Opponents of MCRI Bring Suit in Federal District Court
to Exclude the Amendment from the Ballot.
Below are excerpts from the Oral Transcript of that Evidentiary Hearing.

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[ 1 ]

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
Case No. 06-12773
Hon. Arthur Tarnow

OPERATION KING'S DREAM, KWAME M. KILPATRICK, LOCALS 207 AND 312 OF THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES (AFSCME), SAMANTHA CANTY, BELITA H. COWAN, MARTHA CUNEO, LINDA DEE McDONALD, MICHELLE McFARLIN, PEARLINE McRAE, and SARAH SMITH, Plaintiffs,

vs.

WARD CONNERLY, JENNIFER GRATZ, and the MICHIGAN CIVIL RIGHTS INITIATIVE, and TERRI LYNN LAND, in her official capacity as Secretary of State; KATHRYN DeGROW, LYNN BANKES, and DOYLE O'CONNOR, in their official capacities as members of the State Board of Canvassers; and CHRISTOPHER THOMAS, in his official capacity as State Director of Elections, Defendants. __________________________________________

VOLUME 1 [excerpts] TRANSCRIPT OF MOTION FOR PRELIMINARY INJUNCTION AND MOTION TO DISMISS BEFORE THE HON. ARTHUR J. TARNOW UNITED STATES DISTRICT COURT JUDGE
Detroit, Michigan Thursday, August 17, 2006

* * * TO OBTAIN CERTIFIED TRANSCRIPT CONTACT: Denise A. Mosby, CRR, RMR, 313.961.6230

[15] . . .

MS. DRIVER: We are going to call Lawrence Fears. I'm going to just run out and get him.

THE COURT: Okay. Mr. Fears, would you raise your right hand.
LAWRENCE FEARS, PLAINTIFF'S WITNESS, SWORN.

A. My name is Lawrence Fears, F-E-A-R-S.

DIRECT-EXAMINATION BY MS. DRIVER:
Q. Good morning, Mr. Fears.
A. Good morning.
Q. Could you state your address, for the record?
A. 7460 Oakman Avenue, Apartment 4.
Q. Mr. Fears, where do you work?
A. Waste Water Treatment Plant, Detroit, Michigan.
Q. Are you a --
A. Sewerage plant operator.
Q. Thank you. Have you lived at your current address for a long time?
A. No. About -- I just recently left from over on Spencer. [ 16 ] Me and my wife went through a divorce.
Q. Are you a registered voter in Michigan?
A. Yes, I am.
Q. How long have you been a registered voter?
A. Since I was 18.
Q. Mr. Fears -- and how old are you now?
A. 57.
Q. I'm going to show you something which is a petition?
MS. DRIVER: If I can, Judge?

THE COURT: Yes, you may. And you don't have to ask permission. You have the free roaming of the court. Just keep your voice up. And if you are going to ask questions away from the podium, take the microphone with you, please.

MS. DRIVER: All righty.

BY MS. DRIVER:
Q. I will come to that in a minute. Mr. Fears, did you sign a petition?
A. Yes, I did.
Q. Have you signed many petitions around election issues?
A. Yes, I have.
Q. Did you sign a petition to ban affirmative action in this state?
A. Unknowingly I found out, yes, I did.

Q. What were the circumstances surrounding that? [ 17 ]
A. One day I was on my way to credit union, and as I approached to go in a lady approached me. She told me to sign the petition. I told her as soon as I come out, I will talk to her. I went into the credit union and came back out. I was reading the petition -- first I asked her what is this about. She said to keep affirmative action. I said wait a minute, it doesn't have nothing to do with Ward Connerly, does it, it is not supporting what he's trying to do. She said nah, I'm not trying to do that. I said okay. I signed it.

But as I was signing it, I noticed it looked like it was padded. I asked her how come it's not up there. She said we went didn't have room enough to put it up there. I said okay. Then I signed it. I told the people standing around me ya'll better watch what ya'll sign because there's a bunch of snakes out here trying to fool people. But I didn't know I was talking to a snake at the time. So, I went on and signed it.

And then later on -- well, when I went to the car, I started thinking about this thing looked like it was padded, and I kind of felt funny after I signed it. And I was thinking about it a few days later when John Riehl or Mike Mulholland called me and told me my name was on this thing to ban affirmative action.

I was livid when I heard it, because me, myself, [ 18 ] I would have had a problem -- a career in the military had it not been for racism and prejudice. And, you know, I seen -- at the time I was thinking about joining the military, I didn't even know what prejudice or racism meant. And when I found out, it just turned my life around and I just couldn't deal with it.

So, after that, he asked me would I sign an affidavit. I told him yeah. And I signed it, and I testified of it on the Boulevard at the Civil Rights Commission two months ago.

And I have been following this in the paper. And I'm seeing what these judges say, that it's okay for people to lie and cheat, you know, and just do what they can to get you to sign something. I couldn't understand that. So, I was happy that this came about, to try to keep this off the ballot. Because right now racism is destroying the country right now, you know, and it is just crazy what's happening in this world today.

Q. Mr. Fears, were you approached by anyone else to sign the anti-affirmative action ballot proposition?
A. Yes. Once before, I was over by the Fisher Building and somebody approached me, but I was running late for work that day so I just kept on going. I couldn't wait to get a chance to sign. And that is why the lady at the credit union caught me at that time and I had time to do it. [ 19 ]

Q. Do you remember roughly the date that you signed the petition?
A. It was on my birthday.
Q. What day is your birthday?
A. 9/17.
Q. In 2004?
A. Yes.

Q. Did you -- what does the term "affirmative action" mean to you?
A. Like I say, when I joined the military, I found out what prejudice and racism meant. I saw how they was treating me and other blacks that was in the company I was in, you know. And after I got out the military, I heard of affirmative action coming about, and I thought it was a good thing to help the blacks that couldn't achieve and you know -- to make the playing field even. Even after affirmative action, the playing field still didn't get even, but it was better than it was. By trying to get this on the ballot, I think they see us -- just trying to take us back to slavery. That's all I can see. That's the only thing I see why they are trying to get rid of it, because it never really helped us when we had it in place anyway.

Q. Mr. Fears, I'm going to show you this petition. Is this your -- let me show it to you first. [ 20 ]
A. Yes.
Q. Do you see your signature on it?
A. Right here.

MR. O'BRIEN: Your Honor, could we have that marked?

THE COURT: Do you have any objection to it being admitted after it's marked? Do you have a list of exhibits, Mr. Washington?

MR. WASHINGTON: No, Your Honor. Judge, we have a book of our exhibits. I'm sorry it came late.
THE COURT: Okay.
MR. WASHINGTON: May we approach to give it?
THE COURT: Yes.
MR. FETT: Your Honor, may I do so as well. I have a . . .
THE COURT: Sure. (Off the record.)
MS. DRIVER: It's Exhibit No. 29. Judge, I would move that this be admitted into evidence.
THE COURT: Any objection?
MR. FETT: No objection, Your Honor.
MR. O'BRIEN: No objection, Your Honor.
THE COURT: All right. It's received. (Plaintiff Exhibit 29 was admitted into [ 21 ] evidence.)

BY MS. DRIVER:
Q. Mr. Fears, why did you ask the woman who was circulating this about -- why -- about Ward Connerly?
A. Because as I read in the paper, I see he did the same thing in California. And then I found out through some research that he gets paid to do what he doing, hurting people. I mean the things that people do for money just amazes me sometimes. To hurt other people? I mean, you know. That is why I asked about Ward Connerly.

Q. So, you were familiar with Ward Connerly?
A. Yes, I was.
Q. And you were familiar with what affirmative action is?
A. Yes, ma'am.
Q. Mr. Fears, do you want this ballot proposal to be on the November ballot?
A. It shouldn't be because it is not there by honesty. It is just a lie. When you lie to do something, I mean you are not supposed to do it in the first place.
Q. Does your signature on this petition represent your desire to have this proposal on the ballot?
A. Wait a minute. Rephrase that.
Q. When you signed this, were you signing it to get this ballot proposition on the November ballot?
A. No, no, no. [ 22 ]
Q. One last question, Mr. Fears. You said you were a sewerage plant worker?
A. Operator, yes.
Q. Operator. Has affirmative action programs affected City workers in Detroit?
A. Yes, through promotions, some females, yes. It helps a lot.

MS. DRIVER: No further questions.

THE COURT: Cross-examination?

CROSS-EXAMINATION BY MR. O'BRIEN:
Q. Good morning, Mr. Fears.
A. Good morning.
Q. Just a couple questions. So, you acknowledge that you did in fact sign this petition?
A. Yes, I did.
Q. And you say that you did in fact read it?
A. Yes, I did.
Q. Okay. And doesn't the petition itself say that it's to ban preferences?
A. The petition I signed didn't have that on there.
Q. You say --
A. It didn't have all that writing up at the top like that does. [ 23 ]
Q. Okay. But this is your signature that you did identify. Is that correct?
A. Yes, it is. Yes.

Q. So, what did you read if it wasn't this language?
A. It was saying something that I really didn't understand. That's why I asked her what it was about. And then, like I say, the thing was padded. Some of that stuff was covered up because she had tape over it. You couldn't move the other papers. So, that is why I say when I got to the car, I felt like I had been deceived, but I wasn't sure.

Q. The language that you did read, did it say that it was to ban preferences?
A. It didn't read nothing clearly. That is why I had to ask her.
Q. Did you read the language all the way through?
A. No, I didn't.
Q. Do you generally sign petitions where you don't read the language all the way through?
A. No. The petitions I have signed before, I read them, and it was clear language. Then I went on and signed them.
Q. So, was it your testimony here today that this petition has been altered?
A. Yes, it has.
Q. Is that the petition you signed didn't have any of the [ 24 ] language at the top?
A. No.
Q. And did you report that to the Bureau of Elections at the time?
A. At the time I didn't know what to do.
Q. The question, sir, is did you ever report that to the Bureau of Elections?
A. No, I didn't.

MR. O'BRIEN: No further questions.

CROSS-EXAMINATION BY MR. FETT:
Q. Good morning, Mr. Fears.
A. Good morning.
Q. What was your address at the time that you signed this petition?
A. 20441 Spencer, Detroit, Michigan, 48204.
Q. You are certain that you signed the petition?
A. Beg your pardon?
Q. You're certain that you signed the petition?
A. Yes.
Q. Do you ordinarily read legal documents before you sign them?
A. As a rule, after being in the military, I have to sign them. They tell me to watch where I put my signature.
Q. I think you testified that the petition that was [ 25 ] presented to you was padded? I didn't hear the word.

A. It had -- it was -- it looked like it was padded. You know, like on a clear clipboard, you could lift papers up. This one you couldn't. It looked like they had a tape going around it. It seemed strange to me, but since it was something keeping affirmative action, I signed it. The petitioner told me that.

Q. The petition gatherer didn't prohibit you from reading the language that's above your signature, did they?
A. I beg your pardon?
Q. There was a signature gatherer asking you to sign this petition?
A. Right.
Q. Was that a male or a female?
A. Female.
Q. Black or white?
A. White.
Q. Okay. And did the person prohibit you from reading what the language is above where you signed?
A. Prohibit? No, she didn't prohibit me. But like I'm saying, the way they had the tape up there, you couldn't really read it all. That's why I questioned her about what it was about, to make sure what I was signing.
Q. Did you ask her to show you another petition so that you could look at the language so it wasn't taped over? [ 26 ]

A. No, I didn't. I am in the habit of taking people for their word. You know, you trust people first until they lie to you. And then you -- you know, that's the way I . . .

Q. Did you think that that circulator that was presenting that petition for you to sign -- did you think that this person was a lawyer?
A. I didn't -- I don't judge people. I wouldn't think she was.
Q. Just an ordinary person, as far as you can tell?
A. Yeah. Just somebody passing a petition around; an activist trying to, you know.
Q. Didn't have any special knowledge regarding the law or petitions, right?
A. Right.

Q. I want to ask you about employment. You testified about how you work at the City of Detroit, the Waste Water Division, and affirmative action has helped there. Right?
A. (Witness nodding head.)
Q. Yes?
A. Yes.
Q. You have to say yes because we are preparing a transcript here.
A. I'm sorry.

Q. That's all right. With regard to employment in general, do you [ 27 ] think any groups should get preferential treatment with regard to promotion?

A. Well, I really don't think you can call it preferable treatment. I think you should call it evening the player field. I don't think it's a preference. I mean, blacks have been held back so long, you know, even when they get educated, you know, they are still held back. They've got the degrees and everything, and it still -- sometimes it don't help.

Q. My question -- maybe I wasn't clear enough. If I wasn't, I'm sorry.

THE COURT: Let me suggest that he is being called for the purpose of saying whether he, in his view, was misled by the circulator. This is not a case that involves the merits, per se, of affirmative action programs either in the past or in the future. Therefore, if you have some questions that are relevant to whether he knew what he was signing, anything that's relevant to what the Plaintiffs asked, you may ask.

MR. FETT: Well, Your Honor, the reason I was asking is that he has testified that he didn't understand what the language of the petition means, and he has also told, in answer to counsel's question, what affirmative action means. So, I was trying to see if there's any identity of understanding between what's in that -- what he [ 28 ] knows is in the petition versus what his understanding of affirmative action is.

THE COURT: I understand where you're going. You may go somewhere else.
MR. FETT: Okay. I think that's all I have, Mr. Fears.
A. Okay.
MS. DRIVER: Thank you, Mr. Fears.

THE COURT: Thank you. You are excused. You may call your next witness.

MR. WASHINGTON: Your Honor, we would like to call Conuetta Wright.

THE COURT: Mr. Washington, as an efficiency suggestion, if you can have one of your folks by the door so they can just get the next witness, we can move this along.

MR. WASHINGTON: Okay. (Brief pause.)

THE COURT: As a housekeeping matter, I assume none of these petitions are going to be objected to by the Defense?

MR. FETT: I don't think so.

THE COURT: Okay.

MR. O'BRIEN: This is the first time I have seen any of these documents.

THE COURT: I understand. They will all be [ 29 ] admitted subject to your right to make a specific objection if one comes up. (Off the record.)

MR. WASHINGTON: I call Conuetta Wright.

THE COURT: Ms. Wright, would you raise your right hand, please.

CONUETTA WRIGHT, PLAINTIFF'S WITNESS, SWORN.
THE COURT: You may be seated.

DIRECT-EXAMINATION BY MR. WASHINGTON:
Q. Ma'am, would you state your name and address for the record, please?
A. Yes. My name is Conuetta Wright. I live at 6346 Artesian, Detroit, Michigan.
Q. How long have you lived in the city of Detroit?
A. I have lived in the city of Detroit all my life.
Q. And how long has that been?
A. 28 years.
Q. And with whom do you reside at that location?
A. With whom?
Q. Yeah.
A. Leon Calloway and my son DeAngelo Meredith.
Q. How old is your son now?
A. He is eight years old.
Q. Where do you work, ma'am? [ 30 ]
A. I work for the City of Detroit, Waste Water Treatment Plant.
Q. What do you do there?
A. I am a sewerage plant operator.
Q. Did you go to school in Detroit?
A. Yes.
Q. Where did you go to school?
A. I attended Northwestern High School.
Q. And have you had education beyond Northwestern High School?
A. Yes. I currently attend Madonna University.
Q. What program are you taking at Madonna?
A. History program and with a minor in criminal justice.
Q. And what year are you in?
A. Senior year.

Q. Now, Ms. Wright, are you a person who supports affirmative action?
A. Yes.
Q. And how long has that been the case?
A. Since I was able to vote and I learned about affirmative action.
Q. And why do you support it?
A. Because I -- I support it because it gives minorities opportunities to attend universities that they probably wouldn't be able to attend if affirmative action was not in [ 31 ] place, and it also gives employment opportunities.

THE COURT: Okay. I'm going to make the same request of you. The question is did she sign it, did she support affirmative action, and was she misled.

MR. WASHINGTON: Yes.
THE COURT: And we don't have to get into the advantages or disadvantages of affirmative action.
MR. WASHINGTON: Okay. Okay, Judge.

BY MR. WASHINGTON:
Q. Ms. Wright, did there come a time when somebody asked you to sign a petition?
A. Yes.
Q. Where did that occur?
A. That occurred at The Kid Spot on Michigan Avenue, west of Telegraph.
Q. And what caused you to be in that location?
A. I was shopping for my son's school clothes.
Q. Was he with you?
A. Yes.
Q. And was this right about the beginning of a school year?
A. No. Actually it was in the fall part. It was in late November.

Q. All right. And let me show you what has been marked for identification as Exhibit 22, and ask you if you see your signature on there? [ 32 ]
A. Yes.
Q. Yours is number two?
A. Yes.
Q. Is that your signature?
A. Yes, it is.
Q. Okay. Now, at this location in -- and where was this, where physically was this, what city was it in?
A. Dearborn Heights.
Q. It was at Michigan and Telegraph?
A. Yes. Q. And what happened at that location?

A. I was coming out of the shopping store, and a guy approached me, telling me about the affirmative action. He told me that they were trying to get rid of affirmative action and that they were having -- they were out petitioning for it to stay on the books. And he told me that if they got rid of it, then my son would not be allowed to attend universities such as U of M. So, I signed the petition.

Q. And what did he tell you the petition was for?
A. To keep affirmative action on the books, so minorities can have the same opportunities as others.
Q. And he made specific reference to your son who was standing there?
A. Yes.
Q. And the person who asked you this, was he white or black? [ 33 ]
A. He was white.

Q. After you signed it -- and when you signed it, you signed it to keep affirmative action, to support affirmative action?

A. Yes.
Q. Did you in any way sign it to put a proposal on the ballot to end affirmative action?
A. No.
Q. Did you find out some time later that that wasn't what you had signed that petition for?
A. Yes. I found out earlier this year reading the papers, and that's how I found out.

Q. Tell me about that. How did you find out?
A. Well, I was reading the papers, and then I got a call from my union vice-President. And he asked me did I understand what I was signing, and I told him no, I didn't. And he asked me could I, you know, explain to him what I thought it meant, and I told him. And then he explained to me what it meant. So . . .

Q. You told him what had happened to you in Dearborn?
A. Yes. I explained the scenario to him, what had happened.

MR. WASHINGTON: No other questions, Judge.
THE COURT: Cross-examination?

CROSS-EXAMINATION BY MR. O'BRIEN:
Q. Do you have the petition that you signed in front of you? [ 34 ]
A. Yes.
Q. Is this your signature on there?
A. Yes.
Q. And is this the form that you signed?
A. Yes.
Q. And when you signed it, did you read what the petition was about?
A. I was reading it as the guy was explaining it to me. And I did go over it.
Q. Did you read it all the way through?
A. I didn't get a chance to read it all the way through.
Q. Did you read the second line where it says that it bans preferences based on race?
A. Yes, I did.
Q. Okay. So you read that before you signed; is that correct?
A. Yes.

MR. O'BRIEN: Thank you.

MR. FETT: No questions, Your Honor.

THE COURT: Do you have follow-up?

MR. WASHINGTON: Yes.

REDIRECT-EXAMINATION BY MR. WASHINGTON:
Q. When you read that term "preferences," did that cause you any concern? [ 35 ]
A. No, because I didn't -- it is obvious that I didn't understand it, the language.
Q. Do you consider affirmative action to be a preference?
A. No.

MR. WASHINGTON: No other questions.

THE COURT: Any follow-up?

MR. O'BRIEN: Yes, Your Honor.

RECROSS-EXAMINATION BY MR. O'BRIEN:
Q. Your understanding of affirmative action is that you are selected for a position in a -- I think the example you gave was a university?

A. I don't look at it as being selective.
Q. Okay. What do you understand it to be?
A. I understand it to be giving us equal opportunity that's not afforded to minorities if it wasn't in place.
Q. If it was something more than that, if it was to give somebody preferences, would you be against it?
A. No.
Q. You would be for giving preferences to people then; is that correct?
A. Yes.
Q. And who are you for giving preferences to?
A. Anybody.
Q. Anybody, no matter what their race or gender; is that [ 36 ] correct?
A. That's correct.

