Who Cares About Voting Rights?

The Tyranny of the Majority
Lani Guinier
Free Press, $24.95

Why should we care about “the right to vote”? Professor Lani Guinier’s collection of her now-notorious law-review articles — augmented by an introductory essay describing the circumstances under which those articles became matters of public controversy — describes several stages in the evolution of modern voting rights law. As that law developed, a series of tensions crystallized within our understanding of the importance of the right to vote. Guinier’s nomination to head the Justice Department’s Civil Rights Division foundered because she understood those tensions and her work makes them apparent. For understandable political reasons, the politicians who control the nomination process preferred to keep the tensions under wraps. For them, Guinier’s intellectual honesty made her politically unacceptable.

The first stage of voting rights law dealt with straightforward, formal exclusions from the franchise: states simply didn’t allow African Americans to vote. And if you don’t have the right to vote, you are not a full citizen. Once straightforward exclusions are eliminated — the key was the Voting Rights Act of 1965 — a second aspect of the right to vote appears. For if the right to vote symbolizes full citizenship, it also has a more instrumental value in a representative democracy: it is the way you get to choose the people who make public policy. You can use the vote to promote your interests. But suppose you are a member of a minority group: is a legally recognized right to vote an effective means for ensuring that your interests are taken into account? Suppose, for example, that your city adopts a multi-member district system, establishing one large district to choose six members of the city council. If the city has a white majority, then the votes of racial (and other) minorities can be swamped. Despite the symbolic trappings of equal citizenship, minorities are effectively disenfranchised. They can’t elect what voting rights law calls “representatives of their choice.” Faced with problems of effective disenfranchisement, voting rights advocates came to the view that something had to be done “to ensure that disadvantaged and stigmatized minority groups . . . have a fair chance to have their policy preferences satisfied.” And something was done: the Voting Rights Act Amendments of 1982 created a right to select representatives of choice.

But what precisely is “a fair chance to have their policy preferences satisfied,” and when are minorities being denied it? There are, I think, two possible answers. Unfortunately, the politicians who enacted the 1982 Voting Rights Act waffled completely about which answer is right.

We could say that minorities are denied a fair chance to have their policy preferences satisfied if the policy-making process is unresponsive to those preferences. But what precisely is an unresponsive process? The content of the process-based theory of fair representation depends on how its proponents answer this question. Let’s come back to their answers after first considering a more radical, result-based theory. This alternative line of argument stipulates, from some objective perspective, what the true interests of minorities are — for example, jobs, income, health, public safety. It then looks at whether the results of the political process advance those interests. If public policy does not promote those interests — because there is high unemployment, low income, bad health, and unsafe neighborhoods — it concludes that minorities are being denied the right to a fair chance to have their interests served.

Guinier indirectly explores this second possibility. She is motivated to develop voting rights law in new directions, at least in part out of a concern that public policy has failed to promote minority interests. And that concern is reflected, too, in her desire to ensure “authentic” representation of minority interests — by which she means representation that promotes those interests. Although her critics misrepresented her talk about “authenticity” as an insistence that only some minority representatives could be “authentic” while others were inauthentic, Guinier clearly means that members of the majority can also be authentic representatives of minority interests. Authenticity is a matter of the results of the political process, not the race of the representative.

It’s easy to criticize result-based approaches, which measure whether minorities have had a fair chance by considering whether their interests have in fact been advanced by public policy. After all, having a fair chance to have your policies adopted doesn’t mean that they will be adopted. Under a system of majority rule there are typically winners and losers. And if the majority rejects your policies, it might be because those policies actually conflict with the majority’s interests. Moreover, even if politics is not a place where one group can win only at the expense of another, a minority’s policies might still be rejected. After all, the policies you favor may be self-defeating, or they may address your real concerns only symbolically. The losers, we might think, had a fair chance — their voices were heard — and simply lost when the legislature thought about what good public policy would be. So, if we focus on the fact that minority interests are not being promoted by public policy, we end up imposing an external standard on the legislature’s output.

