Lani Guinier, the Bennet Boskey Professor of Law at Harvard Law
School, is the co-author of The Miner's Canary: Enlisting Race,
Resisting Power, Transforming Democracy (Harvard).
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
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
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
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
The problems of people of color show what's wrong with American democracy.
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.