By Rob Richie and Steven Hill
November 19, 1997
Now it's Bill Lann Lee's turn. Every few years, apparently, we are destined to have a battle over the nomination to the civil rights post at the Justice Department. The very fact of these controversial nominations shows that we have a long way to go in achieving consensus on policies dealing with race in the United States.
In 1993 University of Pennsylvania law professor Lani Guinier was the subject of the last controversy. Unlike Lee, she lost the support of the Clinton Administration before she even had a chance for a Senate hearing. That was unfortunate, as Guinier has proposed innovative ways to replace overtly racial policies with "race-aware" policies that are not race-conscious in their application.
Guinier's general approach in a series of law review articles has been to examine discrimination for its broader implications about fairness in our society. If discrimination is taking place, she asks, what institutional rules might allow it to take place? And are these rules in fact unfair to many people, both black and white?
Her proposals about different ways of enforcing the federal Voting Rights Act are a good example. In 1982, Bob Dole shepherded through Congress an amendment to the Voting Rights Act that was signed by then-president Ronald Reagan.
The amendment was an explicit recognition of the problem of racially-polarized voting in a "winner-take-all" electoral system. Consider a community in which black voters are in the minority and, furthermore, tend to support different candidates than most white voters. When 51% of the vote wins all representation, most of the black voters in the minority are unable to cast an effective vote to win representation.
The amendment to the Voting Rights Act in 1982 required that if such a community has a history of racial discrimination, then steps should be taken to ensure that black voters -- or other voters from protected minority groups -- have a fair opportunity to elect "candidates of choice."
Enforcement of the Act has been constrained by our country's general use of "winner-take-all" systems, however. Such systems are not designed to allow those in the minority to win representation.
As a result, the only way to enforce the Voting Rights Act in a community with winner-take-all elections is to turn the minority into a majority. One-seat legislative districts must be drawn such that a protected minority is made a majority in that district. In a racially polarized communit, for example, black voters are only assured of an opportunity to elect a candidate if more than 50% of voters in a district are black.
Although still the typical means of enforcing the Voting Rights Act, drawing "majority minority" districts has become very controversial. In several high-profile cases the Supreme Court has rejected particularly contorted congressional districts that were drawn with black and Latino majorities as "racial gerrymandering."
Long before the Court rulings, however, Guinier had suggested a different approach. She asked why minorities of any sort should not be allowed to win representation. An extension of such logic would be that large groups of voters could be denied entrance to a town meeting because they disagreed with majority opinion. Wouldn't it be fairer to allow nearly all voters a chance to elect a candidate, not just "protected" minorities converted into majorities through gerrymandering?
Guinier proposed that we consider proportional representation voting systems. To some the term "proportional" connotes quotas, but here it simply means that any group of voters -- as defined by their votes, nothing else -- should be able to win seats in "proportion" to their share of the electorate.
Proportional systems mean that 51% of voters will earn a majority of seats, but that a minority of voters will win their fair share. This basic principle is embodied in the election law of nearly all of the world's democracies -- every nation in Europe and South America, for example, now uses a form of proportional representation for some of its national elections.
In a community that is racially polarized, a proportional system would be an intriguing alternative to drawing a "majority minority" district. It would simply lower the threshold of votes necessary for ALL voters to win representation.
Proportional systems are just one of a host of approaches that react to discrimination by expanding opportunity for all, not just a few.
These approaches are analogous to how our nation addressed the problem of poverty among seniors in the 1930s.Rather than target aid to only the elderly poor, Franklin Roosevelt proposed the social security system that provided support to all seniors. By providing "universal coverage," social security makes it much easier to protect support for low-income seniors.
confront ongoing racial discrimination by seeking universal responses to it, you
can be sure that battles over civil rights will divide us for years to come.
Rob Richie is the executive director and Steven Hill is the west coast director of the Center for Voting and Democracy, a nonprofit organization based in Washington DC that educates about voting systems.