In the end, Guinier accepts these criticisms of the result-based approach to fair representation. And this places her squarely in the American political and legal mainstream. In thinking about what government ought to do, Americans have traditionally concentrated far more on procedure than on substance. After 1982, voting rights law, too, followed a proceduralist path: the path of ensuring a process that is responsive to minority preferences. Instead of asking whether minority interests were being effectively promoted, it asked whether the representatives actually chosen were “representative” of the minority groups. Formally speaking, that meant asking whether some of the people elected were actually preferred by members of minority groups. And to answer that question, it turned its attention to making sure that district lines were drawn to guarantee that some elected officials won the support of a majority consisting of minority group members — a strategy that has involved “race-conscious” methods of drawing lines around voting districts, as with the now-famous 160 mile long, serpentine District 12 in North Carolina. A responsive process, then, is a process with sufficiently many districts in which the majority are members of a minority group. In assessing this strategy for assuring fair representation, it is important to bear in mind the limits of post-1982 voting rights law: in brief, it deals with fewer situations than many people think. With some qualifications that we need not worry about here, it comes into play only when voting is racially polarized — that is, when few whites vote for candidates supported by racial minorities, and when few minorities vote for white candidates. Where voting is racially polarized, you can guarantee the election of a candidate supported by a majority of minority voters by making sure that some districts had “appropriate” numbers of minority group members — usually 55% or more.

This strategy of remedying violations of the Voting Rights Act by establishing “majority-minority” districts turned out to be something between a very bad thing and a disaster for racial minorities. Particularly as it became easy to use computer technology to draw district lines, people — mostly Republicans — discovered techniques that would guarantee the election of some members of racial minorities while actually reducing the chances that the views of those representatives would prevail in the legislature. The techniques are known in the voting rights field as packing, cracking, and stacking. For example, you can guarantee the election of a minority representative by packing as many members of that minority as possible into a single district. The problem is that in other districts, racial minorities are so few in number that candidates can simply disregard them. The result is that you get one minority representative, and a slew of representatives who owe nothing to minority constituents. Cracking and stacking are more complicated, but they have the same result: the legislature has the “right number” of minority representatives, and they are regularly outvoted.

Perhaps the most racist distortion of Guinier’s political views was to designate her a “quota queen.” For if one comes away from Guinier’s book with only one conclusion, it must be that she believes that the strategy of racial districting designed to guarantee mere demographic representativeness — to ensure a quota of minority representatives — is a very bad idea.

For Guinier, the way to give minorities a fair chance is through procedural devices other than race-conscious districting. One proposal — not explored in much detail — would change the internal decision-making processes of legislatures. Adopting some policies might require more than a simple majority within the legislature. That would be a decent strategy for protecting minorities against laws that hurt them, if we could be sure that the legislature would apply these super-majority requirements to the right set of policies. In fact, even a general super-majority requirement might sometimes help minorities by giving them something on which they could trade votes. The modern filibuster in the Senate is a good example. By threatening a filibuster — a minority veto — on one bill, legislators can extract concessions on another.

Guinier’s second proposal occupies more of her time. She suggests that “cumulative voting” — the system now used in Peoria — might help racial minorities. She argues that instead of having one member elected from each district, districts should be expanded and elect several representatives. But these new districts would differ from the old and discredited multi-member districts. Voters would be given more than one vote — as many votes as there are representatives from the district. Each voter could then choose how to distribute those votes. Some might cast one vote for each of five candidates; others might cast all five of their votes for a single candidate. This would permit minority voters in particular to pool their votes, perhaps each giving all five votes to one candidate; or they might choose a strategy of partial cooperation. But unlike race-conscious districting, cumulative voting would not reinforce existing racial divisions or limit strategies of cross-race alliance.

Cumulative voting is a move in the direction of proportional representation. As such, it is at odds with modern American voting law, though other nations have been more attracted to variants of proportional representation than to the US system. The criticisms of proportional representation are well known, and have some bearing on Guinier’s proposal for cumulative voting. Parties tend to proliferate. With each voter having to decide what to do about five candidates, it becomes harder for candidates to develop purely personal candidacies; instead they tend to identify themselves as members of a party, and membership in a party becomes a decent indication of what policies the member will promote if elected. With the multiplication of ideological parties in the legislature, it becomes harder to develop coherent national policies.

Given these difficulties with systems of proportional representation, it is not clear to me that Guinier’s system of cumulative voting, if widely adopted, would actually help advance the interests of racial minorities. For it might well further enfeeble the government, presenting yet another obstacle to a coherent national program aimed at addressing problems of racial inequality.

