After Michigan’s Board of Canvassers approved for Michigan’s November 2006 general election ballot a citizen-initiated proposal (“Proposal 2”) that would amend Michigan’s constitution to prohibit all sex- and race-based preferences in public education, public employment, and public contracting, Plaintiffs-Appellants/Cross-Ap-pellees Operation King’s Dream, along with other organizations and individuals, brought suit under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, against Ward Connerly, Jennifer Gratz, the Michigan Civil Rights Initiative committee (the “MCRI,” collectively, the “MCRI Defendants”), and against various Michigan officials (the “State Defendants”). The complaint sought only to enjoin the placement of Proposal 2 on the November 2006 general election ballot, alleging that the MCRI Defendants and their agents used racially targeted voter fraud in contravention of the Voting Rights Act to obtain signatures in support of Proposal 2. After bringing-suit, the Plaintiffs moved for a preliminary injunction to prevent Proposal 2’s placement on the ballot, and both Defendant groups moved to dismiss for failure to state a claim under the Voting Rights Act. The district court denied the Plaintiffs’ preliminary-injunction motion and granted the motions to dismiss (which, because of an evidentiary hearing, were converted into motions for summary judgmеnt).
The Plaintiffs now appeal the denial of their preliminary-injunction motion and the dismissal of their Voting Rights Act claim. In addition, the MCRI Defendants cross-appeal the admission into evidence of a state-issued report critical of the MCRI’s methods for obtaining signatures in support of Proposal 2. Notwithstanding the disturbing allegations underlying the Plaintiffs’ complaint, which the district court substantiated, because the opportunity to keep Prоposal 2 off the ballot has long since passed, the Plaintiffs’ appeal is dismissed as moot. Consequently, so too is the MCRI Defendants’ cross-appeal.
I. BACKGROUND
This is but one piece of litigation spurred by the Proposal 2 saga. As we speak, a federal constitutional challenge to those portions of Michigan’s constitution amended by Proposal 2 is proceeding through the district court.
See, e.g., Coal, to Defend Affirmative Action v. Granholm,
According to the MCRI’s website, it is a coalition “from across the political spectrum” opposed to “policies that divide based on our skin color, sex, national origin, ethnicity, and race.” The Michigan Civil Rights Initiative: Get Involved, http://www.michigancivilrights.org/ getinvolved.html (last visited Aug. 11, 2007). To this end, from approximately July 2004 through December 2004, the MCRI, with the assistance of paid agents, solicited signatures in support of placing a statewide ballot initiative that would later become Proposal 2 on Michigan’s November 2006 general eleсtion ballot. Proposal 2 has been characterized as “anti-affirmative action.”
Operation King’s Dream,
A Proposal to amend the Michigan Constitution by adding a Section 25 to Article I that would: (1) prohibit the University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting; (2) prohibit the State from discriminating against, or granting preferential treatment to, any individual or grouр on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting; (3) define for purposes of this section “State” as including, but not necessarily limited to, the State itself, any city, county, public college or university, community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan; (4) not apply to actions that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds; (5) not affect bona fide qualifications based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting; (6) allow remedies as are now allowed by law; (7) be self-executing and its provisiоns sev-erable; (8) set an effective date; (9) not invalidate any court order or consent decree that is in force as of the effective date.
Operation King’s Dream,
On January 6, 2005, the MCRI submitted 508,202 signatures in support of its initiative petition.
Id.
at
*2.
To qualify its initiative for the November 2006 gener: al ballot, the MCRI needed to submit only 317,757 valid signatures, representing ten percent of the total votes cast in the last election for governor.
See
Mich. Const., Art 12, § 2. The Michigan Seсretary of State reviewed the petition for irregularities and, after analyzing 500 random signatures, issued a report discounting fifty signatures because they were facially defective or because the signer was not a registered voter.
Id.
Operation King’s Dream and another like-minded group, the Coalition to Defend Affirmative Action
&
Integration and Fight for Equality by Any Means Necessary (“BAMN”), however, conducted their own review of the sаme 500 sample signatures and concluded “that a significant number of the sampled signatures were procured by MCRI circulators through fraud.”
Mich. Civil Rights Initiative v. Bd. of State Canvassers,
On July 19, 2005, Michigan’s Board of Canvassers heard challenges to the pеtition and testimony regarding the claims of deception and fraud.
