Operation King's Dream v. Connerly

Decision Date28 August 2007
Docket NumberNo. 06-2144.,No. 06-2258.,06-2144.,06-2258.
Citation501 F.3d 584
PartiesOPERATION KING'S DREAM; Kwame M. Kilpatrick; American Federation of State, County & Municipal Employees, (AFSCME), AFL-CIO; Samantha Canty; Belita H. Cowan; Martha Cuneo; Linda Dee McDonald; Michelle McFarlin; Pearline McRae; Sarah Smith, Plaintiffs-Appellants/Cross-Appellees, v. Ward CONNERLY; Jennifer Gratz; Michigan Civil Rights Commission; Terri Lynn Land, in her official capacity as Secretary of State; Kathryn Degrow; Lynn Bankes; Doyle O'Connor, in their official capacities as members of the state Board of Canvassers; Christopher Thomas, in his official capacity as State Director of Elections, Defendants-Appellees (06-2144), Terri Lynn Land; Kathryn Degrow; Lynn Bankes; Doyle O'Connor; Christopher Thomas, Defendants (06-2258), Ward Connerly; Jennifer Gratz; Michigan Civil Rights Commission, Defendants-Appellees/Cross-Appellants (06-2258).
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Shanta Driver, Scheff & Washington, Detroit, Michigan, for Appellants. Michael E. Rosman, Center for Individual Rights, Washington, D.C., Heather S. Meingast, Office of the Attorney General, Lansing, Michigan, for Appellees. ON BRIEF: Shanta Driver, George B. Washington, Scheff & Washington, Detroit, Michigan, for Appellants. Michael E. Rosman, Center for Individual Rights, Washington, D.C., Heather S. Meingast, Office of the Attorney General, Lansing, Michigan, for Appellees.

Before: COLE and GILMAN, Circuit Judges; MARBLEY, District Judge.*

OPINION

R. GUY COLE, JR., Circuit Judge.

After Michigan's Board of Canvassers approved for Michigan's November 2006 general election ballot a citizen-initiated proposal ("Proposal 2") that would amend Michigan's constitution to prohibit all sex- and race-based preferences in public education, public employment, and public contracting, Plaintiffs-Appellants/Cross-Appellees Operation King's Dream, along with other organizations and individuals, brought suit under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, against Ward Connerly, Jennifer Gratz, the Michigan Civil Rights Initiative committee (the "MCRI," collectively, the "MCRI Defendants"), and against various Michigan officials (the "State Defendants"). The complaint sought only to enjoin the placement of Proposal 2 on the November 2006 general election ballot, alleging that the MCRI Defendants and their agents used racially targeted voter fraud in contravention of the Voting Rights Act to obtain signatures in support of Proposal 2. After bringing suit, the Plaintiffs moved for a preliminary injunction to prevent Proposal 2's placement on the ballot, and both Defendant groups moved to dismiss for failure to state a claim under the Voting Rights Act. The district court denied the Plaintiffs' preliminary-injunction motion and granted the motions to dismiss (which, because of an evidentiary hearing, were converted into motions for summary judgment).

The Plaintiffs now appeal the denial of their preliminary-injunction motion and the dismissal of their Voting Rights Act claim. In addition, the MCRI Defendants cross-appeal the admission into evidence of a state-issued report critical of the MCRI's methods for obtaining signatures in support of Proposal 2. Notwithstanding the disturbing allegations underlying the Plaintiffs' complaint, which the district court substantiated, because the opportunity to keep Proposal 2 off the ballot has long since passed, the Plaintiffs' appeal is dismissed as moot. Consequently, so too is the MCRI Defendants' cross-appeal.

I. BACKGROUND

This is but one piece of litigation spurred by the Proposal 2 saga. As we speak, a federal constitutional challenge to those portions of Michigan's constitution amended by Proposal 2 is proceeding through the district court. See, e.g., Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 253 (6th Cir.2006) (granting an emergency stay of a district court's order preliminarily enjoining the enforcement of Proposal 2 until July 1, 2007). To understand where we are today, a recitation of the facts that got us here is necessary. Because we defer to a district court's factual findings unless they are clearly erroneous, Ellis v. Diffie, 177 F.3d 503, 505 (6th Cir.1999), the district court's comprehensive opinion, Operation King's Dream v. Connerly, 2006 WL 2514115 (E.D.Mich.2006), guides us.

