Excerpts from Overruling Democracy: The Supreme Court vs. The American People

The following are excerpts from Overruling Democracy: The Supreme Court vs. The American People, a 2003 book (Taylor & Francis Books, Inc.) by Washington College of Law professor and Maryland State Senator Jamie Raskin, who is a former FairVote board member. He presents a broad pro-democracy agenda, including instant runoff voting and full representation (here called "proportional representation.") Below are two excerpts: the first about the case for proportional representation and the second about using instant runoff voting when electing the president.

Representing Everyone: Proportional Representation


Most of the issues addressed in the constitution amendments I proffer above are "first generation" voting issues. They have to do with people being able to cast ballots and get them counted; with the people as a collective enjoying the basic right of majority rule; and with young people having a right to receive an education for democratic citizenship. The question of legislative proportional representation is a kind of second-generation structural issue, a background rule-setting question that grows in importance as we resolve the pressing first-generation problems.[14] Indeed, proportional representation is fast moving from being a curious idea to an urgent democratic imperative.[15]

Both democracy and equality tell us that public office must be open to all.[16] Beyond democracy and equal opportunity, in contemporary American politics another kind of interest compels us to hold the door of public office open: this is the political legitimacy achieved when all citizens have in government political leaders who actually represent them, their values, their lives and concerns. President Clinton spoke to this felt need in the country when he said that he wanted to build an administration that "looks like America."[17] It might improve this democratic sentiment a bit to say that we should seek a government that thinks and feels like America, although it is logical to suppose that such a government would look like America, too. But the looks of our leaders are a concern secondary to the outlooks of our leaders, who should represent all of the people in our great diversity of thoughts and values.

The Courts doctrinal mess over majority-minority districts creates a critical opportunity to push for new rules to replace the chaos and unfairness of inescapable arbitrary legislative district line-drawing. The public is about to discover the advantages of proportional representation elections methods, such as instant runoff voting (which is built into the presidential election amendment), preference voting and the like. Often the case for proportional representation is cast as an argument to guarantee electoral minorities a voice. This argument, though not exactly inaccurate, is radically incomplete, because it misses the true virtue of proportional representation.

The strong argument for proportional systems, which was made by John Stuart Mill in 1861,[18] is that they empower the vast majority of people to be represented and active. Consider a state with ten U.S. House seats where 60 percent of the people belong to Party A, 30 percent to Party B, and 10 percent to Party C. Assuming an even partisan distribution of voters across the state, in an election, Party A will capture all of the House seats, meaning that 60 percent of the voters will have 100 percent of the representation, and 40 percent will get none at all. This is an especially dramatic problem when only half the people turn out to vote, which means, in this hypothetical case, that 30 percent of the electorate is winning 100 percent of the representation.

If we switch to a system of cumulative voting or preference voting, we would instead expect Party A to capture six of the state's House seats, Party B to win three of them and Party C one. Thus by overthrowing a winner-take-all single-member district regime and replacing it with proportional representation, we have actually given the entire population of the state some representative voice and agency in Congress. This brings democratic politics into line with a powerful majoritarian principle.

The clean one-party sweep of congressional delegations is no imaginary thing. In Utah, Idaho and Alaska, for example, Republicans have every Senate and House seat, meaning that Democrats, Greens, and Independents in those states have no partisan representation in Washington. Similarly, in Massachusetts and Rhode Island, Democrats have all the Senate and House seats, leaving the substantial parts of the population registered to other parties without any ascriptive partisan representation over time.

In truth, most congressional districts in America include large numbers of citizens who continue to vote for losing parties and candidates and grow increasingly disgruntled over time. The Center for Voting and Democracy can safely predict the party affiliation of the winner in more than 90 percent of U.S. House districts a year before the elections because the vast majority of districts are partisan-gerrymandered and safely in the Democratic and Republican column. Those incumbents essentially get to design their own districts and then, as presumptive winners and officeholders, consolidate their huge fund-raising advantage over opponents. In 2000, 90 percent of House incumbents won by at least 10 percent of the vote and most won by substantially more than that. Political analyst Charles Cook tells us that, after the 2000 census and redistricting process, fewer than 50 out of 435 House seats are truly competitive.[19] As the Economist puts it, redistricting has become a "glorified incumbent-protection racket."[20]

It would be easy enough to cast aside this hopelessly stacked, winner-take-all, zero sum regime by using the state's apportionment of House seats in a way to maximize the whole public's ability to see someone they support elected. If Maryland has eight U.S. House seats, these members should be elected statewide using a system of preference or cumulative voting. It would essentially take one eighth of the votes cast statewide to win, rather than 50 percent plus one in a district. This is the way most of the world does it, and it holds major advantages in terms of voter turn out and participation over single-member districts, which produce a lot of frozen-out and despondent voters over time.[21]

