Lani Guinier: Her Problem Was Her Ideas
There was never any doubt about Lani
Guinier's qualifications to be Assistant Attorney General for Civil Rights. Radcliffe and
Yale Law School; a clerkship with the Chief Judge of the United States District Court in
Michigan; four years' apprenticeship as special assistant to Drew Days, who held the
Justice Department's top civil-rights job during the Carter Administration; seven years as
a highly successful litigator with the NAACP Legal Defense and Educational Fund; and, most
recently, five years as a respected, energetic, and popular professor of law at the
University of Pennsylvania Law School: no nominee for the post has ever been better
prepared than Lani Guinier. That wasn't her problem. Her problem was her ideas.
A Critic of Single-Member Districts
In her most important writings -- four
long law-review articles published between 1989 and 1993 -- Ms. Guinier returns again and
again to the theme of the shortcomings of the system of legislative representation that is
almost universal in the United States. That system is based upon single-member,
winner-take-all, geographically based electoral districts. Because she writes from the
perspective of a civil-rights lawyer, her main concern is how blacks fare; and, because
her specialty is the Voting Rights Act, her focus is on local government, the level of
government most often affected by the Act.
Given the racial polarization that exists
in our society -- a condition that Ms. Guinier forthrightly recognizes, but certainly does
not advocate -- black legislative candidates are seldom elected except in "majority
minority" single-member districts. Voting-rights lawyers have therefore concentrated
on forcing local jurisdictions to create "safe" black-majority districts, and
also on eliminating at-large systems that have demonstrably allowed white majorities to
shut even sizable black minorities out of representation altogether.
Ms. Guinier takes a different tack. In
common with many conservative, and some liberal, critics, she recognizes the moral and
political costs of racial gerrymandering: while it does allow black legislatures to be
elected, it creates monolithically white districts as well as monolithically black ones;
it depresses political competition, voter turnout, and interracial political alliances; it
depends for its effectiveness on segregated housing patterns (and, in fact, gives black
politicians an incentive to perpetuate such patterns).
PR as the Preferred Alternative
Ms. Guinier proposes as an alternative a
variation on proportional representation which she calls "proportionate interest
representation." It's really a modified at-large system. In a citywide election for
five council seats, say, each voter would have five votes, which she could distribute
among the five candidates any way she likes. If a fifth of the voters opted to
"cumulate," or plump, all their votes for one candidate, they would be able to
elect one of the five. Blacks could do
this if they chose to, but so could any cohesive group of sufficient size. This system is
emphatically not racially based: it allows voters to organize themselves on
whatever basis they wish. It has actually been tried in a few jurisdictions -- including
the proverbially American city of Peoria, Illinois -- and has had notable success in all
of them.
Pressed to justify his abandonment of Ms.
Guinier, Mr. Clinton said that she had seemed to advocate proportional representation, a
position he called "antidemocratic and very difficult to defend."
Antidemocratic? That will come as news to the good people of Germany, Spain, the
Netherlands, and Sweden, among other countries. Indeed, most of the electorates of
Continental Europe, including those of the liberated East, elect their legislatures under
some form of proportional representation; so do the Irish, the Italians, and the Israelis;
and so will the New Zealanders, who passed a referendum on the subject in November 1993.
PR and Democracy
PR, as its advocates call it, is the very
opposite of undemocratic. It not only facilitates minority representation but also
virtually guarantees majority rule (the majority most often being a legislative
coalition). By contrast, single-member district, winner-take-all systems, like ours and
Britain's, often produce minority governments. The last peacetime British government that
represented a majority of the British voters was Stanley Baldwin's, elected in 1935; and
Bill Clinton himself, it should be remembered, owes his job to forty-three percent of the
voters.
While there may be reasons that PR is not
suitable for the United States at the national level, lack of democratic purity is not
among them. Mr Clinton was right in calling PR "difficult to defend," but that
is because Americans, by and large, are ignorant of the existence, let alone the details,
of electoral systems other than their own.
Thanks to a combination of Presidential
weakness, congressional hysteria, public ignorance, and Lani Guinier's own intellectual
adventurousness, the civil-rights division of the Justice Department has been deprived of
the services of a formidable lawyer. Ms. Guinier's ideas are now, in a sadder sense than
before, "academic."
Hendrik Hertzberg is executive editor
of The New Yorker magazine. He is on the Advisory Board of The Center for
Voting and Magazine. Reprinted by permission; � 1993, The New Yorker
Magazine, Inc.