In the current legal and political environment, one should never rule a frivolous suit being successful, particularly regarding the civil rights initiatives lead by Ward Connerly. Lawsuits are even repeated exactly verbatim in the same state even after opponents lose, as was the case recently in Missouri challenging MoCRI's attempt to requalify for 2010.

But in Nebraska where voters approved the initiative in 2008, the game clock appears to be winding down with a positive result. NbCRI appears to have won on both late "signature ethics" challenges (the usual meta-"word game" the left plays with "affirmative action" and "deception") and the so-called "single subject rule." In fact, the judge's ruling on that issue is very important, as it represents a common-sense rebuff to the left on an old strategy they played somewhat successfully with the Florida Supreme Court in 2000, and it has bearing on several future states CRI's might appear in.

Below the fold I'm including the raw text of the decision as well as NbCRI's press release. Enjoy.

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The ACRI blog documents this mastery of frivolous abuse of process in Missouri.

The Missouri Secretary of State Jean Carnahan is submitting the same ballot summary proposal language that a court rejected last year, following a renewed request by MoCRI organizers to qualify for the 2010 ballot. That's an abuse of power of the highest level (reminding us of Doyle O'Connor).

Simultaneously, the ACLU has already stepped up its frivolty by filing a lawsuit based on arguments it also lost in the last legal battles in Missouri.

If this doesn't prove that preference-based affirmative action supporters will willfully abuse the legal system for the illegal and immoral purpose of financially draining opponents, I don't know what does.

It's been a couple months as my regulars here will recognize (hopefully still coming off RSS). Elections and consulting intervene, and most of my online work is reported at www.outsidelansing.com or www.Oaklandpolitics.com. But this is still the place for my thoughts on race issues and anything not fitting within the easy confines of those sites.

Over at the ACRI blog, LaShawn Barber has a nice commentary, with a good discussion thread, on banning VIP and legacy preferences, which originated from a Reason Magazine article early in 2008 by Shikha Dalmia, whom we mentioned ironically in our very last post here immediately below, two months ago, on the O'Bama presidency. Anyway, here's LaShawn's read on that article and the future of movement.

Shikha Dalmia is a Michigan writer formerly with the Detroit News. Here, in Forbes, she opines on how race preferences could be replaced with socio-economic alternatives - and how, if Barack O'Bama did it, he could transform the political landscape. The article was written just before O'Bama expanded his narrow margin, so keep it in that context. With his current margin, I'd expect to see nothing unusual out of his campaign - but that begs the question of whether he should act transformatively. For all the bluster of his change themed campaign, there is little substantively tranformative, especially on race issues, from O'Bama.

This is a topic I've addressed many times, dating as far as a Michigan Bar Journal op-ed I wrote in 2003 and other pieces for regional papers. I've suggested here recently that O'Bama could transform the landscape, as have observers like John Rosenberg over at Discriminations. Dalmia is spot on in her analysis, but, alas, I don't think its in O'Bama's heart and even if it were, we're not likely to see it from him pre-election, because his core constituency would react too harshly.

But imagine it as a mid-term ploy to help O'Bama 2012 re-election?

The brand new American Civil Rights Institute (ACRI) blog (Ward Connerly's national organization focusing on race issues), run by well-known blogger LaShawn Barber, has this piece pointing out a Saginaw News article two weeks ago about Saginaw Valley State University's reaction to Michigan's Proposal 2 of 2006 (Michigan Civil Rights Initiative, MCRI).

The article, by Andy Hoag, begins with this ridiculous assertion for a media source claiming to write news:

Michigan's ban on affirmative action has hurt minority recruiting at some colleges, but Saginaw Valley State University isn't among them.

Where's the evidence of a "hurt minority recruiting"?

Of course, the article is a glorification of how SVSU has evaded Proposal 2, as we'll implied in the lede. But get this:

By using focused recruiting and special scholarships as tools, SVSU has increased its share of under-represented minorities -- blacks, Hispanics and American Indians -- by 4.25 percent this fall, to 245 freshmen from 235.

