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Description
TABLE OF CONTENTS
Introduction I. The Michigan Civil Rights Initiative: Getting on the Ballot A. Signature-Gathering for the Michigan Civil Rights Initiative B. State Review of the Signatures Gathered for the MCRI C. Federal Court Intervention II. Fraud in Signature-Gathering: Cause for Concern? A. Election Fraud in the Initiative Process and Its Threat to the Health of Our Electoral System III. Responding to Signature-Gathering Fraud on the State Level A. Evaluating the Signatures: An Inference of Fraud? B. Collecting the Signatures: Reducing Fraud by Eliminating Fee-Per-Signature Policies IV. Responding to Signature-Gathering Fraud on the Federal Level Conclusion
INTRODUCTION
As Ruthie Stevenson, President of Michigan's Macomb County chapter of the NAACP,(1) exited her neighborhood post office, an individual approached her and asked her to sign a petition about affirmative action that would "'make civil rights fairer for everybody.'" (2) The petition circulator informed her that Ruthie Stevenson supported the infamous petition. (3) Ms. Stevenson was taken aback, knowing that she opposed the petition, which sought to limit affirmative action policies in Michigan. Ms. Stevenson informed the circulator that she was Ruthie Stevenson and that she did not support the ban of affirmative action. (4) The petitioner walked away without responding to Ms. Stevenson's request that they "stop using [her] name to garner signatures." (5)
Subsequent testimony before a federal court revealed similar events occurring throughout Michigan in 2004 and 2005. In Detroit, a few miles south of Macomb County, another circulator approached Lawrence Fears and asked him to sign the same petition. (6) Mr. Fears attempted to read the petition but was unable to do so because, in his words, "the language was ... obscured by padding and tape attached to the clipboard." (7) Mr. Fears asked the circulator what the petition concerned. The canvasser responded that she was collecting signatures to place an initiative "to keep affirmative action" (8) on the ballot in the November 2006 elections. Mr. Fears had heard about a ballot initiative that was being circulated to do away with affirmative action, an effort that Ward Connerly led and identical to efforts Connerly waged in California (9) and Washington. (10) Mr. Fears asked the circulator if the petition "had anything to do" with Connerly. (11) The circulator told him "that it did not and that she was 'not trying to do that.'" (12) Mr. Fears, still unable to decipher the unclear language of the initiative, relied on the circulator's representation of the initiative and offered, with his signature, what he thought was his support for affirmative action. (13) Fears later found out, much to his dismay, that he had instead signed Connerly's petition supporting a ballot initiative to do away with affirmative action. (14)
During that same time period, roughly one hundred miles away in Lansing, a company hired by Connerly's campaign to support the anti-affirmative action proposal, known as the Michigan Civil Rights Initiative ("MCRI"), allegedly instructed Reverend Nathanial Smith (15) and about thirty-five other individuals to collect signatures for a "ballot proposal [that] was about keeping and maintaining civil rights." (16) Rev. Smith testified that petitioners were collectively instructed to approach registered voters and inform them that the proposal was "pro-civil rights and pro-affirmative action." (17) Rev. Smith claimed he obtained approximately five hundred signatures before a voter he approached while circulating the petition informed him that the actual language of the petition would do away with all race-based and gender-based affirmative action policies in Michigan. (18) Smith was confused by the language of the petition, (19) but then "checked into it and realized" its "true meaning." (20) Smith testified at a public hearing run by the Michigan Civil Rights Commission that, upon learning the true implications of the ballot initiative, he was "upset" to be "part of perpetrating a fraud that was perpetrated on [him] by the management company that hired [him[ to get the petitions." (21) Rev. Smith stopped collecting signatures for the initiative and attempted to spread the word about the "true meaning" of the petition. He felt "hurt that there were hundreds ... of people that had signed this petition ... under false pretenses." (22)
These stories are a snapshot of the many misrepresentations that allegedly occurred for several months in 2005, during the time that Connerly's MCRI campaign worked to collect enough signatures to place its initiative on the Michigan ballot. The language of the initiative, verbose and unclear to some, asked voters to amend the Michigan Constitution to "[b]an public institutions from using 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." (23) A majority of Michigan voters endorsed the proposal in November 2006. (24)
The substance of the initiative, its controversial nature, and its eventual passage are issues separate from the procedures employed to place the initiative on the ballot. It is cause for concern that any proposed amendment to the state constitution--regardless of its substance--can be placed on the ballot backed by signatures of registered voters who were told that the proposal was something different from what it was. (25) The allegations of fraud were presented to the Michigan Supreme Court, the Michigan Attorney General, and the Federal District Court for the Eastern District of Michigan. Although the federal court found that widespread fraud occurred, no government entity intervened either to address the immediate instances of fraud or to set a precedent that could ensure that future occurrences of such fraud would be impermissible.