Q. Okay. So, in essence, you are saying that everybody should have a preference?

A. What I'm saying is -- or what I mean to say -- I don't know how you are construing it. Affirmative action was fought because of -- this is what I'm understanding it to be -- for minorities who would not have the opportunity for employment areas or universities, educational things, because of the color of their skin or sex or gender, however.

Q. Let me go back a minute, because I think you just testified that you understood that affirmative action gave preferences to everybody.

MR. WASHINGTON: Objection. I think that mischaracterizes the testimony.

THE COURT: I think a more fundamental objection is that it's getting past the scope of redirect and past the scope of what this hearing is about.

MR. O'BRIEN: Fine, Your Honor. I have concluded.
THE COURT: Thank you.
MR. FETT: No questions, Your Honor.
THE COURT: Mr. Washington.
MR. WASHINGTON: None.
THE COURT: You are excused. Thank you very [ 37 ] much. . . . . .

[52] . . .

SARAH SMITH, PLAINTIFF'S WITNESS, SWORN.
THE COURT: Please be seated. You may begin.

DIRECT-EXAMINATION BY MS. DRIVER:
Q. Ms. Smith, could you state your name and your address for the record?
A. Sarah Smith, and that's Sarah with an H. I live at 1408 Prospect Avenue, Southeast Grand Rapids, Michigan.
Q. What do you do, Ms. Smith?
A. I am a community organizer.
Q. What type of -- what does that work involve?
A. It involves advocating for residents, speaking for those who cannot speak for themselves, working on issues of [ 53 ] concerns such as health care education, economic development and community development and working closely with the residents so that they are brought along in the whole process.

Q. Is your job in Grand Rapids?
A. Yes, it is.
Q. Is there a particular community that your work focuses on serving?
A. I serve -- I work at the Southeast Community Association, acronym SECA. It is an inner city neighborhood association where 82 percent of the residents are African-American. It's a specific target area assigned by the Community Development Block Grant.
Q. Ms. Smith, are you married?
A. Yes, I am.
Q. Do you have children?
A. Yes, grown children.
Q. How many?
A. I have two -- one daughter and two sons.
Q. Ms. Smith --

THE COURT: I'm going to ask you the opposite; to raise your voice or raise the microphone. You get more excited in opening statement than you do in questioning. And also get to the point.

MS. DRIVER: Thank you, Judge. [ 54 ]

BY MS. DRIVER:
Q. Ms. Smith, I'm going to show you a petition, and I'm going to ask you to see if your signature appears on it.
A. Okay.

THE COURT: And that's exhibit number?
MS. DRIVER: 23.
A. Yes, it does appear.

BY MS. DRIVER:
Q. And I'm going to ask you to just take a second and read the petition.
A. "The petition to amend the Michigan" -- (Interjection by court reporter.)
Q. I'm sorry. I'm going to just ask you to take a minute and read the petition.

THE COURT: To herself?
MS. DRIVER: To herself.
THE COURT: Okay.
A. Okay. Thank you. Okay.

BY MS. DRIVER:
Q. Ms. Smith, do you recall signing that petition?
A. Yes, I do.
Q. Can you describe the circumstances of that?
A. We have a neighborhood shopping center that we -- that I frequent myself ten, 12, maybe even more times a week. And I [ 55 ] was running in there just to pick up something and running out real quick when I was stopped by a gentleman who asked me if I believed in affirmative action. The gentleman was approximately five ten, five eleven, African-American, weighing about 145, 165 pounds, thin built with a goatee mustache and short black hair and rough complexion.

How do I know that? That's what we train residents to do in areas of public safety.

I told him absolutely, yes, I do believe in it. He said then, "Would you please sign. We need to work together to keep affirmative action alive and save it by putting it on the ballot for November. Please help us to keep it alive. Please sign now."

Q. Did you read the petition that he presented to you?
A. I can honestly say no, I did not.

THE COURT: That's fine. That's a yes or no. You may ask another question.

BY MS. DRIVER: Q. Is there a reason why you didn't read the petition?
A. There were so many petitions that were presented that week -- there were about five or six different people who were at the plaza that week. And I was rushing. And being conscious and civic-minded, I trusted the gentleman to be telling me the truth; that it was to keep affirmative action alive. [ 56 ]
Q. Did the gentleman show you something else that you read?
A. When I asked him for the back of the petition, he did not have it. He said, "But here's a script that you can read." And the script was just as I said. "Do you believe in affirmative action? If so, we need to work together to save it by putting it on the ballot in November. Please help keep affirmative action alive. We need you to sign now."

Q. Ms. Smith, why did you ask to see the back of the petition?
A. Because there's always more language on the back of that petition that tells you exactly what the petition is.

When you see something this small, it's like okay I'm rushing, you know, I don't have time to read it. But I wanted also to see if there were any other names. But he only had one piece of paper and a script that was taped to the back of the -- the clipboard, which I did not see at first.

We have a large problem with pan handling on the plaza, and that is why I gave him the riot act about no pan handling. The police will be called. He says, "Oh, no, no, no, I'm not here for that." And we got into the other conversation.

Q. Why do you remember the language so precisely?
A. I remember because he and I talked the same thing over about three times before I finally signed. And it stuck in [ 57 ] my mind because, you know, we had come up on the voting rights, that that should be renewed. So, it was only natural I thought that this also would be talking about preserving something that's so valuable within our communities and within the United States itself.

Q. When you read in the script the term "affirmative action," what did that term mean to you?
A. That meant that individuals who would not otherwise get a chance for the jobs or the education or even for the housing would have the ability to be considered; that there would be funds that would continue to float to the community as the community is impoverished. "Affirmative action" meant to me equal rights.
Q. If the gentleman had told that you the petition was aimed at banning affirmative action, would you have signed it?
A. Absolutely not. In fact, I would have made it a point to ask the store or the property owner to ask that person to leave, because knowing where they were going to be, in an African-American community, it would be targeted -- if it had said to ban it, there is absolutely no way I would have done it.

Q. Ms. Smith, how did you learn that you had signed a petition to ban affirmative action?
A. We have a local talk show, WJNZ, The Pulse of the City, and Robert S is the DJ. And he was talking about it, and I [ 58 ] was listening and not listening. And he said, well, there's a lot of people that I know that signed this petition, and he started reading it, and when he did, he read my name. And I'm like, oh, my Lord.

So, I went immediately to the radio station to get more feedback on what's happening. And I let -- I was on the air, and I let the community know that, you know, this -- we were duped. There is no other way to put it. We were duped.

Q. Ms. Smith, do you know of other people or did you witness other people signing the petition?
A. Yes, I did. Q. About how many other people did you see sign it?
A. In the course over the next three days, they were out there for about seven to eight hours. So, I would say the plaza generally gets anywhere from 200 to 400 people. It was at the right time. This was signed at the beginning of the month, which means Social Security checks were received and a lot of people would be shopping.
Q. And what is the racial composition of people who shop at that plaza?
A. Roughly about 65, 68 percent are African-American, 20 percent may be Latinos, and the rest is others.
Q. Ms. Smith, you support affirmative action?
A. Yes, I do. [ 59 ]
Q. Do you support even having an election that might risk banning affirmative action?
A. Are you asking me should this be on the ballot?
Q. Yes, I am.
A. Absolutely not.

MS. DRIVER: Thank you, Ms. Smith. No further questions.
THE COURT: Thank you. Cross-examination?

CROSS-EXAMINATION BY MR. O'BRIEN:
Q. Ms. Smith, just to be clear, you have the ballot that you signed in front of you. Is that correct?
A. Yes, I do.
Q. And the name as it appears on there, is that your signature?
A. Yes, it is.
Q. When you signed it, was the language at the top on that petition?
A. It was covered up. I didn't -- I did not see it clearly, no. It was there, but I did not --
Q. You knew it was there though?
A. Yes. I didn't know.
Q. And you knew that is what the petition you were signing was about?
A. I went solely on what the gentleman said; not so much as [ 60 ] reading the petition. I took him at his word.
Q. Did you ask to read it?
A. No, I don't believe I did. I glanced at it. That's all I did.
Q. Now, I note that the person who says that they circulated this is a -- it's hard to make out the name, but it appears to be a female. Are you sure that the person you talked to was male?
A. Yes, I am.
Q. Do you know what that person's name was?
A. No, I do not. I did not ask him for his name.

MR. O'BRIEN: No further questions.
THE COURT: Mr. Fett?

CROSS-EXAMINATION BY MR. FETT:
Q. Good morning, Ms. Smith.
A. Good morning.
Q. Would you support the ballot initiative if it banned preferences for particular groups and not for others?
A. Is that not what this petition is for, to ban? No, I wouldn't, because that's what this is, is to ban affirmative action. And I'm taking your question to say would I support this to ban affirmative action. No, I would not. Would you restate your question, please? [ 61 ]
Q. I'm just asking if you would support this ballot initiative if it was to ban preferences based on race or gender?
A. No.

MS. DRIVER: No further questions.
THE COURT: You are excused. Thank you very much. And if you want to stay in the courtroom you may. And you may call your next witness.

MR. WASHINGTON: We would like to call Doyle O'Connor.
THE COURT: Raise your right hand, please.
DOYLE O'CONNOR, PLAINTIFF'S WITNESS, SWORN.
THE COURT: You may begin.

DIRECT-EXAMINATION BY MR. WASHINGTON:
Q. Sir, would you state your name for the record, please?
A. Doyle O'Connor.
Q. Mr. O'Connor, in what city do you live?
A. Detroit.
Q. How long have you lived in Detroit?
A. 27 years I think approximately.
Q. And how long have you lived in the state of Michigan?
A. 53 years.
Q. That's probably pretty close to how old you are?
A. That would be correct. [ 62 ]

Q. Now, Mr. O'Connor, are you an attorney?
A. Yes, I am.
Q. How long have you been an attorney?
A. 26 years.
Q. What particular area of law have you practiced?
A. My primary focus is labor relations principally in the public sector that often involves litigation over constitutional issues and employment civil rights issues.
Q. And did you represent one side or the other?
A. I represented unions and individual employees almost exclusively, with some representation of employer groups.

Q. Now, Mr. O'Connor, was there a point in time when you were appointed to be a member of the State Board of Canvassers?
A. Yes.
Q. When was that?
A. I believe January of 2003, and I'm terrible on years.
Q. And how long did you serve as a member of the State Board of Canvassers?
A. Until this July.
Q. And did you resign at that time?
A. Yes, I did.

Q. Now, Mr. O'Connor, I want to ask you two sets of questions; one, in your capacity as a citizen and one in your capacity as a canvasser. [ 63 ]
A. Okay. Q. During the time you were on the Canvassers, did the issue of affirmative action come before the Board of Canvassers?
A. Yes, on several occasions.
Q. And were you, in general, familiar with the petition which Mr. Ward Connerly and Ms. Gratz and others were supporting in the state of Michigan?
A. Yes. It came before us I think preliminarily in December of 2003; I think it was the first time it came before us for approval as to the form of the language. And I reviewed the language at that time.
Q. And then when was the next time it came before you?
A. I'm terrible on years. I think it was July of 2004. The sequence was that it came before us for approval as to form. The Board voted to approve it as to form. The Circuit Court reversed us, and it came back in front of us, I think that was in July '04.
Q. When it came back in July '04, was there at least a claim that it had a sufficient number of signatures to go forward?
A. Not in July of '04.
Q. Okay. It was later that it came back?
A. Yes.

Q. All right. Now, let me ask you then as a citizen. In the fall of 2004, you were familiar with the Ward Connerly petition; am I correct? [ 64 ]
A. Yes.
Q. Did you observe anyone attempting to get signatures on this petition?
A. Yes.
Q. Where were you at the time you observed?
A. It occurred several times at the Eastern Market in Detroit on Saturdays while I was shopping.

Q. What is the racial composition of the crowd at Eastern Market on a Saturday morning?
A. It's probably the best mixed -- racially mixed crowd in the state at any point. I would say half black, half white, significant Arab and Indian, subcontinent populations, just about anything you can imagine in the city at Eastern Market on a Saturday.

Q. Did you observe anybody trying to circulate the Michigan Civil Rights Initiative?
A. Yes. On several occasions I saw two African-American females, I would say 20ish.
Q. Did one of those person or both of those persons ever approach you about getting a signature?
A. Yes, I was approached on several times. One young woman approached me and asked me to sign a petition to help black kids get into college.
Q. That was her phrase, "to help black kids get into college"? [ 65 ]
A. Yes, that was the opening.
Q. And was there further discussion after that?
A. Yeah. I looked at it and said, "Do you understand that this is not to help black kids to get into college, it's actually going to help prevent them from getting into college by outlawing affirmative action?" She or her cohort argued with me and said, "No, no, no. This isn't against affirmative action. This will protect affirmative action. It is only they will put it on the ballot so we can talk about affirmative action."

Q. And what, if anything, did you say to that?
A. I again told them that they were -- if they believed that, they were being lied to, and asked them why they were doing this. As this is happening, other people -- between the two of them, are asking other people to stop and sign it, telling them that it is a petition for affirmative action, a petition on affirmative action. And they were, quite bluntly, preferentially approaching primarily middle-aged black females, and they were skipping other people in the crowd and hitting on people that looked like their moms frankly.

Q. And your conversation about -- how many people did you see them approach saying it was for affirmative action, to keep affirmative action, to help black kids get into college, [ 66 ] and so forth?
A. Oh, a dozen or so.
Q. And did some of those persons sign?
A. Yes.
Q. Did you make any attempt to prevent them from signing?
A. I didn't make any attempt to prevent them from signing, but I commented to several that if you are going to sign this, you should know it is to outlaw affirmative action.
Q. And what, if anything, did the two circulators say when you said that?
A. Uhm, let me think. That is when they would switch to no, it's not. It's to just hold a discussion about affirmative action; or that no, it's not, it will protect affirmative action.

Q. Did somebody ever tell you any other reason why -- either of the circulators ever tell you why they were doing this?
A. Well, on the first occasion I talked to them, they said that they were volunteers and they were doing this because it would help black kids get into college. And I said to them bluntly, no, it is to keep you out. And eventually I think, with heightened frustration with having to talk to me, they finally said they were getting paid and they didn't care what it did as long as they got paid.

Q. How long did your first conversation with them last? [ 67 ]
A. Oh probably not longer than my description of it today, five minutes max probably. Probably less.
Q. Did you -- is there anything else you can remember unusual about that first conversation?
A. No.

Q. Was -- did you see the same group or anybody else attempting to get signatures on this petition at any point later?
A. On the, I think the next weekend, the next Saturday, I was approached again by two young women. One of them was the same as the first time, and I'm not sure about the other one. Her hair was different. I'm not sure.
Q. Okay.
A. And had a similar conversation. They approached me and asked me if I would sign the petition for affirmative action. The second time it was for affirmative action.

Q. And was there any signal that you got that they recognized you from the week before?
A. No, not as they approached me. Actually, they approached my wife first that time.
Q. And was there any further discussion on that second occasion?
A. Yeah. I asked them again, "Why are you doing this? I mean this petition is designed to take away rights from people who look like you." And the girls said, "We're [ 68 ] gettin' paid. We don't care." And I finally said, Look, would you pass a petition to outlaw" -- "to reverse the Thirteenth Amendment if you got paid?" And the one girl said, "Sure, why not." Her cohort dragged her away at that point.

Q. The second occasion were they also soliciting other persons?
A. Yes.
Q. Can you tell us about who they were soliciting?
A. Again, it was clear that they were overemphasizing trying to get signatures from African-Americans. And the crowd is about half black/half white, and most of whom they were hitting up were African-American.

Q. Now, on this occasion or these occasions when it -- did it happen again to you?
A. Not that anybody approached me directly. I mean, I had been -- I had seen people doing the petition, but not where I was in a direct exchange.
Q. Could you hear them on any of the other occasions?
A. Yeah. Yeah, at a drugstore in Detroit actually. Their line there was that it was a petition about affirmative action.
Q. About affirmative action?
A. Yes.
Q. Did you have any discussion with them at that drugstore? [ 69 ]
A. At that time, just in passing I said -- because they were asking somebody else to sign it, and I said, "It's not about affirmative action. It's to outlaw affirmative action."
Q. And was there anything further said in that discussion?
A. No.

Q. Were these incidents you saw or observed personally, did you think anything about this being a wider pattern or anything of that nature?
A. No. No. The two women who hit me up clearly were doing it for the money. And I have been involved in ballot proposal issues before, and you are always going to have somebody blowing smoke. I mean, you are going to have some petition circulators, whether it is a union issue or a political ballot proposal, you are going to have the occasional excess or puffery by somebody.

Q. Now, in your capacity as a member of the Board of Canvassers, at some point after that did it come before you, at least charges, that there was more than just an isolated incident occurring?
A. Yeah. If I remember correctly, that was Julyish of 2005.
Q. All right. And did it come before you on the basis of written submissions of any kind?
A. It was scheduled for a hearing before the Board. There were pleadings filed in advance. If I remember right, it was a book of exhibits that we got either before the hearing or [ 70 ] at the hearing. I don't remember the sequence, but there was a fair amount of documentation.

Q. And in your capacity as a member of the Board of Canvassers, did you reach any kind of decision in your own mind, your personal mind, as to what should be done about these allegations?
A. Well, on the fraud allegations, the Board as a whole -- I think individually we were -- at least three of us, based on statements at the meeting, found the evidence overwhelming and persuasive. That it wasn't --

MR. O'BRIEN: I'm going to object, Your Honor, as to the witness speaking as to others --

THE COURT: You may state what is your, as the attorney said, your personal thoughts.

A. Okay.

BY MR. WASHINGTON:
Q. What were your personal views?
A. That the proofs were overwhelming. I actually was shocked. We saw pleadings in advance saying essentially that there would be an effort to prove that this was fraudulently done. And I thought that a monumental undertaking to try to prove that to us, because it was a lot of signatures and you would have to convince us that a whole heck a lot of them were fraudulent before it really mattered. We are talking about thousands of signatures.

But the testimony we heard that day led me to conclude that it wasn't these two young women in the Eastern Market; that it happened statewide; that it happened in communities all over the state; and that it happened apparently, from the testimony, it happened consistently; that it was a pattern of conduct as opposed to isolated [71] excesses by individuals.

Q. Did you attempt to get anything done about this by the Board of Canvassers?
A. Yes. Member Bankes and I both asked -- and there was a motion made to call for a further investigation. The Board has done investigations in the past. We, I guess, arguably have subpoena power. We wanted a further investigation, to take more sworn testimony and to compel testimony from the proponents of the petition, from the MCRI.

Q. By the way, what position did the MCRI take before you as to whether there should be an investigation?
A. Well, they were opposed.
Q. They didn't want an investigation?
A. No.

Q. You said you made a motion for an investigation?
A. Yeah. I don't know which one of us actually made the motion. I either made it or seconded it.
Q. Okay. And what happened? [72]
A. If I remember the sequence correctly, it was at that meeting that -- preceding the meeting, one of the proponents of the ballot proposal, State Representative Drolett, who also served as chairman of the MCRI, used his status as a state representative to seek an Attorney General opinion, which state reps in Michigan can do, get a formal opinion, which would be binding on the Board, telling us that we couldn't do an investigation or hear the charges that you were bringing. The Attorney General's office did not issue a formal opinion, but they issued a letter that gave the appearance of being a formal opinion. I, frankly, think that anyone on the Board other than me would have thought it was a formal Attorney General opinion. I'm accustomed to them. I have dealt with them in the past.

MR. O'BRIEN: Objection, Your Honor, as to what the witness speaking as to what is in the minds of the other members of the Board.
THE COURT: The Court will disregard that portion. You may continue.
A. Sorry.

BY MR. WASHINGTON:
Q. You regarded it as not binding?
A. It was clearly not binding. We were told it was binding on us at the Board meeting by the Deputy Attorney General. [73]
Q. And who is that?
A. Gary Gordon.

