What We Must Overcome
By Lani Guinier, March 4, 2001

Even before the recent presidential election debacle, many of us had called for a national conversation about what it means to be a multiracial democracy. Our efforts produced little traction. For most people, however, democracy was merely an afterthought in political debate, the diagnosis for what ailed it consisting of vague references to campaign finance reform. But the harm was not just in the money and its sources; the problem has been the rules of American democracy itself. Now, in light of its dramatic and unavoidably political resolution of the 2000 presidential election, no less authority than the U.S. Supreme Court calls on us to consider what it means to be a multiracial democracy that has equal protection as its first principle.

On December 12, 2000, in Bush v. Gore, the Supreme Court selected the next president when, in the name of George Bush's rights to equal protection of the laws, it stopped the recounting of votes. The Courts decision and the colossal legal fight that preceded it put the values, and not just the mechanics, of American democracy front and center. Excoriated at the time for deciding an election, the Courts stout reading of equal protection could nevertheless become an invitation, not just to future litigation but also to a citizens movement for genuine participatory democracy. At minimum, the Courts surprising and heavy-handed intervention should now spark a real debate about the rules of democracy on an even larger scale than we previously imagined.

The decision invites future litigants to rely on the Courts new-found equal protection commitments to enforce uniform standards for casting and tabulating votes in federal elections from state to state, county to county and within counties. The majority finds that the source of the fundamental nature of the right to vote lies in the equal weight accorded to each vote and the equal dignity owed to each voter. We have not heard such a full-throated representation of the equal protection clause in many years, at least not with regard to the rights of voters to do more than cast a ballot. This language harkens back to the broad commitment we once heard from the 1960s era Warren Court, which affirmed the peoples fundamental right to exercise their suffrage in a free and unimpaired fashion. Concerned that the lack of uniform standards for a manual recount would lead to arbitrary and disparate treatment of the members of the Florida electorate, the conservative majority relied on two expansive Supreme Court decisions, Harper v. Virginia Board of Election and Reynolds v. Sims. These cases, from the salad days of the Warren Court, explicitly affirm Lincolns vision of government of the people, by the people, for the people. Perhaps in the name of restoring voter confidence in the outcome of elections the conservative majority will now welcome, as it did in Bush v. Gore, other lawsuits that seek to challenge the very discretion the five-vote majority found so troublesome when exercised by local Florida county officials. Perhaps not.

It seems unlikely, of course, that the conservative majority will act in the future to rehabilitate our partial democracy. Some undoubtedly will argue that the per curiam decision only addresses the remedial power of a state court seeking a statewide remedy. Others will point to the great irony that the Court has shown itself more deeply committed to safeguarding the rights of a major party candidate than to protecting disenfranchised voters across-the-board.

The Bush v. Gore majority, which went out on a limb to protect the rights of a single litigant, George Bush, has been noticeably less exercised about arbitrary or disparate treatment considerations when raised by voters who are racial minorities. Indeed, in a 1994 concurring opinion, when the claim to a meaningful and equally valued vote was raised by black litigants, Justice Clarence Thomas declared that the Court should avoid examining electoral mechanisms that may affect the weight given to a ballot duly cast. Even where Congressional statutes, such as the Voting Rights Act, explicitly define the term voting to include all action necessary to make a vote effective, Justice Thomas urged the Court to ignore the actual text of the statute.

The Bush v. Gore invitation to value votes equally, in order to sustain the confidence that all citizens must have in the outcome of elections, should be heeded but not in the form of legal wrangling before a judge. That it is time for political agitation rather than judicial activism may be the most important contribution of the Bush v. Gore opinion. In fact, that is already happening, at least in the law schools. The New York Times reports on February 1, 2001 almost three months after the election the decision continues to generate a beehive of activity among law professors furious at the Supreme Courts role. The debate in law schools already has the flavor of the teach-ins of the Vietnam War era, when professors spurred their students to political action. As during the movement for abolition, womens suffrage or black voting rights, we the people must take up the burden.

