When courts shouldn't take the initiative: section 2 of the Voting Rights Act, initiative petitions, and Operation King's Dream.

• Author: Ambrosio, Francesca

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND OF SECTION 2 OF THE VRA A. History and Purpose Behind the Voting Rights Act B. The 1982 Amendments and the Supreme Court's Application of the New Section 2 C. Operation King's Dream II. PETITION CIRCULATION DOES NOT IMPLICATE VOTING A. Circulating a Petition Does Not Fit the Definition of Voting 1. Narrow Definition of Voting 2. Broad Definition of Voting B. Section 2 Benchmark Requirement Is Not Satisfied III. THERE IS NO STATE ACTION IN THE PETITION CIRCULATION PROCESS A. Private Citizens Are Not State Actors B. Actions By State Officials Are Ministerial in Nature C. Distinguishing Nomination and Initiative Petitions CONCLUSION INTRODUCTION

Well after the end of the Civil War, the abolition of slavery, and the passage of the Fifteenth Amendment, many African Americans were still unable to effectively exercise their right to vote) Finally, in 1965, Congress sought to remedy this situation by passing the Voting Rights Act ("VRA"). (2) The bill was dramatic and controversial, but commentators hail it as one of the most effective pieces of legislation of the civil rights movement. (3) It codified the Fifteenth Amendment and gave Congress a means of enforcing its guarantees. As amended, section 2(a) of the VRA provides that

[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.... (4) The main purpose of the legislation was to ensure not only that all citizens had a nominal right to vote, but that they had the ability to make their vote effective. (5) The VRA has substantially achieved that purpose. The number of minority voters increased dramatically after its passage, (6) and while voting discrimination (7) still exists, the wholesale exclusion of an entire segment of the American population is no longer an issue.

Although few have quarreled with the purpose or success of the VRA, the means used to achieve its goals have been controversial and widely disputed. Some critics have questioned the constitutionality of such sweeping legislation, (8) yet the Supreme Court has repeatedly upheld its constitutionality, (9) and the recent congressional renewal of various sections of the VRA suggests that it is here to stay. (10) Much of the controversy surrounding the VRA stems from difficulties in determining its exact scope. As the proportion of minorities in America increases, so does their inherent voting strength; yet recent years have seen an expansion of the application and scope of the VRA, along with a parallel increase in attempts to curtail its use. (11)

For example, in several recent cases plaintiffs have argued that sections of the VRA--such as the section 4 minority language requirement--should apply to the petition circulation process for initiatives. (12) The idea of applying section 2 of the VRA to the petition process seems unorthodox--the VRA specifically applies to voting and no voting occurs during this phase--and courts have struggled with how to address the dilemma. (13) In determining the scope of section 2, the question then becomes: when the text conflicts with the underlying purpose of the VRA, which controls? Thus far, three circuits have held that the text controls and that various sections of the VRA do not pertain to the petition circulation phase of an initiative. (14) In fact, only one case, Operation King's Dream v. Connerly, (15) has applied the VRA to the petition phase of an initiative.

The facts of Operation King's Dream contain no technical violation of the VRA, yet the alleged behavior may conflict with the ideal democratic processes the VRA sought to establish. The case arose after the Michigan Civil Rights Initiative ("MCRI"), a ballot question committee, (16) proposed Proposal 2 to amend the state constitution to prohibit preferences on the basis of race, sex, or national origin in hiring or admission decisions at public institutions. (17) Proposal 2 was controversial from the outset, (18) and after the election committee approved the petition, but well before the election, allegations emerged that some petition circulators had fraudulently represented the purpose of the initiative in order to obtain signatures. (19) Opponents of the initiative filed suit. Rather than alleging common law fraud or a violation of state election laws, they sought to apply section 2 to the initiative process based on the theory that racially-targeted fraud during the circulation process would spill over into racially-targeted fraud at the ballot. (20) Because Congress intended the VRA to protect the right to vote, the plaintiffs argued it should cover anything that hinders that fight at any stage of the process. (21) Under this view, evidence of racially targeted fraud with the potential to deny or abridge a citizen's fight to vote is sufficient to find a violation of section 2, regardless of where in the election process the fraud occurs. (22)

