Traverse City Record-Eagle

November 25, 2007

Editorial: State's top court sides with politics over voters

They've done it again.

The Michigan Supreme Court's Engler Majority, in its never-ending quest to prove that justice not only isn't blind but in fact views everything through a lens, has again created law out of whole cloth. This time, the beneficiaries were the Republican and Democratic parties; the losers were the rest of us.

In overturning two lower court rulings, the 4-3 Supreme Court majority declared Wednesday that Michigan could hold a Jan. 15 presidential primary election that would make it first in the nation and a power to be reckoned with.

But in doing so the court also upheld a clearly unconstitutional provision that only the two political parties -- not the public -- could have access to the lists of who voted and in which primary election they cast a ballot. That despite the fact that state taxpayers will be shelling out $10 million to pay for the election.

The court's assertion of political party privilege clearly flies in the face of not only common sense but decades of precedent. Further, it helps create the impression that there are two kinds of citizens -- those with political clout, and those without. It's not hard to tell which side the Engler Four favors (Chief Justice Clifford Taylor and justices Robert Young, Stephen Markman and Maura Corrigan were all appointed by former Gov. John Engler to the Supreme or state Appeals courts.)

The whole issue of lists came about only because the Legislature, ever ready to politicize public business, threw a clause into the primary election law giving only the political parties -- not the news media or public-interest or watchdog groups -- access. Providing access to anyone else would violate the law.

The lower courts clearly saw that as an unconstitutional granting of special privilege and ruled that if the taxpayers were footing the bill, they had a right to see what the political parties would see. This is Government 101. If public money is used to underwrite the process, the product of that process is public, with few exceptions. Access certainly can't be decided by one's level of political involvement.

The Engler Four, however, have been making things up as they go along, and they did it again. They declared that giving the lists to the political parties would help educate voters and encourage them to participate, but conveniently ignored what not giving the lists to the public also meant. As the Detroit News said in an editorial, "neither the courts nor the Legislature should be allowed to decide which members of the public are worthy of access and which are not."

The claim that letting the two parties get state-paid lists of people to hit up for money is educational is pure fiction, apparently created to give at least a fig leaf of justification for a blatantly political act.

The recent actions of the Engler Majority -- including an earlier ruling that gutted Michigan's primary environmental law and undid crystal-clear legislative intent -- mock the process. Conservatives who have long made a living railing against so-called judicial activism by liberal justices seemingly have a sock stuck in their mouths. Liberals are finding that black robe activism can cut both ways -- neither of them good.

The day after a lower court ruled the law unconstitutional because of the lists issue, the Senate passed a version correcting it, but the Democrat-controlled House refused to take it up -- and then went on vacation.

Now, with the court ruling in hand and the clock ticking, it's too late to undo what has been done.

To add to the irony, the whole effort quickly became moot. Within a couple hours of the Supreme Court's ruling, New Hampshire moved the date of its primary up to Jan. 8 so it is still first in the nation. And both national parties had already said Michigan delegates chosen in what they considered rogue primaries wouldn't be seated.

But the panting desire of the state's political elite to make Michigan the center of the universe for a couple weeks was too heady to be denied; even veteran politicians were addled enough to push it.

At least we know where we stand vis-a-vis the Supreme Court: in second place.