Q. And what, if anything, did you attempt to do once this informal opinion was presented which was said to be binding?
A. I argued with Gary, and I put on the record that it was my understanding that the process was that a formal opinion had to be vetted by a committee of the Attorney General's office, and that it had a different format when it came out, it was numbered as a formal opinion, and that formal opinions were binding on us as a state Board; but that this was not a formal opinion and therefore not binding. And that was part of the discussion of trying to push for investigation. I tried to persuade the other Board members that this was not a binding opinion and that we did not have to follow it.

Q. Were you successful in persuading them of that?
A. No.
Q. There was a vote on taking an investigation?
A. Yes.
Q. And what was the vote, if you recall?
A. It failed. I don't recall the total.

Q. And was there then a vote to certify this petition for the ballot?
A. Yes, there was.
Q. And what was the result of that? [74]
A. The result of that was the chair of the Board voted yes, to certify it to the ballot; two of the four members, myself included, voted no; and the fourth member expressly stated that it was because of the Attorney General's insistence that we couldn't investigate fraud, abstained from the vote.
Q. So, one of the four members voted to put it on, one abstained, and two voted against it?
A. Right.

Q. Now, is this a bipartisan Board?
A. Yes.
Q. And you were a Democratic appointee?
A. Yes, I was.
Q. And the other person who voted against, was he a Democrat or a Republican?
A. A Democratic appointee.
Q. A Democratic appointee. Okay. And the person who abstained, was she a Republican or a Democrat?
A. Republican.
Q. And the person who voted to put it on was a Republican or a Democrat?
A. Republican.
Q. So, we have one Republican voting for it to be on and the other three members either abstaining or voting against?
A. Correct. [75]

Q. Did the Board of Canvassers ever place a vote to certify this onto the ballot?
A. Well, there's a big dispute about whether that ever happened. At our December 14, 2005 meeting, a disputed vote was taken, which in our minutes is recorded as a two, two -- no, I'm sorry. It is recorded as two members voting to put it on the ballot, one abstention, and one no. In January of 2006, we voted -- with all three members who were allowed to be present at that meeting, all three members voted to approve the ballot language that would go on the ballot.

Q. At that point, were you acting under a court order from the Michigan Court of Appeals? A. Under a very specific Court of Appeals order threatening contempt if we didn't vote to put it on -- vote to adopt the language by a specific deadline in January of '06. Q. And was that what -- was -- that court order threatening you with contempt, is that what resulted in this being put on the ballot?
A. Yes.

MR. WASHINGTON: I have no questions for Mr. O'Connor.
THE COURT: Cross-examination? [76]

CROSS-EXAMINATION BY MR. O'BRIEN:
Q. Good morning, Doyle -- Mr. O'Connor.
A. Good morning. You can call me Doyle.

Q. Just to be clear, you are no longer on the Board of Canvassers; is that correct?
A. That is correct actually as of about two weeks ago.
Q. You resigned; is that correct?
A. That's correct.
Q. And would it be fair to say that it was somewhat over the controversy that arose over the voting -- or, following the direction of the Court of Appeals as to whether or not to put that on the November ballot?
A. More specifically, the Court of Appeals threatened me with a criminal trial if I didn't resign.
Q. And some type of resolution occurred; is that correct?
A. Yes. I resigned and the criminal charges were dismissed.
Q. As a result of the resignation, you are no longer on the Board?
A. As of two weeks ago.

Q. All right. Let me go back to all of your testimony. The understanding is that you never signed this petition; is that correct?
A. That's correct, I never signed it.

Q. And you read the petition and you understood it? [77]
A. I read the petition, and I would challenge you to find anyone who actually understands what that petition purports to mean. It is inherently inconsistent -- the summary on the face of it is --
Q. It is a yes or no question. Did you understand what you read?
A. No.
Q. Regardless of that fact, you refused -- you didn't sign it?
A. That's correct.

Q. And you advised other people not to sign it?
A. That's correct.
Q. And at Eastern Market where you saw other people reading it or being explained to it -- about it by these two circulators, you told those people not to sign it?
A. No. I told them that it was to outlaw affirmative action. It is up to them to decide if they want to sign it. I wanted them to know what it --

Q. In fact, after you explained what it was, some of them did in fact sign it; is that correct?
A. I don't know that anybody who I explained it to did sign it. And there were two young women and one of me. So, one would be hitting up somebody else --
Q. You don't know whether any of those 12 people did sign it or did not sign it? [78]
A. Some of the people who were solicited while I was there signed it. You asked me if any of them that I spoke to signed it.
Q. That's right.
A. Some of them signed it.
Q. How many of the people that you spoke -- how many people did you speak to about this?
A. Under oath, I wouldn't want to swear. Three, four, five, six?
Q. And did any of those three, four, five, or six people sign the petition, to your knowledge?
A. I don't know. I know some did not.

Q. Now, you indicated there were several Board meetings. Did you ever bring this up at any of the Board meetings, that you had been at Eastern Market and observed these two African-American females misrepresenting the petition?
A. I don't recall, frankly.
Q. Okay.
A. I may have brought it up at a Civil Rights Commission hearing. And, you know, it's sort of hard to remember which hearing I was at, frankly.
Q. Do you have any specific recollection of bringing it up before the Board of Canvassers during any of the discussions?
A. No. [79]

Q. You talked about you are familiar with petitions and petition circulators because you have been involved in them yourself?
A. Yes. Q. And you indicate that sometimes the circulators blow smoke, engage in puffery. What do you mean by that?
A. Well, for example, I was approached by someone with -- to outlaw the SBT, the Single Business Tax petition, whose line was, it will lower your taxes. Well, I don't know that that's fraud. It's smoke. I mean, you know, to say that eliminating one tax will lower my taxes, when that tax is probably going to be replaced by another tax, I consider puffery, but not the same thing as saying to me sign this petition to keep the Single Business Tax when, in fact, it's designed to outlaw the Single Business Tax. That was also at Eastern Market. It's popular.

THE COURT: Do you have time to do any shopping?
A. Yeah. You get pretty good deals on vegetables and fruits.

BY MR. O'BRIEN: Q. Now, the Board of Canvassers, as you've said, had been involved with the petition since 2003; is that correct?
A. Yeah. And, again, I'm weak on years. I'm pretty sure it was December, December 2003. [80]
Q. Since that time, the media has covered this and there has been explanation as to what this petition was about; is that correct?
A. Explanation? I would say there have been attempts by the media to explain what it's about. Often inaccurate.
Q. But this has been before the public since 2003; would that be fair?
A. Before some segments of the public, yes.

Q. And, in fact, when they came to have the language certified for the petition, it was initially rejected and went to the Court of Appeals. Is that correct?
A. No. If I recall correctly, it initially passed by a vote of three-to-one, and that vote was set aside by the Ingham Circuit Court, and we were ordered to vote to reject that, which we did four-to-zero. And that went to the Court of Appeals --

Q. You just jumped over one of those hurdles.
A. All right.
Q. You indicated that the Circuit Court overturned that. But that also went up to the Court of Appeals, did it not?
A. Yeah. Yes.
Q. And the Court of Appeals actually made a ruling that overturned the Circuit Court, didn't they?
A. I thought I said that, but yes.
Q. No, you didn't. That was one of those hurdles you [81] missed.
A. No. Actually, I think you were out of sequence --

THE COURT: Wait.
A. I'm sorry.
THE COURT: I have a transcript. So, I'll know what he said.
MR. O'BRIEN: Thank you, Your Honor.
THE COURT: And it is not going to turn on -- because everything you have just been asking about is a matter of record, and . . .
MR. O'BRIEN: That's true. All right.

BY MR. O'BRIEN:
Q. And the Court of Appeals determined that the form of the petition as it was going to be presented by the circulators to the public, that it was appropriate; is that correct?
A. The Court of Appeals decision addressed some of the objections as to form related to the petition and rejected the ones that they directly addressed in their decision. They didn't address all of the objections.

Q. And isn't it fair to say that it was after this that the MCRI took the language that was approved by the Court of Appeals and that is what was presented on the petitions that were circulated that you saw at Eastern Market?
A. Actually, that Court of Appeals decision, as I recall it, cautioned the petitioners against using the kind of language [82] they are using.
Q. Isn't it -- and, again, it's a matter of record. But isn't it true that they approved that as to form even though they gave a caution?
A. They reversed the Ingham Circuit Court.
Q. Anyway, at some point this issue came back before the Board of Canvassers of which you were then a member, and with approximately 508,000 signatures; is that correct?
A. I, frankly, don't remember the number, but it was hundreds of thousands. I remember that.

THE COURT: I don't think there's any dispute as to the number of signatures, the sampling done and so on, at least from the pleadings. So, why don't you focus on something that we don't know, please. And just for the record, Mr. Washington, you agree with those numbers not being in dispute?
MR. WASHINGTON: That's correct, Judge.
THE COURT: And you also agree with my ability to read a Court of Appeals opinion and . . .
MR. WASHINGTON: Yes, I do, Judge.
THE COURT: Okay. Do I have to determine whether they were an activist court or not?
MR. WASHINGTON: I certainly would like you to, Judge.
THE COURT: Okay. [83]
MR. WASHINGTON: Especially the Supreme Court of Michigan.
THE COURT: Well, it's hard to accuse them of activism where they've chosen not to review this case by full opinion anyway.
MR. WASHINGTON: They are active where they want to be, but I guess we should save that discussion for another day.
THE COURT: Yes.

BY MR. O'BRIEN:
Q. Lastly, with regard to your characterization of what occurred I believe at the Board of Canvassers meeting, which was the whole issue of whether there would be investigation or not -- I believe that occurred on July 19th of 2005 -- isn't it true that none of the five motions that were raised that day passed by a majority, three members?
A. We have a transcript. The motion to place it on the ballot failed. The motion to investigate failed. Off the top of my head, I don't remember what other motions there were that day.
Q. As far as you recall, though, none of the motions passed that day?
A. Yeah, I think that's true.

Q. And following that, that's when the Michigan Civil Rights Initiative took the issue back to the Court of Appeals; isn't [84] that correct?
A. Yeah. Yes.
Q. And it was following that that the directive came that the Board of Canvassers were to certify the petition for the November 2006 ballot?
A. Yeah. We were to ignore allegations of fraud and certify regardless.
MR. O'BRIEN: Thank you.

THE COURT: Mr. Fett.
MR. FETT: Your Honor, I presented a witness exhibit book to Mr. O'Connor. I have an extra for you, if I may present that?
THE COURT: Sure. (Off the record.)
MR. FETT: May I proceed, Your Honor?
THE COURT: Yes.

CROSS-EXAMINATION BY MR. FETT:
Q. Good morning, Mr. O'Connor.
A. Good morning.
Q. Did I hear you say that this petition isn't about affirmative action?
A. I don't think you heard me say that. It doesn't mention affirmative action by name, no.
Q. I think you talked about some proceedings that you had [85] before the Board of Canvassers where you were looking into voter fraud?
A. Yes.
Q. I think you said you had some exhibits. Were you looking at declarations of people; is that what you were doing?
A. I think that was part of it, yes.

Q. Okay. Now, I have before you my exhibit book. And if you would turn to that, please.
A. Uh-hmm.
Q. And you will see the first part of it deals with circulators, and there's a tab for that. Do you see right on top?
A. Uh-hmm.
Q. And the back part, it says voters.
A. Okay. Q. So, we are going to be dealing with the front part.
A. Okay.

THE COURT: Is there a code here that is supposed to be subliminal, going from C to R to F?
MR. FETT: The last names of the circulators are quoted to these tabs.
THE COURT: Okay. I thought maybe it was just the tabs you had left over from the last case.

BY MR. FETT:
Q. Okay. Just so I want the make sure I understand your [86] testimony correctly, Mr. O'Connor, you believe that this fraud was systemic; that it was not just isolated. Is that correct?
A. Yes. That was the conclusion that we reached.
Q. That you reached?
A. That I reached.
Q. And you feel it was also racially targeted?
A. Yes.
Q. Okay. And the fraud you are saying, there was misleading of potential signers on this petition. Correct?
A. That was part of it, yes.

Q. Now, if you would, under C, on your tab there --
A. Uh-hmm.
Q. -- you will see a declaration of a Ms. Chester. Do you see that?
A. Yes.
Q. And was this one of the documents you were able to review in the course of your Board of Canvassers proceedings?
A. I believe so. The name Exie Chester was unusual, and I recall seeing it.

Q. I'm going to direct you to paragraph six of this declaration of Ms. Chester.
A. Okay.
Q. In there she says: "The only thing he said about the substance of the petition was that it was against [87] discrimination and preferences." Do you see that?
A. Yes, I do.

Q. You don't have any problem with that type of instruction to a circulator, do you?
A. I have no idea what Ms. Exie Chester means by that, I mean that one isolated sentence.
Q. Well, I want to be fair to you here, but -- You're not claiming that there was fraud in these election practices based on this declaration of Ms. Chester; is that correct?
A. I didn't reach any conclusion based on one sentence out of one declaration by one witness.

Q. Well, let's try another then. Would you go to the tab M?
A. Sure.
Q. And you will see the declaration of La Von Marshall?
A. Okay.
Q. And specifically paragraph seven?
A. Okay.
Q. It says: "The supervisors were vague about what the petition was for."
A. Uh-hmm.
Q. Do you see that?
A. Yes, I do.

Q. Now, you are not claiming that being vague about what the [88] petition was for was in any way fraudulent, are you?
A. Actually, I think that that was part of the fraud. That there was a deliberate effort to make it not clear to people what the petition was about, particularly through a summary that disagreed with the petition language itself.

Q. Okay. So, not providing enough information is fraudulent?
A. Not providing enough and providing inaccurate information. The summary, again, conflicted with the text of the actual petition, which is one of my concerns.
Q. And you would agree with me, though, that as far as La Von Marshall goes in his declaration, he's not saying that he was provided any inaccurate information; is that correct?
A. I looked at sentence seven, as you instructed.

Q. Okay: Well, let me ask you about something else. You see that paragraph 10 says: "The supervisors wanted us to circulate the petition in the suburbs, but I did not do that." Is that correct?
A. That's what it says.
Q. That would be inconsistent with racially targeting minorities if you are sending a guy out to the suburbs, right?
A. Not if you are sending them to Southfield.

Q. Right. [89] It also says in paragraph 12 that: "They never answered the question whether the petition was for or against affirmative action." Correct?
A. It goes on, but, yes, that part that you read is part of the sentence.

Q. Now, it is true, isn't it, that neither Ms. Chester or Mr. Marshall have implicated Ms. Gratz as making any fraudulent representations to him?
A. I don't know. From their declarations, I don't think they mention Ms. Gratz. They mention a white man. So that would not be Ms. Gratz.
Q. And there is no implication of Ward Connerly in these declarations, is there?
A. In these two --

MR. WASHINGTON: Objection, Judge. The documents speak for themselves. I don't know why we should argue with Mr. O'Connor about what they say.

THE COURT: Response?
MR. FETT: I didn't think I was arguing with him, Judge. I was just trying to --
THE COURT: Forget the last sentence. The first sentence you can respond to. Why does this add anything other than assume that I can't read these things or haven't read these things? [90]

MR. FETT: Okay. Well, Your Honor --
THE COURT: I mean, there are specific things in there you've asked about. You can ask about whether it has the Detroit Tigers scores for that day and all sorts of other things, and we will be going for a long time about what is not in there. So, you may highlight what's in there that you want to rely on, but you can save for argument what's not in there.
MR. FETT: All right. Thank you, Judge.

BY MR. FETT:
Q. Go to tab S, would you, Mr. O'Connor?
A. Certainly.
Q. And this is the declaration of Christi Lynn Sanders. Do you see this?
A. I do see this.
MR. FETT: Judge, that's Exhibit 17 to the Defendant's brief.

BY MR. FETT:
Q. Paragraph seven says that: "I, Ms. Christi Lynn Sanders, was told by a white woman to ask persons to sign the Michigan Civil Rights Initiative petition as a way to stop segregation and stop colleges from choosing who they can let in by race." Do you see that?
A. I do see that.

Q. Would you agree with me that the -- that one of the [91] purposes of the Civil Rights Initiative is to stop colleges from choosing who they let in by race?
A. I would not agree with you.
Q. You think that's fraudulent?
A. I think it -- I am not deciding the case. But I think to say that it was to stop segregation would be fraudulent, where affirmative action was designed as a mechanism to reverse the effects of segregation.

Q. Look at paragraph nine. It says: "They told me very little about the petition and said nothing about the words 'affirmative action.'" Do you see that?
A. Yes.
Q. So, again, does the fact that they are not supplying a bunch of information and not using the words "affirmative action," does that indicate fraud to you?
A. I think that if you say to a person we will pay you to circulate a petition to stop segregation, and you don't tell them that your real intent is to outlaw affirmative action, which isn't mentioned in the petition, where the summary of the petition says that all the remedies provided by Michigan law will still be in place which, if you know Michigan law, would include affirmative action, yeah, I think that's deliberately dishonest.

Q. Okay. Look at -- if you will go to the next couple in, [92] it's the declaration of June Scroggins.
A. Got it. Q. And paragraph six. It says: "I was not given any training on the petition for the Civil Rights Initiative. The only thing that was told to me was that there was a woman at the University of Michigan who was turned down for admission, and this was a way to help her get in." Do you see that?
A. Yes.
Q. Is that fraudulent?

A. I think if you read it in context with sentence seven --
Q. Sentence seven, for the record, says: "The persons who were training me also told me that it was a way to help kids get into college and stop racism in college."
A. Yes.
Q. And so you are saying that the kids that are referred to are only black kids; is that what you are saying?
A. No. I said that taking the two together in the historical context is deliberately misleading.

Q. Okay. Would you agree with me that the statements in this declaration that there was little information given except what we just talked about is inconsistent with a systemic attempt to defraud?
A. Well, the several declarations each said different things. [93]
Q. I was just talking about this one.
A. Oh, this one.
Q. Yeah.
A. Well, I've only read two sentences of it so far.
Q. All right.
A. She says that, no, she -- I guess it was a she. She says: "At no point was I told that this was an attempt to end or limit affirmative action." I think that where that was the primary goal of the petition, I think it probably could be construed as misleading to hire somebody to do something and not tell them what it was that they were hired to do.

Q. Okay. Look at paragraph nine, if you would, please. It says: "In practice I asked persons to sign the MCRI petition by asking them, 'Would you sign this petition to help kids get into the college of their choice or would you sign this petition to help stop discrimination?'" Is that fraudulent?
A. In the context of an effort to outlaw the use of affirmative action in Michigan or state law that provides expressly for affirmative action in college admissions to end segregation, yes, I would say that doing that repeatedly to people is fraudulent.

Q. Okay. Go to the next declaration, if you would.
A. Shumpert? [94]
Q. Yes.
A. Okay.
Q. I would direct your attention to paragraph seven. "I was not given any orientation as to how to do the job." Do you see that?
A. I do see that.
Q. Eight says: "I was told that the petition was concerning equal rights for college students." Do you see that?
A. I see that.

Q. Okay. Are these two statements, together or in combination with the rest of this, somehow fraudulent?
A. Looking at those two sentences all by themselves, I don't think I could draw any conclusion about it, nor could I conclude who the young white woman was who was telling her this.
Q. Would you agree with me that the declarations we all read were circulators?
A. I don't -- I don't know.
Q. Well, the Judge can look at that.
A. Yeah, I don't know.
Q. All right.
A. I note that under your list of circulators you've got somebody whose name I recognize, who I don't think would be a circulator. She appeared before us. As to the three or four [95] we looked at, I don't know.

Q. All right. Well, do you have other -- do you know of any other witnesses that are going to connect Jennifer Gratz to this systemic fraud that you are talking about?
A. I have no idea what witnesses will be called by any of the parties here.
Q. Not whether they will be called, but whether you just -- you know, is there some circulator out there who is going to say Jennifer Gratz and MCRI told me to lie to these people when I go out and get the petitions signed?
A. I don't recall anyone appearing before the Board of Canvassers who directly implicated Jennifer Gratz rather than implicating the people hired by Jennifer Gratz and Ward Connerly.

