Three Tests of Political Fairness
Under conditions of sharp racial division,
so-called simple "majority rule" can serve as an instrument to suppress a
minority and, in some cases, to undercut the will of the majority. Majority rule through
winner-take-all elections is not a fair way to resolve disagreements, where it does not
promise reciprocity.
One way to remedy its unfairness is
through the conventional remedy of race-conscious districting in which some single-member
districts are drawn so that they are majority black (or Latino or other minority group).
However, race-conscious districting, like any system of winner-take-all elections, may not
ensure fair political representation according to three reasonable tests of political
fairness from the perspective of minority interests:
Does the system mobilize or
discourage
participation?
Does the system encourage genuine
debate or
foster polarization?
Does the system promise real
inclusion or only
token representation?
Applying the Tests to Cumulative Voting
Race-conscious districting often does not
do well on any of these three tests. While it may be true that no election structure alone
can do all that I envision, we need to consider alternatives to single-member districts --
in particular, to consider systems of modified at-large representation, which promise
politically cohesive minorities both potential electoral success and reasonable influence
throughout the extended political process.
There are many such alternative systems,
but here I will focus on a scheme used in corporate governance called "cumulative
voting." Under cumulative voting, voters cast multiple votes up to the number fixed
by the number of open seats. If there are five seats on city council, then each voter gets
to cast five votes. But they may choose to express the intensity of their preferences by
concentrating all of their votes on a single candidate.
Let's return now to the three tests
sketched earlier, and consider how cumulative voting fares in mobilizing participation,
encouraging debate and fostering inclusion.
Cumulative Voting and Participation
If voting is polarized along racial lines,
as voting rights litigation cases hypothesize, then a system of cumulative voting would
likely operate to provide at least a minimal level of minority representation. Unlike
race-conscious districting, however, cumulative voting allows minority group members to
identify their own allegiances and their preferences based on their strategic use of
multiple voting possibilities.
Instead of having the government
authoritatively assign people to groups and districts, cumulative voting allows voluntary
interest constituencies to form and regroup at each election; voters in effect
"redistrict" themselves at every election. By abandoning geographic districting,
it also permits a fair representation of minority voters who do not enjoy the numerical
strength to become a district electoral majority or who -- as is true of Latinos living in
dispersed barrios -- are so geographically separated that their strength cannot be
maximized within one or more single-member districts.
In these ways, cumulative voting would
likely encourage greater electoral participation.
Cumulative Voting and Political Debate
Cumulative voting also looks good as a way
to encourage genuine debate rather than foster polari-zation. Cumulative voting lowers the
barriers to entry for local third parties since supporters of such parties can concentrate
all their votes on the candidates from their party. With barriers reduced, minority
political partes might reclaim, at a newly invigorated grassroots level, the traditional
party role of mobilizing voter participation, expanding the space of organized
alterna-tives and so stretching the limits of political debate.
Additionally, locally-based political
parties might then organize around issues or issue-based coalitions. Since the potential
support for the minority political party is not confined by a geographic or necessarily
racial base, cross-racial coalitions are possible
Cumulative Voting and Inclusion
Cumulative voting is more inclusive than
winner-take-all, race-conscious districting. Cumulative voting begins with the proposition
that a consensus model of power sharing is preferable to a majoritarian model of
centralized, winner-take-all accountability and popular sovereignty.
Cumulative voting takes the idea of
democracy by consensus and compromise and structures it in a deliberative, collective
decision-making body in which the prejudiced white majority is "disaggregated."
The majority is disaggregated both because the threshold for participation and
representation is lowered to something less than 51 percent and because minorities are not
simply shunted in "their own districts." These changes would encourage and
reward efforts to build cross-racial electoral alliances.
A Vision for the Future
The principle of proportionality, or
"political fairness," is molded by the hope that a more cooperative political
style of deliberation and ultimately a more equal basis for preference satisfaction is
possible when community-based minority representatives are reinforced by structures to
empower them at every stage of the political process. Ultimately, however, representation
and participation based on principles of political fairness are also an attempt to
reconceptualize the ideal of political equality, and so the ideal of democracy itself.
The aim of that reconstruction should be
to re-orient our political imagination away from the chimera of achieving a physically
integrated legislature in a color-blind society and toward a clearer vision of a fair and
just society. In the debate over competing claims to democratic legitimacy based on the
value of minority group representation, I side with the advocates of an integrated,
diverse legislature. A homogeneous legislature in a heterogeneous society is simply not
legitimate.
But while black legislative visibility is
an important measure of electoral fairness, taken by itself it represents an anemic
approach to political fairness and justice. A vision of fairness and justice must begin to
imagine a full and effective voice for disadvantaged minorities, a voice that is
accountable to self-identified community interest, a voice that persuades and a voice that
is included in and resonates throughout the political process. That voice will not be
achieved by majoritarian means or by enforced separation into winner-take-all racial
districts.
For in the end democracy is not about rule
by the powerful -- even a powerful majority -- nor is it about arbitrarily separating
groups to create separate majorities in order to increase their share. Instead, the ideal
of democracy promises a fair discussion among self-defined equals about how to achieve our
common aspirations. To redeem that promise, we need to put the idea of proportionality --
meaning political fairness and the notion of taking turns -- at the center of our
conception of representation.
Lani Guinier is a professor law at the
University of Pennsylvania Law School and a former attorney for the NAACP Legal Defense
and Educational Fund. This article is adapted from an essay that originally appeared in The
Boston Review. For more on Professor Guinier's ideas, see her book The
Tyranny of the Majority (Martin Kessler of the Free Press).
"With cumulative voting, any
substantial minority, by casting all its votes for a single candidate, might win a
representative. But a smaller ethnic, religious, political or geographic minority would
have an incentive to find allies and build coalitions. . . . . Cumulative voting may not
be a panacea for the knotty problem of giving minorities -- any minorities --
representation. But it's worth exploring." Don Noel (Hartford Courant political columnist), Hartford Courant, June 30, 1993 "Disagreements over the Voting Rights Act are more than arguments over principle. They are also intensely political. Republicans are coming to believe the act enhances their prospects by safely concentrating minority voters in a few districts, thereby minimizing their influence elsewhere. Meanwhile, Democrats are discovering that well-regarded white liberals are redistricted out of office to make way for minority politicians. "There is, however, a new approach that could defuse much of this conflict. The Voting Rights Act might be amended to encourage use of a practice known as cumulative voting. This practice would achieve the goals of the act just as effectively, while addressing the concerns of its detractors." Richard Pildes (University of Michigan Law School professor), New Republic: "Gimme Five: Non- Gerrymandering Racial Justice," March 1, 1993. |