The High Cost of Petitioning

The High Cost of Petitioning

June 27, 2006
Originally published in Overlawyered

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.