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- SOME OF GUINIER’S SOLUTIONS
GUINIER’S THOUGHTGuinier doesn’t just talk about affirmative action – far from it. She examines all kinds of issues relevant to racial politics in this country. Let’s start with what white citizens of this country take as a given: voting rights. Voting rights are the essential element of a democracy. After all, if you can’t vote, it isn’t a true democracy to you, right? During and prior to the Civil War, can it be said (really) that slaves were living in a functional democracy? How about a non-member of the communist party under the Soviet Union, which also had elections? Any democratic theory worth its salt has to acknowledge that an inability to vote equals an inability to call one’s government a legitimate and functioning democracy. Now, it wasn’t until the mid-1960s that African Americans had the right to vote. And even then and immediately thereafter, such a right was not truly meaningful. In the South (and, to be fair, many places in the North), places dealt with the issue in a straightforward manner: if you were black, you didn’t get to vote. Period. So the first wave of voting rights laws dealt with these “formal exclusions” from the franchise: they FORCED states to allow Black Americans to vote. The Voting Rights Act of 1965 made sure of that. The thing is, if you go to vote, and some guy has a pit bull that snarls at you every time you approach the polls – do you REALLY have the right to vote? Or, alternatively, if you’re one of the 90 percent of African Americans that voted for Al Gore, and you headed to the polls in Florida, and Jeb Bush’s thuggish state troopers told you to turn around and drive home – do you really have the right to vote? As you can see, this is far from an issue we’ve left behind. We had to deal with it in the LAST presidential election. And depending on how old there are, your parents (and certainly your grandparents) might remember a time when Black Americans didn’t even have the lip-service right to vote. So, if the right to vote represents full citizenship, we ought to defend it for minorities. Plus, it has another value: an instrumental value. You sue your vote to elect people who will do the things that you want done. You vote for Jesse Ventura because he says he’ll battle special interests. You vote for Ralph Nader because he says he’ll challenge corporate rule. You vote for Jesse Helms because you’re a psychotic racist (hey, it takes all kinds). Again, though, imagine you are a member of a minority group (and maybe you are): are your interests being taken into account? Since white folks are the majority in many places, the votes of minorities can be trumped by the White Folks Vote. Hence, minorities often have a problem electing what voting rights law calls "representatives of their choice.” After all, white people keep electing the aforementioned Mr. Helms despite the fact that the Black man who keeps running against him, Harvey Gantt, is an excellent candidate who is notably NOT insane. The Voting Rights Act Amendmnts of 1982 recognized that this was a problem, and created a right to select representatives of choice. The only question was how to actualize this? In the past, whites have gerrymandered districts so that minorities couldn’t overwhelm the white majority and elect candidates of choice. What is the solution? Some suggested establishing "majority-minority" districts so that minorities would be assured of candidates that reflected their interests. As Tushnet notes, this “turned out to be something between a very bad thing and a disaster for racial minorities. Particularly as it became easy to use computer technology to draw district lines, people -- mostly Republicans -- discovered techniques that would guarantee the election of some members of racial minorities while actually reducing the chances that the views of those representatives would prevail in the legislature. The techniques are known in the voting rights field as packing, cracking, and stacking. For example, you can guarantee the election of a minority representative by packing as many members of that minority as possible into a single district. The problem is that in other districts, racial minorities are so few in number that candidates can simply disregard them. The result is that you get one minority representative, and a slew of representatives who owe nothing to minority constituents. Cracking and stacking are more complicated, but they have the same result: the legislature has the "right number" of minority representatives, and they are regularly outvoted.” The other problem, of course, is that concentrating minorities in certain districts means that OTHER districts can effectively IGNORE their interests altogether. Something between a very bad thing and a disaster, indeed. Enter Lani Guinier. SOME OF GUINIER’S SOLUTIONSWe started out discussing voting rights law not just because it’s an important subject that often gets short shrift, but because it’s just as integral to the thinking of Lani Guinier as anything else, and that includes affirmative action. Guinier has many ideas for transformation of the current situation, not all of which involve modifying affirmative action. Some involve changing the internal decision-making structure of state and local legislatures. For example, a structural reform might be adopted where passing some policies might require a greater margin than a simple majority – it might take a two-thirds majority to pass policies that could systematically have a negative effect on minorities. There would be problems with identifying these policies, of course – but even requiring a super-majority on all legislation might help minority constituencies. It could provide them a valuable commodity (a small voting block) where they could trade votes in exchange for other favorable legislation. Sound radical? Ever heard of the filibuster in the Senate? That’s an example of how, by merely threatening a filibuster on a certain bill or resolution, legislators can get concessions on another. (“Give us labor provisions in the FTAA bill, or we’ll filibuster and block the bill which brings the pork barrel project to your district.”) After all, what is a filibuster but a minority veto – enacted by a minority of one, usually Ted Kennedy? 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