Lani Guinier | The Nation

The US military was deployed, the Bush Administration tells us, to bring
democracy to Iraq. But the military brass and the Administration have
apparently parted company on what democracy means in the United States,
as the Supreme Court arguments on April 1 in the University of Michigan
affirmative action cases made clear.

Solicitor General Ted Olson, arguing on behalf of the Administration,
attacked the Michigan law school admissions program as "constitutionally
objectionable" for naming racial diversity as a goal, "an end in and of
itself," in admissions. Several Justices quickly interrupted, directing
Olson's attention to the "military brief" filed in the case.

In that brief, three former chairmen of the Joint Chiefs of Staff, two
former defense secretaries and retired heads of the military academies
endorsed affirmative action as essential to national security in a
multiracial democracy. "The military," they said, "must be permitted to
train and educate a diverse officer corps" to circumvent the morale
problems and communication bottlenecks of the Vietnam era, when a
virtually all-white officer corps commanded large numbers of black and
Latino troops.

The military brass were clear on this: Democratic authority, and thus
military effectiveness, depends upon admissions procedures that recruit
and select a diverse group of potential leaders. Democracy as a whole,
like national security in particular, depends upon genuine,
representative leadership throughout the ranks.

The mission of public colleges and universities is also a democratic
one: to train leaders who can work with diverse groups of people, to
provide students the skills to participate in civic life, and to
encourage graduates to give back to the community, which, through taxes,
made their education possible. To perform this democratic mission,
public colleges must be able to select a racially, ethnically,
geographically and economically diverse class of students who will
enhance the educational environment while they are in school and
contribute to the public good after they graduate.

The Solicitor General and other opponents of affirmative action treat
admissions decisions to public colleges and law schools as if scarce
slots can be allocated based on individual merit unrelated to the sacred
democratic values that are at stake. And whenever race becomes an issue,
a multifaceted, democratic view of merit suddenly collapses into a
fealty to a "neutral" testing regime.

In fact, SAT and ACT scores often measure little more than the social
capital students bring to a single, timed test. The relationship of
scores to parental wealth far exceeds the relationship between test
scores and grades in college or success after graduation. Poorer
students and students of color, who on average perform less well on
these standardized tests than their richer and whiter peers, can do just
as well academically and professionally when given the chance. Evidence
from Texas shows that those admitted because they graduated in the top
10 percent of their high school class have higher grades as college
freshmen than those who are admitted based on their test scores. Even
more important, a study of Michigan's graduates found the black and
Latino lawyers were those most likely to serve underrepresented
communities and to fulfill public citizenship obligations generally.
Students with the highest test scores, by contrast, are less likely to
give back to the community that subsidized their education. Apparently
high scores communicate a sense of entitlement without responsibility.

The authors of a Century Foundation study, Anthony Carnevale and Stephen
Rose, call the overreliance on a single indicator such as test
performance "skinny merit." Through dependence on test scores, higher
education has become a gift the poor give to the rich. Poor people pay
taxes for rich people to attend elite public colleges and universities
where graduates gain, through networking and credentialing
opportunities, a large share of coveted posts in the public and private
sectors.

Carnevale and Rose studied the family fortunes of students at the 146
most selective colleges and universities. We are, Carnevale says,
creating "an inequality machine" with a "brutally efficient sorting"
system that allows students from the upper quartile of income in the
country to fill three-fourths of the slots at these schools, while only
3 percent of students come from the bottom quartile. That ratio was
borne out in the research that produced the Texas 10 percent plan.
Historically, 75 percent of each freshman class there was filled by
students from 150 suburban and private high schools, in a state with
1,500 public high schools. At Michigan's flagship university, high
schools in the most affluent suburbs also dominate the freshman class.
Affirmative action diversifies the student body, at least around the
margins, by race and income. While whites from the highest income
quartile have cornered the admissions market at selective schools like
Michigan, black and Latino beneficiaries of affirmative action hover
around the middle of the economic indicators.

Democracy means access for all of the people, not just the elite. Yet it
is the military--rather than higher education--that is performing the
essential democratic function of breaking down rigid class and race
barriers. As Representative Charles Rangel points out, blacks and
Latinos, as well as working-class whites, are disproportionately
represented among the enlisted ranks.