But, then, Guinier herself appears not to want cumulative voting to be widely adopted. In a remark elevated from the footnotes in one of her law review articles to the text in her book, she says that cumulative voting is to be deployed as a remedy only “in extreme cases of racial discrimination at the local level.” This restriction may be quite sensible, but it reflects a tension within Guinier’s analysis. Readers who sympathize with her desire to ensure that legislatures advance the interests of racial minorities almost certainly have in mind the large-scale failures of national policy on issues of interest to racial minorities: the appalling levels of unemployment in minority communities, the equally appalling failure of the wider society adequately to protect those communities from criminal predators, and the like. But the extreme cases her remedies address have almost nothing to do with the sources of these policy failures. And to the extent that she provokes us to think about proportional representation on a larger scale, the problems with proportional representation become more apparent.

This tension within Guinier’s thought parallels another. As I’ve suggested, Guinier offers procedural remedies for the substantive concerns that motivate her. But if we ask why public policy (on a large scale) now fails to promote minority interests, we are likely to conclude that a commitment to procedural remedies requires considerable optimism.

To see the trouble, consider first a problem with majority rule: the problem of “wasted votes.” Suppose a candidate wins an election with 55% of the votes in the district. We might think that the 45% who voted for the loser are not going to be represented. After all, the winning candidate doesn’t owe anything to them, so why should she pay attention to their concerns?

As Guinier points out, James Madison’s theory of representative democracy solved this problem by appealing to “the principle of reciprocity. The self-interested majority worries that the minority may attract defectors from the majority and become the next governing majority.” Over her term, the winning candidate is going to have to cast votes in the legislature on scores of issues: health care, crime policy, road-building, the budget. Some votes probably will bother some of the people who voted for her, but those votes — or perhaps other votes — may help change the minds of some of the people who voted against her. The need to campaign for reelection, and uncertainty about which issues will be important next time around, can make the winning candidate responsive to the interests of people who voted for her opponent last time.

Reciprocity comes in another form. African Americans are, of course, a minority in the national electorate. They can be outvoted in any system of majority rule. But if everyone’s votes are counted, it ought to be in some politician’s interest to appeal to any group, which means that even minority interests should be taken seriously in the political system. By getting their votes, the politician can build a coalition eventually exceeding 50%. Consider, for example, a district with 80 white votes and 20 African Americans. If 45 of the whites are Democrats and 35 are Republicans, both parties have an interest in developing a platform that would get them enough votes from African Americans to win the election (six for the Democrats, 16 for the Republicans).

The idea is that democracy is not a system with a permanent majority, but shifting coalitions of minorities. If that is right, then the principle of reciprocity appears to eliminate concern that majority rule will systematically disregard the interests of minorities, even racial minorities. Putting aside disagreement on the merits, then, why do legislatures fail to respond to minority interests?

Where voting is polarized by race, a platform that attracts minority voters might drive white voters away. If Democrats lose ten white voters in their quest for six African American votes, they won’t try to get those votes: racial division prevents the shifts of coalition that, in the Madisonian view, link democracy and reciprocity. That’s why the 1982 Voting Rights Act expressly asks courts to focus on racial polarization, and why Guinier’s procedural innovations are addressed to extreme cases of such polarization.

Guinier takes her title from Madison, who sought to avoid “the tyranny of the majority” through both substantive and procedural limits on majority rule. Substantively, the Constitution would limit what majorities could do. Procedurally, it created a government with a large territory. Putting together a coalition by appealing to diverse interest groups works best in such a territory. A small government might not have any districting, in which case the majority would necessarily get its way by outvoting the minority. And even if you draw district lines in a small town, chances are pretty good that people who reside in one district will have the same interests: That’s why “the other side of the tracks” is an effective metaphor for social divisions. But if the territory gets larger, the “people who live on the other side of the tracks” can develop a political coalition with people living in other districts who share some of their interests.

With a large territory, representatives ought to be out there trading votes to assemble coalitions. In particular, representatives of a racial majority ought to be willing to vote for programs favored by African Americans in exchange for African American votes for programs their majority constituents want — unless there is a deep and systematic conflict between programs favored by African Americans and those favored by whites.

Guinier’s arguments about the inadequacy of existing voting systems gain appeal from the fact that large-scale national policies have failed to serve the African American community. That suggests that there really may be a deep conflict of interests. Our ambivalence about what the right to vote means may result from a widely-shared pessimistic — or racist — sense that the racial polarization that Guinier aims to address only in certain extreme cases may actually characterize our national politics more generally, and an equally widely-shared optimistic sense that by working together we can overcome whatever divisions we currently face.