Q. And that would be the petition circulating company?
A. I don't know. I don't know who was passing out the money.
Q. When you say "passing out the money," who are you referring to?
A. Paying people to do this. I don't have any idea -- you said a petition circulating company. I have no idea.

MR. FETT: Thank you. I have no further questions.
THE COURT: Mr. Washington? [96]

REDIRECT-EXAMINATION BY MR. WASHINGTON:
Q. Just two questions. If you are still on Ms. Shumpert's affidavit -- I am not going to go through all of these, but if you will just turn the page to where it says paragraph 11 and 12.
A. Okay.
Q. And Ms. Shumpert says I specifically asked my supervisors if this petition was against affirmative action. They said, no, it is not against affirmative action at all." Do you consider that to be fraud?
A. That would be fraud.

Q. In paragraph 12, she says: "I continued to petition and told signers that this petition was not against affirmative action." Would you consider that to be fraud?
A. That would be fraud. And that was what we repeatedly heard at the Board from the testimony and from declarations.
Q. That that's what people were being told?
A. That they were trained to say that, and that's what they said, and that's how they got people to sign.
Q. Okay. Now, Mr. O'Connor, let's go back to the Eastern Market. You said that --

THE COURT: Is this your second question?
MR. WASHINGTON: Pardon? [97]
THE COURT: You said two questions.
MR. WASHINGTON: That's my two. I asked two on one.
THE COURT: Go on. It's a lawyer's two.
MR. WASHINGTON: It is. It is. I will make it a long question, but it will just be one.

BY MR. WASHINGTON:
Q. Going back to Eastern Market, you said that you had been arguing with these people, and some other people signed. Some black people signed the petition. Were any of them people you talked to or within, as far as you could tell, earshot of what you were saying?
A. No. No. It is because there were two circulators. You know, one would argue with me; the other would split up and try to get more signatures.
MR. WASHINGTON: No other questions.
THE COURT: Follow-up?
MR. O'BRIEN: No questions.
MR. FETT: No questions, Your Honor. Thank you.

THE COURT: At the meeting where this informal opinion was presented by the Attorney General, was a question ever raised as to who was supposed to do an investigation as to allegations of fraud?
A. Yes. And that came up in several meetings. In fact, Board member -- Republican Board Member Bankes and myself [98] requested that the state legislature investigate. I requested whether or not the Attorney General's office had investigated and whether or not the Secretary of State's office had investigated at multiple meetings, and each time was told no, they had not.

THE COURT: So, to your knowledge, there has been no investigation by any state agency as to whether or not there was fraud other than the Civil Rights Commission?
A. I'm convinced that none other than by the Civil Rights Commission.

THE COURT: Okay. Thank you. Any follow-up questions?
MR. FETT: None.
MR. WASHINGTON: None, Judge.
MR. O'BRIEN: No, Your Honor.
MR. FETT: No, Your Honor. . . . . .

[111] . . .

MS. DRIVER: Reverend Nathaniel Smith.
THE COURT: Raise your right hand, please.
NATHANIEL SMITH, PLAINTIFF'S WITNESS, SWORN.
THE COURT: Please be seated. Adjust the microphone so we can hear you. You may begin.
MS. DRIVER: Thank you.

DIRECT-EXAMINATION BY MS. DRIVER:
Q. Reverend Smith, could you state your name and your address for the record, please?
A. My name is Pastor Nathaniel Smith. My address is 14044 Santa Rosa Drive in Detroit, Michigan. I am the Pastor of In God We Trust Outreach & Deliverance Street Ministries.
Q. Reverend Smith, you may have -- just -- I know it doesn't sound like, but it's making you loud from there. But if you sit a little bit farther back, it will just be easier for us to hear. Just relax, in other words.
A. Very well.

Q. Good. Thank you. Reverend Smith, apart from being a minister, what other professional endeavors have you be involved in? [112]
A. I have been involved in many sales, petition circulator, numerous different jobs inside the city of Detroit, the state of Michigan.
Q. You have been a petition circulator for how many years?
A. Professionally, about five years.
Q. Have you worked on a large number of petitions?
A. Yes, I have.
Q. Have you ever worked on ballot petitions before?
A. Yes, I have.

Q. Did you work on the ballot petition that is called the Michigan Civil Rights Initiative?
A. Yes, I did.
Q. Can you list some of the other petitions that you worked on?
A. It's been some time ago. One of them was -- this was a different company. I think it was the Kids First Program and other issues of ballots that pertained basically statewide.
Q. Okay. Are you a good petition circulator?
A. At the time, I was one of the best. I was averaging between 15 to 2500 signatures a week.

Q. Can you describe how you got involved in circulating MCRI?
A. I believe I had saw an ad in the newspaper, and then I met a couple friends of mine that had been petitioners of the other company that I was working with. And I went on in [113] Southfield, I believe it was near Ten Mile, and I inquired, went to orientation, and then I started circulating petitions. At the time, I thought they were still a part of the other company that I was familiar with, that I knew to be reputable. I didn't know that they were not the same company at the time I was circulating the petitions.

Q. Do you remember -- first, do you remember -- The company that you thought to be reputable, do you remember the name of that company?
A. I believe that was -- I believe they were Michigan National Petition.
Q. And do you recall at all what the name of the anti-affirmative action petition company was?
A. I believe one -- I believe at one location they called it National Petition Management Company, and -- well, that's the other name I'm familiar with.
Q. Okay. And do you recall -- was there only one office that you went to?
A. There was only one office that I went to, which is Ten Mile and Southfield. But I was told that there was another location in downtown Detroit.

Q. Okay. And when you -- I want to take you through the steps of becoming a circulator, kind of one-by-one. Can you say how it is -- what was -- first of [114] all, when you went into the company, do you recall who it was that you met, who hired you?
A. When you first go in, you meet like a secretary or a greeter. Then they introduce you to I guess their supervisor, whatever. And, you know, then you go into -- you know, you go into orientation and they find out if you ever did petitions before. If you haven't done them, then they tell you how to do them and how to get the signatures, how to sign, where to print so and so and so. If you have experience, you know, then they immediately take you in to orientation. Basically orientation consists of what's supposed to be on the ballot initiative or on the petition.

Q. Okay. And in this particular case, do you recall the name of the person who hired you?
A. I do not. That was several years ago. I do not.
Q. Do you recall the race of the person or anything that might describe that person?
A. The race of the person was Caucasian.
Q. And was it a man or a woman?
A. I believe it was a female that I was introduced to.

Q. Okay. What orientation did you receive?
A. I was told in the orientation that this was a civil rights initiative, that it was to protect our civil rights. I was under the -- it was referred to like it was [115] pro-affirmative action, pro-civil rights. The same thing I was told in the orientation is the same thing that I told when I was soliciting signatures. I was also told during orientation that they preferred us -- well, some of the orientations had blacks and whites in the class. And they preferred us, the blacks, to devote most of our attention toward the inner city of Detroit.

Q. When you say that some of the orientations had black and white together, did you attend more than one orientation?
A. You have the first orientation when you come in. And then generally like, let's say, when you got paid, when you come back to get your check after the signatures that you turned in from the previous week were certified, you would like -- before if they had an orientation process, you had to sit there and listen to that before you can get your check. So, I went through a couple.

Q. Okay. And were you told the same thing at both of the orientations?
A. Basically, yes.
Q. Were you instructed what to say?
A. We were instructed to say that, you know, this was -- especially in the black neighborhood, that this was, you know, protecting your civil rights, basically insuring your civil rights and affirmative action. But it was pro-affirmative action; this is what we were told. [116]

Q. When you circulated petitions in the past, where did you generally circulate petitions? Were there areas that you went to?
A. Before working for this particular company, basically I would go to the highest volume areas, like Macomb County, Northland, Eastland Mall, such as this. But I was instructed to focus my attention in the Detroit area. So, I would go in less volume areas while I was in the Detroit area.

Q. Is this the first time that you were instructed to go to Detroit as a petition circulator?
A. Yeah. Basically it was the first time I was like given a specific area to go to. Because all the other times, especially the ones that were statewide, you know, they say go where you can get the most signatures at. In this particular instance, they did not.

Q. Did you follow the instruction you received?
A. Yeah. Because I found out by relaying to the petition signer the information that was relayed to me, before I had a chance to really read it and comprehend it myself, that I was totally in the belief that it was protecting our civil rights and our affirmative action. And most people, they would read a couple lines. And as I found out, to my comprehension and knowledge, when I did have it brought to my attention, how complicated the wording was -- you know, they would just read a couple words [117] and they would sign it based upon what I was told. And I was circulating it based upon what I was told and what I told them.

Q. Mr. Smith, where did you circulate the petition?
A. All over Detroit. Credit unions, that had high volume, banks, people come that have high volume, dollar stores, that have high volumes, all over Detroit.
Q. About how many petition signatures did you gather, if you recall?
A. I gathered approximately 500 signatures before I was on the DOT bus getting signatures for that particular cause. And one of the signers asked me -- one of the people that I had asked to sign it, after about four or five people in front of him had signed it, asked me, "Do you know what you are circulating?" And I said, "Yeah. I'm circulating a petition to help keep -- "protect our civil rights and make sure that we, you know, continue with affirmative action." He said, "Oh, no, you not." I said, "What do you mean?" And he said, "Did you read that thing totally?" I said, "Not really, you know, but I have a brief understanding." Then I read it. And I read it. And I read it. I read it about four times before the comprehension of the wording really set in me, and then I was pissed. I was in total shock. I was awe. I was mad.
Q. You said you read it four times before you understood [118] what it said.
A. Correct.

Q. I want to show you a copy of the petition that is a copy of one that you circulated, and ask you to take a look at it and tell me why it was that it took you four or five times of reading it to understand what it said. Let me get it for you though.
A. Okay.
Q. It's Exhibit No. 17.
A. Let me find my reading glasses. Okay. I went over it again. To me, itself -- to me personally, the wording is misleading, to me, even the description at the bottom, "Michigan Civil Rights Initiative Committee," okay. And to me it gives an inference of something that's protecting your civil rights, okay. Now, like I say a lot of petitioners like myself, people that circulate the petitions, after the orientation we just read a couple lines of it not really comprehending what it really meant. You know, the only thing we picked out is like prohibiting the state from discriminating against you, things like that. In the orientation, they would use words like that, giving the inference that we were protecting something, that we were really getting signatures to get rid of. [119]

Q. What did you do after you read it four or five times and you realized that it was an anti-affirmative action petition?
A. I immediately ceased from soliciting other petitions. The people that were still doing it, I explained to them in full total detail of what they were doing. I told them that their rights that they had fought so hard for, that their grandparents had died, been castrated, burnt to the stake, hung, for them to have the rights that we have just now gained, it was not worth a dollar, okay. And for anybody to continue to solicit or continue to pass that petition out, you know, they could not have a conscience or any moral value of what they're doing. Because I was totally pissed.

Q. You said that it wasn't worth a dollar. How much were you paid per signature?
A. Okay. I believe it started off between a dollar, a dollar twenty-five cents per signature. And you could work your way up to anywhere as much as -- based upon volume, like at most petition companies, the more signatures you got -- it might start at 500,000, and then you can work your way up to almost two dollars an hour, two dollars per signature based upon the volume.

Q. You were a very good petition circulator, correct?
A. Correct.
Q. If this had been an honest petition in support of affirmative action, how many signatures do you think you [120] would have been able to obtain?
A. Usually a petition drive runs anywhere from about eight to 12 weeks, okay. Close to 30,000 single-handedly.
Q. 30,000. So at least $30,000 --
A. Yeah.
Q. -- you would have made?
A. Yeah.
Q. But you stopped at 500?
A. Correct.

Q. Did you -- did you go back to the people who hired you and say anything to them?
A. Uhm . . .

THE COURT: That is a yes or a no.
A. I -- yes.

BY MS. DRIVER:
Q. What did you say to them?
A. I told them did they know that they were perpetrating a fraud on the circulators.
Q. And what did they answer?
A. They didn't believe so.

Q. Reverend Smith, you said you talked to other circulators and you tried to explain to them what the true nature of the petition was. Did any of them, to your knowledge, stop circulating the petition when they found out the truth? [121]
A. The majority of them did. Some, because of financial circumstances, you know, continued.

Q. Reverend Smith, at the bottom of the petition it says that somebody who is a circulator has to make certain that the signatures they receive are genuine. And when you sign a line saying you are a circulator, it is saying to the best of your knowledge that you've gotten people to sign a genuine signature. The 500 people who signed for you, were those genuine signatures?
A. In my opinion, if the signatures were received or gotten on fraudulent pretense, you know, they shouldn't be counted.

Q. But you didn't think you violated that?
A. During that time and by me being under a misconception or, as far as I am concerned, a fraud was perpetrated on me by the management that hired me, no, I didn't think I was.

Q. One last question. What does the term "affirmative action" mean to you?
A. The term "affirmative action" means to me an equal playing field. It means people that are -- like when -- when -- if you go to a job and -- and you are applying for a job or you are going into a college institution, that you're given a chance to be considered for admission. To me, affirmative action was brought about because of open discrimination in hiring and education, other [122] areas. That's why it was brought about in the first place, to make it an equal playing room. For over hundreds of years we were even denied the right to read. So, if we are in a race, how can we -- someone starting -- we have got a 400-yard race and I am starting at the two fifty yard -- I am starting at the one yard and you are at the two fifty yard, how can I catch up with you unless there are rules implemented to make that an equal race. This is the way I have always looked at it.

Q. So, telling people that this was pro-affirmative action . . .
A. Was a lie.

MS. DRIVER: Thank you.
A. You're welcome.

THE COURT: Cross-examination?

CROSS-EXAMINATION BY MR. O'BRIEN:
Q. Reverend Smith, you indicated that you received your training by an office in Southfield; is that correct?
A. In Southfield in the Ten Mile area, correct.
Q. And you indicated that you had one formal orientation?
A. I had participated in more than one orientation. But when I first went in, they found out if you had done it before or if you had to be taught everything, okay. And by me having done it before, they just basically brought me to [123]the little room where they had some other people and told us basically what their opinion -- what the petition was about, what they wanted us to say to the people in the particular area. And they also designated us areas to go to, and mine was Detroit.
Q. Okay. And you indicated that there were a number of people that were going to be circulators there?
A. In every orientation class there's always more than one person.

Q. Okay. Were there both white and African-American circulators?
A. I answered that previously with the -- yes, there was.
Q. And were there both male and female?
A. Yes, there was.
Q. Were there other racial groups?
A. I didn't really take the time to distinguish. There were white and blacks in the room.

Q. And your particular area where you lived was in Detroit; is that correct?
A. Correct.
Q. And the area that you gathered signatures would have been from an area in Detroit that you lived?
A. No. Remember I said that I circulated petitions at the credit unions, at the banks, at financial institutions, which was spread all over Detroit, East and Westland. [124]
Q. Now, the people that you approached to sign this petition, were they only African-Americans?
A. Basically. But as in all communities, you have a fluctuation of different races. Or whoever I saw coming out the store or the credit union, that's who I approached.
Q. Okay. So, amongst those 500 people there would be both males and females?
A. Correct.
Q. And both white and black?
A. Correct. Indian, Chinese, Philippino.

MR. O'BRIEN: No further questions. Thank you.
THE COURT: Mr. Fett.
MR. FETT: Thank you, Your Honor.

CROSS-EXAMINATION BY MR. FETT:
Q. Good afternoon, Reverend Smith.
A. Good afternoon.
Q. You have been in the petition circulation business I think you said for about five years?
A. Correct.
Q. And how many companies have you worked for?
A. Basically two, the last one and the one before that.

Q. And your experience with the prior company was that they gave a lot of discretion to these individual petition gatherers as to how to make the pitch for a signature. 125 Correct?
A. No. Basically they would go over the whole petition with us, the first company would, and then they would give you -- basically it was simple, you know. They have a slogan like "Kids First" or something like that. And we went out and, you know, they gave us -- they didn't tell us what area. They gave us our petitions, and they said go wherever you feel comfortable.

Q. Okay. Well, let me make sure we are in disagreement. You are saying that the first company, which would not have been the MCRI petition, correct?
A. Correct.
Q. That's what we are talking about right now, okay?
A. Okay. But you asked me a question concerning the companies I worked for, okay?
Q. Okay.
A. So, I'm just saying, you know, that I worked for the first company before I worked for MCRI, and as to their policies and as to the way they explained and where they delegated us to go.

Q. Okay. Good. Now, just with regard to that first company briefly, that first company, do you remember the name of that company?
A. I believe it was Michigan National Petition Company. But [126] that has been some years ago. That is after I worked for MCRI or whatever you call it.
Q. Isn't it true that with that company they would give each individual petition gatherer their own discretion as to how to address the people?
A. No. They would have a slogan, you know, like "Kids First" or something like that based upon the initiative that they were trying to get out, okay; and then, you know, based upon that slogan, as to how you would push the petition.
Q. Okay. Reverend, would you grab that book there, the black book in front of you?
A. Uh-hmm.
Q. And you will see under --

MR. FETT: Your Honor, may I approach the witness? I will find it for him rather than trying to explain where it is.
THE COURT: You may approach. You don't have to ask.

BY MR. FETT:
Q. Reverend Smith, you appeared before the Michigan Civil Rights Commission and gave testimony, didn't you?
A. Correct.
Q. And did you take an oath to tell the truth?
A. Correct.
Q. Okay. And you told the truth? [127]
A. To the best of my ability and knowledge, correct.

Q. Okay. And if you look at page 53 of your transcript, you were referring to a particular company there. Do you see that?
A. What line are you referring to? You have a number of lines. Tell me what line you want me to look at.
Q. Look at lines three through eight, please.
A. Three through eight.
Q. Yeah. Just read that to yourself and let me know when you're done.

THE COURT: Why don't you tell me what --
A. Yeah, what point are you trying to --
THE COURT: Hang on a second, Reverend. Tell me so I can follow it along in my book, if you will, please.
MR. FETT: It is Reverend Smith's testimony. It should be under the first part where you see "Circulators." Then there's a tab S.
THE COURT: Okay.
MR. FETT: And at page 53.
THE COURT: Okay. I've got page 65. So, it must be somebody else's testimony.
MR. FETT: It should be in the first part of that.
THE COURT: Wait, hang on. What date? [128]
MR. FETT: It's Exhibit 10.
THE COURT: It's in the other book?
MR. ROSMAN: It's Exhibit 10 to Plaintiff's motion, Your Honor.
THE COURT: Okay.
MR. FETT: Do you have it, Your Honor?
THE COURT: No, I don't. Did you presume the judge was dyslexic? They seem to be in random order. I've got it now, page ten. Page 53.
A. I have read page 53. I have read from --
THE COURT: Wait. Let him ask a question, please, Reverend.

BY MR. FETT:
Q. Reverend Smith, you were referring to a petition company in this paragraph, right?
A. One of the companies I worked for, correct.
Q. The first one or MCRI?
A. In this little bitty paragraph you've got me? I'm not sure which company I was talking about, because I would need to read it before or after to bring it into total context.

Q. Okay. Well, let me just read you this and I will ask you a question. It says, "Most -- they just basically told you what it was about and left it up to your own discretion as to how -- as how to address the people." [129] Do you see that?
A. Yes.
Q. Okay. And that was your testimony?
A. Yes. Q. And were you referring to MCRI or your previous --
A. Again, unless I read before or after, I can't tell you. All I know is one of the companies was described in the manner that I just described, and the other one went into more detail. This is what I am saying during my testimony.

THE COURT: Reverend, it says this particular company -- the other company -- I take it from what you've said before this morning, that the other company is not the one we're talking about now, but, rather, your prior company?
A. Correct.