This is the first full freshman class since voters passed Proposal 2 in November 2006, banning preferential treatment based on race. Some minorities already had received scholarships for fall 2007 before the proposal's passage.

It has hampered colleges such as Grand Valley State University in Allendale, where the number of under-represented minorities is down 30 percent this fall.

At Ann Arbor-based University of Michigan, which defended its affirmative action policy all the way to the U.S. Supreme Court, enrollment of minority students dropped to 10.47 percent this year from 10.85 percent last year.

Reverse engineer the math in paragraph one, and you realize that that's a 4.25% increase in absolute enrollment. Says nothing about overall percentages or relative increases in percentages. Then the third paragraph refers to a 30 percent decline, but we don't know whether that's relative to other percentages or absolute. U-M's decline is measured in relative percentages (not noting that the absolute number increased because overall enrollment also increased slightly faster than minority increases), and the fall is a tiny 0.38% fall, or relative to the base 3.5% change. Hardly a falling sky.

SVSU details some of its policies, which are right at the edge of legality:

''We make sure our admissions representatives are visiting high schools that have a large percentage of minority students,'' SVSU spokesman J.J. Boehm said.

SVSU also has relied on other scholarships -- private ones, which Proposal 2 does not affect -- to keep up minority freshmen enrollment.

''Through our private SVSU Foundation, there continues to be individual scholarships for which ethnicity is a consideration, based on the wishes of the donor,'' Boehm said. ''But those are administered through the foundation, not through the university's general fund.''

While visiting high schools with high minority populations might be good recruiting and legal, if that is the sole criteria of visitation and you admit it, it might be a violation. The true criteria for recruitment should be race-neutral NEED -- high schools that are underperforming, including rural and urban schools. That will automatically give you more minorities -- but the initial criteria is need, not race. Here, it sounds like Boehm's criteria is race.

Still, a tough area to litigate.

The good news is that there are some scholarships that are need based, as the story of Jerika Beckom demonstrates.

A regular scholarship was key for SVSU junior Jerika Beckom.

Beckom, who grew up in Detroit and went to Detroit Community High, a charter school, received SVSU's Presidential Scholarship, a merit-based academic scholarship that provides full tuition for its recipients.

''It was extremely important for me to get that,'' she said. ''I come from a family that doesn't have a large income, and without that scholarship, I wouldn't have been able to go to school. People talk about getting loans, but it's hard to get them if you don't have parents with a decent credit score.''

While the Presidential Scholarship is not based on race, other private scholarships are available to minorities and underprivileged students through organizations such as the Mott Foundation.

Beckom said she is among 15 students from her senior class to attend SVSU because of those scholarships.

''It's important for those to remain available for us,'' she said. ''Most of us are coming from families with low incomes or families that haven't secured money for us to go to school.''

That should be the model. Beckom proves that you don't need a race-based scholarship system and that the real question of opportunity and equality is based on money and low incomes. Indeed, Beckom's own words echo this and say nothing about race - rather it says everything about financial obstacles. This echoed by yet another student:

''We have to have funds,'' said Davis, 21. ''In my case, I wouldn't be here without financial aid.''

If the left were truly invested in social equality, it would abandon the notion that race is the issue, and focus on the real obstacles.

The private scholarship question raised by SVSU Foundation rests on facts - is the SVSU Foundation truly private. That's a very interesting, and nuanced question. It will require some digging.

Alan Foutz, an attorney for the Pacific Legal Foundation, points up an attempt by the Michigan Department of Transportation to mis-read and misuse the federal requirement exemption of the Michigan Civil Rights Initiative (MCRI), or Proposal 2 (2006 - 02), here in a Lansing State Journal column. I encourage readers, despite the passing of the October 1 deadline for comments, to send MDOT and other relevant actors their own comments. The attempt mirrors California's equivalent of MDOT's attempt last year to get the US Department of Transportation to approve race-preferences and then to argue that the approval constituted a "requirement" conditioning federal money, which would thereby exempt the policy from the CCRI (or in this case MCRI). It should be vigorously resisted.