Indeed, the Court's choice of language explicitly valuing no person's vote over another's ought to launch a citizens' movement similar to the 1960s civil rights marches that led to the Voting Rights Act, in which citizens carried banners with the one person one vote slogan. One vote, one value meaning everyones vote should count toward the election of someone they voted for should be the rallying cry of all who wish to restore confidence that even the conservative Court majority agrees all citizens must have in the outcome of elections. This movement, lets recall, began in the streets, was cautiously then boldly embraced by liberal politicians, and eventually led to both raised grass roots consciousness and national legislation. That is how democratic movements change the course of events, and in the process enrich and renew democracy

Certainly many people outside the legal academy continue to feel alienated by the outcome of this presidential election. A survey released December 7 from the Harvard Vanishing Voter project suggests that large majorities of the American people believe the election procedures have been unfair to the voters. Not surprisingly, nationwide those most likely to feel disenfranchised are blacks. In December 2000, 86% of black voters felt that way. One out of 10 blacks reported that they or someone in their family had trouble voting according to a national report produced by Michael Dawson and Lawrence Bobo, of the Center for the Study of Race, Politics and Culture and the W.E.B. Dubois Institute. A CBS News poll, made public on the eve of the inauguration, found that 51 percent of the respondents said they considered Mr. Bush's victory a legitimate one, but only 19 percent of Democrats and 12 percent of blacks said so.

The anger over what happened in Florida has only been reinforced by the failure of the Democratic Party leadership to move quickly and seriously to engage with this legitimacy issue. Right after November 7, when the perception first emerged that the election was literally being hijacked, the Gore campaign actively discouraged mass protest. On January 12, when Al Gore presided over the counting of the Electoral College votes, it was only members of the Congressional Black Caucus who rose, one by one, to protest the filing of Floridas votes. They could not get a single Democratic Senator (from a body that includes not a single black representative) to join their objection. The silence of the white Democrats in Congress turned the CBC demonstration into an emphatic recapitulation of the election drama. As the presiding officer, Al Gore overruled the protests. The moment was especially poignant, because the Black Caucus members, in speaking out for Floridians whose votes were not counted, were speaking out for all Americans, while even their progressive white colleagues sat in awkward silence. E.J.Dionne, a columnist for the Washington Post, watched the drama unfold on television. Turning to his eight year old son, seated next to him Dionne explained, They are speaking out for us too.

It was the Black Caucus, and the Black Caucus alone, James Carroll wrote in the Boston Globe that showed itself sensitive to & what is clearly true about the recent presidential election in Florida. That truth is the gap between what the rules permit and what democracy requires. Florida made it obvious that our winner-take-all rules would unfairly award all of Floridas electoral college votes to one candidate even though the margin of victory was less than the margin of error. Yet our elected officials in Washington are committed to those rules and even more, to maintaining civility between those adversely affected by the rules and those who benefited. As Carroll wrote, Those who sit atop the social and economic pyramid always speak of love, while those at the bottom always speak of justice.

The CBC protest shows that outrage over the election continues. But the CBC protest also speaks to the fact that the conversation about the true meaning of democracy is not happening yet, at least not at the highest levels of government. There is talk of course about fixing the mechanics of election balloting; but it is the rules themselves, and not just the vote counting process, that are broken. Which is all the more reason that this conversation, which needs to address issues of justice, not just compassion, also needs to rise up from communities and a citizens movement.

Those who were disenfranchised, disproportionately black, poorer and less well educated, were not asking for pity; they wanted democracy. Stories of long poll lines, confusing ballots and strict limitations on how long voters could spend in the voting booth help explain why turnout numbers are skewed toward those who are wealthy, white and better educated. We are a democracy that supposedly believes in universal suffrage, and yet the differential turnout rates between high-income and low-income voters are far greater than in Europe, where they range from 5 to 10 percent. More than two-thirds of people in America with incomes greater than $50,000 voted, compared with one-third of those with incomes under $10,000. Many poor people are also less literate; for them, time limits and complex ballots proved disabling when they were organized around lists of individual candidates rather than easily identified icons for political parties. Indeed, more ballots were spoiled in the presidential race than were cast for spoiler Ralph Nader. The shocking number of invalid ballots are a direct result of antiquated voting mechanics, an elitist view of the relationship between education and citizenship, and an individualistic view of political participation that would shame any nation that truly believes in broad citizen participation.

In addition to class, the window into the workings of Floridas balloting allowed us to see how race affects and in turn is affected by voting rules and procedures. The election debacle revealed gaps not just in our democracy, but in the way our democracy racializes public policy and then disenfranchises the victims of those policies. Old voting machines, more likely to reject ballots not perfectly completed were disproportionately located in low-income and minority neighborhoods. These problems contributed to stunning vote-rejection numbers. According to The New York Times, black precincts in Miami-Dade County saw their votes thrown out at twice the rate of Cuban (and primarily Republican) precincts and at nearly four times the rate of white precincts. In that county alone, in predominantly black precincts, the Times said, one in 11 ballots were rejected & a total of 9,904 & thousands more than Bush's margin of victory. The balloting rules in Florida did not just incidentally disenfranchise minority voters, but apparently resulted from what many think were aggressive efforts to suppress black turnout. The New York Times also reported that in Miami-Dade, the county gave certain precincts, mostly the Hispanic (i.e. Cuban-Republican), laptop computers so that they could check names against the central county voter file. In black precincts, where there were a lot of recently registered voters whose names didnt appear on the local list, the precinct workers were not given computers and were supposed to call the county office to check the list, but no one answered the phones or the lines were busy, so thousands of actually registered voters were just sent away.

