Operation Kings v. Connerly

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0342p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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OPERATION KING’S DREAM; KWAME M.
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KILPATRICK; AMERICAN FEDERATION OF STATE,
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COUNTY & MUNICIPAL EMPLOYEES, (AFSCME),
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Nos. 06-2144/2258
AFL-CIO; SAMANTHA CANTY; BELITA H. COWAN;
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MARTHA CUNEO; LINDA DEE MCDONALD; >
MICHELLE MCFARLIN; PEARLINE MCRAE; SARAH -
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Plaintiffs-Appellants/ -
SMITH,
Cross-Appellees, -
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v.
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WARD CONNERLY; JENNIFER GRATZ; MICHIGAN
her official capacity as Secretary of State; KATHRYN -
CIVIL RIGHTS COMMISSION; TERRI LYNN LAND, in
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DEGROW; LYNN BANKES; DOYLE O’CONNOR, in
their official capacities as members of the state -
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Board of Canvassers; CHRISTOPHER THOMAS, in his
Defendants-Appellees (06-2144), -
official capacity as State Director of Elections,
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TERRI LYNN LAND; KATHRYN DEGROW; LYNN
BANKES; DOYLE O’CONNOR; CHRISTOPHER -
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Defendants (06-2258), -
THOMAS,
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WARD CONNERLY; JENNIFER GRATZ; MICHIGAN
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CIVIL RIGHTS COMMISSION,
Defendants-Appellees/Cross-Appellants (06-2258). -
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-12773—Arthur J. Tarnow, District Judge.
Argued: July 25, 2007
Decided and Filed: August 28, 2007
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Nos. 06-2144/2258 Operation King’s Dream, et al. v. Connerly, et al. Page 2
Before: COLE and GILMAN, Circuit Judges; MARBLEY, District Judge.*
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COUNSEL
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.
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OPINION
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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
*
The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting
by designation.
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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, ___ F. Supp. ____,
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
Nos. 06-2144/2258 Operation King’s Dream, et al. v. Connerly, et al. Page 4
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, 708 N.W.2d 139, 142 (Mich. Ct. App. 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 protest that disrupted a public Board meeting, the Board certified the petition and
summary ballot language a few months later on January 20, 2006. Id. at 4.
After filing a motion for reconsideration, which the Michigan Court of Appeals denied,
Operation King’s Dream filed an application for leave to appeal to the Michigan Supreme Court.
On March 29, 2006, the Court denied the application, with one Justice dissenting. Mich. Civil Rights
Initiative v. Bd. of State Canvassers, 711 N.W.2d 82 (Mich. 2006). On April 18, 2006, intervenors
filed a motion for reconsideration asking the Michigan Supreme Court to delay deciding the motion
until the Michigan Civil Rights Commission—a state-funded watchdog group, authorized under
Michigan’s constitution, Mich. Const., Art. 5, § 29, and charged with investigating all allegations
of discrimination—had an opportunity to file a report regarding its investigation of election fraud.
Id. at *4.
On June 7, 2006, the Michigan Civil Rights Commission published a report titled Report on
the Use of Fraud and Deception in the Gathering of Signatures for the Michigan Civil Rights
Initiative, and submitted it to the Michigan Supreme Court in support of the intervenors’ motion for
reconsideration. Id. Its comprehensive report summarized and set forth testimony from citizens who
signed the MCRI’s petition because circulators told them that it supported affirmative action. Id. The
report also included testimony from petition circulators who stated that they misled potential signers
in this regard. Id. Along with the report, the Michigan Civil Rights Commission submitted a letter
critical of the MCRI and its signature-gathering tactics, stating as follows:
This report presents evidence of shameful acts of deception
and misrepresentation by paid agents of the Michigan Civil Rights
Initiative . . . .
....
