Claim Democracy

The Supreme Court's ruling last week did more than just ensure a win for George W. Bush It provided a disconcerting window into our democracy's limitations, showing what can happen when judges are more committed to counting time than counting votes. As Justice John Paul Stevens declared in dissent, ""In the interest of finality, the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent -- and are therefore legal votes under state law -- but were for some reason rejected by ballot-counting machines.'' The emphasis on the Dec. 12 deadline set by the Florida Legislature rather than on democracy makes the court, in Stevens' view, the loser in this year's presidential election. But much more was lost in this election than some of the court's esteem. Also lost were the votes of millions who for one reason or another didn't have their voices heard about who should lead them. In Florida, that included nearly 6 million adults who cast "spoiled'' ballots, were banned from the franchise or simply chose not to vote. What the high court failed to recognize, and what most commentators also ignore, is that the very structure of our voting system, as well as our voting technology, is deeply flawed. In fact, the combination probably cost Gore the election ... and cost the American people the fairest shot at deciding who should become president of the United States. The denouement of this election should be troubling for all Americans, not just the poor and minority citizens who are disproportionately affected by the more visible election problems, such as badly functioning voting machines. Perhaps the fact that the U.S. Supreme Court, by a one-vote margin, decided this presidential election may help launch a long-overdue conversation about the importance of not only counting all the votes, but also about determining/ what constitutes fair representation in a multiracial democracy. First, let's deal with the problems that occurred Nov. 7 in Florida. An unusually large number of black voters showed up this year (16 percent of the electorate, up from 10 percent in 1996), but the technology that could have helped /handle/ the overflow was not available in black precincts. In Miami-Dade County, for instance, the New York Times reported that computers that link directly to the county voter lists were distributed in some counties, mainly to predominantly Latino areas. Had local polling officials in mostly black precincts had access to those computers, they would have been able to network immediately with the official registration lists, and many of those who were turned away from the polls, although they were in fact registered, could have voted. (Precincts could call to check on voters' status, but the supervisor of elections later acknowledged the phone lines were often busy.) Old voting machines, more likely to reject ballots not perfectly completed, also were disproportionately located in low-income and minority neighborhoods. These problems contributed to stunning vote-rejection numbers. In Miami-Dade County, black precincts saw their votes thrown out at twice the rate of Latino precincts and at nearly four times the rate of white precincts, the New York Times reported. In that county, in predominantly black precincts, the newspaper said one in 11 ballots were rejected -- a total of 9,904 -- thousands more than Bush's margin of victory. Florida's minority residents and many others faced another, more structural, hurdle to having their voices heard. More than 400,000 ex- felons who finished serving their time, about half of them black, could not vote because Florida is one of 14 states, most in the old Confederacy, that strip the right to vote from virtually all people convicted of a felony, even after they have paid their debts to society. Worse, many voters may have been turned away at the polls because their names mistakenly appeared on lists of ineligible voters, such as felons, distributed by a division of the office of the Florida secretary of state.The online magazine Salon reports that the lists, compiled by a private company, were so flawed that some counties refused to use them. One county said its list had a 15 percent error rate and included people who had been convicted of misdemeanors and others who were simply cases of mistaken identity. But by far the largest group of Florida residents whose voices were not heard Nov. 7 are those who abstained from voting. Barely half of Florida's adults voted, just under the national average of 51.0 percent. Low turnout is bad enough, but this is even more disturbing: Non-voters are increasingly low-income, young and less educated. It would be a terrible blow to our democracy if, as a result of the Supreme Court majority's emphasis on following written instructions, the differential turnout between high-income and low-income voters continues to grow as poorly educated voters become increasingly intimidated by the challenges of casting a "legal vote.'' Some members of the court suggested that if voters had simply followed instructions, there would have been no problem. But Florida's election showed that voting isn't nearly as easy as it ought to be.Even the better-educated older voters of Palm Beach, who had to wrestle with the "butterfly ballot,'' found how much they have in common with other, more frequently disenfranchised populations. It is crucial that our democratic procedures ... as even the current conservative Supreme Court recognizes ... "sustain the confidence that all citizens must have in the outcome of elections.'' Yet, there is a real danger that this election ... and the politicized response it has evoked from some of our more venerable institutions ... has eroded that confidence considerably. A poll released Dec. 7 by the Vanishing Voter Project at Harvard's Kennedy School of Government suggests that the majority of the American people ... including 86 percent of African-Americans ... believe that the election was ""unfair to the voters.'' As in the 1960s, ... we, the people, ... must take up the burden of forging a coalition for democratic reform. We need to focus on basic