Election fraud and the initiative process: a study of the 2006 Michigan civil rights initiative.

AuthorBenson, Jocelyn Friedrichs

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.

  1. 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...

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