These allegations of fraud, and the lack of any legal response, are even more problematic when considered alongside the fact that a majority of voters who claimed they were misled about the substance of the proposal were African Americans. This group of voters has historically endured barriers to political participation and is particularly affected by affirmative action policies.
This Article details and analyzes the allegations of fraud that surrounded the placement of the MCRI on the 2006 Michigan ballot, with an emphasis on the normative concerns that such a phenomenon engenders. It seeks to place the Michigan events in the broader legal and historical context of election fraud and ballot initiatives, and discusses why the events surrounding the MCRI signature-gathering process are a serious cause for concern. The Article ultimately enumerates three specific state proposals, as well as a federal proposal, for addressing the use of fraud and misrepresentation in gathering signatures to place initiatives to change laws or amend state constitutions on the ballot.
The first proposal is for state authorities charged with reviewing petition signatures to allow for an "inference" of fraud that, when met, triggers a thorough government investigation into whether registered voters signed a petition based upon a fraudulent misrepresentation. (26) Such an investigation could be as detailed as directly contacting every voter who signed the petition to verify their signature, or could simply entail a postcard mailing to all petition signatories, requesting that they return a postcard or contact the relevant authority to withdraw their name from the petition if they did not intend to sign a petition supporting the initiative. If significant evidence or patterns of fraud are revealed, funds for such investigations could be covered via fines levied on the offending campaign, even if revelations of fraud do not invalidate the rejection of the initiative petition because of lack of the signatures required.
A second proposal, which several states have pursued, involves prohibiting campaigns from paying petition circulators based upon the number of signatures they collect. Such a proposal may reduce some of the incentive for canvassers to misrepresent their petition in order to garner more signatures, thereby eliminating one of the primary motivations for circulators to commit fraud. Several federal courts of appeals have found limits on per-signature payments to be constitutionally permissible when enacted specifically in reaction to actual evidence of fraud in the signature-gathering process. (27)
A final proposal concerns potential federal causes of action under the Voting Rights Act and the Fourteenth Amendment of the U.S. Constitution. (28) It concludes that a new federal statutory protection is necessary to protect voters when states decline to act in any meaningful way in response to claims of fraud. Currently, such a protection is nonexistent. Despite recent attempts, (29) there is currently no federal statute that bans such efforts to deceive voters.
This discussion is intended to be merely a starting point for a broader dialogue that seeks to develop adequate protections for registered voters who are victimized by this strain of fraud and deception. It is hoped that, in detailing the allegations of such fraud in Michigan, entities will be encouraged to enact effective safeguards to ensure this deception without a remedy does not occur again.
