Three's company: Guinier, Reagan, Bush

William T. Coleman Jr.

June 07, 1993|By William T. Coleman Jr.

THE Lani Guinier affair gave those who know her a sense of Kafkaesque unreality.

Her experience, character, respect for the law and balanced approach to the issues would have made her one of the finest assistant attorneys general ever to serve our country. She is superbly qualified, mainstream and pro-integrationist in the tradition of Thurgood Marshall.

President Clinton's withdrawal of her name last Thursday not only was unfair; it was an example of political cowardice.

Those intimately familiar with the history of racial discrimination in this country and with recent cases under the Voting Rights Act understand all too well the problems that Ms. Guinier addresses in her scholarly writings, which explore possible court remedies for the worst instances of racial discrimination in the political process.

Despite the progress made since enactment of the Voting Rights Act, too many egregious examples of racial and ethnic discrimination persist.

One example is Etowah County, Ala., which had never elected a black county commissioner before a voting rights challenge in 1986.

When the commission was all white, each commissioner exercised sole control over county road work for his district, deciding how to allocate resources and whom to hire.

With the election of the first black commissioner, the four white commissioners voted to give control over the black district's road work to a white commissioner, successfully defeating black citizens' voting rights by eliminating the power of their representatives.

When Ms. Guinier writes about a "permanent majority" that "constitutes itself based on prejudice," she is addressing situations such as that in Etowah County, where the electorate is so racially polarized that the representative of the minority community is shut out of the political process.

No person of good faith who is familiar with the political landscape across this country can deny that this type of situation still occurs far too often.

Ms. Guinier's writings, in which Mr. Clinton found "ideas I could not defend," attempt to solve these difficult, deeply embedded problems in local jurisdictions; they are not blueprints for revamping political systems nationwide.

When Ms. Guinier's writings are examined with some understanding of current voting-rights problems, it becomes clear that nothing she suggests is radical or exotic. In fact, every one of her suggestions was adopted by the Department of Justice in the Reagan and Bush administrations.

* Cumulative Voting.

Cumulative voting gives citizens the same number of votes as there are seats available; voters can cast all of their ballots for one candidate, or spread them across the board.

Ms. Guinier's scholarship discusses the benefits of cumulative voting as compared to the current voting-rights remedy that is most frequently used by courts -- single-member district plans that create so-called black districts.

Although Ms. Guinier does not advocate forcing cumulative voting plans upon local jurisdictions, she suggests that some localities may prefer a race-neutral plan to a race-conscious plan. This idea is hardly radical.

During the Bush administration, the Justice Department approved alternative voting systems in at least 35 different jurisdictions. Both the Reagan and Bush administrations settled voting-rights lawsuits with agreements by local jurisdictions to use alternative voting systems.

A federal district judge in Cincinnati in February approved a cumulative voting proposal in a voting rights lawsuit.

* Majority Rule.

Consider this statement: "Democracy is trivialized when reduced simple majoritarianism."

Ms. Guinier has been attacked for suggesting that the "tyranny of the majority" poses a problem in a few localities such as Etowah County, where there is a permanent, racially constituted majority that eliminates any meaningful African-American participation.

Yet the quotation is not Ms. Guinier's. It is a statement by the conservative columnist George Will, writing about the right of senators to filibuster.

Ms. Guinier clearly believes in majority rule; she simply questions whether democracy and fairness are served when a racially defined majority monopolizes power.

Where the electorate is racially polarized and the "totality of the circumstances" shows that minority voters did not have an equal opportunity to elect representatives of their choice, the courts have repeatedly struck down at-large or multi-member election systems and have imposed single-member districts instead.

Ms. Guinier's suggestions flow directly from current voting rights law, under which federal courts have routinely modified the "winner take all" aspect of majority rule so that the majority controls a majority but not all of the seats.

A three-judge federal district court in Arkansas ruled in 1989 that the state acted with discriminatory intent in requiring municipal runoffs.

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