THE COURT: Okay. And the answer to your question is yes, he said that. Now, ask your next question.

BY MR. FETT:
Q. The question is, nobody from MCRI or the petition company that they hired told -- used the words "affirmative action" in describing the ballot initiative, did they?
A. I'm going to say this.

THE COURT: That is a yes or no, if you remember.
A. Yes, they did. [130]
THE COURT: Okay.

BY MR. FETT:
Q. If you would, please go to page 46 of your testimony. Actually, I'm sorry, that's 43, please. Let me know when you're there.
A. Okay.

Q. Okay. And I'm looking at line 14 through 16. And tell me if I've read this correctly. "And they told us what, you know, particularly that this petition was about keeping our civil rights and maintaining our civil rights." Correct?
A. Correct.
Q. Okay. And that's true, correct?
A. I just previously stated to that.
Q. Okay. And they are not referring to affirmative action, right?
A. In this particular paragraph, in this section that you are reading, no, they do not.

Q. Well, let's go on to page 46, please.
A. That is the inference that they gave.
Q. They gave you the inference, but they --
A. I'm saying they not only said that to me, but that's the inference that they gave to the whole orientation class. What page did you want me to go to? [131]
Q. 46, please.
A. Hold on. Okay. Which line?
Q. Right at number one. And correct me if I'm reading this wrong. It says: "And the company that hires you has an orientation class. In the orientation class they tell you to say that this is this and this is protecting your civil rights. And if you get people to sign this, you know, we are going to have better civil rights." Okay. Did I read that correctly?
A. Yes, you did.

Q. And you thought that was perpetrating fraud?
A. Excuse me?
Q. Did you think that was perpetrating a fraud?
A. If the petition that I was circulating was anti-affirmative action and anti-civil rights, then it was perpetrating a fraud. Does it take a rocket scientist to figure that out? (Audience clapping.)

THE COURT: Please.

BY MR. FETT:
Q. Look at page 51, if you would, please. Are you at page 51?
A. I'm at page 51. Which line, sir?
Q. It's a question by Mr. Bernstein at line 14. He said to [132] you: "Q. Did you ask or did anybody in the orientation that you participated in personally ask whether or not this was in support of affirmative action?" Do you see that?

A. And what's my answer.
Q. Your answer -- and tell me if I've read this correctly. "A. Yes, we did. And they would say, yes, this is protecting your civil rights."
A. Now, that's not self-explanatory? Read it again, sir. Did anyone ask anybody --

THE COURT: Reverend.
A. Yes, sir.
THE COURT: Reverend, please. It's not Sunday morning. We have time limits here.
MR. FETT: We're almost done, Judge.
THE COURT: And for the audience's benefit, we are not going to pass the plate. So, just answer his questions yes or no, if you can, or I don't know. And if he wants an explanation, he'll ask for one, or the attorney on the other side can ask for one. Go ahead, Mr. Fett. [133]

BY MR. FETT:
Q. I'm looking at line 22 on page 51, Reverend.
A. Uh-hmm.
Q. Correct me if I'm wrong. It says: "They would bring that part to us saying that we are protecting our civil rights. And, you know -- and so someone would ask, well, you know, what part of civil rights were they. And they would say to the affirmative. This is why I say they perpetrated a fraud on us." That was your testimony?
A. Correct.
Q. Okay. And that is why you say that they specifically referred to affirmative action, right?
A. No. Because they used the word "affirmative action." I didn't in my response.

Q. Now, you say you collected how many signatures?
A. I believe it was close to 500. I'm not sure. All I know is when I found out that a fraud had been perpetrated on me by the management company, and me believing that fraud, got perpetrated on the general public that signed it, I immediately ceased and desisted from taking anymore signatures.
Q. Okay. Could it be more like 70?
A. I don't know what the total amount is. I wouldn't care if it was one. If a fraud was perpetrated on me and I felt [134] like I was misused, violated by that fraud, I wouldn't care if it was one. It was a violation.

Q. Okay. And to this day, you still don't know the name of the petition company that MCRI hired and that hired you; is that correct?
A. I have stated before, I believe the name of the petition was National Management Petition Company. The name is irrelevant. As far as I'm concerned, it's what they were doing.
AUDIENCE SPECTATOR: Right. (Audience applauding.)

BY MR. FETT:
Q. You are also sure that there was a sliding scale that this petition company was paying you for signatures?
A. Okay. I was told --

THE COURT: Wait a minute. Wait a minute. This isn't a business case. What he got paid or was told he was going to get paid is not relevant to the issues that are before the Court. I have been fairly, excuse the expression, liberal in allowing you to go through this prior testimony. But now you are going a little bit too far in terms of going into whatever the business arrangement. I don't think it's disputed that the circulators were paid. It may have been a dollar; it may have been more or less. [135]
MR. FETT: Okay. I have concluded. Thank you, Your Honor.
THE COURT: Thank you. Ms. Driver, do you have any further questions?
MS. DRIVER: No further questions.
THE COURT: You may be excused. Thank you, Reverend.
A. Thank you.

THE COURT: You may call your next witness.
MR. WASHINGTON: Judge, I would like to call Donna Stern.
THE COURT: Raise your right hand, please.
DONNA STERN, PLAINTIFF'S WITNESS, SWORN.
THE COURT: You may be seated. You may begin.

DIRECT-EXAMINATION BY MR. WASHINGTON:
Q. Ms. Stern, would you state your name for the record?
A. Donna Stern.
Q. And in what city do you reside?
A. Detroit.
Q. How long have you lived in the city of Detroit?
A. About 25 years.
Q. And do you work in the city of Detroit?
A. Yes, I do.
Q. Where do you work? [136]
A. At Harper Hospital.
Q. And what do you do at Harper?
A. I'm a unit clerk.
Q. How long have you worked for Harper Hospital?
A. 22 years.
Q. Now, Ms. Stern, do you have any connection with the organization called Operation King's Dream?
A. Yes, I do.
Q. What is your connection?
A. I'm both the Treasurer and I'm a General Administrator Coordinator.
Q. And as the Treasurer and General Administrator Coordinator, can you tell us what Operation King's Dream is?
A. It's the ballot question committee of the organization named -- that is referred to as BAMN, the Coalition to Defend Affirmative & Integration and Fight for Equality By Any Means Necessary.
Q. Okay. And it is duly registered with the state as a ballot question committee and so on?
A. Yes. Q. Now, in your capacity as Treasurer and General Administrator Coordinator at Operation King's Dream, did you play a role in developing the challenges to the Michigan Civil Rights Initiative petition at the Board of Canvassers?
A. Yes, I did. [137]
Q. What role did you play?
A. I helped coordinate -- when originally the Board of Elections chose a random sample of 500 petition sheets to examine the validity of the signatures, they provided us with a copy of that, and we decided to do our own investigation. We typed in all the information that was on the petitions, and we were very surprised to find that so many of them came from Detroit. This is not what we would have expected.
Q. And in particular -- first of all, let me establish this. You got a random selection picked by the State Board of Canvassers of 500 signatures?
A. Yes.
Q. Out of the 508,000 that MCRI said they had?
A. Correct.
Q. And that was a selection that they picked, the State Board of Canvassers picked to determine the validity, how many registered voters and so forth?
A. They said it was statistically representative.
Q. And did you then go through that to see what the geographic areas the signatures were coming from?
A. That was one of the things we looked at.
Q. And did you then tabulate that into what is now Exhibit 2? I'm not sure that one has it. I'll give you my copy. [138]
A. Yes.
Q. And are those the figures -- in terms of how many from each city -- is that directly derived from the petition, random petition sample that you were given?
A. Yes.
Q. How many signatures in the 500 came from the city of Detroit?
A. 75. Q. And how many came from the city of Flint?
A. 25. Q. And the other cities, could you just indicate what those are that you particularly looked at?
A. Highland Park had six; Saginaw, four; Southfield, three; Benton Harbor, two; Oak Park, two; Mount Morris township, two; and Inkster one.
Q. And did you check the name of those cities against U.S. census data?
A. We did.
Q. And are those all black majority cities?
A. They are.
Q. And how many total signatures came out of black majority cities?
A. 120.
Q. And that would be what percent of the total?
A. 24 percent.[139]
Q. Now, the city of Detroit as one example, which is almost two-thirds of those signatures, did you learn from the census data that it is now approximately 81 percent black?
A. Yes.
Q. And another 10 percent Latino?
A. Yes. Q. So, we are talking about signatures, 90 percent of which or so are -- 90 percent of the population is either black or Latino in Detroit?
A. Correct.
Q. Now, you said that was unusual. Why did you find that to be unusual?
A. Well, because I think both from our experience, you know -- most of the people who are active in Operation King's Dream live in Detroit or other majority black cities, and it has been our experience that the vast majority of black voters support affirmative action. So, we were very surprised that a petition to get on the ballot to ban affirmative action would have so much support from black voters.
Q. And did you then attempt to make an estimate as to how many total of the 508,000 signatures, 24 percent would be?
A. Yeah, it would be about 121.
Q. 121,000?
A. Yeah. Almost 122,000. [140]
Q. How many in the city of Detroit?
A. 76,000.
Q. And, again, the sample that was derived from was picked by the State Board of Canvassers; not by you?
A. Correct.
Q. Now, Ms. Stern, did you subsequently receive from the Practical Political Consulting any further information about the persons who had signed this petition?
A. Yes. When they found that it had no market value, they offered us access to their data base which I had understood represented about 60 percent of the total number of signatures. That is the number I heard.
Q. Was that data base given to you?
A. Yes.
Q. And did you then perform analysis or operations on that data base?
A. Yes. We just sorted it in different manners.

MR. WASHINGTON: Judge, I would like to offer into evidence Exhibit 2.
THE COURT: Any objection?
MR. O'BRIEN: No objection, Your Honor.
MR. FETT: No objection, Your Honor.
THE COURT: It's received. (Plaintiff Exhibit 2 was admitted into evidence.)
THE COURT: You may continue. [141]

BY MR. WASHINGTON:
Q. Ms. Stern, let me show you what has been marked for identification as Exhibit 7 and ask you what that is. A. This is a printout of a sort that we did of the data base for the zip code -- two zip codes in Lansing, Michigan.
Q. And is that -- and is all the information on that directly from the data base from Practical Political Consulting?
A. Yes, it is.
Q. And those were persons who signed the petition for the Michigan Civil Rights Initiative?
A. Yes.

MR. WASHINGTON: I would like to offer Exhibit 7.
THE COURT: Any objection?
MR. O'BRIEN: May I voir dire the witness, Your Honor?
THE COURT: Briefly.

VOIR DIRE-EXAMINATION BY MR. O'BRIEN:
Q. Do you have that in front of you?
A. Yes.
Q. Are these names that you put on this document?
A. This is just one piece of a really huge list that was pulled. These are not names that we typed in, no.
Q. Does this list, in and of itself, represent anything? [142]
A. It represents a piece of the data base as we printed it out by location and then used that location list to basically do interviews --
Q. Are you saying this is a representative sample of a representative sample?

MR. WASHINGTON: It is just offered as an example, Judge. Maybe I didn't make that clear. It is just offered as an example. A. Well, it is just a page that shows the information we were working with when we did an investigation of the people who signed and we did interviews and how we did them -- you know, how we found people when we did interviews to find out whether or not people believed they had been defrauded.
THE COURT: Any objection?
MR. O'BRIEN: Objection as to relevancy, Your Honor.
THE COURT: It may go to weight, but it's admissible.
MR. WASHINGTON: Thank you very much.
THE COURT: Mr. Fett, you have no objection?
MR. FETT: I join the CoDefendant's objection.
THE COURT: Okay. You may continue, Mr. Washington.
(Plaintiff Exhibit 7 was admitted into evidence.) [143]

CONTINUED DIRECT EXAMINATION BY MR. WASHINGTON:
Q. Ms. Stern, did you from the data base print up persons who had signed this from the cities that you had indicated on the earlier exhibit?
A. Yes, I did. Q. And let me show you a stack of documents, which I don't intend to introduce here. But can you just tell me what are these documents?
A. These are copies of the same data base that are organized by zip code that only include the information of name and address, but not all the other information. So, it's just name and address of signers from this particular zip code.
Q. And I take it then that in a particular zip code in Detroit, you could get a list of all of the people who were at least in the Practical Political Consulting data base who indicated a residence in that zip code?
A. Right.
Q. Now, once you got that information, what did you attempt to do?
A. We did several things with it. One of the things that the data base did include were phone numbers. And so we did phone banking to -- we concentrated on areas that we knew from census data to be high minority areas of Detroit, and of other cities. We made phone calls. And when we were able to [144] reach people, we asked them did they know that their signature appeared on a ballot that would place a referendum that would -- a ballot -- did they know that their name appeared on a petition to place a ballot referendum that would ban affirmative action.
Q. Did you find anybody that said they did know that?
A. We did not find any black voters who said they did know that. We found people who were, A, either didn't believe us or were very angry.
Q. How many approximately total calls would you have made? I don't mean you personally, but I mean the --
A. We did phone call banking. Hundreds and hundreds, over a thousand calls we made. It was over -- you know, there were two different -- we are talking two different periods. There was first on the --

MR. O'BRIEN: Your Honor, I am going to impose an objection that I had the same for Mr. O'Connor. I don't believe this witness can speak to the knowledge of what other people did. Only through her personal knowledge. So, I object to any generalization.
THE COURT: Your objection is noted. Please be specific in your answers. And please ask the question again.
MR. WASHINGTON: I don't actually remember the question. [145]
A. Well, I organized people to do phone banking.
THE COURT: Okay. So, now go to your next question.

BY MR. WASHINGTON:
Q. All right. And after organizing people, were people sent out?
A. Yes, they were.
Q. And to call or to go to the person?
A. In cases where we had no phone numbers, we did just -- send out teams just to go knock on doors. And in cases where we had reached someone and they said no, they would not have signed a petition to place a referendum on the ballot to ban affirmative action, we went and took a -- to their home to take a statement from them.
Q. And a number of the statements which have been obtained here, were they obtained from that process?
A. Yes.
MR. WASHINGTON: No other questions.
THE COURT: Cross-examination?

CROSS-EXAMINATION BY MR. O'BRIEN:
Q. Ms. Stern, are you familiar with the Secretary of State, Bureau of Elections random sampling procedures?
A. No. I mean, how they do it statistically?
Q. Yes. [146]
A. Is that your question? I couldn't explain it to you, no.

THE COURT: Please use the microphone.
A. I'm sorry. I could not explain how they come up with their random sample, no.

BY MR. O'BRIEN:
Q. Is the purpose of a random sample to sort by communities or is it done by picking every so many names on the list, or if you know?
A. I would presume if it's going to be random, that it's just picking people on a list --

THE COURT: No. When you say "presume," don't presume anything. Go to your next question. A. I took it for granted they gave us what is called a random sample.

BY MR. O'BRIEN:
Q. Just to be clear, the calls that you did were based on the 500 names that were selected as a sample by the Bureau of Elections?
A. The first group that we did.
Q. The first group?
A. Yes.
Q. Do you know how many groups?
A. Two. [147]
Q. Okay. The first group was the 500. And what was the second group?
A. Once we were given the data base, it was based on the data base.
Q. Again, the data base is the -- we are not sure what percentage of the number of signatories there are, but it's the data base that the Grebner group had put together. Is that correct?
A. Correct.
Q. Are you able to tell by looking at a list as to who is African-American and who is Caucasian and/or some other minority group?
A. Only by where they live. We can presume there are few white people that live in certain areas, and so we chose by location. So, no, but . . .
Q. The answer is yes or no?

THE COURT: She just said no.
MR. WASHINGTON: I think she just gave the answer.
THE COURT: She just said no. Please go to your next question.

BY MR. O'BRIEN:
Q. So, you don't know whether a group of votes larger than their numbers in a given community or not, do you?
A. I didn't understand the question. [148]
Q. You don't know that if, say, the number of Caucasian people who live in Detroit are 10 percent, but they vote at the rate of 20 percent; you don't know that, do you?
A. No, I don't know that.
Q. And that's not a factor you take into your data, is it?
A. No. We just made calls to the voters that were on the list.
Q. So, would it be fair to say that just because a certain percentage of a population of a given city is, say, African-American, Caucasian or some other group, you don't know what the voting rates for those communities are, do you, as far as --
A. No. We know what the race of the people we interviewed were, because we asked them.
Q. Okay. But that wasn't my question.
A. Okay. Then no.
Q. So, would it be fair to say that you made a number of assumptions in arriving at your figures in this Exhibit 2?
A. No, I wouldn't say that.
Q. Well, let me ask you. Did you make the assumption that anybody who voted for or signed the petition from Detroit was African-American?
A. It doesn't say that. It says that the number of people who signed from majority black cities.
Q. Okay. But did you make the assumption that because [149] Detroit is a majority black city, that everybody who signed that petition was somehow misled?
A. No. We -- the only way that we were able to find that out was by talking individually to the voters.
Q. Did you talk to all 75 of the people from Detroit?
A. I think this represents the number of people that we were able to reach.
Q. No. Did you talk to them?
A. Personally?
Q. Yes.
A. No.
Q. How many did you talk to personally?
A. I didn't do most of the direct phone calling. I administrated the phone banking.
Q. So, you don't know, yourself, as to which of these people are actually of a given race or a given gender; is that correct?
A. Well, everybody kept a record of their phone calls. So, we do have data on that.
Q. Were these face-to-face meetings or were these phone calls?
A. They were a combination of the two. I mean, they were some, as I said, we followed up by going to people's homes. Otherwise, they couldn't sign the affidavit. They had to sign the affidavit. [150]

Q. Were your people supposed to make a list as to whether they were African-American or not?
A. Well, they generally made notes about what they knew about the person, yes. I mean there are log sheets, yes.
Q. They would enter -- they would mark what race they are?
A. There wasn't a box, but in their notes they would usually say. But I -- uh-hmm.
Q. You have those records with you today?
A. I don't.
MR. O'BRIEN: No further questions.
THE COURT: Mr. Fett.

CROSS-EXAMINATION BY MR. FETT:
Q. Good afternoon, Ms. Stern.
A. Hi.
Q. Is it fair to say that BAMN did not analyze any other petitions?
A. Other than MCRI? Have we ever done this before, do you mean?
Q. Well, you did analysis -- correct me if I'm wrong. You did some analysis as reflected in your Exhibit 2, right?
A. Yes.
Q. Okay. And I think it's your position that there was a lot of African-Americans that were signing this petition, 24 percent, because there's only 12 percent in the state [151]population. Correct?
A. Yes, that's true.
Q. But you don't know what the experience is in other petitions where they have maybe for dove hunting or some other type of ballot issue, you haven't looked at what the experience has been with any other petitions, have you?
A. No.
Q. And so you don't know whether this 24 percent is average, above average, or below average for the petitions that are done in the state, do you?
A. Well, I haven't done a comparison, no.
MR. FETT: Thank you.
THE COURT: Mr. Washington.

REDIRECT-EXAMINATION BY MR. WASHINGTON:
Q. Ms. Stern, just a couple areas. One, you said that people were sent out and called. Did you find any white people from Detroit that signed the petition?
A. I think we found one.
Q. And those zip codes which list -- which you have been holding on your lap there for the entire time of your testimony -- are you familiar with the city of Detroit?
A. Very.
Q. And have you looked through those lists? [152]
A. Yes. Q. And are there streets where white people, frankly, haven't lived for 20 years?
A. That's true.
Q. And there are a lot of streets like that?
A. Yes.
Q. And on those streets are there a number of different persons who signed?
A. Yes.
Q. Sometimes entire families?
A. Yes.
Q. And in fact -- I mean, let's be candid -- is it not true that most areas of the city of Detroit are mostly, if not entirely, black?
A. That's true.
Q. And there are signatures there from those areas, lots of them?
A. Yes.

MR. O'BRIEN: Your Honor, I'm going to object to this line of questioning. I don't think there has been a foundation or basis for this witness to say what the racial composition of different neighborhoods of Detroit are, where African-American and/or Caucasian people live in the city.

