Voting Rights & Wrongs
The Tyranny of the Majority: Fundamental Fairness in Representative Democracy.
by Lani Guinier.
Martin Kessler Books/Free Press. 324 pp. $24.95.
President Clinton’s decision last June to withdraw the nomination of Lani Guinier as head of the Justice Department’s civil-rights division averted a public debate in which his administration would inevitably have been depicted as championing racial quotas for elected officials. Guinier, a Friend of Bill (and Hillary), had been a prolific proponent of racial parity for elected officials for more than a decade, first as a litigator for the NAACP Legal Defense and Education Fund and then as a scholar. Oddly, however, the President seemed unconcerned about Guinier’s record in the political world, where she had won dozens of suits—including one against the state of Arkansas when he was governor—forcing local jurisdictions to rewrite election rules to guarantee racial representation. Instead, the President—and most of Guinier’s critics—focused on her theoretical writings.
What was odd about this was that many of the controversial remedies Guinier advocated in her law-review articles had already become accepted practice in voting-rights enforcement. The Justice Department—under both Republican and Democratic Presidents—now routinely compels local jurisdictions to modify rules to achieve racial parity in elective offices. It would thus seem that in her critics’ eyes, Guinier’s chief sin lay in providing a theoretical framework for what, thanks in part to her own efforts, had already become public policy.
Because her nomination was withdrawn, Guinier has complained bitterly that she was denied a hearing for her views. With the publication of The Tyranny of the Majority, those views will, one may hope, receive the careful scrutiny they deserve. Most of the law-review articles that provoked the controversy are included here, though some are in edited form. Guinier has also added a new introduction as well as brief explanatory prefaces to each of the essays, which attempt to soften the tone of her arguments. Indeed, the most striking feature of this book is the discrepancy between the moderate rhetoric of the new material and the jeremiads of the reprinted articles.
Guinier claims that her only interest is to promote “fair play,” so that minorities will have an equal chance of influencing legislative outcomes. Yet to achieve this objective, she would drastically alter current voting systems to eliminate majority rule both in the electorate and in legislative bodies. Lest these proposals seem too radical, Guinier begins the main argument of her book with two stories; the first is meant to show that she is prescribing nothing more extreme than the “principle of taking turns,” the second to illustrate what happens when that principle is neglected.
The first example, which has been widely repeated both by Guinier and by other commentators, concerns her four-year-old son Nikolas. It seems that when Nikolas’s friends cannot decide whether to play hide-and-seek or tag, they do not settle the matter by majority vote—they take turns! If it works in Nikolas’s play group, surely the same principle, if transposed to the electoral and legislative process, would lead to “a more cooperative political style of decision-making.”
But why effect such a transposition? Guinier’s second example attempts to explain why. “In a racially divided society, majority rule may be perceived as majority tyranny.” The example here is from a Catholic boys’ school in Chicago, Brother Rice, where a group of black seniors chose to hold their own separate prom two years ago.
In Guinier’s telling, the decision came about because black students, who made up about 12 percent of the graduating class, had no meaningful opportunity to choose the music for the official dance, despite an ostensibly democratic process that allowed each senior to vote for his three favorite songs. She cites the complaint of one black senior: “For every vote we had, there were eight votes for what they wanted. . . . [W]ith us being in the minority, we’re always outvoted. It’s as if we don’t count.” The episode, according to Guinier, clearly illustrates why simple majority rule in a multiracial democracy will always leave minorities losers when their interests or preferences differ from the majority’s.
But Guinier’s version distorts what actually happened. It was not white recalcitrance over black grievances that provoked the split at Brother Rice, but a decision by some black students that separate was better when it came to race. The same New York Times article from which Guinier quotes also reported that school administrators tried to reach a compromise with the organizers of the black prom, but the latter chose to boycott the meetings set up to resolve the issue. The article also noted that one-sixth of the black seniors attended the official prom with their white classmates, who commonly expressed the sentiment that they “missed their friends and felt the class was not whole without the black students.” Guinier omits these inconvenient details because they undermine her thesis that white hostility to black interests necessitates abandoning majority rule.
What happened at Brother Rice was hardly unique. In the last few years, black students have demanded separate commencement exercises, separate dorms, separate cultural centers, and race-based curricula at scores of schools from Stanford to the University of North Carolina. These developments point to a growing racial polarization in the country, but not one which refutes the legitimacy of majority rule.
And herein lies the main problem not only with Guinier’s analysis but with current voting-rights enforcement in general. Both might make a kind of sense in a world in which white racism was rampant and extreme measures had to be instituted to overcome it—the world, say, of the Deep South at the time the Voting Rights Act was enacted in 1965. But ours is not such a world—not even in the South, much less in the nation as a whole.
In 1965, Southern jurisdictions used every means at their disposal—including poll taxes, grossly unfair literacy tests, and physical and economic intimidation—to deny blacks the right to vote. Consequently, in Mississippi, for example, only 6 percent of blacks were registered; and throughout the South, only 100 blacks held elective office. Today, registration among blacks in some jurisdictions actually exceeds that of whites, and of the more than 8,000 elected offices held by blacks nationwide, nearly 5,500 are in the South alone.
Yet voting-rights enforcement—and the law itself—have actually become more draconian, not less. As Abigail Thernstrom shows in Whose Votes Count?, voting-rights litigation has become “a quick and easy means of ‘improving’ electoral procedures—one that circumvents uncertain and time-consuming political channels and yields almost guaranteed results.” Contrary to Guinier’s doleful depiction of the status quo, changes made in the voting-rights law in 1982 have conferred unprecedented power on black and Hispanic voters to insist on elective methods that will maximize minority office-holding.
Indeed, the number of federal officeholders who are black has nearly doubled since 1982, from 20 to 39. But Guinier is unimpressed even by these gains. Her goal goes beyond achieving racial parity. She wants to guarantee “political equality,” which she defines as giving each group a right to have its interests both represented and “satisfied a fair proportion of the time.” And she goes on to insist that minority elected officials, if they are truly to represent minority interests, must be “authentic.”
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During the controversy over her nomination, Guinier was much criticized for having implied in one of her articles that former Virginia governor Doug Wilder might be less than completely “authentic” because his margin of victory had been provided by whites. But Guinier’s real problem with Wilder probably had more to do with the governor’s moderate agenda and record of fiscal prudence. It is hard to imagine Guinier questioning, for example, the authenticity of Congressman Ron Dellums, who represents a district that is only 29 percent black but that includes the affluent and decidedly left-wing Berkeley area. When push comes to shove, what Guinier means by “authentic leaders” are those who support radically redistributionist policies. Representative Bernie Sanders—a white socialist—would certainly qualify under this standard, but not Representative Gary Franks, a black Republican.
In this context, Guinier’s effusive claim to be a Madisonian democrat rings especially hollow. Her ideas bear nothing in common with those of Madison, Hamilton, or Tocqueville, figures to whom she makes reference more than a dozen times. As Thernstrom and others have pointed out, Guinier’s proposal for a minority legislative veto is, rather, strikingly similar to John C. Calhoun’s proposal to give slaveholder states veto power over federal legislation they did not like. Try as she might to wrap herself in the respectable garb of the Founders, there are few democratic threads that run through this Empress’s new clothes.
