out.
Judge Tarnow’s willingness to mount a political campaign from the bench makes clear just where BAMN’s reading of the Voting Rights Act will lead. For if the federal courts get to settle this particular dispute, then, by the same logic, they would have been responsible for adjudi¬cating, for instance, the many disputes of the 2004 elections: Swift boats, National Guard service, ad nauseum.
No one should invite that prospect, least of all organizations like BAMN. But as its name implies — any means necessary — ¬BAMN’s legal strategy is oblivious to long¬term consequences.
Mr. Pell is the president of the Center for Individual Rights, which represents the Michigan Civil Rights Initiative.