Two notable and distressing truths emerge from the hundreds
of pages of testimony included in the report. First, the instances of
Nos. 06-2144/2258 Operation King’s Dream, et al. v. Connerly, et al. Page 5
misrepresentation regarding the content of the MCRI ballot language
are not isolated or random. Acts of misrepresentation occurred across
the state, in multiple locations in the same communities, and over
long periods of time. Second, the impact of these acts of deception is
substantial. It appears that the acts documented in the report represent
a highly coordinated, systematic strategy involving many circulators
and most importantly, thousands of voters.
(Joint Appendix (“JA”) 26–27.) Notwithstanding the report and letter, on July 13, 2006, the
Michigan Supreme Court denied the intervenors’ motion for reconsideration, with two Justices
dissenting. Mich. Civil Rights Initiative v. Bd. of State Canvassers, 716 N.W.2d 590 (Mich. 2006);
see id. at 592 (Kelly, J., dissenting) (“The issues involved are of enormous public importance and
merit full briefing and oral argument before the Court makes its final decision.”).
After exhausting state avenues of relief, on June 22, 2006, the Plaintiffs filed the instant suit
in the United States District Court for the Eastern District of Michigan, seeking to enjoin Michigan
officials from placing Proposal 2 on the November 2006 general election ballot, alleging that the
Defendants violated Section 2 of the Voting Rights Act when the MCRI Defendants used racially
targeted voter fraud to obtain signatures in support of its initiative petition. Section 2 of the Voting
Rights Act prohibits all state-sponsored discrimination that results in a denial or abridgement of the
right to vote. 42 U.S.C. § 1973; see also, e.g., Moore v. Detroit Sch. Reform Bd., 293 F.3d 352, 363
(6th Cir. 2002) (“Section 2, unlike other federal legislation that prohibits racial discrimination, does
not require proof of discriminatory intent. Instead, a plaintiff need show only that the challenged
action or requirement has a discriminatory effect on members of a protected group . . . .”). The
Defendant groups filed motions to dismiss, and the Plaintiffs filed a motion for a preliminary
injunction.
The district court held an evidentiary hearing on August 17, 2006, and heard oral arguments
the next day. The district court, over the MCRI Defendants’ objection, also admitted into evidence
the Michigan Civil Rights Commission’s report. Because the district court held an evidentriary
hearing, the Defendant groups’ motions to dismiss were converted into summary-judgment motions,
and, on August 29, 2006, the district court issued an opinion and order granting summary judgment
to both Defendant groups and denying the Plaintiffs’ request for injunctive relief. Operation King’s
Dream, 2006 WL 2514115, at *19. Before reaching these conclusions, however, the district court
found that the MCRI engaged in widespread fraud:
The Court finds that MCRI and its circulators engaged in a
pattern of voter fraud by deceiving voters into believing that the
petition supported affirmative action. At the evidentiary hearing and
oral argument conducted in this Court, neither the state defendants
nor the MCRI defendants presented an adequate defense either to the
facts set forth in the Michigan Civil Rights Commission’s Report or
to the testimony elicited during the evidentiary hearing. The evidence
overwhelmingly favors a finding that the MCRI defendants engaged
in voter fraud.
The Court finds that the conduct of the circulators went
beyond mere “puffery” and was in fact fraudulent because it
objectively misrepresented the purpose of the petition. As the Second
Circuit stated in Vulcan Metals Co. v. Simmons Mfg. Co., 248 F. 853
(2d Cir. 1918), the critical difference between puffing and fraud is
that in the latter situation, the recipient of false information is in a
position to reasonably rely on the assurances of the speaker . . . .
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In this case, some of the circulators of the MCRI petition were
themselves led to believe that they were circulating a petition
supporting affirmative action. Other circulators obviously knew that
the petition opposed affirmative action and deliberately
misrepresented the petition’s purpose. In either situation, the signers
were in a position to reasonably rely on the circulators’
misrepresentations.