MR. WASHINGTON: I think anybody who drives through the city of Detroit -- [153]
MR. O'BRIEN: Objection. Foundation, Your Honor.

THE COURT: Well, until you said that, Mr. Washington, I was going to say that she has said that she has lived here for --
A. 25 years.

THE COURT: -- 25 years and is a regular observer of the city. Now, whether or not she's right or not goes to weight and not admissibility.

MR. O'BRIEN: I agree.
MR. WASHINGTON: Thank you, Your Honor. No other questions.
MR. O'BRIEN: No questions, Your Honor.
MR. FETT: No questions, Your Honor.

THE COURT: You may be excused. Thank you. . . . . .

[197] . . .

MR. WASHINGTON: Judge, we need to address the issue of the Michigan Civil Rights Commission report. I would call more witnesses, but if that report is going to come in, it will suffice because it will set out --
THE COURT: I want to hear orally what's wrong with it. Who wants to talk to that? Mr. Rosman?
MR. ROSMAN: You want to discuss it now, Your Honor?
THE COURT: Yes.
MR. ROSMAN: Well, your Honor, there's a variety of things. It is hearsay. It is an out-of-court statement that's being submitted for the truth of the content.
THE COURT: Isn't it an official state record?
MR. ROSMAN: It is an official -- it is a public record, Your Honor, which can come in only if it meets the requirements of Rule 803(8)(c).
THE COURT: What are the requirements?
MR. ROSMAN: They must be trustworthy, Your Honor. And there's a whole series of things that the Sixth Circuit has identified for determining trustworthiness, one of which is -- I can give you two off the top of my head. I haven't prepared immediately for argument of this motion today. [198]
THE COURT: You have been here all day. This is your piece.
MR. ROSMAN: Your Honor --
THE COURT: But go ahead, tell me, what are the two things that the Sixth Circuit has said.
MR. ROSMAN: One is timeliness and the other is bias.
THE COURT: Okay. Tell me about the timeliness first.

MR. ROSMAN: All of the people who testified were testifying more than a year and sometimes close to two years after they encountered these individuals -- excuse me -- had these encounters concerning the petition. Now, each of them probably had no more than a few minutes' encounter. And the testimony has to, by nature, go back and describe specific words that were used during the course of a very short conversation several years previously. As to bias, Your Honor, I would point to our appendix to the motion in limine, which the Michigan Civil Rights Commission passed a resolution two years prior -- two years prior to even beginning their investigation, in which the Commissioner, Mark Bernstein said, and I quote: "The Michigan Civil Rights Initiative is a shameful attempt to confuse and manipulate unsuspecting Michigan voters. [199] Ward Connerly's initiative is to civil rights what an ax is to a tree. Don't let these extremists tear down our state's great tradition of enabling and protecting diversity." "The Commission as a whole then passed a resolution that said, in part: "Whereas, the Michigan Civil Rights Initiative represents an attempt to mislead Michigan voters regarding the issue of" -- (Interjection by court reporter.)

MR. ROSMAN: Sure. "The Commission as a whole then passed a resolution that stated" -- and I'm excerpting the resolution. "Whereas, the Michigan Civil Rights Initiative represents an attempt to mislead Michigan voters regarding the issue of discrimination by state entities" -- And then it concluded as follows, Your Honor: "Be it resolved that the Michigan Civil Rights Commission vigorously opposes the Michigan Civil Rights Initiative designed to eliminate and undermine the basic principles of equal treatment under [200] the law as sets forth in the Michigan Constitution." Your Honor, I would suggest that statement and a resolution of that kind several years before beginning an investigation is the very definition of bias.

THE COURT: Your response?
MR. WASHINGTON: Yes, I would like to respond. First of all, we think it is admissible as a public record under 803(8). The statement of the Civil Rights Commission is that they believed that it was substantively misleading -- that the Michigan Civil Rights Initiative was substantively misleading; that it was to civil rights what an ax was to an tree. They are not addressing at that point the deception of the signature gatherers. They held four public hearings, took testimony from numerous witnesses. The MCRI was invited to come to that. Boycotted those proceedings because they didn't want to defend what they did. The Commission, which has eight members appointed by the Governor, confirmed by the Senate of the State of Michigan, issued this, and issued this as an official public report. And I find it incredible that the Michigan Civil Rights Initiative will rely upon opinions by the Attorney General, who is opposed to the petition; decisions by the [201] Michigan Supreme Court, which is opposed to the petition -- that's fair, by somebody who is -- I'm sorry -- who supports the petition, but somebody who is opposed to it is per se disqualified. I think that would disqualify a lot of people. And I don't think we've reached the point in this country where you can just say, well we politically disagree with them; so, therefore, it's not an official report or a government body or a Civil Rights Commission or it's anything; we're the only people who decide truth here. And so I think it's not bias on this issue.

THE COURT: What about timeliness?
MR. WASHINGTON: Well, I think it's -- I mean, they conducted the report -- they conducted their hearings beginning in January of this year, which was when the issue really came to light. It was conducted -- they started shortly after the Michigan Court of Appeals and within a matter of months after the Board of Canvassers. So, before that time it had not become a public issue because it had not been certified for the ballot.

MR. ROSMAN: The fact that they may not have had a reason for it not being timely doesn't mean that it's not untimely -- still untimely.

THE COURT: What I would like you to respond to -- Well, first of all, what is the Attorney [202] General's position on this?
MR. O'BRIEN: Your Honor, with regard to the State Defendants -- and, again, the Attorney General hasn't taken a specific position on this. And I don't know where Mr. Washington is coming from with his side comments --
THE COURT: I want to know what is your position on this coming in?
MR. O'BRIEN: Your Honor, with regard to this, I would say that I've read the Commission report and sections of it. It's replete with hearsay. It also wasn't subject to cross-examination. I think it's very --
THE COURT: Cross-examination by whom?
MR. O'BRIEN: By an opposing side, I guess would be . . .
THE COURT: Were --
MR. O'BRIEN: Pardon?
THE COURT: I'm not sure how the process works. If the Civil Rights Initiative had come in, could they have cross-examined?
MR. O'BRIEN: That's the problem, Your Honor.
THE COURT: Could they? Yes or --

MR. O'BRIEN: This is an extraordinary type of thing the Commission did. It is not something in the ordinary course of business. It's never, to my knowledge, been done before, certainly not with a petition initiative. [203] And so because it's so out of the ordinary, there was no procedures that they followed, and they basically just took statements that were not subject to cross-examination. So, you know, I guess my position is that it is inherently somewhat untrustworthy because these were statements made by people that were not subject to cross-examination, of someone that had documents in which they could cross-examine them with.

THE COURT: Now that you've answered your question, here's my question. Is -- I understand it's an extraordinary proceeding. And I would also understand if you don't know the answer to this question. The question is, if the other Defendants had accepted the invitation to participate, would they have had the opportunity to either present witnesses or to cross-examine the witnesses who were presented, if you know?
MR. O'BRIEN: I don't know, Your Honor.

THE COURT: Okay. Wait a minute. Mr. Washington, it's not your turn yet.
MR. WASHINGTON: Okay.
THE COURT: Do you know, Mr. Rosman?
MR. ROSMAN: I don't know the answer to that question, Your Honor, but --
THE COURT: You may stop. You may stop when you say "I don't know." [204]

MR. WASHINGTON: There is no question they could have presented witnesses. In fact, one of the witnesses they are going to call today did testify. It certainly was open on that. In terms of asking questions, I think they simply had to respond to the Commission and ask them. I mean, in some ways, since they just said we are not going to pay any attention to it at all, I don't think they ever attempted to get cross-examination.

THE COURT: Okay. My ruling is that under the 803 hearsay exception, it is admissible. The timeliness objection goes to weight that I will give to it, because I obviously recognize that people's memory is better close to the event rather than far from the event. In terms of bias, I think the U.S. Supreme Court has said that just because an agency, a public agency reaches a conclusion, that does not make it inadmissible. And I think the cite for that is Beech Aircraft versus Rainey, 488 U.S. 153, a 1988 opinion. And so I assume then, Mr. Washington, you're done presenting witnesses?

MR. WASHINGTON: Yes, Judge, just with a note that we have a number of witnesses who could testify to the same signature gathering process. But as you've said, they are cumulative. So, we would rest. [205]
THE COURT: All right. Now, does the Attorney General have any witnesses?
MR. O'BRIEN: Yes, Your Honor.
THE COURT: You may call them.

MR. O'BRIEN: I call Chris Thomas.
THE COURT: Raise your right hand, please.
CHRISTOPHER THOMAS, DEFENDANT'S WITNESS, SWORN.
THE COURT: Please be seated.

DIRECT-EXAMINATION BY MR. O'BRIEN:
Q. Mr. Thomas, would you identify yourself?
A. It's Chris Thomas. Director of Elections for the Secretary of State's office.
Q. As Director of Elections, do you also serve in some capacity to the State Board of Canvassers?
A. Yes. Under Michigan election law, I am a Secretary to the Board of State Canvassers.

Q. And what are your duties, responsibilities?
A. We actually staff the Board. So, for example, in instances where petitions are brought in by a group that wants to circulate, we review that in advance, and then we take the petitions to the Board where they approve it as to form. When we look at it in terms of form, we are looking at statutory requirements. We do not read the [206] language. We do not comment on the construction of the language or the accuracy of the summary. It is strictly the form of the petition.

Q. In your position as Secretary of the Board of Canvassers, have you become familiar with a petition initiative called the Michigan Civil Rights Initiative?
A. Yes, I did. They submitted their petition for approval as to form in 2003.

Q. And I don't -- the history of this petition is set forth in our brief and is in the record already. But could you just review basically what has gone on with regard to this petition?
A. Well, essentially it came in. We went through the process of reviewing it as to form, took it to the Board of State Canvassers. Again, no comments, no approval based on the language or review of the summary. It was strictly the issue of the form of the petition, type sizes, warnings, and layout. They approved that. Obviously, litigation ensued after that. I don't think I need to go through all of that with you. And eventually the Court of Appeals held that the form was appropriate. The petitioners then filed signatures, and then we began the process of doing the random sampling that we normally do.

Q. I believe you have in front of you what is Plaintiff [207] Exhibit 4(sic), what would be the State Exhibit 1.
A. Yes, I do.
Q. Do you have that in front of you?
A. Yes.
Q. Can you indicate what that document is?
A. This document is our staff review of the Michigan Civil Rights Initiative petition that was submitted -- made public on July 13th, the year 2005.

Q. And what does this report represent?
A. It represents two main areas. The first area is our analysis of the random sampling. We have a procedure that we have used since the early 1980's that actually calls a random sample of 500 signatures from the petition. From that, we then check the registration status of those signers and then make a conclusion based on what the sampling procedure tells us. The other part of the staff report deals with the issue of a challenge that was filed by the BAMN organization challenging this petition, and we provide an analysis of that also.

Q. Now, you talked about a sample process. Is that a procedure or process that has been used in the past?
A. Yes, it is. It has been used again since the early 1980's.
Q. In fact, was that a process that was used in the case 208 Taxpayers . . .
THE COURT: United.

BY MR. O'BRIEN:
Q. United?
A. Yes, it is.
Q. And was that reviewed in that case by the Sixth Circuit and found to be valid?
A. Yes.
Q. Now, looking at this document, is it -- from this document can we determine the total number of petition signatures that were submitted?
A. Yes. The total filing consisted of 508,159 signatures.
Q. And what was the total number that was required in order for this to get on the ballot?
A. 317,757.
Q. Okay. And is that also reflected on this document?
A. Yes, it is.

Q. That is the raw numbers, I guess. You then, I understand, took your sample, and from that sample determined which were valid and which were not?
A. Yes. Our first step is to go through all the sheets and determine which sheets would be excluded in total because it is improperly circulated -- signed by a circulator, for example. When we did that, we eliminated about 2100 209 signatures. So, we ended up with 505,970 signatures that were in the universe that were sampled. We did a sample of 500 signatures. Based on a regular random sampling process, we concluded that 50 signatures were invalid based on registration status or the manner in which they were affixed to the form. For example, a date may have been left off; there may have been no street address included on the petition. So, we concluded on this portion of it that there were 455,373 valid signatures.

Q. Now, taking that sample and comparing it or applying it to the total number of signatures that were filed, were you able to determine how many signatures above what the minimum was?
A. Somewhat over 188,000.
Q. We've heard testimony today from, I believe, a statistician who basically said that every vote that came in from every city with a majority African-American population, that if they were backed out, there would be approximately 124,000 signatures that should be taken off this petition amount?
A. Yes.
Q. Did you hear that testimony?
A. Yes, I did.

Q. Even assuming all that to be true, that in fact everybody 210 who signed it, you know, was misled and that they didn't intend to sign this and that they didn't read it, or if they did read it, they didn't understand it, assuming that all those names were removed, would there still be sufficient signatures for this to go on the ballot?
A. Yes. It appears to me there would be regardless of how you did it. If you took it from the total number of samples, there would be over 63,000 signatures still left before you would get down to the level of not certifying. If you take it off of what our random sampling found as valid, which is 455,000, you are down to 330,000. So, you only need 317,000 for a valid petition. So, you are well over 13,000 signatures to the good.

Q. So, using the method that has been certified in court in Taxpayers United where it was tested by the federal court system, there was a ratification of the process. Is that correct?
A. Yes.
Q. And any way you analyze this, even taking the assumptions that Plaintiffs are making, there would still be more than the minimum number to go on the ballot; is that correct?
A. Yes. I haven't seen any numbers yet that suggest you get below 317,000 signatures.

MR. O'BRIEN: Your Honor, I only have one copy of [211] this. It was referenced by a witness earlier today, Doyle O'Connor. This is the Deputy Attorney's letter opinion that was mentioned. I would like to show that to counsel and ask questions.
THE COURT: Any objection?
MR. WASHINGTON: I have no objection. And I have no objection to the admission. It's probably a public record, Judge.
THE COURT: Isn't that also one of the exhibits in the motions or not, or just references to it?
MR. WASHINGTON: Yeah, we've made reference. We didn't offer it, but I have no objection if he wants to offer it.
THE COURT: Okay.
A. Exhibit 21.
MR. O'BRIEN: That is marked State Exhibit 2. (Defendant Exhibit 2 was admitted into evidence.)
A. Excuse me.

BY MR. O'BRIEN:
Q. First of all, can you identify the signatory of that letter?
A. Yes, I can. It's Barry P. Gordon, Chief Deputy Attorney General.
Q. Are you familiar with that gentleman?
A. Yes, I am. He is a representative of the Secretary of [212] State Board of Canvassers for 20-some years.
Q. At that time was he counsel for the Board of Canvassers?
A. Yes, he was.
Q. And what was his responsibilities and duties vis-a-vis the Board?
A. His responsibilities are to provide legal advice to the Board on matters that come before it.

Q. The document that you hold in your hands, what is that document?
A. It's a letter to the Honorable Leon Drolet, State Representative, and it deals with the issue of the investigatory authority of the Board of State Canvassers.
Q. Was this presented to the Board at a meeting?
A. Yes. It was presented to the Board at the July 19, 2005 meeting.
Q. And was that presented as an Attorney General opinion or something binding on the Board?
A. It's not my recollection that it was, no. It was offered as a letter opinion signed by the Chief Deputy, who is counsel to the Board of State Canvassers, as his legal advice to the Board.
Q. What is the effect of that advice?
A. I believe the effect of that advice is that it's his advice given to the Board, and I'm not so sure they are bound by it. [213]
Q. And, in fact, there was a vote that was taken by the Board with regard to whether there should be an investigation following this advice; is that correct?
A. That's correct.
Q. And would it be fair to say that two of the members followed the advice and two did not?
A. That's correct.
Q. And that, in fact, there was not an investigation done by the Board of Canvassers; is that correct?
A. That is correct.

Q. Now, you are aware of the allegations made by Plaintiffs that their circulators misrepresented or made statements that may or may not have been accurate with regard to the petition language. Is that correct?
A. I am. And we analyzed that in our report to the Board. What we looked at was the documents that were provided by BAMN in their challenge. And what we found was that there were a number of categories that this broke down into. And so everybody agreed we were looking at the 500 random sampling.

They had challenged 325 signatures. We found that 42 of those we had already found invalid. 88 of them were not valid challenges. So, they had 195 signatures remaining in their challenge. And they needed to actually eliminate -- they needed to find 153 invalid signatures in [214] order to bring the petition under the random sampling down to the point where it would conclude "do not certify."

So, as we looked at it -- and what we did was try to build a scenario for the Board to look at various categories that it would take to get down to 153 signatures. So, they had three signatures that were based on misrepresentation that were actually personalized statements by the signers; that they actually wrote their own statement out. There were 32 signatures of misrepresentation which were on the form statement that has been referred to in earlier testimony that was prepared and signed, but not notarized. There were ten signatures challenged on the basis of misrepresentation, which were supported by a statement executed by circulators. So, in other words, the person who signed that was pulled under the random sampling, that circulator, that sheet acknowledged that they misrepresented the purpose of the petition. There were 36 signatures challenged for misrepresentation, which are supported by a statement executed by a person that he or she interviewed by phone. So, in other words the phone bank person signed the form; not the voter.

And this left then 72 they needed to get out of this remaining. They needed to get 72 signatures that were asserted to be invalid by implication. In other words, 38 of these signatures were collected by circulators who other [215] signers alleged misrepresented. Not the signer themselves whose name is sampled, but because some other signer said that that circulator misrepresented, that therefore they were concluding that they must have misrepresented all of them.

And then at least 34 signatures were collected by circulators who are alleged to have misrepresented the petition according to persons who claimed to have conducted phone interviews with other signers. So, this again is two times removed now.

So, what we told the Board, in our view, is that at least with these implication signatures, the 72 that they needed, that they would -- there would have to be some sort of assumption that the circulator misrepresented the petition to every signer; and, second, that every signer who interacted with a circulator did not understand the purpose of the petition; and, finally, that every individual who signed the petition, at the request of the circulator, would wish to have their signature determined invalid. So, this is what we laid out for the Board, going into the meeting, based on our analysis of the challenge that was filed by BAMN.

Q. And the recommendation was that -- was what with regard to these statements by somebody other than the signer?
A. Well, we did not initially make a recommendation. The staff report, as you note, does not recommend certification [216] or the finding of insufficiency. It was when the legal decision came in stating that the basis for investigation and challenging based on misrepresentation was not available, well, then at that point we did recommend certification.

Q. Now, the Act does provide for investigations; is that correct?
A. That's correct. The Board has, frankly, solid investigatory authority, but it's tied to matters that state law places in front of it.

Q. And what type of challenges would those be?
A. Those would be challenges to the authenticity of signatures, for example, of signers; to the registration status; to situations that we've had where you've had round tabling, where you can see patterns of handwriting on petitions. I think in the Third Circuit down here, back in the 80's or the 90's, we had the Dallas Mavericks, most of that team signed a petition for a couple judges. So, you know, that is the type of thing the Board did in those cases, issued subpoenas, bring circulators in, and questioned them as to their circulation method and who these people really were.

Q. Does the investigation go to what circulators said to a particular signer when they in fact signed the petition?
A. No. There's nothing in state law dealing with initiative [217] petitions that addresses that issue.
Q. Are there free speech issues involved here, and are you aware of court decisions that limit the Secretary of State from looking into what can and cannot be said?

MR. WASHINGTON: Objection, Your Honor. It's leading and it calls for a conclusion.
THE COURT: You may continue.
A. I'm not aware of any court decisions in that area, no.
THE COURT: Didn't follow the lead, counsel.

BY MR. O'BRIEN:
Q. Ultimately, this case was put on the November 2006 ballot; is that correct?
A. That's correct.
Q. How did that occur?
A. That occurred when the Michigan Court of Appeals ordered, I believe, on December 22nd that this would go out ballot. After the Board's attempt to do that at the December 14th or 16th meeting, and failed to do that, the Court of Appeals ordered it on the ballot.

