A radical pro-affirmative action group, By Any Means Necessary (BAMN), joined by Detroit’s mayor, Kwame Kilpatrick, have filed a Voting Rights Act lawsuit against the sponsors of the Michigan Civil Rights Initiative (MCRI) in federal court. MCRI is a ballot initiative would ban racial and gender set-asides and preferences in state contracting, employment, and public education. It is modeled on an earlier measure passed by California voters and upheld by the federal courts. BAMN argues that black voters who signed the petition to put MCRI on the ballot did so only because they did not realize it would restrict affirmative action, because they were confused by MCRI’s title, text, or misleading statements by MCRI signature gatherers. That, it claims, amounts to fraud.
BAMN’s lawsuit is factually groundless. Its fraud claims were considered and rejected by the Michigan Court of Appeals, which ordered MCRI placed on the ballot. MCRI’s text, which was presented to all petition signers, expressly prohibits racial preferences, eliminating any confusion about its effect on affirmative action. Moreover, the Voting Rights Act generally applies to the acts of state election officials, not private parties, and cases such as Delgado v. Smith, 861 F.2d 1489 (11th Cir. 1988), hold that the Voting Rights Act does not apply to initiative petitions.
BAMN’s lawsuit appears to be part of a pattern of intimidation. One BAMN official is accused of threatening MCRI executive director Jennifer Gratz with a knife.
BAMN’s suit is another example of how civil rights lawsuits are increasingly misused as political weapons or tools of censorship. For example, in Affordable Housing Development Corporation v. Fresno, 433 F.3d 1182 (9th Cir. 2006), a developer used the Fair Housing Act to sue citizens who publicly opposed a housing development, arguing that their petitioning of city officials resulted in the city not funding the project. That, the developer argued, had an unlawful “disparate impact” on minority groups destined to live in the development. The trial court initially accepted this argument, holding that the Fair Housing Act overrode the citizens’ right of free speech. Years later, the Ninth Circuit Court of Appeals rejected the lawsuit, holding that the citizens’ opposition to the project was protected by the First Amendment and the Noerr-Pennington doctrine. (The Noerr-Pennington doctrine protects citizens from antitrust and civil rights claims based on their speech and petitioning activity). It ordered the developer to pay the citizens’ crippling legal bills, which had risen to hundreds of thousands of dollars.
BAMN’s lawsuit would raise First Amendment problems even if it were true that voters misunderstood MCRI’s purpose, and even if MCRI’s sponsors knew of any erroneous statements about MCRI by signature gatherers. The courts have generally held that the First Amendment bars liability for speech in ballot initiatives and other political campaigns, even if the speech is knowingly false.