Indeed, although we know the decision is not supposed to have precedential effect, Bush v. Gore invites us to wonder whether there is an Equal Protection violation when a voter in a 60-percent bloc ends up having a partisan affinity with 100 percent of the state's delegation and a voter in the 40-percent bloc ends up with no effective representation. What about a virtual tie in a presidential election, where a few hundred votes out of millions cast make the difference between getting 25 Electoral College votes and zero? Is this really treating each vote equally? Another brewing problem which militates in favor of proportional representation arises from close population equality among congressional districts within a state; in disparities among districts and essentially required exactly equal populations. Yet because of standard population movement and demographic changes, there are always huge disparities by the end of a decade following a reapportionment. Thus according to Rob Richie, several districts at the end of 1990s had more than 200,000 voters above the constitutional requirement in their states. Statewide proportional voting would prevent these inevitable departures from the otherwise scrupulous one person, one vote norm by liberating congressional elections from the vagaries of single-member districting.

There is nothing in the Constitution stopping states from choosing House members or state legislators along proportional lines in at-large elections. But federal law since 1967 has required states to use single-member districts.[23] This was, ironically, a Civil Rights measure designed to protect the Voting Rights Act of 1965 by preventing Southern states from using winner-take-all, at-large districts not to spread representation out proportionally but rather to render an effective black vote impossible. Before her defeat in 2002, Congresswoman Cynthia McKinney, an African-American representative from Georgia who favored proportional representation methods, introduced legislation to permit at-large elections in conjunction with cumulative voting, limited voting or preference voting. Such at-large elections would promote rather than undermine the representational purposes of the Voting Rights Act. There are numerous examples of successful use of proportional systems, such as Illinois's famous 110-year-run with cumulative voting and the preference voting system employed by Cambridge, Massachusetts.[24]

Notice that this is more robust and expansive political representation need not be defined exclusively or primarily in racial or ethnic terms. The reflexive assumption that group representation necessarily means representation on the basis of race or ethnicity reflects the mental prison we have constructed from our racial past. People should be able to elect leaders who effectively represent their politics, moral values, ethical perspectives, social commitments, cultural attitudes, economic interests and local agendas. One of the great losses of the Clinton period was President Clinton's decision to nominate but then cut loose Professor Lani Guinier as assistant attorney general for civil rights. Professor Guinier is a leading champion of proportional political representation but was singled out and slammed by right-wingers as a "quota queen,"[25] which is outrageous since proportional representation is rooted in the idea that voters should be able to group themselves as they please. Its practice would eliminate the power of state legislators to design districts for racist purposes, incumbent self-protection or partisan manipulation. The neoconservative witch-hunt against Professor Guinier remains a disgraceful case of intellectual racial profiling.

Sometimes people's voting belief systems will overlap and correlate with their racial, ethnic and religious identities and those of their preferred candidates. For example, when Congressman Harold Washington, an African American, ran for mayor of Chicago in 1983, he received overwhelming support form other African Americans because they believed that he would champion the interests of citizens who had been victimized by racism and the exclusionary machine politics of the city.

In Maryland, however, overwhelming numbers of African Americans voted in 1988 and 1992 for the distinguished progressive Senator Paul Sarbanes (who is white) and feisty Senator Barbara Mikulski (also white) against ultraconservative African-American Republican Alan Keyes, who would later run for president. In Washington, D.C., a majority-African-American city, the public has elected an African-American mayor ever since modern home rule was granted in 1974, but the city also repeatedly elected a white politician, the late David Clarke, to be chairman of its council. Clarke, a committed progressive with deep roots in the Civil Rights movement, repeatedly won huge support in the black community against several African-American opponents. Today a gay white Republican councilmember, David Catania, has strong support in the African-American community.

Thus nothing compels whites to vote for whites, African-Americans for African-Americans, Asian Americans for Asian Americans, Hispanics for Hispanics and so on. Such a primitive voting system appeals to the lowest common denominator, which in American society has been racism, specifically the toxic ramifications of white supremacy. Everything politically progressive in our history, from abolitionism in the 1850s to populism in the 1890s to the unionism of the 1930s to the Student nonviolent Coordinating Committee and other Civil Rights groups in the 1960s to the Rainbow Coalition of the 1980s, has argued for interracial political coalition against balkanized, group-thick racial politics. But racial polarization and organization have obviously had a powerful influence on our political development, especially given the ubiquity of single-member districts and patterns of white bloc voting in the South and elsewhere.[26] As recently as the 1980s, for example in "the majority of southern states, not a single majority-white district elected a black legislator,"[27] and this basic pattern of racially polarized voting continues today in major parts of the country.

Professors Lanu Guinier and Gerald Torres have championed the virtues of proportional representation methods over winner-take-all systems and have made a subtle argument for the use of what they call "political race."[28] By this they mean organizing people not along the lines of essentialized racial identity politics but around the lived experience of having been oppressed by race and yet influenced as well by a corresponding politics of social solidarity and community. These experiences can sustain the practical and visionary political hope for building an interracial society that addresses everyone's real needs. Understanding the risks of race-based politics, they emphasize that "use of race as a political category gains its legitimacy from its promise to increase the quantum of democracy in society and to resist unfair concentrations of wealth and power."[29] They thus embrace "the possibility of using race and politics to create an identity that resists conventional categories and supports democratic renewal."[30] Theirs is a kind of strategic-democratic politics that could make a movement for broad constitutional change nationally a movement for deep social change locally.            