Taxpayers subsidize public colleges to provide a representative group of
future leaders, to train those leaders in democratic citizenship, and to
enable them to problem-solve in a diverse society with a knowledge-based
economy. Even those who are ambivalent about the "diversity rationale"
should understand the democratic imperative for robust rather than
"skinny" merit in rationing access to higher education. "If you have an
all-black army and an all-white law school," University of Michigan law
professor William Miller told the New York Times, "something's not
right. The democracy, the risks and benefits, simply have to be better
distributed."

A dynamic and democratic view of merit in higher education admissions
assures access to blacks and Latinos to selective public colleges and
law schools, trains potential leaders to serve all segments of the
society and legitimizes our democracy. The military brief cites the
chasm between the racial composition of officers and enlisted soldiers
as a "blaring wakeup call" that racial diversity is "critical" to "our
national security." The democratic stakes in the Michigan cases are just
as high.

George W.

The problems of people of color show what's wrong with American democracy.

Electoral College--Flunking Out?

DeKalb, Ill.

Thanks for Lani Guinier's superb critique of the election horror, "Making Every Vote Count" [Dec. 4]. Corporocratic America will never allow genuine democracy in this Republic.

STEVE MITCHELL

New York City

Lani Guinier is right on the mark. We knew she was right when President Clinton bumbled her nomination in 1993. It was, perhaps, his biggest blunder. Given what happened in Florida, we now know what the problem was: Guinier was ahead of her (and our) time. George W. Bush won the election by suppressing votes. Suppressing the vote is an aspect of fascism. It is anathema to democracy, even as imperfect a democracy as ours.

FRED J. BERG

Miami

Lani Guinier's article is 100 percent convincing. Every Nation reader should be solidly in the corner for total election reform. That includes instant-runoff voting (IRV), proportional representation, state-of-the-art electronic voting equipment, weekend voting and the elimination of the Electoral College.

Speaking of the Electoral College: We have our fourth graduate with Dubya--the first since 1888. How does a person graduate? By losing the election! It's the worst college in America and needs to be closed down by the enactment of a Twenty-eighth Amendment to the Constitution. In our political adventure novel, The Oakland Statement, published New Year's Day 2000, we predicted that Oakland, California, would be the first major city to initiate IRV, and the citizens did it on November 7. We also predicted that Al Gore would lose the presidency, and that happened on December 12.

As we outlined the new amendment in our novel: All citizens shall have the absolute right to the most equitable methods of a representative electoral system. The specific language of the amendment is put forth in legal detail.

As Guinier said, "We must not let this once-in-a-generation moment pass." We strongly believe that if this does not happen, our democracy will implode in the elite corporate boardrooms. Barry Goldwater was condemned in 1964 for his famous quote, "Extremism in the defense of liberty is no vice." He was correct.

We believe that if the people are not given the absolute right to the most equitable methods of a representative electoral system, then, as the Declaration of Independence says, "Whenever any Form of Government becomes destructive to these ends...it is the Right of the People to alter or abolish it." Our interpretation of this founding revolutionary document grants citizens the power to take "extraordinary action" in order to save the democracy.

We challenge all Nation readers to focus on what Guinier calls a "national conversation," which must end with the enactment of the Twenty-eighth Amendment to the Constitution.

FREDERICK ELLIS and PAUL FREDERICK

Grand Forks, N.D.

Lani Guinier made some good points about abolishing the Electoral College, but I have to take offense at her math. Wake me up if I'm wrong, but I thought representation was determined on the basis of a census and not on the voter participation in a given state. Wyoming has three electoral votes. With a population of roughly 450,000, each electoral vote could be said to represent roughly 150,000 people--a factor of two more than Guinier claimed. Her point, however, was to mark the disparity between states like Wyoming and Florida--where roughly 13 million people have 25 electoral votes. In Florida each electoral vote represents 520,000 people.

JON JACKSON

Brecksville, Ohio

Lani Guinier's argument declaring the Electoral College as immorally conceived because it promoted slavery is incorrect. The Electoral College was intended first and foremost to temper the "passions" of the citizens eligible to vote. Considering the electoral map of the 2000 election, it appears that without the Electoral College, much weight would be placed on the opinions of those living on the nation's coasts and northern urban areas. Is that demographic truly representational of the needs and values of the country as a whole? I think not. The reverse is true as well. The Electoral College is part of the fundamental checks and balances that provide approximate equal weight to all citizens of this country. Furthermore I would bet my house that this article would never have been written had Al Gore won the election.

JOHN HENRY SCULLY

Saginaw, Mich.