I. THE MICHIGAN CIVIL RIGHTS INITIATIVE: GETTING ON THE BALLOT
Michigan law allows for amendments to the state constitution to be placed on the ballot for voters to endorse with a majority vote. (30) Under article XII, section 2 of the Michigan Constitution, any state citizen may propose a ballot initiative by collecting a sufficient number of signatures of registered voters in the state in support of placing the initiative on the ballot. (31) Upon receipt of the signatures, the Secretary of State's office reviews the signatures and the State Board of Canvassers verifies their "validity and sufficiency," making an official declaration as to whether the petitioners garnered enough verified signatures to place the initiative on the ballot. (32)
In June 2003, the United States Supreme Court endorsed the use of affirmative action policies at the University of Michigan Law School. (33) Not long after the decision, Jennifer Gratz, a plaintiff in the case, teamed up with Ward Connerly to gather signatures for a ballot initiative that would amend the Michigan Constitution to ban the use of affirmative action "on the basis of race, sex, color, ethnicity, or national origin" in public education, employment, or contracting. (34) Gratz and Connerly named their initiative the "Michigan Civil Rights Initiative," or the MCRI. (35)
During the summer of 2004, after some signatures had been collected to place the proposal on the ballot, confusion arose in state courts over whether the language of the petition met the requirements of Michigan election law. (36) Gratz and Connerly opted to begin collecting signatures anew in 2005, circulating new petitions, with identical language, with an eye towards placing the ballot proposal on the 2006 ballot. The language and title of the initiative, and its potential to mislead Michigan voters as to its purpose, led some voters to later allege in federal court that the petition was written "deliberately ... in order to facilitate [the] fraud[ulent acts of the petitioners]." (37) These voters claimed that "[u]nless a prospective signer happened to notice a five-word phrase prohibiting 'preferential treatment' buried inside the small print of the 337-word amendment--and happened to know that 'preferential treatment' was a conservative codeword for affirmative action--the voter would have no clue that the petition had anything to do with [banning] affirmative action." (38)
A. Signature-Gathering for the Michigan Civil Rights Initiative
Between June and December 2005, hundreds of thousands of registered voters were approached and asked to sign a petition to place Gratz and Connerly's MCRI on the ballot in the November 2006 general election. (39) During that time period, according to the federal district court, the experiences of Michigan voters discussed above were but a handful of the fraudulent incidents that occurred throughout the state. (40) A federal court later found the incidents to be so widespread that it concluded that the MCRI campaign and their circulators engaged in a pattern of fraud that involved deceiving voters into believing that the petition supported affirmative action when, in reality, it would ban the practice. (41)
Much of the anecdotes and data regarding the acts of the MCRI petition circulators emerged from several hearings that the Michigan Civil Rights Commission conducted throughout the state in 2006. (42) Over five hundred affidavits were collected during the hearing process, (43) primarily from citizens who were either personally victims of "fraud and deceit" (44) or who "offered anecdotal or observational testimony about friends and/or relatives who signed the MCRI petition under the belief that they were signing a petition to support affirmative action." (45) In Detroit, one circulator informed college student Conuetta Wright that "people were trying to abolish affirmative action and that he was petitioning to keep affirmative action on the books." (46) Heidi Osgood witnessed another MCRI circulator inform a woman that the MCRI petition supported affirmative action. (47) The circulator did not respond when Osgood interrupted and accused the circulator of misleading the voter. (48) Samantha Canty claimed she was approached at a festival in Detroit and asked to sign the petition to "'keep affirmative action going.'" (49) Mark Bryant signed the petition only after the circulator assured him that it supported affirmative action. (50) Another circulator approached Andra Williams outside of a public library in a suburb of Detroit and asked her to sign a petition supporting affirmative action. (51) Williams signed the petition in reliance on that misrepresentation and only after the circulator assured her that the petition would not ban the program. (52) Judge Robert Ziolkowski of the Wayne County Circuit Court also was asked to sign a petition that purportedly supported affirmative action. (53) After he accused the circulator of misrepresenting the petition the circulator claimed that the signature collection agency that employed her instructed her to present the petition as a "pro-affirmative action ballot proposal." (54)
More stories of misrepresentation and fraud emerged at Michigan Civil Rights Commission hearings held in Flint, Lansing, and Grand Rapids. In Flint, registered voters testified that they felt upset that they were "deliberately lied to" and "duped into signing" the petition. (55) Fred Anthony, an African American registered voter, testified that when a circulator approached and asked him to sign a petition supporting affirmative action, he was informed that "the petition would help kids get into college and keep affirmative action in place." (56) Anthony signed the petition in reliance on those statements. (57) Former Flint Mayor Woodrow Stanley claimed he was approached on three separate occasions and at no point was told that the petition would get rid of affirmative action. (58)