Here's a clip:

All contractors who want their bids evaluated in accordance with Michigan law and without regard to their race or sex, or the race/sex of the competition, should take note. MDOT will most likely continue to seek authorization for its race-conscious programs until it reaches the conclusion that it simply may not employ race- and sex-based preferences. Or until it gets sued.

Taxpayers should likewise be concerned, if not outraged. Studies have shown that race-based preferences result in higher construction costs.

However, there is an alternative. MDOT can comply with the Michigan constitution and remain eligible for its federal funding by committing to accomplish its 10.5 percent disadvantaged businesses participation goal by using race-neutral methods. Also, contractors competing for work on federally assisted projects will have their bids evaluated without regard to race or sex and Michigan taxpayers will be spared the extra costs of race and sex preferences.

MDOT has invited questions and comments that must be submitted before noon on Oct. 1. This is an invitation that should be accepted by anyone concerned with MDOT's race-conscious contracting programs.

If you're a follower of this blog, take heed. If you need help on how to help, contact me (my first name at firstnamelastname.com) and I'll give you some direction.

Over at the fabulous "Empirical Legal Standards" blog, a new program unveiled by the University of Michigan Law School called "Wolverine Scholars" is criticized as a move away from standards and a "rankings grab" designed solely to artficially bump U-M's average Law student GPA so as to also bring U-M up in national prestige rankings (which include GPA as a criteria).

One of ELS's comments points out the "elephant in the room," that the program, which would allow only U-M undergrads with a GPA greater than 3.80 who have not yet taken an LSAT to apply to Law School under "holistic review", would give U-M a perfect opportunity to bypass Proposal 2 (since it can't ask other undergrad schools for racial IDs, and since a student on U-M's own campus will have a reputation including racial identity that can be easily ascertained by fellow U-M Law School admissions officers with a few phone calls) because it further clouds the process and eliminates a standard of measurement (the LSAT test, meaning that future racial compositions couldn't be easily challenged because some of students wouldn't have comparative LSAT data EVEN AVAILABLE for review). The nice think about ELS's though, in a way, is that it ignores the race preference issue and is critical of U-M solely because the new system is standardless and will create other unintended consequences.

Read the whole analysis, and you'll get the gist of what's going on. We're following the story deeper as well, so stay tuned.

Jason Gillman over at Michigan Taxes Too Much raises a nice point about how "non-profits" really exist at the expense of the taxpayer and are "public". While this doesn't change the current interpretation of the law treating non-profits as private entities, it is a valid point philosophically so we reiterated our position generally against the very idea of non-profits (in the sense of government subsidy through by giving tax breaks to donors, not as a concept where someone or group spends after-tax dollars without making a profit).

Regardless, you can catch the full exchange at Gillman's site.

Ah. It's a bit more clear why the Detroit News opined against 10% plans.

According to the Michigan Daily, Rep. Rick Jones (R-Grand Ledge) proposed it in legislation recently. His idea, while I understand it is well-motivated, is misguided. MCRI's goal was never to dictate exactly how universities would respond - only to set the guidelines. Let's allow universities some time and flexibility in their response and see where that puts us before adopting anything like this.

Send Jones a (polite) note opposing this proposal at this time.

We missed covering it here during our upgrade of blog software, but this one is priceless.

Priceless.

If you're a regular, you'll remember Doyle O'Connor, former Board of Canvasser member who refused to follow a court order to place the Michigan Civil Rights Initiative (MCRI), or Proposal 2, on the ballot.

Well, the State Bar remembers him too, and they are investigating him for disciplinary action in his behavior on MCRI, according to this March 14, 2008 Livingston Argus-Press story. Zarko Research has known of the complaint for some time for various reasons, but we couldn't go into it because of our own involvement in the matter (which includes the video link below).

The priceless part? Obviously forces are rallying to call Doyle a hero and say the Bar should drop charges. One them is Michigan Democratic Party ruler Mark Brewer, known for his own iron-fist within the party (honest Dems will tell you many a story).