Lani Guinier argues that the Electoral College was established by the Founders to increase the power of the Southern states, by way of the three-fifths compromise, in the election of the President. While it is true that the compromise increased Southern representation in the House, and thereby in the Electoral College, the assumption that this was intended to increase the powers of the slaveholding states in choosing the chief executive misses an assumption held by many of those who participated in the Constitutional Convention.

In the Convention's last comprehensive debate on the method of electing the President, several delegates expressed their belief that in most elections the Electoral College system would result in several candidates receiving electoral votes, making it likely that no one candidate would receive the required majority. In those cases, the House would choose the President, with each state having one vote. The three-fifths compromise would have no effect on a state's power in that eventuality.

Of course, the development of the political party system has resulted in the electoral votes being distributed between two major parties, thereby almost guaranteeing that the choice of a President will be made by the electors, contrary to the expectation of the Founders. The Electoral College system is rightfully open to criticism, but making a causal connection between it and the slavery system is a stretch.

BOB HANLEY

Santa Clara, Calif.

Before we scrap our Electoral College, let's remember some of the people we would have gotten without it: Stephen Douglas, Samuel Tilden, Aaron Burr, George McClellan and Charles Evan Hughes. Does Lani Guinier think they would have done better? President Lincoln benefited from it in 1860 and 1864. Thomas Jefferson was also a beneficiary. The Senate, the Bill of Rights and the Supreme Court were all created to alleviate fears of states' rights advocates. Nullification, the prelude principle to secessionism, was put forth by Jefferson, the grandfather to neoliberals. So before we start attacking the Founding Fathers about parts of the Constitution that they got wrong, namely the inhuman equation that kept slavery, let's praise what they got right, institutions that may slow us down sometimes but at least help guard against Weimar constitutions.

JAMES ROWEN

Newport Beach, Calif.

Despite her inflammatory attacks on the Founders, Lani Guinier has some valid points. But a more feasible, less extreme step would be to modify the Electoral College system to allocate the "House" votes from each state by Congressional district and give the two "senatorial" votes to the winner on a statewide basis. As a resident of a large state, I recognize the unlikelihood of three-fourths of the states agreeing to abolish the Electoral College, but a reform to allocate votes by district would achieve many of the goals Guinier seeks and would be more likely to be acceptable to the small states. It would also make Congressional redistricting more important and perhaps mitigate the current emphasis on preserving safe districts for incumbents. It would avoid the balkanization that so often attends proportional representation and a proliferation of minor parties.

PETER J. TENNYSON

Atlanta, Ga.

Lani Guinier's comments prove once again that her writings are within the best of the traditions and legacies left to us by the Founding Fathers. When our Founding Fathers met at the Constitutional Convention, the issue regarding the election of the President generated considerable controversy. The debates revolved around how much voice the people should have. Some thought the people were not capable of making a wise choice. Some wanted the states to determine the chief magistrate of the new nation. Many wanted to continue the practice in the Articles of Confederation of having Congress elect the President. Others, led by James Madison, argued for a very radical idea--a popularly elected President chosen directly by the people.

The result was the compromise that created the Electoral College. The Electoral College was, then, the mechanism developed to include the people. In Federalist 68, Alexander Hamilton wrote that the Electoral College would provide an obstacle to "cabal, intrigue, and corruption" by not making "the appointment of the President to depend on any pre-existing bodies of men [Congress or the state legislatures], who might be tampered with beforehand to prostitute their votes," but rather the Constitution has "referred" the election of the President "to an immediate act of the people of America."

In Federalist 10, Madison wrote that the Constitution was "the great desideratum by which" our form of government "can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind." Today, our form of government again labors under an opprobrium that has been, in part, created by the rulings of the Supreme Court and the actions of the Florida legislature. We again need "the great desideratum." Guinier, with her recommendations for more effective ways to include the people in the process of electing the President, has proven herself to be a modern-day Madison whose ideas, if implemented, will once again allow our government to "be recommended to the esteem and adoption of mankind."

JIM SCHMIDT

GUINIER REPLIES

Cambridge, Mass.

I am heartened by the sheer volume of responses generated by my essay, the overwhelming number of which confirm my view that the time is ripe to build a pro-democracy movement out of the wreckage of our last election.

