Lani Guinier States Her Case

PRESIDENT Clinton's nomination last spring of Lani Guinier to head the civil rights division in the United States Justice Department ignited a firestorm of controversy. The headline of an opposing article in the Wall Street Journal dubbed Guinier a ``quota queen.'' Critics branded the law-school professor and civil rights litigator a ``radical'' whose proposed remedies for violations of the federal Voting Rights Act are ``antidemocratic.''

Bowing to political pressure, Clinton withdrew the nomination even before Guinier's Senate confirmation hearings began.

The attacks on Guinier focused on several lengthy law-review articles she wrote about the voting rights of blacks and other minorities. But few people outside of legal-academic circles have actually read the articles.

They are reprinted in ``The Tyranny of the Majority: Fundamental Fairness in Representative Democracy,'' together with two other essays by the author and her remarks upon exiting the confirmation battle. Readers can decide for themselves if Guinier's analysis and opinions were misrepresented, as she contends. More important, the book may substitute for Guinier's aborted confirmation hearings in occasioning a public debate on critical national issues.

This is not a book to curl up with. It is a demanding work of political philosophy and legal analysis written with the absence of flair that has become de rigueur for social-sciences scholarship. But readers who make the effort to track Guinier's complex arguments - whether or not they accept her conclusions - will be rewarded with new ways of looking at one of America's most vexing political problems.

It's interesting to note that nowhere in these writings does Guinier, this so-called quota queen, even discuss quotas - if that term means political or economic benefits reserved for blacks or other minority-group members at the expense of non-preferred groups. The remedies Guinier advocates for diluted minority voting rights do not include laws that guarantee election outcomes for disadvantaged groups, as some critics claim.

Guinier's analysis begins with the recognition that under a majority-rule, winner-take-all voting system, 51 percent of an electorate can exercise 100 percent of the power. This is fine when the majority is subject to change, as interests and voting alliances shift in the manner contemplated by James Madison. But majority rule is problematic when there is a permanent majority and a permanent minority. This is the condition Guinier perceives in many jurisdictions, especially at the county and municipal level, owing to racial polarization in voting.

She writes: ``In a fair system, a permanent majority should not exercise all the power and a permanent minority should not always lose.'' The ``tyranny'' of a majority that can govern without any sensitivity to or accommodation of minority interests is still more unacceptable, Guinier says, when majority power is used to oppress minorities. That state of affairs is her reading of the black experience in much of America, even during the years since black citizens gained more-or-less equal access to the ballot box.

True democracy, Guinier says, demands that all citizens have a ``meaningful right to vote,'' which includes ``participation in post-election legislative policymaking.'' Votes should have not just equal ``weight'' (one man, one vote), but also equal ``value,'' in the sense that voting ``gives each participant an equal opportunity to influence outcomes.''

The civil rights movement's preferred means of enhancing minorities' political access and power is to create voting districts in which minorities can be assured of electing ``one of their own'' to legislative offices - a device now enshrined in the Voting Rights Act.

Guinier criticizes this variation on traditional gerrymandering on several grounds, however. Her most salient critique is that so-called minority majority districts help desegregate legislatures and local councils, but they do little to advance minority groups' policy goals. In many predominantly white policymaking bodies, she says, minority representatives are easily marginalized, treated as ``tokens,'' and ignored in substantive deliberations. The problem of the permanent majority is simply shifted from the voting arena to the policymaking arena.

To achieve her vision of ``one vote, one value,'' Guinier favors various procedural devices, especially cumulative voting but also, in some instances, supermajority voting rules or their flip-side, a ``minority veto.'' Guinier emphasizes that she would apply her remedial approach only ``to extreme cases of racial discrimination at the local level.'' But when used in appropriate circumstances, she asserts, such procedures could replace winner-take-all votes by a polarized electorate or legislative body with a model of democratic decisionmaking akin to jury deliberations, based not on strict majority rule but rather on discussion, give-and-take, and consensus building.

Some critics believe Guinier is ``obsessed'' with race and underestimates the eventual ability of minorities to gain proportionate political power through integration and assimilation. Other critics seem almost viscerally discomfited by any proposal to tinker with traditional majority rule (even though such devices as cumulative voting and supermajority requirements are common in some contexts, such as corporate governance). And many details about how her remedies would work remain unclear.

Yet the ``antidemocratic'' label is hard to pin on a theorist whose writings are replete with the values of ``fair play,'' ``cooperation,'' ``reciprocity,'' ``coalition building,'' ``positive-sum solutions,'' and what she calls the ``principle of taking turns.''

Whether one agrees with her or not, Guinier has become an important thinker about the working of American democracy. This book deserves a wide reading and a frank, honest debate far above the sound-bite level of discourse that took over the public discussion during her confirmation travails.

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