Florida's minority residents and many others faced another structural hurdle to having their voices heard. Those convicted of a felony are permanently banned from voting in Florida and twelve other states. As a result, 13 percent of Black men nationwide and in some Southern states as many as 30% of black men, are disenfranchised. In Florida alone, this year more than 400,000 ex-felons, almost half of them black, could not vote because Florida is one of 13 states, disproportionately in the old Confederacy, that strip for life the right to vote from people convicted of a felony, even after they have paid their debts to society. Also worth noting is that Floridas Secretary of State hired a firm to vigorously cleanse the voting rolls not just of felons, but also of ex-offenders from other states whose rights were restored in those states and who were thus still legally eligible to vote. The Hillsborough County elections supervisor, for example, found that 54 percent of the voters targeted by the "scrub" were black, in a county where blacks make up 11 percent of the voting population. While Canada takes special steps to register former prisoners and encourage citizenship, Florida and other states ostracize them.

Unfortunately, in pursuit of bipartisan civility the Democratic Party leadership appears to be marching to a false harmony --- being charmed by compassionate conservatism and conscious of the conflict aversion of middle of the road swing voters, while ignoring issues of justice and the troubling disenfranchisement of many of its most loyal supporters. If we learn anything from the Supreme Courts role in the election fiasco, it must be that when the issue is justice, the people not the Justices of the Court or the Democratic leadership in Washington -- will lead. And if anything is true about the fiasco in Florida, it is the need for new leadership that is willing to challenge rather than acquiesce with unfair rules. Such leadership will not be a single, charismatic figure orchestrating deals out of Washington, D.C.; nor would it be a group devoted only to remedying the disenfranchisement of black voters. Instead, what is needed is a courageous assembly of stalwart individuals willing to ask the basic questions the Black Caucus members raised, questions which go to the very legitimacy of our democratic procedures, not just in Florida but nationwide. These are likely to be individuals organized at the local level, possibly even around a new political party that is broadly conceived and dedicated to real, participatory democracy. It will build on the energy of black voter participation, which in Florida alone went from 10 percent in 1996 to 15 percent last year and in Missouri, from 5 percent in 1996 to 12 percent in 2000.

But while black anger could fuel a citizens movement or a new, European style political party that seeks reforms beyond the mechanics of election day voting, the danger is that whites will be suspicious of the struggle, if it is perceived simply to redress wrongs done to identifiable victims or to serve only the interests of people of color. And people of color can alienate potential supporters if they focus exclusively on vindicating the rights of minority voters and fail to emphasize three dramatic distortions in our present rules that undermine the ability of low income and working people, women and progressives as well as racial minorities to participate in a genuinely democratic transformation. These rules limit voting to 12 hours on a work day and require registration weeks even months in advance; these rules disenfranchise prisoners for the purpose of voting but count them for the purpose of allocating legislative seats [see sidebar]; and these rules waste votes through winner-take-all elections. A pro-democracy movement has a good chance to succeed if it focuses on unfair rules whose dislocations may be felt first by blacks but whose effects actually disempower vast numbers of people across the country.

A pro-democracy movement would need to build on the experience of Florida to show how problems with disenfranchisement based on race and status signify systemic issues of citizen participation. Such mobilization would seek to recapture the passion in evidence immediately after the election, as Union leaders, civil rights activists, black elected officials, ministers, rabbis and the president of the Haitian womens organization came together at a black church to remind the assembly of the price their communities had paid for the right to vote and vowing not to be disfranchised ever again. It felt like Birmingham last night, Mari Castellanos, a Latina activist in Miami, wrote in an e-mail describing the mammoth rally at the 14,000-member New Birth Baptist Church, a primarily African-American congregation in Miami. The sanctuary was standing room only. So were the overflow rooms and the school hall, where congregants connected via large TV screens. The people sang and prayed and listened. Story after story was told of voters being turned away at the polls, of ballots being destroyed, of NAACP election literature being discarded at the main post office, of Spanish-speaking poll workers being sent to Creole precincts and vice-versa&..