Operation King’s Dream,
After the motion to certify failed, the MCRI filed a complaint for mandamus relief in the Michigan Court of Appeals, seeking an order requiring the Board of Canvassers to certify the initiative.
Mich. Civil Rights Initiative,
After filing a motion for reconsideration, which the Michigan Court of Appeals denied, Operation King’s Dream filed an application for leave to appeal to the Michigan Supreme Court. On March 29, 2006, the Court denied the application, with one Justice dissenting.
Mich. Civil Rights Initiative v. Bd. of State Canvassers,
On June 7, 2006, the Michigan Civil Rights Commission published a report titled Report on the Use of Fraud and Deception in the Gathering of Signatures for the Michigan Civil Rights Initiative, and submitted it to the Michigan Supreme Court in support of the intervenors’ motion for reconsideration. Id. Its comprehensive report summarized and set forth testimony from citizens who signed the MCRI’s petition because circulators told them that it supported affirmative action. Id. The report also included testimony from petition circulators who stated that they misled potential signers in this regard. Id. Along with the report, the Michigan Civil Rights Commission submitted a letter critical of the MCRI and its signature-gathering tactics, stating as follows:
This report presents evidence of shameful acts of deception and misrepresentation by paid agents of the Michigan Civil Rights Initiative....
Two notable and distressing truths emerge from the hundreds of pages of testimony included in the report. First, the instances of misrepresentаtion regarding the content of the MCRI ballot language are not isolated or random. Acts of misrepresentation occurred across the state, in multiple locations in the same communities, and over long periods of time. Second, the impact of these acts of deception is substantial. It appears that the acts documented in the report represent a highly coordinated, systematic strategy involving many cir-culators and most importantly, thousands of voters.
After exhausting state avenues of relief, on June 22, 2006, the Plaintiffs filed the instant suit in the United States District Court for the Eastern District of Michigan, seeking to enjoin Michigan officials from placing Proposal 2 on the November 2006 general election ballot, alleging that the Defendants violated Section 2 of the Voting Rights Act when the MCRI Defendants used racially targeted voter fraud to obtain signatures in support of its initiative petition. Section 2 of the Voting Rights Act prohibits all state-sponsored discrimination that results in a denial or abridgement of the right to vote. 42 U.S.C. § 1973;
see also, e.g., Moore v. Detroit Sch. Reform Bd.,
The district court held an evidentiary hearing on August 17, 2006, and heard oral arguments the next day. The district court, over the MCRI Defendants’ objection, also admitted into evidence the Michigan Civil Rights Commission’s report. Because the district court held an eviden-tiary hearing, the Defendant groups’ motions to dismiss were converted into summary-judgment motions, and, on August 29, 2006, the district court issued an opinion and order granting summary judgment to both Defendant groups and denying the Plaintiffs’ requеst for injunctive relief.
Operation King’s Dream,
The Court finds that MCRI and its circulators engaged in a pattern of voter fraud by deceiving voters into believing that the petition supported affirmative action. At the evidentiary hearing and oral argument conducted in this Court, neither the state defendants nor the MCRI defendants presented an adеquate defense either to the facts set forth in the Michigan Civil Rights Commission’s Report or to the testimony elicited during the evidentiary hearing. The evidence overwhelmingly favors a finding that the MCRI defendants engaged in voter fraud.
The Court finds that the conduct of the circulators went beyond mere “puf-fery” and was in fact fraudulent because it objectively misrepresented the purpose of the petition. As the Second Circuit stated in Vulcan Metals Co. v. Simmons Mfg. Co.,248 F. 853 (2d Cir.1918), the critical difference between puffing and fraud is that in the latter situation, the recipient of false information is in a position to reasonably rely on the assurances of the speaker....
In this case, some of the circulators of the MCRI petition were themselves led to believe that they were circulating a petition supporting affirmative action. Other circulators obviously knew that the petition opрosed affirmative action and deliberately misrepresented the petition’s purpose. In either situation, the signers were in a position to reasonablyrely on the circulators’ misrepresentations.
The MCRI defendants were aware of and encouraged such deception by disguising their proposal as a ban on “preferences” and “discrimination,” without ever fulfilling their responsibility to forthrightly clarify what these terms were supposed to mean. Jennifer Gratz’s confusion at the evidentiary hearing as to the purpose of the MCRI’s proposal supports the Court’s conclusion that the MCRI deliberately encouraged voter fraud and did nothing to remedy such fraud once it occurred.
Id. at *11-12.
