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Why don’t rights ballot foes want a vote?

Racial preference supporters thwart democracy, lack confidence in stance

Douglas A. Kahn

O
pponents of the Michigan Civil Rights Initiative have tried a variety of ways to try to keep it off the ballot, even though supporters provided more than enough valid signatures. The initiative proposes barring the state, its schools and other units of government from giving racial preferences in awarding benefits.

I have difficulty understanding why many opponents are so determined to squelch an issue that is so ripe for discussion and prevent the public from debating and resolving it. The extent to which they have sought to prevent a vote does not speak well of their commitment to democracy or their confidence in their position.

The passion this issue arouses in its opponents apparently may cloud their own sense of official and ethical responsibility.

Tax-funded partisanship?

A recent example involves the chair of the Michigan Civil Rights Commission, which has issued a report accusing Michigan Civil Rights Initiative proponents of fraud in gathering petition signatures. Several weeks after this, Commission Chair Mark Bernstein held a $150-a-person party in his Ann Arbor home to raise money opposing the passage of the initiative.

This partisanship suggests the commission’s report may be nothing more than advocacy by opponents of the referendum. It is important for government officials to appear to be impartial as well as to be so.

Commission members can have their personal views on issues, but when Bernstein plays an active role in stirring up opposition to a ballot measure, residents can’t trust his judgment when he acts in his official capacity as the Civil Rights Commission chair.

House Speaker Craig DeRoche has requested the state auditor general and attorney general to investigate the commission and the Michigan Department of Civil Rights to determine if they may have exceeded their powers by investigating the MCRI’s signature gathering. He wants to know if the Civil Rights Commission used taxpayer dollars to pursue a political investigation it shouldn’t have done.

Other ethical violations

Other unethical breaches have occurred. The Board of State Canvassers initially refused to put the Michigan Civil Rights Initiative, or MCRI, on the ballot because of worries about how the signatures were gathered. It did so even though Attorney General Mike Cox made it clear to the board that it lacked the authority to pass judgment on questions of alleged misrepresentations.

Proponents of the initiative obtained a court order requiring MCRI to be placed on the ballot. After a messy hearing in which a group calling itself “By Any Means Necessary” disrupted the proceedings, the board again failed to put the measure on the ballot.

Fed up with the board’s intransigence, the Michigan Court of Appeals then bypassed it and scheduled contempt hearings for two Democratic members who had prevented the MCRI from going on the ballot. Both eventually ended up resigning from the State Board of Canvassers. Both had to pay fines to resolve the cases.

Having lost that round, opponents are concocting other anti-democratic strategies. An officer of By Any Means Necessary is reported to have said that if she and her allies can’t block MCRI through court actions, they will urge city and county clerks to leave it off the ballot even though that would violate their official and legal obligations.

Instead of engaging in anti-democratic practices, opponents should be wrestling with the legitimate questions the Michigan Civil Rights Initiative has raised about the fairness and ethics of using racial preferences.

Wrestling with fairness

The University of Michigan Law School adopted a policy of affirmative action 42 years ago, and I was part of that committee. I was uneasy about basing decisions on racial differences, but I concluded that it was necessary to do so then to stimulate progress for a people who had been repressed for many years.

The affirmative action program has been successful. But the situation today is quite different from what it was 42 years ago.

Many people balk at the notion that racial preferences should continue for 50 or 100 years — or perhaps forever. The issue is whether, after four decades, current circumstances justify continuing the practice in university admissions, state government hiring and government contracting. I suspect that most Michigan voters don’t think so.

But opponents of the initiative are doing their best (or actually their worst) to see to it that we never find out how most Michiganians will vote on this issue.

Continuing racial preferences raises hard questions about ethics and fairness. One can only speculate about why the supporters of racial preferences are so afraid to have those questions answered by the citizens of Michigan.

If the issues are laid on the table and discussed, the public will come to the right conclusion — whatever that might be. Let the debate commence.

Douglas A. Kahn is the Paul G. Kauper professor at the University of Michigan Law School in Ann Arbor. Please fax letters to (313) 222-6417 or e-mail them to letters@detnews.com.

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