According to the MCRI's website, it is a coalition "from across the political spectrum" opposed to "policies that divide based on our skin color, sex, national origin, ethnicity, and race." The Michigan Civil Rights Initiative: Get Involved, http://www.michigancivilrights.org/ getinvolved.html (last visited Aug. 11, 2007). To this end, from approximately July 2004 through December 2004, the MCRI, with the assistance of paid agents, solicited signatures in support of placing a statewide ballot initiative that would later become Proposal 2 on Michigan's November 2006 general election ballot. Proposal 2 has been characterized as "anti-affirmative action." Operation King's Dream, 2006 WL 2514115, at *1; see also, e.g., Approved Proposal 2 Ballot Language, http://www.michigan.gov/documents/Bal — Lang — MCRI — 152610 — 7.pdf (last visited Aug. 11, 2007) ("A PROPOSAL TO AMEND THE STATE CONSTITUTION TO BAN AFFIRMATIVE ACTION PROGRAMS. . . ."). The petition text that Michigan voters signed in support of the MCRI's initiative petition reads as follows:

A Proposal to amend the Michigan Constitution by adding a Section 25 to Article I that would: (1) prohibit the University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district from discriminating against, or granting 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; (2) prohibit the State from discriminating against, or granting 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; (3) define for purposes of this section "State" as including, but not necessarily limited to, the State itself, any city, county, public college or university, community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan; (4) not apply to actions that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds; (5) not affect bona fide qualifications based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting; (6) allow remedies as are now allowed by law; (7) be self-executing and its provisions severable; (8) set an effective date; (9) not invalidate any court order or consent decree that is in force as of the effective date.

Operation King's Dream, 2006 WL 2514115, at *2 n. 2.

On January 6, 2005, the MCRI submitted 508,202 signatures in support of its initiative petition. Id. at *2. To qualify its initiative for the November 2006 general ballot, the MCRI needed to submit only 317,757 valid signatures, representing ten percent of the total votes cast in the last election for governor. See Mich. Const., Art 12, § 2. The Michigan Secretary of State reviewed the petition for irregularities and, after analyzing 500 random signatures, issued a report discounting fifty signatures because they were facially defective or because the signer was not a registered voter. Id. Operation King's Dream and another like-minded group, the Coalition to Defend Affirmative Action & Integration and Fight for Equality by Any Means Necessary ("BAMN"), however, conducted their own review of the same 500 sample signatures and concluded "that a significant number of the sampled signatures were procured by MCRI circulators through fraud." Mich. Civil Rights Initiative v. Bd. of State Canvassers, 268 Mich.App. 506, 708 N.W.2d 139, 142 (2005). Specifically, Operation King's Dream and BAMN allege that the MCRI signature gatherers deceived signers into believing that the initiative supported affirmative action, as the term is commonly understood, rather than one that would ban such programs.

On July 19, 2005, Michigan's Board of Canvassers heard challenges to the petition and testimony regarding the claims of deception and fraud. Operation King's Dream, 2006 WL 2514115, at *3. After a protracted (and unresolved) internal dispute regarding whether the Board even had authority to investigate election-fraud claims, one Board member nonetheless moved that the Board, along with the Bureau of Elections, conduct an investigation of the fraud allegations. Id. The four-member Board split on a vote of two to two, and the motion to investigate did not pass. Id. Afterwards, another Board member moved to certify the MCRI's initiative for placement on the ballot. Id. This motion failed on a vote of one to two, with one abstention. Id.

After the motion to certify failed, the MCRI filed a complaint for mandamus relief in the Michigan Court of Appeals, seeking an order requiring the Board of Canvassers to certify the initiative. Mich. Civil Rights Initiative, 708 N.W.2d at 140. On October 31, 2005, the Michigan Court of Appeals held that "the Legislature failed to provide the board with authority to investigate and determine whether fraudulent representations were made by the circulators." Id. at 143. Therefore, "the board [had] no statutory authority to conduct such an investigation." Id. The court granted the MCRI's request for mandamus and remanded the case to the Board with instructions to certify the petition for placement on the ballot. Id. Despite a few hiccups, including a large, anti-Proposal 2...

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