Q. Now, the actions of the State Defendants, are these actions that allow for discretion, or are these considered ministerial acts or regulatory acts?
A. The courts have been very specific. These are ministerial acts.
Q. Is there any independent state action other than what [218] you're required to do by law?
A. No.

MR. O'BRIEN: One moment, Your Honor.
BY MR. O'BRIEN:
Q. There has been some discussion as to when this initiative has to go on the -- has to be approved to go on the ballot or it has to -- this challenge has to be resolved. Could you indicate to the Court what the importance of timeliness is -- is involved herein?

A. Yes. This is a paramount decision that's going to affect the ability for us to have ballots in a timely fashion, depending which way it goes. And as I follow this -- and I don't have a -- I'm not on either side of this issue, okay. We are here as the administrators. And it seems like one side will appeal the decision regardless of which way it goes. If we don't have a ballot ready to go on September 8th, we are going to be in trouble in this state. Right now we are preparing the ballot. We are starting the layout process. By the 8th of September, everything has got to be laid in place. And we have to have ballots, have them printed, and ready to be mailed overseas by the 23rd of September.

And what we have different this year that we've never had before is that under the Help America Vote Act, we [219] have rolled out and adhered to the requirement that we have a disability-compliant voting system in place. And we program that system, but we can only program that system once the optical scan tabulators are themselves programmed. They are programmed by September 23rd. And then we take the program from that, and it takes us a good month to program these 4300 machines for voters with disability. Any slippage we get on September 8th is going to push us past September 23rd. That is an absolute given. So, I would hope that we could have some sort of final decision by the 8th of September. If that includes incorporating time for the Sixth Circuit, then I would genuinely hope that that would be built into any opinion that's issued.

MR. O'BRIEN: Thank you.
THE COURT: Mr. Fett?
MR. FETT: No questions, Your Honor.
THE COURT: Mr. Washington?
MR. WASHINGTON: Thank you, Judge.

CROSS-EXAMINATION BY MR. WASHINGTON:
Q. Mr. Thomas, your report makes reference to this being a unique challenge; that being the challenge that Operation King's Dream has filed. Is that correct?
A. Yes, it is.
Q. Had there ever been a case before where someone had [220] alleged to you that there was racially-targeted fraud of any kind in the signature gathering process?
A. No.
Q. Now, as I recall, the Board drew its sample and then published that sample and made it available to anybody who wanted it right, correct?
A. That's correct.
Q. And the challenges had to be filed within 14 days; am I correct?
A. Ten business days.
Q. Ten business days. Okay. And what your report is analyzing here is those challenges which were able to be filed within the ten days. Am I correct?
A. That's correct.
Q. The 14 days or ten days.
A. Yes.

Q. And would it be fair to say that from that point on, nobody at the Bureau of Elections made any investigations as to whether or not the things said that occurred were true?
A. (No response.)
Q. In other words, do you know now whether or not people were systematically misrepresented the contents of this petition?
A. We did look at some of the circulation materials that [221] were available from the MCRI, instructions that they both had, they provided to us, and I believe had on a web site. But beyond that, if you are asking did we contact voters, no, we did not.
Q. Or circulators.
A. Or circulators.
Q. All right. So, as we sit here today, you do not know whether, in fact, there was misrepresentation going on in the field. Am I correct?
A. That's correct.

Q. Now, you testified that the approximate number of signatures needed was 317,000 to get this on the ballot?
A. 317,757 is the constitutional requirement.
Q. Okay. And you did some math in your head where you deducted the amount from those eight cities. Okay. Let's say all of these cities were knocked out, you would still come down to about 330,000. Am I correct?
A. Depending on which way you take it.
Q. The method?
A. Yes, that is one way to do it.

Q. And would it be fair to say that you would know, from the demographics of this state, that there are a substantial number of black people and Latino people who don't live in one of those eight cities? [222]
A. I really don't know that.
Q. Well, okay. You are familiar with the city of Battle Creek?
A. Not really.
Q. You are familiar with the city of Lansing?
A. Yes.
Q. And Lansing certainly has a number of black people in it, doesn't it?
A. It has some numbers.
Q. And also Latino people?
A. Yes.
Q. And, in fact, much like all of our other cities, they are concentrated in particular neighborhoods. Am I correct?
A. I really couldn't say.

Q. Well, do you know -- would you agree that the process of getting a petition on a ballot is something that should be free of racial discrimination?
A. Yes.
Q. And would you agree that any substantial amount of discrimination in that would taint the process?
A. I don't follow the question.
Q. Well, if there was a substantial amount of discrimination, would that cause you concern as the Director of Elections for the State of Michigan?
A. I don't have a sense of how the discrimination would [223] occur. So, I really can't answer it. I don't understand.

Q. Well, Mr. Thomas, if you were convinced that people were out there systematically lying, and in particular to black voters, would that cause you concern?
A. Yeah. It's not the right thing to do.
Q. Well, okay. Beyond that, is it something that you would want, as the Director of Elections, to maintain the integrity of elections in the state?
A. Are you asking if I have authority to do something about that?
Q. No. I'm just asking your view on the subject.
A. Well, I would wish people wouldn't do that, most certainly.

Q. And you were prevented -- when I say "you," the Board of Canvassers and the Director of Elections -- Bureau of Elections -- were prevented from investigating whether this was true or not. Am I correct?
A. The Board did not vote to have an investigation. I don't know that we were prevented by anybody.
Q. Okay. Well, ultimately a decision from the Court of Appeals came down. And I know this gets into the law, and I'll just ask one question. Would it be fair to say that you were under the impression that the order you were given is it didn't matter how MCRI got those signatures; if they got them, they had to [224] go on the ballot?
A. I don't think that's what it said. The impression was -- that I got from the Court of Appeals decision is that the Board did not have the legal authority to investigate those issues.
Q. And as far as you know, to ask a question the Judge asked earlier, other than the Civil Rights Commission, no official governmental agency in the State of Michigan has investigated whether there, in fact, was racially-targeted voter fraud in this case, correct?
A. I'm not aware of it.

MR. WASHINGTON: Thank you.
THE COURT: Any redirect?
MR. O'BRIEN: No, Your Honor.
THE COURT: Mr. Fett?
MR. FETT: No, Your Honor. Thank you.
THE COURT: To your knowledge -- you are not a lawyer -- Hang on a second. Come on back.
A. Oh, I'm sorry.
THE COURT: It takes me a minute. You are not a lawyer; is that correct?
A. I am a lawyer.
THE COURT: You are a lawyer. Well, that makes it great. [225]

In your experience and training and practice, do you know if it would be a crime to misrepresent the purpose of the substance of a petition?
A. I don't believe it is.
THE COURT: Thank you. . . . . .

[245] . . .

HEIDI VEROUGSTRAETE, DEFENDANT'S WITNESS, SWORN.
THE COURT: You may be seated. You may begin.
MR. ROSMAN: Thank you, Your Honor.

DIRECT-EXAMINATION BY MR. ROSMAN:
Q. Ms. Verougstraete, as an opener, you have been asked to spell your last name. Could you do that?
A. Sure. V-E-R-O-U-G-S-T-R-A-E-T-E.
Q. Did you work for an organization called National Signature Management at any time?
A. Yes, I did.
Q. Was there a connection between the committee that is supporting the proposed amendment that is at issue in this lawsuit and National Signature Management?
A. Yes. They retained National Signature Management as an independent contractor.
Q. Do you know Jennifer Gratz?
A. Yes, I do.
Q. Did Ms. Gratz -- I'm sorry.
A. I'm sorry. Can you speak a little louder? I'm having trouble hearing you.
Q. Okay. I will move a little more closely to the mike. Is this better?
A. Much. Thank you. I'm sorry. [246]

Q. All right. What was NSM hired to do as an independent contractor?
A. We were hired to gather signatures for the proposed ballot amendment that would qualify it for the November 2006 ballot.
Q. And that was a proposed amendment that would ban preferences on the basis of race and sex?
A. Yes.
Q. I've already asked you if you know Ms. Gratz. Did Ms. Gratz give you any instructions or detailed procedures for training people who would go out and obtain signatures?
A. No.
Q. Did Ward Connerly?
A. No.

Q. The circulators were -- what was the relationship between the circulators and NSM?
A. We hired petition circulators as independent contractors to circulate the petition and gather signatures for the proposed amendment.
Q. Okay. When you say they were independent contractors, were taxes taken out of their pay?
A. No.
Q. Did you pay their expenses?
A. No. Q. What did you pay them?
A [247]. We paid them one dollar per ballot signature that they gathered.
Q. Was there a sliding scale of payment?
A. No.

Q. Let me show you a document and ask whether you recognize it. Can you identify the document?
A. This is the independent contractor agreement that NSM, National Signature Management, had developed for our circulators.
Q. This specific one is for a particular circulator?
A. Yes, Joseph Reed.
Q. But is it typical of all of the independent contractor agreements you had with circulators?
A. Yes, sir.
Q. Had you worked with Joseph Reed either before or after he worked for the proposed amendment that is at issue in this case?
A. Yes, both before and after.
Q. Is that typical of circulators, that they would work on more than one petition?
A. Yes.

Q. Were you responsible for training circulators?
A. Yes, I was.
Q. How many people were trained by NSM? [248]
A. By NSM and LLC, we trained just over a thousand. I believe the numbers are somewhere around 1,035.
Q. How many of those 1,035 actually handed in petitions with signatures on it?
A. I would say approximately just over 600, probably about 630.
Q. And how many of those individuals did you -- well, how many people did you train yourself?
A. We had approximately just over 400 -- I believe the number is 435, give or take -- come through the Southfield office, which was the location where I was training circulators at. And of that number, I trained probably about 70 percent of them.
Q. Who trained people in other offices?
A. Coordinators that I had also trained. We had offices in other locations across the state for which I would provide training for a coordinator, who would then provide training for the circulators.
Q. Okay. So, is it fair to say that you trained either personally or indirectly the circulators, almost all of the circulators who were paid by NSM?
A. In some form, yes.

Q. Are you aware of whether there were also circulators who were not trained by NSM?
A. I was not. [249]
Q. I'm sorry. You are not aware of such --
A. I'm not aware that other circulators were trained by people other than NSM, no.
Q. Okay. There were no volunteer circulators?
A. There were volunteers.
Q. Did NSM train them?
A. We did not train them, no.
Q. So, there were some circulators who were not trained by NSM?
A. Yes, in that case.

Q. I'm sorry. You said there were 600 or so who turned in petitions; is that correct?
A. Yes.
Q. And you trained over a thousand?
A. Yes.
Q. Is that atypical that 60 percent or only 60 percent of those who were trained would actually go out and obtain signatures and bring them back?
A. Very typical, a perfectly reasonable number.
Q. It's consistent with --
A. Other petition drives that I have done, yes.

Q. All right. Let's actually talk about that for a second. What is your experience in this general field?
A. I have worked on candidate petitions, as well as issue petitions. This past year I worked on raising the minimum [250] wage issue, as well as repealing the Single Business Tax issue. I also worked on three candidate petitions this past year, as well as another initiative in another state.
Q. Okay. Tell me how you trained both the circulators and the coordinators for the proposed amendment that is at issue in this case?
A. I'm not sure exactly what you mean by . . .
Q. Well, what are the basic outlines? What are the basic fundamentals that you teach people when you are training them to circulate a petition?
A. The primary thing that we do right off the bat, because petitioner forms can vary, is we go through the legalities of the petition form, what blanks need to be filled in by the circulator as opposed to what blanks need to be filled in by the signer. It is made clear to the circulators that they are not to help people sign their name in any way, shape, or form, and then we briefly discuss the issue. We tell people the best way to get people to sign is to ask people to sign the petition, to read over the forms themselves, regardless of the issue.

Q. Do you say anything about making the petition available for people to read?
A. Absolutely. You are not allowed to gather signatures for a petition drive on anything other than the petition form itself. And on the face of the petition form is the language [251] for the proposed amendment. If the language is damaged in any way, the signatures are not accepted. The language needs to be clearly intact when the petition form is received in the office.

Q. Did you ever discuss with them the substance of the proposed amendment?
A. Yes.
Q. Okay. And what did you say to them about that?
A. We would always instruct our circulators themselves to read through the language. But this particular amendment was to end race and gender preferences in public contracting, public universities.

Q. Did you ever tell them what pitch they should use to potential signers?
A. We always recommended that they ask people to sign the petition. Of course, there's other means. You know, you need to get somebody's attention to talk to you. So, making eye contact is a fabulous way to start.
Q. Did you ever tell them anything about whether the people who signed the petition had to support the underlying objective of the petition?
A. We would tell them that it was responsible to inform people that they were not voting on the particular issue by signing the petition. This puts it on the ballot so people can vote on it. So, regardless of whether or not a person is [252] for against an issue, they should consider signing it if they think it's a valid issue to vote on.

Q. Did you ever make any reference to affirmative action in your training of circulators?
A. No, I did not.

Q. Did you witness other people training circulators as well?
A. Yes, I did.

Q. Did you ever witness another trainer referring to affirmative action in their training?
A. No, I did not.

Q. Did you ever yourself tell circulators that they should tell people that the proposed amendment would help get kids into college?
A. No.

Q. Did you ever witness any other trainer telling circulators being trained that -- that statement?
A. No.

Q. About how many people would be trained at a time?
A. It varies on the popularity of the session. An evening session might have between ten and 15 people; a morning session might have two.
Q. Was it frequent that there would be more than ten or 15 people?
A. Absolutely not. The training sessions were held quite [253] frequently during the week. So, to have them stack up like that, it was impossible.
Q. I'm sorry, I didn't hear you.
A. Our rooms were too small. So, we had training several times a week to prevent a stackup of people in the rooms.
Q. Oh, I see. Okay. Did the circulators -- were you there when circulators brought back petitions?
A. Yes.

Q. And were the petitions ever defaced?
A. Yes.
Q. They were. Like in what way?
A. They might have coffee spilled on them, rips, torn, crumpled up.

Q. To your knowledge, did NSM or the committee ever purchase a table at Eastern Michigan University?
A. Yes.
Q. What was the purpose of purchasing a table at Eastern Michigan University?
A. At the time, our -- we had rented table space in the Student Center at Eastern Michigan University that would allow our circulators to circulate inside in a closed door venue with heat, because it happened to be the wintertime. And at that time we ended up getting a refund on our table that we had rented because members of an opposition group [254] actually barricaded people from signing the petition at the table and were harassing our circulators to the extent that they didn't feel safe.
Q. And Eastern Michigan gave you a refund?
A. Yes.

Q. Let me show you a document and ask if you've seen it before, the front and back. Have you seen this document before?
A. Yes, I have.
Q. Where have you seen it?
A. Circulators would bring it in when they were coming to turn in petitions to us.
Q. Did they say how they obtained them?
A. Some of the circulators had said that they had been followed or harassed at their particular location, and the people that were there were preventing people to sign the petition and passing out the flyers to them and to the people trying to sign -- or, not trying to sign in that case.

MR. ROSMAN: Your Honor, before I move the admission of that document, I think I may have forgotten to move the admission of the independent contractor agreement that I previously showed the witness. First, I would like to do that.
THE COURT: All of these exhibits are admitted subject to objection. [255]
MR. ROSMAN: Okay.
THE COURT: I haven't heard any objection.
MR. ROSMAN: Okay, very good.
THE COURT: Mr. Washington indicates he has none. The Attorney General hasn't indicated anything. But now he's indicating --
MR. O'BRIEN: No objection, Your Honor.
THE COURT: You may continue. (Defendant Exhibits were admitted into evidence.)
MR. ROSMAN: Thank you, Your Honor.
THE COURT: In my next courtroom I will put a rearview mirror in the courtroom so that you can see they are in agreement with you.
MR. ROSMAN: Thank you, Your Honor.

BY MR. ROSMAN:
Q. Let me ask a few questions about a couple of the circulators. Are you familiar with Reverend Smith?
A. Yes.
Q. Was he a good circulator?
A. He had poor validity and didn't circulate many petitions, gather many signatures. I couldn't say whether or not he was a good circulator. I have worked with him on other issues. And his performance level, I would say, is -- every signature helps. [256] Every signature counts for every issue. I wouldn't say he was my best circulator because his validity was poor, but he did circulate, yes.
Q. You will have to explain what that means, "validity was poor"?

THE COURT: How does this go to the issues in this case?
MR. ROSMAN: Your Honor, I believe that Reverend Smith testified that he was an excellent circulator and that he -- and the number that he specifically said he put in is something I think we wish to dispute.
THE COURT: You may.
MR. ROSMAN: Thank you.

BY MR. ROSMAN:
Q. Do you have a data base somewhere that identifies the petitions that were sent -- brought in?
A. Yes, I do.
Q. Okay. Do you know how many signatures Reverend Smith brought in?
A. He had turned in one time, and it was for 70 signatures.
Q. Is there anyone named Glenda that worked for NSM?
A. Not for National Signature Management, no.
Q. All right. Was there anyone who wasn't named Glenda, but who called herself Glenda?
A. For National Signature -- [257]
Q. For NSM?
A. No.
Q. There was no one who was either named or called themselves Glenda; is that right?
A. Not that I am aware of.
Q. So, a conversation with someone named Glenda would not have been at National Signature Management; is that right?
A. Absolutely not.

Q. Okay. Is National Petition Management and National Signature Management the same company?
A. No, they are not.
Q. Are they competitors?
A. They are competitors.
Q. So, someone who believed they were the same company would just be confused; is that right?
A. Yes.

MR. ROSMAN: Your Honor, if I could just check my notes for a second, I believe that's all I have for this witness.
THE COURT: Sure. (Off the record.)
MR. ROSMAN: No further questions.
THE COURT: Attorney General?
MR. O'BRIEN: No questions, Your Honor.
THE COURT: The Plaintiffs? [258]
MR. WASHINGTON: Yes, Judge.

CROSS-EXAMINATION BY MR. WASHINGTON:
Q. Ms. Verougstraete, your affidavit says in paragraph five, "I never ran or participated in any training session in which anyone was instructed to say anything about affirmative action." Is that correct?
A. Yes, sir.
Q. Now, then you testified that people were bringing petitions back to you which said declined to sign the anti-affirmative action petition. Is that correct?
A. Yes, that is correct.
Q. Did anyone say is this a petition against affirmative action?
A. Yes.
Q. And was that in the training session or was that in something else?
A. That was actually at our petition turn-in times. We had turn-ins on Monday, Wednesday and Fridays from six to nine where people could come turn in the signatures they had gathered. So, there was always some discussion at that time, conversations of the day's happenings.

Q. Were there a number of people who said is this an anti-affirmative action petition?
A. I wouldn't say there was a number. [259]
Q. Well, how many people came back with this decline to sign or some similar document?
A. I don't know.
Q. All right. And I assume there were people who came back who said they had gotten some kind of opposition other than this decline to sign --
A. I'm sorry. I am having a really hard time hearing you.
Q. Oh, I'm sorry.
A. I'm sorry.

Q. That's all right. Were there people who came back who said that they also had been -- gotten static when they were trying to get signatures on this petition?
A. You mean people saying they were being, you know, harassed or . . .
Q. Harassed or opposed or --
A. Absolutely. And the number wasn't -- it wasn't a hundred, but it wasn't five. It was somewhere, you know.
Q. Quite a bit, wasn't it?
A. At least 20 or 30, which to me is a bit.
Q. And did those persons come back to you and say is this an anti-affirmative action petition?
A. Yes.
Q. So, we are talking 20, 30 circulators maybe came back to you and said is this an anti-affirmative action petition? [260]
A. Yes.

Q. And you told them it was not?
A. I told them that they should read the petition face, as always, and that the petition language itself doesn't mention anything about affirmative action. It says it's to end race and gender preferences in the particular public institutions.
Q. Did you tell them anything else?
A. No.