LANI GUINIER

For years many of us have called for a national conversation about what it means to be a multiracial democracy. We have enumerated the glaring flaws inherent in our winner-take-all form of voting, which has produced a steady decline in voter participation, underrepresentation of racial minorities in office, lack of meaningful competition and choice in most elections, and the general failure of politics to mobilize, inform and inspire half the eligible electorate. But nothing changed. Democracy was an asterisk in political debate, typically encompassed in a vague reference to "campaign finance reform." Enter Florida.

The fiasco there provides a rare opportunity to rethink and improve our voting practices in a way that reflects our professed desire to have "every vote count." This conversation has already begun, as several highly educated communities in Palm Beach experienced the same sense of systematic disfranchisement that beset the area's poorer and less-educated communities of color. "It felt like Birmingham last night," Mari Castellanos, a Latina activist in Miami, wrote in an e-mail describing a 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.... Union leaders, civil rights activists, Black elected officials, ministers, rabbis and an incredibly passionate and inspiring Marlene Bastiene--president of the Haitian women's organization--spoke for two or three minutes each, reminding the assembly of the price their communities had paid for the right to vote and vowing not to be disfranchised ever again."

We must not let this once-in-a-generation moment pass without addressing the basic questions these impassioned citizens are raising: Who votes, how do they vote, whom do they vote for, how are their votes counted and what happens after the voting? These questions go to the very legitimacy of our democratic procedures, not just in Florida but nationwide--and the answers could lead to profound but eminently achievable reforms.

§ Who votes--and doesn't? As with the rest of the nation, in Florida only about half of all adults vote, about the same as the national average. Even more disturbing, nonvoters are increasingly low-income, young and less educated. This trend persists despite the Voting Rights Act, which since 1970 has banned literacy tests nationwide as prerequisites for voting--a ban enacted by Congress and unanimously upheld by the Supreme Court.

We are a democracy that supposedly believes in universal suffrage, and yet the differential turnout between high-income and low-income voters is far greater than in Europe, where it ranges from 5 to 10 percent. More than two-thirds of people in America with incomes greater than $50,000 vote, compared with one-third of those with incomes under $10,000. Those convicted of a felony are permanently banned from voting in Florida and twelve other states. In Florida alone, this year more than 400,000 ex-felons, about half of them black, were denied the opportunity to vote. Canada, on the other hand, takes special steps to register former prisoners and bring them into full citizenship.

§ How do they vote? Florida now abounds with stories of long poll lines, confusing ballots and strict limitations on how long voters could spend in the voting booth. The shocking number of invalid ballots--more ballots were "spoiled" in the presidential race than were cast for "spoiler" Ralph Nader--are a direct result of antiquated voting mechanics that would shame any nation, let alone one of the world's oldest democracies. Even the better-educated older voters of Palm Beach found, to their surprise, how much they had in common with more frequently disfranchised populations. Given how many decisions voters are expected to make in less than five minutes in the polling booth, it is common sense that the polls should be open over a weekend, or at least for twenty-four hours, and that Election Day should be a national holiday. By highlighting our wretched record on voting practices, Florida raises the obvious question: Do we really want large voter participation?

§ Whom do they vote for? Obviously, Florida voters chose among Al Gore, George Bush and a handful of minor-party candidates who, given their status as unlikely to win, were generally ignored and at best chastised as spoilers. But as many voters are now realizing, in the presidential race they were voting not for the candidates whose name they selected (or attempted to select) but for "electors" to that opaque institution, the Electoral College. Our constitutional framers did some things well--chiefly dulling the edge of winner-take-all elections through institutions that demand coalition-building, compromise and recognition of certain minority voices--but the Electoral College was created on illegitimate grounds and has no place in a modern democracy.

As Yale law professor Akhil Reed Amar argues, the Electoral College was established as a device to boost the power of Southern states in the election of the President. The same "compromise" that gave Southern states more House members by counting slaves as three-fifths of a person for purposes of apportioning representation (while giving them none of the privileges of citizenship) gave those states Electoral College votes in proportion to their Congressional delegation. This hypocrisy enhanced the Southern states' Electoral College percentage, and as a result, Virginia slaveowners controlled the presidency for thirty-two of our first thirty-six years.

