Fraudulent judgment in Michigan

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The Michigan Civil Rights Initiative, which would outlaw the use of racial or gender preferences by state agencies and public universities, survived yet another undemocratic assault by its opponents on Tuesday. A federal judge ruled that the court could not block the initiative from appearing on statewide ballots on Nov. 7. However, in what constitutes as an extremely underhanded jab at the initiative's proponents, Judge Arthur Tarnow, a Democratic appointee, found that petition sponsors had indeed "engaged in voter fraud."

The contrast in the judge's ruling reveals how rabid opponents of the initiative presented a case so flimsy and absurd that it failed to persuade even a judge obviously sympathetic to racial preferences. The group that filed the case, the Coalition to Defend Affirmative Action By Any Means Necessary (BAMN) regularly engaged in strong-arm tactics during the initiative's long road to the ballot by breaking up Michigan board meetings, going so far at one meeting as to storm the tables. Outside the federal courthouse where the case was being heard, BAMN supporters hounded lawyers with the grossest of vulgarities.

As we indicated, BAMN's argument was that the petition's sponsors had engaged in fraudulent practices by deceiving signatories of the ballot initiative into thinking they were signing a pro-affirmative-action measure, which they argued violated the Voting Rights Act. As Terrence Pell, a lawyer for initiative supporters explained yesterday in OpinionJournal.com, BAMN was asking the court to reinterpret the point of the Votings Rights Act. "Namely," he writes, "[courts] must strike black participation whenever officials have an inkling some blacks might have been confused about what they were doing." The point of the act is to make sure minority votes aren't stricken. This, despite the fact that every petition by law had on it the precise language of the initiative.

Fortunately, Judge Tarnow rejected BAMN's central argument, but not because it was frivolous. Rather, as Mr. Pell noted, the judge said there was no violation of the Voting Rights Act because initiative sponsors had "targeted all Michigan voters for deception without regard to race."

So, while the initiative survived, BAMN is very much pleased with the outcome. The judge's confirmation that fraud did occur gives enough leeway for an appeals court to reverse his ruling, or impose an injunction. The 6th Circuit Court of Appeals might find, for instance, that Judge Tarnow's "deception without regard to race" standard does violate the Voting Rights Act. If that happens, the repercussions will be much worse than the failure of the ballot initiative.