Although not encouraged by Democratic leaders, by joining their collective voices these Florida voters were beginning to realize their potential as ordinary citizens -- to become genuine democrats with a small d. By highlighting our wretched record on voting rules and practices, these impassioned citizens were raising the obvious question: Do those in charge really want large citizen participation especially if that means more participation by poor people and people of color? Even more, do Americans of all incomes and races realize that everyone loses when we tolerate disenfranchisement of some? And how can we tolerate the log-jam of winner-take-all two party monopoly at least at the local level?

The disenfranchisement of prisoners takes on new meaning as the nationwide prison population of 2 million, now about two thirds Black and Latino, is counted by the Census and then used to determine how to allocate both federal dollars and legislative seats. Prisoners boost the population of rural communities, bringing in millions more in federal funds that are doled out on the basis of population size. As Cindy Rodriguez writes in the Boston Globe, the unintended consequence of the way the US Census counts people means a shift of federal money out of poor urban neighborhoods, into middle-class rural ones. For example, in the small rural town of Coxsackie in N.Y., the 2,800 inmates housed there account for nearly a third of the population, skewing the town's demographic picture in a way that benefits Coxsackie beyond imagination. And, because the Census tabulates the town's per capita income by averaging in the salaries of inmates - which range from zero to $3,000 a year per inmate - Coxsackie appears poorer, thus qualifying it for federal assistance programs.

It's not just federal money that follows these men out of their communities and into the community in which they are temporarily incarcerated. It's political power that follows these men out. 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 percent 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, white Republican districts. Most prisoners come from urban, heavily Democratic areas, and they are incarcerated in more conservative areas. As a result, they help create more Republican-leaning state and congressional seats during redistricting. ''In terms of the redistricting process, it results in a net loss for urban areas and a net gain in rural areas,'' says David Bositis, senior research associate for the Joint Center for Political and Economic Studies, a think tank based in Washington, D.C. As the prison population continues to explode, it results in a transfer of political power as well.

Ironically, this state of affairs is remarkably consistent with the U.S. Constitution as it was constructed in 1789. Because inmates can't vote in 48 states, including Massachusetts, counting their bodies for political districting and federal funding is reminiscent of the Constitutional three-fifths clause that counted enslaved Africans as three-fifths of a person for reapportionment even though they weren't allowed to vote. The infamous Three-Fifths Compromise enabled the South 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.) One short-term solution to the problem of the disenfranchised ex-offender population is to lobby state legislators to abolish the permanent disenfranchisement of felons. Alternatively Congress could pass a statute providing voting rights for all ex-felons in federal elections.

As the Florida fiasco suggests, the problem includes mechanical defects, but it is the rules themselves, not just old technology, that limits the political clout of entire communities.

Weak democracy feeds on itself. There are some technical fixes worth pursuing (see accompanying articles by Neuborne and by Rapoport). But reform of voting mechanisms while important is not enough. The circumstances of this last election call for a larger focus on issues of representation and participation. A longer term and more far-ranging solution to the problems in Florida as well as around the country would be to enrich democracy by broadening ways of reflecting and encouraging voter preferences.

For example, in South Africa, where the black majority now shares political power with the white minority, there is a successful proportional representation system. There, 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 percent of the vote gets 30 percent of the seats. Or if the party gets 10 percent of the vote, they still get 10 percent 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 seven 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.

As June Zeitlin, executive director of the Womens Environment and Development Organization points out, proportional representation systems also benefit women. In a letter that the NY Times declined to publish Zeitlin wrote: Women are grossly underrepresented at all levels of government worldwide. However, women fair significantly better in proportional representation electoral systems&.. The ten countries with the highest percentage of women in Parliament have systems that include proportional representation. Zeitlin, who spearheads a campaign --50/50 Get the Balance Right-- aimed at increasing womens participation in government, has noticed that proportional representation mechanisms work in many countries in tandem with the deliberate political goals of progressive parties.

Proportional representation reforms for legislative bodies including the U.S. Congress would not even require an amendment to the U.S. Constitution. There's nothing in our constitution that says we have to use winner-take-all single-member districts. 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.