Despite their appealing policy considerations, these legal arguments for expanding the scope of section 2 are tenuous at best. This Note argues that interpreting section 2 to exclude initiative proposals during their circulation phase is the only way to avoid insurmountable statutory construction problems and constitutional objections. It grounds the theoretical discussion of the VRA in an analysis of how the court applied section 2 in Operation King's Dream. Part I provides the legal landscape of a section 2 claim, including relevant legislative history and the essential elements of a successful claim. Part II contends that because no voting takes place during the petition phase of a proposal, petition circulation can neither deny nor abridge the right to vote. Part III argues that interpreting section 2 so that it applies to acts of private citizens would eliminate the state action requirement, thus rendering section 2 unconstitutional. (23)

1. BACKGROUND OF SECTION 2 OF THE VRA

   This Part begins with an overview of the historical landscape at the time of the passage of the VRA and the basic means the VRA employed to remedy the situation. Section I.B then traces the major statutory and legal developments of the VRA since its enactment. Finally, Section I.C lays out how the court in Operation King's Dream applied this legal analysis to a situation involving initiative petitions.

   1. History and Purpose Behind the Voting Rights Act

      After the ratification of the Fifteenth Amendment, many southern states used devices such as poll taxes and literacy tests to disenfranchise black voters. (24) Because the southern states controlled Congress for much of the period before the passage of the Voting Rights Act, Congress did little to stop this disenfranchisement and enforce the guarantees of the Fifteenth Amendment. (25) Eventually, however, perhaps galvanized by the Supreme Court's progressive one-person, one-vote cases (26) and by mounting racial tension over voter registration in the South, (27) Congress passed the Voting Rights Act in 1965. (28) The Supreme Court hailed the VRA as a means to confront the "insidious and pervasive evil which had been perpetuated in certain parts of [the] country through unremitting and ingenious defiance of the Constitution." (29)

      The VRA pursued its objective of ensuring that no citizen's right to vote would be "denied or abridged" on account of race or color (30) by eliminating the use of literary tests and other devices often used to disenfranchise minorities, (31) and by requiring all "covered" jurisdictions (32) to obtain "preclearance" from the Department of Justice ("DOJ") before making any change in a voting practice or procedure. Three sections of the Voting Rights Act have emerged as the primary vehicles for enforcing the guarantees of the Fifteenth Amendment. Section 2 applies nationally, its language closely tracking that of the Fifteenth Amendment. (33) Section 2 cases are analyzed in terms of "vote dilution"--a violation occurs if the challenged standard, practice, or procedure dilutes the efficacy of a vote because of the voter's race. (34) Section 4 "suspended the use of particular exclusionary practices such as literacy tests." (35) Section 5 required that "covered" jurisdictions--those jurisdictions with extremely low minority voter turnout--seek federal preclearance in order to change any voting practices. (36)

   2. The 1982 Amendments and the Supreme Court's Application of the New Section 2

      The VRA had an immediate and dramatic effect, but it took time for litigants to decide which sections of the VRA would best serve their goals. The Act achieved its primary purpose of assuring equal access to the electoral process for all citizens, but concerns that blacks were unable to impact elections to the same extent as whites remained. (37) These concerns led citizens of Mobile, Alabama, to file a lawsuit challenging the at-large city council electoral system under section 2 of the VRA. (38) The Supreme Court denied relief, holding that plaintiffs must prove discriminatory intent in order to prevail under section 2. (39) For all practical purposes, this case, City of Mobile v. Bolden, silenced further section 2 vote-dilution litigation. (40)

      Congress responded to Bolden in 1982 and amended section 2 to prohibit voting practices or procedures that "resulted in a denial of equal electoral opportunity, regardless of ... intent." (41) Congress implemented the change primarily to make it easier for plaintiffs, who often could not establish proof of discriminatory intent, (42) to show that certain practices or procedures "diluted" the effectiveness of their vote. Amended section 2(a) reads as follows:

      [n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political...