Q. So, beyond that, they are on their own?
A. Absolutely. People are definitely open to interpretation when they read things.
Q. And they are open to interpretation when they say things?
A. Absolutely.
Q. And if they went out and said it was against affirmative action, you sure didn't stop them, did you?
A. I wasn't aware that anyone was saying that.
Q. Or if they went out and said that it was for affirmative action, you sure didn't stop them, did you?
A. I wasn't aware that anyone was saying that.
Q. But my question is you didn't stop them, did you?

MR. ROSMAN: Objection. I believe he is harassing the witness. She said she wasn't aware --
THE COURT: If your objection is that it has been asked and answered, it's sustained.
MR. ROSMAN: Yes, that was my objection. [261]

BY MR. WASHINGTON:
Q. Ms. Verougstraete, you didn't answer the question of whether this is for or against affirmative action, correct?
MR. ROSMAN: Objection. I think she did give what her response was when she was asked that question.
MR. WASHINGTON: And I'm not sure I understand that. May I ask that question again, Your Honor?
THE COURT: Yes, you may.

BY MR. WASHINGTON:
Q. When somebody said is this against affirmative action, other than telling them to read the petition, did you tell them any other information?
A. Yes. I said the petition itself is to end race and gender preferences in public institutions, universities, and contracting.
Q. Did you say anything else?
A. No.
Q. All right. So, you didn't tell them whether it was for affirmative action or against affirmative action. Correct?
A. No, I did not.

Q. And you didn't tell them whether they should say it was for it or against it. Am I not correct?
A. I advised them not to use the language that was not in the petition.

Q. All right. When somebody came back and was giving you [262] signatures and you were giving them a dollar a signature, I assume you didn't ask them any questions about how they got those signatures. Am I correct?
A. There was absolutely discussion of where they had been that day, if they were circulating the petition at the university or a Kroger's store, a post office. There was always a discussion of venue.

Q. And were you stationed in the central office?
A. Yes, I was.
Q. And where was that?
A. In Southfield.
Q. In Southfield. Did you also have a Detroit office?
A. No, we did not.
Q. No Detroit office?
A. No, sir.

Q. But you sent people from Southfield into Detroit. Am I correct?
A. We don't -- actually, because people are independent contractors, we don't stipulate where they should circulate the petition. Just that they should obtain the signatures of Michigan registered voters.
Q. Did you learn that there were large numbers of people who were signing this petition in Detroit?
A. I knew there were signatures coming from Detroit. [263]
Q. Large numbers from Detroit, correct?
A. I wouldn't say more than average for the petitions in the state.

Q. Did it occur to you -- did you know that this was against affirmative action?
A. I don't --

MR. ROSMAN: I'm going to object to the question. It assumes facts not in evidence.

BY MR. WASHINGTON:
Q. Did you know that it was against the University of Michigan Affirmative Action Program?
A. I don't know what you mean.
Q. Did Ms. Gratz tell you anything about what she meant by the term "racial preferences"?
A. No, we didn't have that discussion.
Q. Did she tell you whether it was against any affirmative action program anywhere?
A. No, I don't recall that.
Q. All you knew is it said it was against preferences; am I correct?
A. Yes, sir.
Q. And what that was, you didn't really know so much?
A. I referred to the language of the petition. Now, of course, I have my own interpretation that I try not to inflict on other people especially because I'm training [264] people on both sides of the issue that may or may not agree with it. So . . .

Q. But what effect this would have on affirmative action, you had no idea and nobody told you. Correct?
A. Correct.
Q. And you didn't tell the petitioners, correct?
A. No. Because the petition doesn't refer to affirmative action.
Q. And whatever they said out there -- you advised them not to use the term "affirmative action." But whatever they said that got signatures, that was okay by you. Correct?

A. What do you mean by "okay by you"?
Q. You didn't do anything to change how people were getting signatures, did you?
A. That's what I mean by we always had an open discussion of venue and such. We wanted to make sure that people were doing the best that they could to gather the signatures.

Q. Other than venue, did people tell what you they were saying to get the signatures?
A. Not really. There was always the -- yes, they did tell me. And they would say -- there was always discussion of what do you say; well, how do you get people to stop.

Q. Did you learn that in the city of Detroit, that the way to get people to sign it was to say it was for affirmative action? [265]
A. I did not learn that, no.
Q. Never heard that until you heard witness after witness say that that's what they were being told?
A. Yes.

MR. WASHINGTON: No other questions.
THE COURT: Mr. O'Brien?
MR. O'BRIEN: No questions, Your Honor.
MR. ROSMAN: Nothing, Your Honor.
THE COURT: You may be excused. Thank you.
A. Thank you.

THE COURT: Do you have any other witnesses?
MR. ROSMAN: Yes, Your Honor. I call Jennifer Gratz.
JENNIFER GRATZ, DEFENDANT'S, WITNESS SWORN.
THE COURT: You may be seated. You may begin.

DIRECT-EXAMINATION BY MR. ROSMAN:
Q. Could you just state your name for the record, please?
A. I'm Jennifer Gratz.
Q. You have a position with the Michigan Civil Rights Initiative Committee?
A. Yes.
Q. Valid [sic] Question Committee?
A. Yes. [266]
Q. What is your position?
A. I'm the Executive Director.

Q. Do you have any responsibility for retaining NSM?
A. I -- yes, I retained NSM.
Q. Okay. And you retained them -- what was the relationship between the committee and NSM?
A. NSM was an independent contractor for the committee to collect paid signatures.
Q. Did you yourself have any experience in petitions prior to this one?
A. No.
Q. Did you consider yourself an expert in how to go about collecting signatures on petitions?
A. No.

Q. Did you give any advice to NSM concerning how to go about collecting signatures?
A. No.
Q. Did you give them any advice as to how to go about training people to obtain signatures?
A. My advice was to always consider the possibility that media or opposition would happen while you were training the circulators. And my advice was to use the language, and I told them that the initiative was about treating people equally without regard to their race or their sex in college tuitions, public contracting and public employment.[267]

Q. Were there other people, besides those who were retained as independent contractors for NSM, who went out and obtained signatures?
A. They were volunteers.
Q. Did you have anything to do with arranging for those volunteers to obtain signatures?
A. Volunteers called in and asked for petitions. We would send the petitions out. In July or August of 2004 when we started petitioning again for the 2006 ballot, we sent a letter out to the people that had circulated -- volunteers that had circulated or signed prior to that time.

Q. Did you tell any of these volunteers that they should say that the petition is for affirmative action?
A. No.
Q. Did you tell them that they should say that it would help get minority children into college?
A. No.
Q. Did you tell them that it would help -- they should say that it would help anybody get into college?
A. No.

Q. Did Mr. Connerly have anything to do with the training of any of the circulators?
A. No. [268]
MR. ROSMAN: I have no further questions.

THE COURT: Cross-examination?
MR. O'BRIEN: No questions, Your Honor.

CROSS-EXAMINATION BY MR. WASHINGTON:
Q. Ms. Gratz, as I understand it, the language for this proposal came directly from California?
A. The language was discussed from July through September, October of 2003.
Q. But my question is it came from California, correct? It is exactly the language of Proposition 209 in California?
A. No, it's not exactly the language.
Q. All right. Is it 99.8 percent the language from California?
A. It's similar to California.

Q. Well, what are the differences from California?
A. We added the University of Michigan, Wayne State University. The universities are spelled out because I believe that there was a status of timing within the Michigan Constitution.
Q. So, other than adding the University of Michigan and Wayne State, it is the same as California, correct?
A. It is not just the University of Michigan and Wayne State.
Q. Michigan State and a couple others? [269]
A. Yes.
Q. Other than adding the names of universities that aren't located in California, it is the California language. Correct?
A. I believe so.

Q. Now, you became -- what is your official position with the campaign?
A. I'm the Executive Director.
Q. And I assume that when you became the Executive Director -- strike that. You were the Plaintiff in the case that went to the Supreme Court; am I correct?
A. One of the cases that went to the Supreme Court.
Q. And you were against the affirmative action -- what was called the Affirmative Action Program at the University of Michigan, correct?
A. What the University of Michigan called it, yes.
Q. And you were against what it called an Affirmative Action Program at its law school; am I correct?
A. Yes.

Q. Okay. And you are familiar, I assume, of other -- with other affirmative action programs in the state of Michigan?
A. I am familiar with other -- I have a difference of opinion on the term "affirmative action." I'm familiar with other affirmative action programs in the state and in the [270] nation, yes.
Q. Let me just ask you this. The various public bodies have issued programs and policies that they call affirmative action. Are you familiar with any of those programs?
A. Yes.
Q. In Michigan?
A. Yes.

Q. Okay. Can you name a single one of those programs called affirmative action in Michigan that you are familiar with that would not be eliminated if this proposal passed?
A. Yes.
Q. Which one?
A. Affirmative action programs for cities, for counties that guarantee that people are treated equally without regard to race --
Q. Which one? Name one.
A. It is the affirmative action policies that are named for cities, for counties.
Q. Which city? Name me a city.
A. I don't --

Q. Give me a single city with a program called affirmative action that is not made illegal if this passes?
A. I don't know which cities call it affirmative action. So, I don't --
Q. Would it be fair to say, as we sit here today, that you [271] do not know of a single program in the state of Michigan, which the author of that program called affirmative action, that would not be made illegal if this proposal passed?

MR. ROSMAN: I am going to object on grounds of foundation, Your Honor.
MR. WASHINGTON: Well, she is Executive Director --
THE COURT: Wait a minute. You may answer the question, if you know. Ask the question again. There are always possibilities. Do you know, you don't know, or you know and there's specific programs.

BY MR. WASHINGTON:
Q. Can you name for me a single program called affirmative action in the state of Michigan by a city, a town, a county, the state, that would not be made illegal under this program?
A. Well, since --
Q. Just the question, can you name one?
THE COURT: That is a yes or a no or I don't know.
A. I don't know.

BY MR. WASHINGTON:
Q. All right. Now, the term "preference," is that designed to eliminate the program that was called Affirmative Action at the University of Michigan undergraduate and law school? [272]
A. I don't know what the University of Michigan considers all of its Affirmative Action Programs.
Q. The ones that you sued about and went to the United States Supreme Court, is the term "preference" designed to eliminate that program?
A. It would be --

MR. ROSMAN: Your Honor, I'm going to object to the question as vague. Eliminate the program in its entirety? Eliminate the race preference part of the program --
THE COURT: She may answer the question.
A. Eliminate the programs that give preference based on race.

BY MR. WASHINGTON:
Q. The program that would give special consideration based on race, correct?
A. That would treat people differently based on race.
Q. Any kind of special consideration of people of a different race, correct?
A. Anything that treated people differently, discriminating against some while giving preference to others.

Q. All right. Does the term "preference" have any application to anything other than affirmative action programs?
A. Yeah. [273]
Q. What?
A. Discrimination.

Q. All right. Discrimination is already banned by the Michigan Constitution, correct?
A. I . . .
Q. Do you know?
A. I believe so.

Q. All right. Okay. So, discrimination is banned. The proposal adds the word "preference." Does that have the objective, as the Executive Director, of doing anything other than banning affirmative action programs?
A. It bans preferences.

Q. My question is, other than those things which are called affirmative action programs, does the ban on preferences have any other purpose other than making affirmative action programs illegal?
A. It bans discrimination and preferences.

MR. WASHINGTON: Judge, I think I am entitled to an answer.

BY MR. WASHINGTON:
Q. Other than programs called affirmative action, does the word "preference," is it intended to ban any other program?

MR. ROSMAN: Your Honor, I would like to establish the foundation that this witness knows all of the [274] programs that are called affirmative action.
MR. WASHINGTON: She's leading a statewide campaign for this initiative. I assume she knows what she's talking about.
MR. ROSMAN: Well, I don't believe there is a foundation for knowing --

THE COURT: If you guys want to step outside, you can decide this. But I get a turn in here. The question again can be answered yes, no, or I don't know. And if the answer is yes, you know, tell us. What is your intention, I guess -- is that --
MR. WASHINGTON: Yeah.
THE COURT: Is that the three-word question?
MR. WASHINGTON: Yeah.
THE COURT: And forward. And I don't understand the foundation objection, because she is the only one in the room who would know what her intention is of forming this organization and having the petition drive.
MR. ROSMAN: Well, Your Honor, if you will -- if I understand the question now, then I object on grounds of relevance. Her intention is irrelevant. The Michigan courts will decide what the language means. We don't need Ms. Gratz's interpretation of it in order to --
THE COURT: The objection is overruled. You may [275] answer the question.

BY MR. WASHINGTON:
Q. Ms. Gratz, as the Executive Director of this campaign, I would like to have you tell us what it means. And my question is, other than eliminating programs that are called affirmative action by the various governments, does the ban on preferences apply to any other program that you can name?
A. Yes.
Q. What?
A. It would apply to any programs that discriminate against people as well.

Q. Other than affirmative action programs, can you name a single program that this proposal is designed to eliminate?
A. It would --
Q. A single one. Like, for example, the Wayne County program to purchase supplies for the Metropolitan Airport. Can you name a single program that the term "preference" is supposed to ban other than something called affirmative action?
A. Yes.
Q. Like what? Give me the name. Just tell me a name.
A. Like programs that make sure that testing is not biased towards -- that would not be banned by this initiative. To my definition, that's affirmative action. Programs that make sure that testing for state police, for university [276] admissions, for education, those are affirmative action policies that would not be banned. So, talking about this in terms of --

Q. That wasn't my question. My question is what program is banned by the term "preference" other than programs that are called affirmative action? And I'd like a specific program.
A. The Set Aside Programs that Dennis Archer put in place.
Q. I'm sorry?
A. The Set Aside Programs that Dennis Archer put in place.
Q. Are not banned by this?
A. Would be banned by this.

Q. All right. I'm still trying to get an answer. What program other than affirmative action is going to be banned by the term "preference"?
A. I'm sorry. Can you repeat that?
Q. Sure. The term "preference," what does it ban in this state other than programs that are called affirmative action?
A. Programs that are called set-asides, programs that are called quotas.
Q. All right. Can you name one other than Mr. Archer's program.
A. No.
Q. Mr. Archer's program also happens to be called affirmative action, doesn't it? [277]
A. I believe he referred to it as set-aside.
Q. Well, didn't he also call it affirmative action?
A. I'm not sure.

Q. Would it be fair to say, as we sit here today, that you don't know any effect that this proposal would have except on affirmative action?
A. No, that's not true.
Q. But you can't name any other program that --

THE COURT: Now you've asked that a number of times.

BY MR. WASHINGTON:
Q. Ms. Gratz, isn't the term "preference" just a code word for "affirmative action;" isn't that what it is?
A. No.
Q. Isn't that what it is used for in the United States Supreme Court by the people who don't like affirmative action?
A. No.

Q. Ms. Gratz, you have not been involved, you've said, in a petition campaign before. Correct?
A. That's correct.
Q. And I noticed you did a tour in the upper peninsula and western Michigan recently?
A. Yes.
Q. And I assume you know -- usually when you are [278] campaigning, you go to areas where you have strength. Am I correct?
A. We are going to most areas throughout the state.
Q. I understand. But I assume you think there are areas in which you have strength in and other areas where you are weaker in. Am I correct? I mean that's what all campaigns think.
A. Yes.
Q. And would you agree with me that if you are trying to get, for example, petitions to get on the ballot on something like abortion, you wouldn't go to the Vatican to get signatures, would you?

MR. ROSMAN: Your Honor, is there some relevance to the case before us, Your Honor?
MR. WASHINGTON: Yes, there is, and I will connect it in one second.
THE COURT: You may connect it very quickly.

BY MR. WASHINGTON:
Q. You wouldn't go to the Vatican to get petitions for abortion rights, would you?
A. I wouldn't presume to tell people where they can and couldn't petition.

Q. Did it strike you as unusual that you were getting large numbers of signatures out of the city of Detroit?
A. Heidi Verougstraete just testified that it wasn't [279] abnormally large.
Q. Nobody told you that you were getting tens of thousands of signatures out of Detroit?
A. No.

Q. Ms. Gratz, you know, don't you, that all the polls show and everybody knows that among black people the support for affirmative action is very high?

MR. ROSMAN: Objection. Assumes facts not in evidence.
MR. WASHINGTON: I'm asking her what she knows.
MR. ROSMAN: Okay.

BY MR. WASHINGTON:
Q. You know that, don't you?
THE COURT: You don't even need me. Go on.

BY MR. WASHINGTON:
Q. You know that, don't you?
A. (No response.)
Q. I mean, rightly or wrongly, black people in this country support affirmative action and oppose your proposal by a very large majority?
A. I don't know what the latest poll says on that.
Q. But you know that a large majority is against you, don't you?
A. I know that it's split. (Audience reaction.) [280]

MR. ROSMAN: Your Honor . . .
THE COURT: Folks, you have had a good day in the audience at least in court. Don't spoil it in the last few minutes, please.

BY MR. WASHINGTON:
Q. Ms. Gratz, this charge of systematic lying to black people to get their signatures surfaced I think about a year ago, did it not?
A. I believe that's correct.
Q. Have you conducted any kind of investigation of it?
A. No. Excuse me. I did call some of the people that you called -- your organization called.
Q. I understand. And you got one person who said somebody misunderstood me on the phone, correct?
A. I spoke with three people.
Q. All right. You've made three phone calls of the thousands that were called, correct?
A. I made three phone calls, and three people said that you misled them.

Q. All right. Ms. Gratz, would it be fair, as we sit here today, to say that you don't know whether the signatures you got out of Detroit were obtained by people telling persons that this was a proposal which would keep affirmative action going and was pro-affirmative action and so forth? [281]
A. I would say that that's likely not the case.
Q. But you don't know?
A. When people --
Q. Do you know?
A. Well, I wasn't at every single one of those conversations.
Q. I appreciate that. But do you know whether it's true or not?
A. Again, I wasn't privy to every conversation.
Q. Do you know?
A. So, no, I don't know.

MR. WASHINGTON: Thank you, Judge.
THE COURT: Attorney General?
MR. O'BRIEN: No questions, Your Honor.
THE COURT: Mr. Rosman?
MR. ROSMAN: Nothing further, Your Honor.

THE COURT: Have you read the Civil Rights Commission report?
A. I have read parts of it.
THE COURT: Partly referring to you?
A. The part referring to me?
THE COURT: Yes. Page five.
A. I don't think I've read that part.

THE COURT: It reads: "The Commission sought inclusion of [282] all views on this and invited MCRI to attend the hearings. The response from MCRI was to release a statement issued by Jennifer Gratz, Executive Director of MCRI. In the statement, Ms. Gratz stated: "'Tonight MCRC will hold a hearing on baseless claims . . . and that" -- and I'm pausing here because there's a bad xerox -- "and that MCRI highly doubts that MCRC is capable of conducting a fair and impartial hearing on this issue given its vocal and public opposition to our initiative.' "Ms. Gratz also stated that the allegations of fraud in the circulation of petitions have been reviewed by the Bureau of Elections, the appropriate body to investigate election claims, and have been found to be without merit." You have never seen that before?
A. I released that statement. I didn't see it in the context of the report.

THE COURT: The next paragraph -- I'm paraphrasing the statement. But that would be an accurate paraphrasing?
A. I believe so. [283]

THE COURT: All right.
A. I --

THE COURT: Let me finish, please. Then this is the commentary of the Commission, the MCRC: "These statements were incorrect at best, and intentionally misleading, at worst. Ms. Gratz and MCRI petitioned the court to restrict the Board of Canvassers from conducting a thorough review of the conduct of the MCRI circulators. To date, the public hearings convened by MCRC and this report represent the only review of MCRI circulator conduct." Do you have a comment on that?
A. Yes. I don't recall ever being invited to an MCRC hearing. The only notification that I recall right now of the hearings were either through BAMN's web site where they posted them -- sometimes in error -- and through media reports that the hearings were coming up.

THE COURT: Okay. Thank you. Any follow-up questions?
MR. O'BRIEN: No.
MR. ROSMAN: No, Your Honor. [284]
THE COURT: All right. You are excused. Thank you. . . . . .