Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, June 17, 1993 TAG: 9308260240
SECTION: EDITORIAL PAGE: A15 EDITION: METRO
SOURCE: LANI GUINIER
DATELINE: LENGTH: Long
For over a month I had been seeing statements in the press characterizing my work and my ideas. While I was forced to remain silent, My opponents concocted a menacing, counterfeit Lani Guinier that was a photographic negative of everything I have ever stood for.
My experience during the nomination process drove home the point I've been making in my litigation and my scholarship over the past 20 years. African Americans and many other minorities still don't get to speak for themselves at legislative hearings over how this country is governed.
So what would I have told the Senate, and the American people, about my views? I would have applauded with them the tremendous strides America has made since 1965, but I would have shown them that the Voting Rights Act has not yet completely succeeded in giving all Americans an equally effective voice in their government.
How can we improve our political system so more biracial coalitions will be formed and all voters will have their views more effectively represented? My critics charged that my tentative proposals would scrap American democracy. Nothing could be more wrong. In fact, My work has built upon the historical ingenuity of American democracy in creating methods for making government more responsive.
Let me give two examples of the sorts of recommendations I have made: in my work cumulative voting and legislative supermajority requirements. Both represent tried and true approaches used across the nation. Both offer great promise in fostering biracial dialogue and coalition-building.
Cumulative voting has been used in communities across America for more than a century to choose the lower house of the Illinois legislature as well as for elections to school boards, county commissions and city councils. It is especially flexible and democratic because it lets more voters become part of winning coalitions than winner-take-all elections do.
Cumulative voting is based on one-person, one-vote. It treats all voters identically; it gives every voter the same number of votes as every other voter. Cumulative voting has frequently been approved as a legitimate and nondiscriminatory voting system by federal courts, the Reagan and Bush Departments of Justice and a wide range of scholars and politicians.
To understand how it works, let's look at one place that has tried it, Chilton County, Ala. Although the county has a substantial number of black residents, no candidate sponsored by the black community ever won during the period when the county used winner-take-all, at-large elections.
When the at-large election system was struck down by a federal court as intentionally discriminatory, the county adopted a cumulative system in which each voter can cast seven votes to fill the seven commission seats. What makes cumulative voting work so well is that A voter who feels very strongly about a candidate can give that candidate more than one vote. So If Voter A really wants candidate Z to win, she can throw all seven of her votes behind him. On the other hand, If Voter B feels strongly about more than one candidate, he can spread out his votes. It's up to each voter to choose for himself or herself the strategy that best serves his or her interests.
This is not minority rule; it's democratic fair play. The results of cumulative voting in Chilton County have been encouraging. As a result of the system, The first black commissioner in the county's history was elected, and other groups (like Republicans) elected representatives for the first time. This means The commission better reflects the views and priorities of the county's citizens, and these diverse representatives can build coalitions and alliances on the commission that will result in fairer treatment for all county residents.
Legislative supermajority rules are a central aspect of American government at all levels - local, state and federal. These rules require more than a simple majority vote of 51 percent to make decisions. In effect, they give the minority a ``veto'' because a big enough minority group can block the will of the majority group and force the majority it to bargain and develop a compromise solution. But this does not mean that supermajority rules are always undemocratic.
In fact, they are a central thread in the American constitutional and governmental fabric. To give just a few examples, The Constitution requires supermajorities to impeach public officials, to override presidential vetoes, to approve treaties and to initiate and ratify constitutional amendments. Thus, a minority can block an impeachment, sustain a presidential veto, reject a treaty or thwart constitutional amendments.
The internal operating rules of the Senate require three-fifths, rather than a simple majority, to impose cloture on debate. And state and local governments require supermajorities for a broad range of decisions - to approve referendums and bond issues, to make zoning decisions, to amend city charters, to change legislators' retirement benefits, to pass banking laws and the like.
The purpose of supermajority rules is to encourage broad-based consensus before certain decisions are made and to oblige the majority to consult with and take into account the viewpoint of a substantial minority. As George Will wrote this past spring in defending the Republican minority veto in the Senate, ``Democracy is trivialized when reduced to simple majoritarianism - government by adding machine. A mature, nuanced democracy makes provision for respecting not mere numbers but also intensity of feeling.''
Ten years ago, a federal court found that the election system for the Mobile, Ala., city government was set up in an intentionally discriminatory manner: It was designed to make sure black voters could not elect anyone, and the government was unresponsive to the needs of blacks. As part of the remedy, The Alabama legislature agreed to require that decisions of the new City Council receive at least five votes from the seven-member council.
This meant biracial coalitions: The four members of the council elected from majority-white districts cannot run the council without the active support of at least one of the members elected from a majority-black district. Community activists report that this supermajority voting rule has fostered coalition building and dialogue.
The ideas I have pursued are in no sense radical or outside the mainstream. But they do upset the complacent orthodoxy of conservatives who are happy to remove black voters from districts where they could join with liberal white allies to elect progressive candidates. And they upset, as well, the plans of some other politicians who would just as soon avoid responding to the needs of minority constituents.
In short, many incumbent politicians have learned to live with an interpretation of the Voting Rights Act in which black voters and their elected officials are seen but not really heard. The last thing they wanted was debate over race-neutral alternatives to the current system that would threaten their incumbency. They apparently don't want to listen to the voices of minority constituents, and they certainly didn't want to listen to me.
I still hope these ideas and, more important, the voices of all citizens, will one day get the fair hearing they deserve. I still believe in this administration's opportunity to move beyond the carefully cultivated racial divisions of the past 12 years.
I still believe that the president and the attorney general can use this crucial time to ease the hurts of our history to build a fairer country where everyone, regardless of the traits that seem to divide us and give rise to bigotry, will have a chance to be heard. But as long as the government refuses to listen, we will never make the progress that has long been the civil-rights movement's dream, and my own.
\ Lani Guinier is a law professor at the University of Pennsylvania.
\ The Washington Post
by CNB