The Ballot, Via the Courthouse
By LANI GUINIER
CAMBRIDGE, Mass. — What began as judicial overreaching may
be a clarion call for major democratic reform. Some legal experts
already argue that last week's United States Supreme Court decision,
though heavily criticized for deciding an election, could help open the
local courthouse doors to election reform.
Perhaps, given its new rhetoric about restoring citizen confidence in the
outcome of elections, the conservative majority will now look closely at
other suits based on the principle of equal protection — others that, like
Bush v. Gore, challenge disparate treatment of voters in voting
procedures. The more important effect of the court's choice of language,
explicitly valuing no person's vote over another's, may be to launch a
citizens' movement.
The one person, one vote language of the court under Chief Justice Earl
Warren — language which the recent decision draws on — did exactly
that, inspiring civil rights marchers in the 1960's. Current efforts could
focus on creating new federal reforms, like financial assistance to poor
counties to upgrade voting equipment and the elimination of all ways of
recording votes that fail to give the voter feedback as to how his or her
intent is being registered.
Also needed are meaningful assistance to semi-literate or
non-English-speaking voters, 24-hour polling places and a national
Election Day holiday. Enacting standards for federal elections is
consistent with the Voting Rights Act, which has banned literacy tests
nationwide as prerequisites for voting. That ban was passed by Congress
in 1970 and unanimously upheld by the Supreme Court.
< But reforms to equalize voting access, while important, are not enough.
The circumstances of this election call for a larger focus on issues of
representation and participation. If we are to build a genuine
pro-democracy movement in this country, we cannot limit ourselves to
butterfly ballots and chads.
A pro-democracy movement — needed now more than ever in the
United States — would look seriously at forms of proportional
representation that could assure that Democrats in Florida (or
Republicans in Democratic-controlled states) or racial minorities in all
states are represented fairly in the legislatures themselves. The
five-member Supreme Court majority allowed the interests of the Florida
Legislature to trump any remedy to protect the rights of the voters. If
legislatures are to enjoy such power, it is imperative for voters' voices to
be reflected in fully representative legislative bodies.
That means that voters must have a more meaningful opportunity to
participate in the entire democratic process — and not just on Election
Day. Such an opportunity is not possible when the majority party holds a
disproportionate amount of power over a heterogeneous citizenry,
divided along racial and party lines, as is evident in the Florida
Legislature.
Recognizing the danger of majority legislative tyranny is
crucial at a time when every state legislature will soon be engaged in the
decennial task of redistricting.
Under current law, the members of the Florida Legislature can use their
legislative authority to create winner-take-all districts to cement their
power. The drawing of districts often becomes the real election. We
cannot sustain the confidence of citizens to vote and participate beyond
Election Day if we continue to allow election outcomes to be determined
when the legislature draws districts.
A winner-take-all scheme in appointing a state's delegates to the
Electoral College is similarly unfair. Florida gave all of its electors to
President-elect BUSH, even though, while he won a plurality of the
popular vote in that state, he did not win a majority. A system that
apportions a state's electoral votes based on the popular vote received
by each candidate in that state would better reflect the will of all the
voters.
Proportional voting — where the political parties gain seats in proportion
to the actual percentage of votes won on Election Day — means
everyone's vote counts toward the election of someone he or she voted
for. In conjunction with other reforms, it makes voting the first step in a
democratic system by which we, the people, not they — the court or the
unrepresentative legislature — rule.
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