Its immoral origins notwithstanding, the Electoral College was soon justified as a deliberative body that would choose among several candidates and assure the voice of small geographic areas. But under the Electoral College, voters in small states have more than just a voice; indeed their say often exceeds that of voters in big states. In Wyoming one vote in the Electoral College corresponds to 71,000 voters; in Florida, one electoral vote corresponds to 238,000 voters. At minimum we should eliminate the extra bias that adding electors for each of two senators gives our smallest states. As Robert Naiman of the Center for Economic and Policy Research reports, allowing each state only as many electors as it has members in the House of Representatives would mean, for example, that even if Bush won Oregon and Florida, he would have 216 and Gore would have 220 electoral votes.

Today its backers still argue that the Electoral College is necessary to insure that small states are not ignored by the presidential candidates. Yet the many states--including small ones--that weren't close in this election were neglected by both campaigns. Some of the nation's biggest states, with the most people of color, saw very little presidential campaigning and get-out-the-vote activity. Given their lopsided results this year, we can expect California, Illinois, New York, Texas and nearly all Southern states to be shunned in the 2004 campaign.

§ How are their votes counted? The presidency rests on a handful of votes in Florida because allocation of electoral votes is winner-take-all--if Gore wins by ten votes out of 6 million, he will win 100 percent of the state's twenty-five electoral votes. The ballots cast for a losing candidate are always "invalid" for the purposes of representation; only those cast for the winner actually "count." Thus winner-take-all elections underrepresent the voice of the minority and exaggerate the power of one state's razor-thin majority. Winner-take-all is the great barrier to representation of political and racial minorities at both the federal and the state level. No blacks or Latinos serve in the US Senate or in any governor's mansion. Third-party candidates did not win a single state legislature race except for a handful in Vermont.

Given the national questioning of the Electoral College sparked by the anomalous gap between the popular vote and the college's vote in the presidential election, those committed to real representative democracy now have a chance to shine a spotlight on the glaring flaws and disfranchisement inherent in winner-take-all practices and to propose important reforms.

What we need are election rules that encourage voter turnout rather than suppress it. A system of proportional representation--which would allocate seats to parties based on their proportion of the total vote--would more fairly reflect intense feeling within the electorate, mobilize more people to participate and even encourage those who do participate to do so beyond just the single act of voting on Election Day. Most democracies around the world have some form of proportional voting and manage to engage a much greater percentage of their citizens in elections. Proportional representation in South Africa, for example, allows the white Afrikaner parties and the ANC to gain seats in the national legislature commensurate with the total number of votes cast for each party. Under this system, third parties are a plausible alternative. Moreover, to allow third parties to run presidential candidates without being "spoilers," some advocate instant-runoff elections in which voters would rank their choices for President. That way, even voters whose top choice loses the election could influence the race among the other candidates.

Winner-take-all elections, by contrast, encourage the two major parties to concentrate primarily on the "undecideds" and to take tens of millions of dollars of corporate and special-interest contributions to broadcast ads on the public airwaves appealing to the center of the political spectrum. Winner-take-all incentives discourage either of the two major parties from trying to learn, through organizing and door-knocking, how to mobilize the vast numbers of disengaged poor and working-class voters. Rather than develop a vision, they produce a product and fail to build political capacity from the ground up.

§ What happens after the voting? Our nation is more focused on elections now than it has been for decades; yet on any given Sunday, more people will watch professional football than voted this November. What democracy demands is a system of elections that enables minor parties to gain a voice in the legislature and encourages the development of local political organizations that educate and mobilize voters.

Between elections, grassroots organizations could play an important monitoring role now unfulfilled by the two major parties. If the Bush campaign is right that large numbers of ballots using the same butterfly format were thrown out in previous elections in Palm Beach, then something is wrong with more than the ballot. For those Democratic senior citizens in Palm Beach, it was not enough that their election supervisor was a Democrat. They needed a vibrant local organization that could have served as a watchdog, alerting voters and election officials that there were problems with the ballot. No one should inadvertently vote for two candidates; the same watchdog organizations should require ballot-counting machines like those in some states that notify the voter of such problems before he or she leaves the booth. Voters should be asked, as on the popular TV quiz show, "Is that your final answer?" And surely we cannot claim to be a functioning democracy when voters are turned away from the polls or denied assistance in violation of both state and federal law.

Before the lessons of Florida are forgotten, let us use this window of opportunity to forge a strong pro-democracy coalition to rally around "one vote, one value." The value of a vote depends on its being fairly counted but also on its counting toward the election of the person the voter chose as her representative. This can happen only if we recognize the excesses of winner-take-all voting and stop exaggerating the power of the winner by denying the loser any voice at all.