Stories were no different in Grand Rapids. One registered voter recalled telling the Grand Rapids Press that she and her neighbors felt "'[b]amboozled'" and "'hoodwinked'" after being deceived into signing the petition. (59) Lupe Ramos-Montigny was approached at a Martin Luther King Day festival in the city and asked to sign the petition on the representation that it "'protected'" affirmative action in Michigan.(60) Ramos-Montigny "not only signed it, but persuaded her friends to sign it based on this misrepresentation." (61) On a separate occasion, Allison Krantz was at a street festival when a circulator approached her and "asked her if she cared about civil rights." (62) When Krantz replied in the affirmative, the circulator asked her to sign a petition to "'end all discrimination.'" (63) After recognizing the petition as an initiative to ban affirmative action, Krantz asked the circulator if the petition concerned affirmative action, to which the circulator replied, "it had nothing to do with affirmative action." (64)
Similarly, a community organizer from Grand Rapids named Sarah Smith testified in federal court that a circulator approached her in a shopping center, asking her "if she supported affirmative action." (65) When she said that she did, the circulator asked her to support a petition to keep affirmative action alive by helping to put the MCRI on the ballot. (66) When Ms. Smith asked to see the back of the petition to read the text of the initiative, she was shown only a "script" that the circulator had attached to the back of his clipboard. (67) The script instructed circulators to ask registered voters: "'Do you believe in affirmative action? If so we need to work together to save it by putting it on the ballot in November. Please help keep affirmative action alive. We need you to sign now.'" (68)
Testimony also emerged in federal litigation that the registered voters were not the only individuals claiming to have been "duped"--some circulators that the petition campaign hired to collect signatures also claimed to be just as misinformed or confused as the voters. In Detroit, the MCRI campaign, through a private company, hired Joseph Reed to collect signatures for the initiative. (69) Reed "read the petition and believed that it was against affirmative action." (70) After a supervisor in the petition company told him the initiative endorsed affirmative action, Reed "told potential signers that the petition supported affirmative action." (71) Reed testified that many voters who "could not read well or were in a hurry" relied on his statements and signed it based on his representation. (72) LaVon Marshall, another individual hired to collect signatures, claimed that she received similar instructions from Jennifer Gratz herself. (73) Another paid circulator, Exie Chester, observed her fellow circulators "telling 'everyone that it was a petition to help blacks get into college.'" (74) Chester then adopted that appeal and received an "'enthusiastic response,'" obtaining a great deal of signatures from registered voters. (75) Even Doyle O'Connor, a member of the State Board of Canvassers and one of the state officials charged with reviewing and certifying the collected signatures, witnessed the ruse "on several occasions" at a popular outdoor food market in Detroit. (76) According to the federal court opinion, the circulators approached O'Connor "several times and once asked him to sign a petition to help Black kids get into college." (77) After various discussions, the circulators told O'Connor they were "getting paid and that they did not care what the petition said, as long as they got paid." (78)
B. State Review of the Signatures Gathered for the MCRI
On January 6, 2005, Gratz and the MCRI campaign submitted their petition for the ballot initiative to the Secretary of State. (79) The Secretary of State's only review of the petition signatures was based on a random sampling of five hundred of the approximately 508,000 signatures filed. (80) Michigan law required at least 317,757 signatures to get the petition on the ballot. (81) Reviewing just five hundred of the over 500,000 signatures submitted, the office's report found that only fifty of the five hundred signatures were invalid because they were from non-registered voters or were otherwise facially defective. (82)
Operation King's Dream ("OKD"), a 501(c)(3) organization in Michigan that collected data about alleged fraud and misrepresentation, reviewed the same random sample of five hundred signatures to determine whether the Secretary of State's analysis was accurate. (83) Upon review, OKD submitted a challenge to the State Board of Canvassers and the Michigan Secretary of State, claiming that 325 of the signatures in the sample were either facially invalid or garnered by canvassers misrepresenting the petition. (84) Volunteers with OKD contacted individuals whose names and signatures were included in the sample and asked them whether they were led to believe that the initiative was one in support of affirmative action, rather than one that would ban affirmative action. (85) Those who agreed that they had signed the petition after it was misrepresented to them signed affidavits to support their individual allegation of fraud. (86) The affidavits included claims that at the time the voters signed the petition, circulators led them to believe "that the petition was a civil rights petition for affirmative action" and that they would not have signed the petition had they been "informed that the petition's purpose was to limit or end affirmative action." (87) Among the evidence the OKD volunteers collected were eighty-one affidavit statements from individuals who claimed, either in person or via a telephone interview, that the petition had been misrepresented to them when they signed it. (88) OKD also alleged that an additional 114 signatures were invalid "by 'implication'" since they were solicited by a circulator who allegedly deceived other voters... |
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