structural changes as well as practical, short-term fixes. One structural changes would be to make state legislatures more representative, especially since the Supreme Court apparently believes they have the last say in disputed presidential elections. Another would be to implement proportional voting rather than the winner-take-all approach most states take to Electoral College votes. A third would be to allow ""instant runoff'' voting in which people can rank candidates in order of preference. How could we make state legislatures more representative? We could demand that legislators no longer be allowed to define legislative voting districts, since incumbents inevitably try to include areas where they're sure of support, and exclude the rest. That might work to get the legislator elected, but it doesn't mean the mix in the legislature will be ever representative of what the electorate wants. One possible fix would be to switch to a proportional voting system. Proportional representation in South Africa, for example, allows the white Afrikaners' parties and the African National Congress to gain seats in the national legislature commensurate with the total number of votes cast for each party. If we in the United States were to follow South Africa's lead, voters supporting the Green Party and the Reform Party, for instance, could be represented within state and local legislative bodies. Here's how it would work: If a party won 20 percent of the vote in a state, for instance, 20 percent of that legislature's members would be from that party. Second, states could adopt allocate electoral votes by proportional representation. If a candidate won 40% of the vote in a state, he or she would win 40% of that state's electors. Other, more modest voting reforms include: * Ensuring all districts have good voting machines. In Connecticut, for example, where lever machines prevent voting for more than one person in a race, the percentage of voters whose ballots were read as casting no presidential vote was only one half of 1 percent. * Developing grass-roots organizations that can help citizens navigate voting rules on Election Day, but also help ensure early that ballots are user-friendly. Whether we seek fundamental or incremental change, an aroused citizenry may be our only protection against judicial or legislative overreaching. Before the lessons of Florida are forgotten, let us use this window of opportunity to forge a strong pro-democracy coalition around "one vote, one value.'' Voting should not be an obstacle course of arbitrary deadlines, lousy lists, politically gerrymandered winner-take-all election districts and outdated ballot technology. Instead, "one vote, one value'' could become the rallying cry of disenfranchised voters throughout the nation. [Lani Guinier is a professor of law at Harvard Law School. Her nomination in 1993 for a civil-rights post in the Justice Department, ultimately withdrawn, became a high-profile dispute over her views on proportional representation. Her latest book is the forthcoming ìThe Miner's Canary: Rethinking Race and Power'' (Harvard), which she wrote with Gerald Torres. She wrote this article for Perspective.] -speaking voters, 24-hour polling places and a national Election Day holiday. Enacting standards for federal elections is consistent with the Voting Rights Act, which has banned literacy tests nationwide as prerequisites for voting. That ban was passed by Congress in 1970 and unanimously upheld by the Supreme Court. But reforms to equalize voting access, while important, are not enough. The circumstances of this election call for a larger focus on issues of representation and participation. If we are to build a genuine pro-democracy movement in this country, we cannot limit ourselves to butterfly ballots and chads. A pro-democracy movement - needed now more than ever in the United States - would look seriously at forms of proportional representation that could assure that Democrats in Florida (or Republicans in Democratic-controlled states) or racial minorities in all states are represented fairly in the legislatures themselves. The five-member Supreme Court majority allowed the interests of the Florida Legislature to trump any remedy to protect the rights of the voters. If legislatures are to enjoy such power, it is imperative for voters' voices to be reflected in fully representative legislative bodies. That means that voters must have a more meaningful opportunity to participate in the entire democratic process - and not just on Election Day. Such an opportunity is not possible when the majority party holds a disproportionate amount of power over a heterogeneous citizenry, divided along racial and party lines, as is evident in the Florida Legislature. Recognizing the danger of majority legislative tyranny is crucial at a time when every state legislature will soon be engaged in the decennial task of redistricting. Under current law, the members of the Florida Legislature can use their legislative authority to create winner-take-all districts to cement their power. The drawing of districts often becomes the real election. We cannot sustain the confidence of citizens to vote and participate beyond Election Day if we continue to allow election outcomes to be determined when the legislature draws districts. A winner-take-all scheme in appointing a state's delegates to the Electoral College is similarly unfair. Florida gave all of its electors to President-elect Bush, even though, while he won a plurality of the popular vote in that state, he did not win a majority. A system that apportions a state's electoral votes based on the popular vote received by each candidate in that state would better reflect the will of all the voters. Proportional voting - where the political parties gain seats in proportion to the actual percentage of votes won on Election Day - means everyone's vote counts toward the election of someone he or she voted for. In conjunction with other reforms, it makes voting the first step in a democratic system by which we, the people, not they - the court or the unrepresentative legislature - rule.