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The Need for Remedies to Combat Fraud in Ballot Initiatives

JURIST Guest Columnist Jessica George of St. John's University discusses the need for a cause of action to remedy fraudulent voting processes ...


Equal opportunity initiatives will always remain a hotly contested issue that incites passionate political action - so much so that it even inspires wealthy businessmen to lead a political crusade against affirmative action policies. People decide their stance on these issues based on their own principles and experiences because the initiatives impact citizens' lives in large ways. However, when a state takes a stance on affirmative action by making it easier to ban, there is a risk that minority voices will get drowned out by amplified majority voices. Thus, when this contentious issue is decided by a ballot initiative specifically, the government must protect both majority and minority citizens' right to be heard. Most importantly, the government must ensure that the ballot initiative process is untainted by fraud or deception that could lead to results contrary to the intent of the people.

In 2006, the citizens of Michigan used a ballot initiative to place a particular issue on the ballot: whether to ban equal opportunity programs in public housing, public education, and public contracting. A wealthy California businessman named Ward Connerly sought to end affirmative action programs by amending the Michigan state constitution [PDF], an arduous task. Connerly launched a campaign with the Michigan Civil Rights Initiative ("MCRI") [official website] to amend the constitution by garnering signatures to put the proposal on the general election ballot. Initially, the ballot initiative seemed like a fair measure. To place this contentious issue on the ballot, MCRI first had to gather 317,757 signatures in support of the proposal. By requiring proponents to gather enough signatures to place a proposal on the ballot, the state ensures that this is an issue that the citizens want to consider.

However, MCRI obtained the necessary signatures by training approximately 1,000 petition circulators, 600 of whom were paid independent contractors, to deceive voters into thinking that they were signing a proposal in support of affirmative action, instead of one that aimed to abolish equal opportunity initiatives. Virtually every one of the approximately 125,000 black Michigan voters who signed the ballot petition to ban affirmative action was deceived into signing it. White voters were also told that they were signing a proposal that promoted equal opportunity. Even the ballot petitioners themselves were deceived into believing they were actually circulating a petition that supported affirmative action.

Michigan citizens were outraged when they learned about the fraud used to gather their signatures. The proposal made its way onto the ballot anyway. A majority vote inevitably silenced the voices of the minority citizens at the polls, and Michigan amended its state constitution to ban all equal opportunity policies in public housing, public education, and public contracting.

Though citizens sought relief in federal courts, they did not have any relief under their only remedy: the Voting Rights Act of 1965 ("VRA") [PDF]. Congress enacted the VRA to abolish prevalent illegal barriers that prevented African Americans from casting their votes. However, in Operation King's Dream v. Connerly, the Michigan federal court held that minority voters did not have a remedy under the VRA. The court could not and did not dispute that the Michigan minority voters established that there was voter fraud in the electoral process. However, the court could not find a VRA violation because the minority voters participated in the electoral process on the same terms as non-minority voters.

In other words, both minority and non-minority voters were equally defrauded in the electoral process, so the minority voters were not treated any differently. The court found it "distressing" that its finding of a lack of discrimination was based on the fact that minority and non-minority voters had equal access to a deceptive political process. However, it reasoned that the Voting Rights Act is not a general anti-fraud statute and required a finding of unequal access.

Furthermore, fraudulent ballot initiatives allow a majority of voters' fears and prejudices to be expressed in policies that target minorities and restrict minority rights. When issues and initiatives that impact minority rights reach the ballot, fraudulent direct democracy campaigns allow decisions about minority rights to be based on negative group effect, negative stereotypes about the targeted group, and animus toward general counter-majoritarian elements of democracy.

Lastly, ballot initiatives that are used to decide issues like affirmative action set back minority communities in some of the most important facets of life. After Michigan amended its constitution to ban equal opportunity initiatives, the percentage of black students among those attaining bachelor's degrees in 2014 was 4.4 percent, the lowest since 1991; the percentage of black students among those attaining master's degrees was 5.1 percent, the lowest since 1989; the percentage of black students among those attaining doctoral degrees was 3.9 percent, the lowest since 1993; and the percentage of black students among those attaining professional school degrees was 3.5 percent, the lowest since the mid-1970's.

To protect ballot initiatives and, specifically, minority rights in ballot initiatives, there must be a federal cause of action that provides protection for voters who receive materially false information about the content and implications of proposals on ballot initiatives. I propose a cause of action for citizens when state authorities are unresponsive to fraudulent and deceptive practices during ballot initiatives, including during the signature-gathering process. When any voter or group of voters is denied relief by their state courts to remedy a fraudulent and deceptive practice, voters may institute a civil action for preventive relief, including an application in a United States district court for a permanent or temporary injunction or restraining order. This protects citizens' right to decide controversial issues through ballot initiatives and simultaneously ensures that process is fair.

Michigan voters still pay for the consequences of an unprotected ballot initiative today. When ballot initiatives are used to crusade against contentious issues that materially alter peoples' lives, the government must take all measures necessary to ensure all voices are heard.

Jessica George is a student at St. John's University.

Suggested citation: Jessica George, The Need for Remedies to Combat Fraud in Ballot Initiatives, JURIST - Student Commentary, July 27, 2017, http://jurist.org/student/2017/07/jessica-george-votingfraud-minorities.php.



This article was prepared for publication by Michael Hutter, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to him at commentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
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