More than a dozen individuals and groups, including the Michigan Democratic Party and the League of Women Voters of Michigan, have urged the state Attorney Discipline Board to drop the charges. The board tries and disciplines lawyers for alleged misconduct.

"It's really an outrage," said state Democratic Party Chairman Mark Brewer. "If lawyers are going to be subjected to this kind of second-guessing for acts as a public official, why would any lawyer want to serve in public office? This is a political vendetta."

Wait. That's the same Mark Brewer that swatted at our cameras 2.5 years ago when he was giving the same Doyle O'Connor "orders" on how to vote. I guess he doesn't want anyone second-guessing O'Connor's "acts as a puppet-err-public official" while operating under comrade Brewer's orders.

Here's Brewer (check him out 28 seconds in), caught red-handed giving Doyle his marching orders, and not so happy at my camera.

In its "quick hits" editorials, the Detroit News opines that a 10% plan for Michigan in the wake of Proposal 2 is a bad idea. I didn't catch where this was being seriously considered, but I agree with the Detroit News here. The inflexible % plans create other issues that aren't worth it, particularly when, in Michigan, far improved local outreach and increased selectivity among the national pool of minority applicants, would be at least 75% effective. Add socio-economic tools and simply focusing on long-term repair of troubled K-12 districts, and U-Michigan should be able to accomplish what it needs in a decade. Of course, that implies that U-M policy makes will actually commit to a long-term program, rather than seek a short-term "fix", and such an implication is always dangerous in that ivory tower.

Rarely does this site do pitches for advertisers, but Ward Connerly's special to us.  Yes, I worked for him in the past - but this site is an activist site in addition to providing original investigative news and opinion analysis. And Ward Connerly certainly has relevance to Michigan - even though the battle is currently joined in Missouri.  And National Review Online considers Ward's "call to action" news as well, over at the Corner.

At right, I've created a clickable banner ad at the right while the offer lasts.  Ward realizes that when he asks people to work they need at least some compensation - even while they are ideologically motivated. Even left-wing petitioners and blockers pay their people - and in Missouri, the blockers are getting heavily paid, or are permanently payrolled union and BAMN thugs.  The anti-equality forces are throwing all they can at Ward, and he needs committed individuals to go to Missouri to help him collect signatures.  Missouri is a "non-residency" state, so anyone can petition.  And Ward's PAYING TRAVEL and you can easily make a thousand or more a week.

Great opportunity for college students, under-employed, or anyone wanting a couple of weeks "working vacation" learning the politics of another state and what petitioning is all about.  I've create this auto-forwarding e-mail - send your name, phone, and other contact info and it will get to Ward's staff immediately, or call the number on the ad and mention you saw the ad here. 

While I have a difficult time saying that a 55 page decision is well-written, I must give Judge David Lawson credit where it is due, and apologize for pigeon-holing him as a Clinton-appointee (although he does give unnecessary deference to really bad arguments, he doesn't take nearly as much liberty in wasting space on attacking the personal character of litigants like Judge Arthur Tarnow did in September 2006). Other than nitpicks, I'd have a hard time really trashing this opinion, which gets it (mostly) right, and certainly right in result.

Been reading the Judge Lawson 55 page tome on why BAMN's (and a novel new ACLU generated argument) convoluted, but I guess creative in its own perverse sense, arguments on why MCRI should be unconstitutional.

What's interesting is this new argument by the ACLU - that amending the Constitution is too hard and that MCRI, by amending the Constitution, has "changed the political structure" in a somehow unfair sort of way such that groups can no longer (as easily) lobby their universities for policy change. By changing the political structure, MCRI has violated equal protection.

These (ed: the "Cantrell"/ACLU) plaintiffs support their claim that obtaining a voter-approved constitutional amendment is more difficult than successfully petitioning individual university governing bodies to alter admissions policies by alleging, inter alia, the fact that access to the state ballot requires gathering signatures totaling “‘not less than eight percent . . . of the total vote cast for all candidates for governor at the last preceding general election.’” Id. at ¶ 53 (quoting Mich. Const. art. 2, § 9).

