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Friday, February 15, 2008
Michigan's Proposal 2 ban on affirmative-action preferences, passed by 58 percent of that state's voters in November 2006, seems somewhat likely to be ruled unconstitutional by a U.S. District Court Judge David M. Lawson in the coming weeks or months. Not only did Judge Lawson previously issue a decision--later overturned--to temporarily block the enforcement of Proposal 2, he also has made several procedural calls against advocates of the measure in handling two lawsuits (later joined into one) seeking to have it overturned. Moreover, when Judge Lawson held a February 7 hearing on whether the cases should go to trial, both his line of questioning and the procedural calls he made suggested that advocates of Proposal 2 weren't exactly on his Valentine's Day shopping list. Throw all of these tea leaves together, and it's no big leap to read them as portending that Lawson will strike down Proposal 2 in a summary judgment (without holding a trial).
If Judge Lawson does issue a summary judgment ruling Proposal 2 unconstitutional, two developments are almost certain: An appeal of his ruling to the U.S. Court of Appeals for the Sixth Circuit, and the onset of headache-inducing confusion in Michigan as state agencies try to decide whether to comply with Proposal 2 while its legality remains up in the air.
One of the lawsuits challenging Proposal 2, filed by the NAACP and ACLU, argues that it violates the Equal Protection Clause by essentially walling off racial and ethnic minorities from receiving the same sorts of admissions preferences that public colleges give to other subsets of the population, such as military veterans or the children of alumni. The other lawsuit, filed by the group By Any Means Necessary, argues that, without affirmative action, college admissions criteria irremediably discriminate against black, Hispanic, and Native American applicants, so Proposal 2 has the effect of imposing a discriminatory system.
Judges on the Sixth Circuit have already expressed skepticism toward these arguments, concluding in a December 2006 ruling that they did not see any reason to forestall enforcement of Proposal 2 because they did not think the arguments made against it will prevail in the federal courts. And similar arguments were ultimately rejected by the U.S. Court of Appeals for the Ninth Circuit--in a decision that the U.S. Supreme Court declined to reconsider--in cases challenging California's Proposition 209, a 1996 ballot measure with language very similar to Proposal 2. So if Judge Lawson strikes down Proposal 2, the setback may well only be a temporary one.
The situation in Oklahoma is much different. There, officials are taking up a fairly simple question: whether the campaign on behalf of a proposed ban on affirmative-action preferences has enough signatures to get the measure on the ballot in November.
The campaign organization needed 138,970 valid signatures. And, partly because Oklahoma law allows only 90 days for such petition-gathering, it turned in fewer than it hoped. The 141,184 signatures that it submitted to state officials may seem like enough on the surface, but that total does not offer much in the way of a buffer. The invalidation of just 1.6 percent of their signatures could sink their campaign. On February 8, the Associated Press reported that Oklahoma Secretary of State Susan Savage had told the Oklahoma Supreme Court, which is ultimately responsible for the signature count, that she had found many duplicate signatures and cases where dozens of signatures were listed as being at the same address.