A pro-democracy movement would look seriously at forms of proportional representation that could assure Democrats in Florida (or Republicans in Democratic-controlled states) or racial minorities and women in all states fair representation in the legislatures themselves. It would focus renewed attention on the importance of minority voters racial, political, and urban minorities to gain a more meaningful voice as well as a real opportunity to participate throughout the democratic process and not just on election day. The five-member Supreme Court majority allowed the interests of the Florida Legislature (in obtaining the safe-harbor benefits of a congressional statute for certifying electors) to trump any remedy to protect the rights of the voters, about whom it was ostensibly so solicitous. If legislatures are to enjoy such power to speak for all citizens, it is imperative for voters' voices to be reflected in fully representative legislative bodies. Florida voters are closely divided along party lines, but in the legislature they are represented by an overwhelmingly Republican leadership. And the partisan acts of the Florida legislature in this election should focus renewed attention on how the winner-take-all system in a state legislature can fail to recognize the will of racial and political minorities, by wasting the votes of even those whose votes are cast and tabulated but then dont lead to the election of anyone they voted for.

If we are not to abolish the electoral college, we might at least mitigate its winner-take-all affect and apportion electoral votes based on the popular split. In Florida, Bush could have gotten 13 votes; Gore 12 (or vice versa!) Such a system is perfectly constitutional, and can be readily enacted by the state legislature. Two states do this already, although they use unfairly gerrymandered congressional districts rather than statewide proportions to allocate electoral college votes.

Proportional voting, as is used in most of the worlds democracies, assures that each voters vote counts when it is cast. Voters essentially district themselves by the way they cast their ballots. It thus eliminates the problem of gerrymandering by incumbents seeking safe seats. Proportional voting could also encourage the development of local political organizations that educate and mobilize voters. It is only when voters are vigilant, even after the votes are counted, that we shall return to a government of, by and for the people. Developing local grassroots organizations that can monitor not only elections but also legislative actions is especially important in a year when every state legislature will be engaged in the decennial task of redistricting. The development of such organizations which a proportional representation system makes possible because they have a chance actually to win elections could also fuel the development of a new era of issue-centered politics, where people are exercising their political views through advocacy groups around issues they care about. As Richard Berke writes in the NY Times,

The first half of the last century was dominated by party-centered politics. Then came candidate-centered politics. Now, some foresee an era where the power moves to activists, who create local coalitions around specific issues. That could happen because, with the rise of the Internet, activists have far greater access to communication and organizing tools and no longer have to rely on help from campaigns or party committees.

Local grass roots and issue-centered coalitions are more likely if we adopt proportional representation because PR rewards those who mobilize directly with seats in the local collective decision making body. Local multi-party organizing could be even more effective at generating citizen engagement and meaningful participation on election day but also in-between elections too.

Of course there are downsides to politics that depends primarily on activists creating multiple coalitions with overlapping constituencies around issues: First, such coalitions require enormous energy, they often have to be built from scratch, and for every one that gets it together, dozens will fall short. Second, they can encourage a fragmentation of progressive energy and what Urvashi Vaid, the gay rights activist who is now at the Ford Foundation, memorably called a misuse of powerlessness.

But the upside is that building coalitions that start from issues, but also cut across multiple constituencies, can create sustainable alliances even after an election. They can build institutions that use the aggregated power of coalitions of shared interests again and again, getting organized labor to join fights that affect Latinos and gays, and rights groups to join labor, and so forth. These coalitions can aspire to have an electoral strategy as well, nurturing leaders who can eventually become candidates. Over time, the best of these permanent coalitions could begin to look a little bit like parties: they have broad platforms, sizable but loose constituencies, and candidates and elected officials allied to them. Proportional representation would lower the bar to successful cross-constituency and multi-racial coalition organizing, but even with PR it would still be essential to fight fragmentation and to aggregate, rotate and share power among progressive interests in a lasting and sustainable way in order to realize a fully democratic movement.

"One vote, one value," a notion underscored by the conservative Supreme Court majority, ironically could become the rallying cry of a multi-racial and multi-issue grass roots movement of voters throughout the nation. It could herald a new era of issue-centered rather than candidate-centered politics. It may be led by black leadership in some communities; by union leaders or environmentalists in others. But in the end, an aroused and engaged citizenry --- that is committed to a broad, multiracial democracy --- will be our best, indeed our only protection to insure that every vote counts and that every citizen can indeed vote. Mobilized citizens require the development of local, grass roots political organizations accountable to the people themselves, rather than ad hoc candidate machines too often driven by money. Voting should not be an obstacle course of arbitrary deadlines, lousy lists, untrained poll workers, and out-dated ballot technology. Rather, voting should be just the first step in a democratic system by which we the people through democratic institutions that are accountable to all of us actually rule.

Copyright © 2001 by The American Prospect, Inc.
Preferred Citation: Lani Guinier, "What We Must Overcome," The American Prospect vol. 12 no. 5, March 12, 2001 - March 26, 2001.