Of course, it is true, in an off-hand way, that petitioning individual university governing bodies is "easier" when you happen to control all the lobbying buttons in that arena (from professors to university administrators). The question is - does the ACLU, rife with resources, have equal access to the ballot system? Of course it does. But when you play on an unequal playing field for years, and control all the decision marbles at universities - save one, the voter who ultimately owns the universites - you might suddenly come to think that the world got awfully uneven.

But here's what I take from this perverse ACLU argument, by its own admission - what we accomplished at MCRI was awfully hard. Really, really hard. Of course, that's beside the point, and Judge Lawson thankfully saw through this - everyone has the same obstacles to face in amending the Constitution.

But here's another upshot - a contradiction. It was often argued, and indeed cited as a justification for legislation to make signature gathering even more difficult or impossible (through "buttons" identifying paid status, prohibitions on payment by signature, etc.) -- it has been repeatedly said that "signature gathering is too easy" and rules should be put in place to slow it. Well, from none other than the liberal "Ballot Initiative Strategy Center," a Soros operation that supports liberal ballot drives and helps (try to) utterly crush conservative or libertarian drives, Kristina Wilfore, says that the Michigan process is tough. Really tough.

There is also some ambiguity concerning just how onerous it would be to secure an amendment repealing Proposal 2. Kristina Wilfore, executive director of Ballot Initiative Strategy Center, Inc., a non-profit organization that researches and trains people in the ballot initiative process, has submitted a declaration on behalf of the Cantrell plaintiffs positing that state-wide ballot initiatives are typically expensive and time-consuming and often unsuccessful. She has also suggested that repealing Proposal 2 would be particularly difficult due to unique features in Michigan’s ballot initiative process and specific factors inherent in the subject matter of affirmative action. According to Wilfore, Michigan poses obstacles because (1) it is a “politically competitive state . . . with a large number of initiatives vying for voters’ attention on any given ballot”; (2) its media market is expensive when compared with other states; (3) the state constitution requires filing of petitions.” Cantrell Mot. for Summ. J, Ex. C, Wilfore Decl. at ¶¶ 29-32. In addition, she says that Proposal 2 would be particularly challenging to repeal due to the fact that (1) polling data regarding affirmative action is unreliable, i.e., individuals often behave differently when they get to the voting booth; (2) affirmative action is a tough cause to market because it is complex and elicits emotional responses; and (3) “[t]here is no single obvious financial benefactor who would support the pro-affirmative action policy.” Id. at ¶¶ 36-37.

Other than blatant and bold lied (no "obvious financial benefactor who would support the pro-affirmative action policy") at the end, Wilfore makes amending the Michigan Constitution sound sufficiently difficult. Add that to a list of contradictions MCRI opponents have uttered.

And while I'd admit the process is difficult, it is no more or less difficult than anything else in politics. In fact, in the case of this issue, the pro-Proposal 2 side faced a far more difficult signature-gathering task than a pro-repeal Proposal 2 petition-drive would ever face, at least on the signature end. That one side or the other might face a harder time with the voter is a political question - not judicial one.

Amanda Hamon of the Ann Arbor News picks up the irony with this priceless quote from BAMN member Kate Stenvig, who spoke out against Ward Connerly's appearance as a guest on a Federalist Society panel in Ann Arbor on Saturday.

"We are saying forcefully that he's not welcome in Michigan. We're asserting that every minority and woman student on campus deserves to be here and is equal to any white or male student,'' said U-M graduate student Kate Stenvig, a member of the U-M chapter of the pro-affirmative action group BAMN and the campus' Defend Affirmative Action Party.

If you apply the rules of English, you might think Stenvig was on the pro-equality (anti-preference) side, but ... I mean, if you are "asserting that every minority" deserves to be there, and that they are "equal", then I'd both agree, and point out that ending preferences would and should change nothing.

There's no question that we talk about the same word in quite different ways.