A Modest Proposal for Voter Empowerment
By Lani Guinier

Why isn't the vote more universally exercised among African-Americans? Many of us, unfortunately for good reason, are becoming cynical about the franchise that hard-won amendments to the U.S. Constitution granted to Black men in 1870, and to all women in 1926. (It's also a franchise that for many Blacks had to be enforced by voting rights legislation of the 1960s and 1980s.)

As a civil rights attorney and legal scholar, I think people dont vote, in part, because our winner-take-all electoral process in the U.S. unfairly excludes anyone in a so-called minority from having a useful voice. Certainly casting a ballot that feels empty is not the kind of participation previous generations of freedom fighters and political activists had in mind when they shed blood, sweat and tears for these voting rights.

As we headed to the polls November 7 for the first national election of the new century, we were reminded that Black and Latino communities have a growing population denied the vote by state law. The flawed enforcement policies of the U.S. War on Drugs under both Republican and Democratic administrations have imprisoned a skyrocketing and disproportionate number of Blacks and Latinos for nonviolent drug offenses. In 10 states, anyone convicted of a felony permanently loses his or her voting rights even after having served a full sentence and returning to their communities. Thirty-two states prohibit felons from voting while they are on parole. Forty-six states and the District of Columbia prohibit inmates from voting while serving a felony sentence. As a result, 14 % of Black men nationwide and in some Southern states as many as 30% of black men, are disenfranchised.

Furthermore, the nationwide prison population of 2 million, now almost 70 % Black and Latino, is also being counted by the Census in order to determine how to allocate legislative seats. The strategic placement of prisons in predominantly White rural districts often means that these districts gain more political representation based on the disenfranchised people in the prison, while the inner-city communities they come from suffer a proportionate loss of political power and representation. More than 80 % of New York State prisoners, for example, are black or Latino, while 64 of the state's 71 prisons are located in, and are used to enhance the political clout of, Republican districts.

Ironically, this state of affairs is remarkably consistent with the U.S. Constitution as it was constructed in 1789. To accommodate the interests of slaveholders, the original Constitution denied enslaved Africans the right to vote, counting each slave as 3/5 of a person. The infamous Three-Fifths Compromise enabled the South to count a disenfranchised slave population to inflate the numbers of representatives assigned to plantation owners and other southern White male elites in the U.S. House of Representatives. (White women and children, who also could not vote, were counted as whole people, while disenfranchised native Americans were not counted at all.)

In my view, once offenders have served their time, they should be restored to full citizenship. Disenfranchising them for the rest of their natural lives and depriving them of the right to participate in public decision-making gives them a disincentive to reintegrate into their communities. And it's especially unfair to communities of color when you have such disparate penalties for the same kinds of crimes: We medicalize drug use for Whites, so that drug offenders who are White often end up in a treatment facility, but we criminalize the same offense for Blacks so they end up in prison and are deprived of their right to vote

One short-term solution to the problem of the disenfranchised ex-offender population is for people to lobby their legislators to abolish the permanent disenfranchisement of felons. But a longer term and more far-ranging solution would be to adopt the proportional representation system that has been used successfully in South Africa, where the Black majority now peacefully shares power with the White minority. In South Africa's system, people cast their votes for the political party they feel most represents their interests, and the party gets seats in the legislature in proportion to the number of votes they receive. Instead of a winner-take-all situation in which there are losers who feel completely unrepresented when their candidate doesn't get the top number of votes, each vote counts to enhance the political power of the party of the voters choice. Under South Africa's party list system, the party that gets 30 % of the vote, gets 30 % of the seats. Or if the party gets 10 % of the vote, they still get 10 % of the seats in the legislature. Only because of this system does South Africa's White minority have any representation in their national legislature. Ironically, South Africa, only six years out of apartheid, is more advanced in terms of its practicing democratic principles than the United States is 150 years after slavery and 40 years after Jim Crow

Proportional-representation reform in the states would not even require an amendment to the U.S. Constitution to implement. There's nothing in our constitution that says we have to use the single-member districts we currently use. Taking the initiative since 1995, Rep. Cynthia McKinney (D, Ga.) and Rep. Mel Watt (D., N.C.) of the Congressional Black Caucus, have repeatedly introduced legislation called the Voter Choice Act, which mandates that states be allowed to choose proportional representation. It's a system that should have great appeal, not just for African Americans, but for every group that has ever felt disenfranchised, because you win seats not on the basis of how many bodies are counted, but on how many voters you mobilize.

An edited version of this commentary appeared in the November 2000 issue of Essence magazine.