14 This is the aspect of power that theorist John Gaventa considers "second dimension" because it concerns the structuring of background rules to produce particular kinds of political outcomes. Gaventa contrasts this with "first dimension" exercises of power which involve A more directly causing B to do B something would rather not do. The "third dimension" of power relates to the deployment of power through ideology and culture. See John Gaventa. "Power and Participation," in Power and Powerlessness: Quiescence and Rebellion in an Appalachian Valley (1980). I am indebted to Professor Gerald Frug for assigning Gaventa's essay as homework in my Local Government Law class when I was in law school. It had a profound effect on me.
15 See Steven Hill, Fixing Elections: The Failure of America's Winner Take All Politics (2002), for a lucid and authoritative argument for proportional representation.
16 Democracy insists that the people be able to choose freely their own leaders, and equal opportunity demands that each citizen has a chance to experience political leadership. Madison had something like this in mind when he wrote about the congressional Qualifications Clauses in The Federalist: "Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people." Madison, The Federalist No. 57 at 351

17 Speeches given during presidential campaign, 1991-1992.

18 J.S. Mill, Representative Government (1861).

19 "Congressional Redistricting: How to Rig an Election," The Economist, April 27, 2002.

20 Id

21 A thorough and nuanced argument for proportional representation appears in Robert Richie and Steven Hill, Reflecting All of Us: The Case for Proportional Representation (1999).

23 Act of December 14, 1967, Pub. L. No. 90-196, 81 Stat. 581. The first statutory requirement for single-member districts was embodied in an 1842 statute (5 Stat. 491) which provided that representative "should be elected by districts composed of contiguous territory equal in number to the number of representatives to which said state may be entitled, no one district electing more than one representative." An 1850 apportionment statute (9 Stat. 433) got rid of the single-member district requirement and Congress continued to see-saw on the issue.

24 See Steven Hill, Fixing Elections: The Failure of America's Winner Take All Politics 35 (2002).

25 See op-ed by Clint Bolick, Wall Street Journal, April 30, 1993.

26 For extensive statistical evidence about racially polarized white-bloc voting in the South, see Grofman, Handley and Niemi, Minority Representation and the Quest for Voting Equality; Chandler Davidson and Bernard Grofman, Quiet Revolution in the South: The Impact of the Voting Rights Act of 1965-1990.

27 Davidson and Grofman at 338.

28 Lani Guinier and Gerald Torres, The Miner's Canary: Enlisting Race, Resisting Power, Transforming Democracy (2002). See also Douglas Amy, Real Choices, New Voices: The Case for Proportional Representation Elections in the United States, Columbia Univ. Press (1995).

29 Guinier and Torres at 252.

30 Id. at 253.


The Popular Election of the President Amendment (64-66)

Consider the following amendment to adopt direct popular election of the president which includes a built-in "instant run-off" provision to guarantee that the winner actually has majority support of the voters:

The President and the Vice President shall be elected by direct popular vote of all U.S. Citizens eighteen years of age and older, but no person shall be elected President who has not attained at least 50 percent support among the votes cast. Whenever there are three or more candidates listed on the ballot, the ballot shall ask voters to rank their choices in order of preference. If no candidate receives at least 50 percent of the first-place votes cast, the last place candidate's ballots shall be redistributed to the second-choice candidates of these voters. This instant runoff method shall continue until a candidate has achieved a majority of all votes cast.

Of the several important changes embodied in this Popular Election of the President Amendment, the enactment of majority rule is only the most obvious. The Popular Election of the President Amendment replaces the bizarre Rube Goldberg-type contraptions of the electoral college -- the two-vote add-on, the lengthy delays between popular voting and the casting of the electoral-college votes, the contingent House election based on state-by-state voting, the recurring possibilities of popular-vote losers winning the election -- with clean and simple majority rule. A majority is guaranteed by virtue of the "instant runoff" mechanism, which assures that the winner will achieve a popular mandate without requiring that an expensive second (or third) runoff election be held. This method of voting not only guarantees that candidates will take office with majority support but also dampens partisan invective and rancor during the campaign. Candidates have no interest in polarizing things because they want to become a group of voters' second favored choice even if they cannot be their first. This instant runoff mechanism is gaining increasing support around the country. On March 5, 2002, the people of San Francisco voted by 56 percent to 44 percent to adopt instant runoff voting for election of local officials. Rob Richie and Steven Hill of the Center for Voting and Democracy in Takoma Park, Maryland, who organized the drive, have made a signal contribution to public discourse by putting the instant runoff on America's democracy agenda.

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