The MCRI defendants were aware of and encouraged such
deception by disguising their proposal as a ban on “preferences” and
“discrimination,” without ever fulfilling their responsibility to
forthrightly clarify what these terms were supposed to mean. Jennifer
Gratz’s confusion at the evidentiary hearing as to the purpose of the
MCRI’s proposal supports the Court’s conclusion that the MCRI
deliberately encouraged voter fraud and did nothing to remedy such
fraud once it occurred.
Id. at *11–12.
The district court concluded that, although the Plaintiffs’ challenge was within the scope of
Section 2 of the Voting Rights Act and state action was present, both Defendant groups were
nonetheless entitled to summary judgment because the Plaintiffs failed to establish that circulator
deception was specifically targeted at Black voters. Id. at *17. Additionally, the district court
concluded that even if all Black voters’ signatures were stricken from the petitions, there would still
have been enough signatures to place Proposal 2 on the ballot.
This timely appeal followed. On September 2, 2006, the Plaintiffs filed an emergency motion
in this Court to enjoin the placement of Proposal 2 on the ballot pending appeal. This Court denied
the motion. Operation King’s Dream v. Connerly, No. 06-2144 (6th Cir. Sept. 11, 2006) (order).
Consequently, Michigan’s November 2006 general election took place with Proposal 2 on
the ballot. Michigan voters approved Proposal 2 with approximately 57.9% of the vote. See State
Proposal - 06-2: Constitutional Amendment: Ban Affirmative Action Programs, at
http://miboecfr.nictusa.com/election/results/06GEN/90000002.html (last visited Aug. 11, 2007).
Accordingly, Article 1 of Michigan’s constitution was amended to include a new section, titled
“Affirmative Action,” which now reads, in part:
(1) The University of Michigan, Michigan State University, Wayne
State University, and any other public college or university,
community college, or school district shall not 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.
(2) The state shall not 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.
Mich. Const., Art. 1, § 26.
The day after the election, some of the Plaintiffs, and other individuals and groups not part
of this suit, filed a new action in district court against various public universities in Michigan and
various Michigan officials, challenging the legality of this amendment under the United States
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Constitution. On December 19, 2006, the district court entered an injunction, stipulated to by the
plaintiffs, the defendant universities, and the defendant officials, enjoining the application of the
amendment to the admissions and financial-aid policies of Michigan’s public universities until
July 1, 2007 (i.e., through the 2007 admissions cycle). Eric Russell, a white applicant to the
University of Michigan Law School, intervened and sought a temporary stay of the stipulated-to
injunction pending appeal. This Court granted the temporary stay pending appeal. Coal. to Defend
Affirmative Action, 473 F.3d at 253. The Supreme Court denied the plaintiffs’ motion to vacate this
Court’s temporary stay. Coal. to Defend Affirmative Action v. Granholm, 127 S. Ct. 1146 (2007).
That suit is still pending in the district court.
This brings us to where we are today. The record and the district court’s factual findings
indicate that the solicitation and procurement of signatures in support of placing Proposal 2 on the
general election ballot was rife with fraud and deception. Neither Defendant group has submitted
anything to rebut this. By all accounts, Proposal 2 found its way on the ballot through methods that
undermine the integrity and fairness of our democratic processes. Nevertheless, we must be guided
by law, not outrage, and it is to the law we now turn. See United States v. Lanier, 73 F.3d 1380,
1400 (6th Cir. 1996) (Jones, J. dissenting) (“One of the cardinal principles that guides . . . appellate
review . . . is to insure that outrage at the egregiousness of the complained of conduct has not
intruded upon the application of neutral principles of law.”).
II. DISCUSSION
The Plaintiffs appeal the district court’s denial of their motion for a preliminary injunction
seeking to prevent Proposal 2 from being placed on the November 2006 general election ballot, and
the district court’s grant of summary judgment to both Defendant groups. We reach neither issue
because, although neither party expressly brought mootness to our attention, we hold that the
Plaintiffs’ appeal is moot. See Berger v. Cuyahoga County Bar Ass’n, 983 F.2d 718, 721 (6th Cir.