What is most striking about Guinier’s work, given these tensions, is how optimistic and fundamentally conservative she is. For her, people — perhaps most particularly whites — have mistakenly seen politics as a zero-sum game, in which what one group wins necessarily comes at the expense of another group. Instead, she proposes, we ought to believe — apparently in the face of the failures of public policy — that society is not so racially polarized; public policy could generate gains for everyone. All we need to do, according to Guinier’s optimistic vision, is develop procedures which will allow all of us to work together to find the policies which will do that. The substantive failures of policy can be eliminated by following the indirect strategy of using the right procedures. Which invites the pessimist to reply that the failures of policy show that the principle of reciprocity really doesn’t work on matters of importance to African Americans, and that those failures must result from a more deeply-rooted racism than Guinier is willing to acknowledge.

Guinier’s conservative side is her quite genuine concern, which pervades the book, that unless public policy begins to address the needs of the African American community, that community will become increasingly disaffected from national politics, with disorder to follow. Somehow, procedures to empower the African American community must be devised lest the United States face once again the urban turmoil of the late 1960s.

(We should note, but only in passing, that Guinier’s proceduralism has a rather narrow focus. The civil rights movement showed the country that minorities can exert political influence outside the ballot box, through demonstrations and other forms of non-electoral political organization. The other side of the coin, of course, is that the electoral process is affected by much more than the simple counting of votes. Put most crudely, money may count more than votes in elections. These matters, though, are outside Guinier’s concern, and there is no reason to think that she would disagree with any conclusions others might draw about them.)

I am skeptical about Guinier’s conclusion that procedures can solve the problems of racial politics in this country. Indeed, I believe that the tensions within Guinier’s work indicate that on some level she is skeptical about that conclusion as well. But her optimism and conservatism lead her to hope that procedures will do the job.

Because Guinier’s analysis leads us to think seriously about the merits of proportional representation, it is hardly surprising that politicians who made their way through our existing system of plurality district-based elections were uncomfortable with what she had written. They may have understood that Guinier had identified tensions within our nominal commitment to the right to vote, but they did not understand that she had chosen the less radical way of easing those tensions. As when they amended the Voting Rights Act in 1982, they preferred avoiding the tensions to confronting them. Of course no one is entitled to a high position in the government. And of course politics ain’t beanbag. Still, one unfortunate consequence of President Clinton’s withdrawal of Guinier’s nomination was that we avoided a serious national discussion of what we really think about the right to vote. Do we accept a process-based view of fairness, or a result-based theory? And if the former, how do we propose to remedy the unfairnesses that attend racially-divided voting?

These are hard questions, and as Stephen Carter writes in his introduction, Guinier’s case suffered from being complicated. Our politics is not well-designed to deal with complexity — which is, indeed, why the Voting Rights Act of 1982 obscured fundamental issues about the right to vote.

Guinier’s opponents correctly located one side of her ambivalence about our political system. They also correctly understood that Guinier’s prescriptions gained much of their rhetorical appeal by mobilizing a sense that national politics doesn’t work well for African Americans, but were most defensible when applied only to local politics. The tension between the diagnosis — the failures of public policy — and the prescription — procedural reform — made her position difficult to defend, even if the President had wanted to.

Still, the story may have a happier ending than it seemed a year ago. Consider that one opponent of Guinier’s nomination, who should have known better, frightened her readers with the prospect that Guinier would “be free to initiate suits to modify sentencing practices — labeled `discriminatory’ — that send a disproportionately high number of black men to jail.” No matter that nothing in Guinier’s articles suggests that she had any interest in initiating such suits. No matter, either, that I can just barely scratch out a theory under which the Civil Rights Division has statutory authority to do so.

What matters is the blithe assumption that an Assistant Attorney General is “free” to start suits that press existing law well beyond its current limits. The civil servants in the Division would surely resist efforts to go so far. And it’s not hard to imagine what Guinier’s political superiors would have said about these lawsuits.

But a policy that is a bogey-man in the hands of a public official can be an interesting academic proposal. I have no doubt that Guinier’s ideas have now received a wider exposure, through their publication by a commercial press, than they had before she was nominated. Surely they have been made more respectable because of the campaign against her. Oddly, then, she may have more influence over the development of civil rights law because her nomination was withdrawn than she would have had within a Justice Department staffed below her by civil servants and controlled above her by politicians. Not for the first time, politics may have operated in mysterious ways its wonders to perform.