OPERATION KING'S DREAM v. CONNERLY Nos. 06-2144, 06-2258.
501 F.3d 584 (2007)
OPERATION 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).
United States Court of Appeals, Sixth Circuit.
Decided and Filed: August 28, 2007.
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.
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.
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,
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 —
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,
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
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,
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:
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.,
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 evidentiary 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:
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/06 GEN/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:
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 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.
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,
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,
A review of the Plaintiffs' complaint reveals that they requested only injunctive relief in the district court:
(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,
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
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,
For these reasons, we
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