The district court concluded that, although the Plaintiffs’ challenge was within the scope of Section 2 of the Voting Rights Act and state action was present, both Defendant groups were nonetheless entitled to summary judgment because the Plaintiffs failed to establish that circulator deception was specifically targeted at Black voters. Id. at *17. Additionally, the district court concluded that even if all Black voters’ signatures were stricken from the petitions, there would still have been enough signatures to place Proposal 2 on the ballot.
This timely appeal followed. On September 2, 2006, the Plaintiffs filed an emergency motion in this Court to enjoin the placement of Proposal 2 on the ballot pending appeal. This Court denied the motion. Operation King’s Dream v. Connerly, No. 06-2144 (6th Cir. Sept. 11, 2006) (order).
Consequently, Michigan’s November 2006 general election took place with Proposal 2 on the ballot. Michigan voters approved Proposal 2 with approximately 57.9% of the vote. See State Proposal — ■ 06-2: Constitutional Amendment: Ban Affirmative Action Programs, at http:// miboecfr.nictusa.com/elеction/results/06 GEN/90000002.html (last visited Aug. 11, 2007). Accordingly, Article 1 of Michigan’s constitution was amended to include a new section, titled “Affirmative Action,” which now reads, in part:
(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.
(2) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
Mich. Const., Art. 1, § 26.
The day after the election, some of the Plаintiffs, and other individuals and groups not part of this suit, filed a new action in district court against various public universities in Michigan and various Michigan officials, challenging the legality of this amendment under the United States Constitution. On December 19, 2006, the district court entered an injunction, stipulated to by the plaintiffs, the defendant universities, and the defendant officials, enjoining the application of the amendment to the admissions and financial-aid рolicies of Michigan’s public universities until July 1, 2007 (i.e., through the 2007 admissions cycle). Eric Russell, a white applicant to the University of Michigan Law School, intervened and sought a temporary stay of the stipulated-to injunction pending appeal. This Court granted the temporary stay pending appeal.
Coal, to Defend Affirmative Action,
This brings us to where we are today. The record and the district court’s factual findings indicate that the solicitation and procurement of signatures in support of placing Proposal 2 on the general election ballot was rife with fraud and deception. Neither Defendant group has submitted anything to rebut this. By all accounts, Proposal 2 found its way on the ballot through methods that undermine the integrity and fairness of our democratic processes. Nevertheless, we must be guided by law, not outrage, and it is to the law we now turn.
See United States v. Lanier,
II. DISCUSSION
The Plaintiffs appeal the district court’s denial of their motion for a preliminary injunction seeking to prevent Proposal 2 from being placed on the November 2006 general election ballot, and the district court’s grant of summary judgment to both Defendant groups. We reach neither issue because, although neither party expressly brought mootness to our attention, we hold that the Plaintiffs’ appeal is moot.
See Berger v. Cuyahoga County Bar Ass’n,
A review of the Plaintiffs’ complaint reveals that they requested only injunctive relief in thе district court:
[T]he plaintiffs request that this Court, after an appropriate hearing, grant a preliminary and final injunction restraining the defendants from placing the MCRFs proposed amendment on the November 2006 general election ballot. The plaintiffs further request that this Court expedite the time for answering of the Complaint and for discovery and, [sic] grant plaintiffs [sic] attorneys’ fees and costs and such further relief that is just and equitable.
(JA 25.) In substance, the Plaintiffs’ sought only to enjoin Proposal 2’s placement on Michigan’s November 2006 general election ballot.
The Plaintiffs’ request for injunctive relief has become moot. Proposal 2 was certified for the ballot; Proposal 2 was included on the ballot; the November 2006 election took place; the Michigan voters approved Proposal 2; and Michigan’s constitution was accordingly amended. Simply put, the opportunity to keep Proposal 2 off the November 2006 general election ballot has long since passed.
See Padilla v. Lever,
Nonetheless, the Plaintiffs ask this Court to invalidate those portions of Michigan’s constitution amended by the passage of Proposal 2 because Proposal 2 “gained its place on the ballot [through] repeated
In sum, because it is too late for us to grant the relief that the Plaintiffs requested in their complaint and litigated in the district court, any opinion that we issue addressing the merits of the their Voting Rights Act challenge would be advisory.
See, e.g., Hall v. Beals,
III. CONCLUSION
For these reasons, we DISMISS the Plaintiffs’ appeal as moot. Consequently, we also DISMISS the MCRI Defendants’ cross-appeal as moot.