1993) (“[W]e address the problem of mootness on our own motion.”).
A review of the Plaintiffs’ complaint reveals that they requested only injunctive relief in the
district court:
[T]he plaintiffs request that this Court, after an appropriate hearing,
grant a preliminary and final injunction restraining the defendants
from placing the MCRI’s proposed amendment on the November
2006 general election ballot. The plaintiffs further request that this
Court expedite the time for answering of the Complaint and for
discovery and, [sic] grant plaintiffs [sic] attorneys’ fees and costs and
such further relief that is just and equitable.
(JA 25.) In substance, the Plaintiffs’ sought only to enjoin Proposal 2’s placement on Michigan’s
November 2006 general election ballot.
The Plaintiffs’ request for injunctive relief has become moot. Proposal 2 was certified for
the ballot; Proposal 2 was included on the ballot; the November 2006 election took place; the
Michigan voters approved Proposal 2; and Michigan’s constitution was accordingly amended.
Simply put, the opportunity to keep Proposal 2 off the November 2006 general election ballot has
long since passed. See Padilla v. Lever, 463 F.3d 1046, 1049 (9th Cir. 2006) (“The plaintiffs[’] . .
. claim for injunctive relief [preventing the election] has become moot. The recall election has
occurred, and the term of office filled by that election has expired.”); cf., e.g., Parsons Inv. Co. v.
Chase Manhattan Bank, 466 F.2d 869, 871 (6th Cir. 1972) (holding that the propriety of a district
court’s decision to deny an appellant a preliminary injunction prohibiting the sale of stock was moot
where the stock was sold prior to the appeal). Indeed, the Plaintiffs concede that their request for
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injunctive relief is moot (Plaintiffs’ Br. 42 (“As the election has already occurred that request [for
a injunctive relief] is now moot.”), rendering their entire appeal moot.
Nonetheless, the Plaintiffs ask this Court to invalidate those portions of Michigan’s
constitution amended by the passage of Proposal 2 because Proposal 2 “gained its place on the ballot
[through] repeated and systematic violations of the Voting Rights Act.” (Id.) This, however, is an
entirely new challenge that was never presented to the district court. The issue litigated in the district
court was whether fraud during the initiative petition process can serve as a basis for injunctive relief
under Section 2 of the Voting Rights Act to keep a proposal off the ballot. On appeal, and for the
first time, the Plaintiffs’ now attempt to advance a Section 2 claim seeking to invalidate a state
constitutional amendment. To be sure, this is a very different challenge than the one presented to the
district court and in the Plaintiffs’ complaint. Because the Plaintiffs present this argument for the
first time on appeal, we decline to address it. See, e.g., White v. Anchor Motor Freight, Inc.,899 F.2d
555, 559 (6th Cir. 1990) (“This court will not decide issues or claims not litigated before the district
court.”). Moreover, the Plaintiffs’ decision on appeal to alter the relief sought and transform the
cause of action further underscores that their appeal is moot.
In sum, because it is too late for us to grant the relief that the Plaintiffs requested in their
complaint and litigated in the district court, any opinion that we issue addressing the merits of the
their Voting Rights Act challenge would be advisory. See, e.g., Hall v. Beals, 396 U.S. 45, 48 (1969)
(holding that a case becomes moot whenever it “los[es] its character as a present, live controversy
of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law”).
Thus, the Plaintiffs’ appeal is moot. See, e.g., Weingarten Nostat, Inc. v. Serv. Merch. Co., Inc., 396
F.3d 737, 742 (6th Cir. 2005) (“[A]n appeal must be dismissed as moot when, by virtue of
intervening events, the court of appeals cannot fashion effective relief.”).
III. CONCLUSION
For these reasons, we DISMISS the Plaintiffs’ appeal as moot. Consequently, we also
DISMISS the MCRI Defendants’ cross-appeal as moot.