The Tyranny Of The Majority

The Tyranny of the Majority

Lani Guinier

Editor's Note: The text below is an abridged version of a talk given on U-M's campus in May by Lani Guinier, entitled "The Tyranny of the Majority, Fundamental Fairness in Representative Democracy." Guinier, who has a new book out by the same title, achieved notoriety last June after being nominated for Assistant Attorney General to head the Justice Department's Civil Rights Division, then abandoned by the White House under pressure from conservatives.

Guinier is a graduate of Yale Law School, and from 1977-81 served as a Special Assistant to the Attorney General, and from 1981-88 worked for the NAACP Legal Defense Fund. Since 1981, Guinier has been a Professor at the University of Pennsylvania Law School. The talk was co-sponsored by U-M's Women's Studies Department, U-M's Center for Afro-American and African Studies, and Borders Book Shop.

As you can imagine, this has been a most interesting year. I was trying to catch a taxi cab, not too long ago, on my way to the airport right outside of the University of Pennsylvania Law School, where I am still employed. It was a rainy day and there were a number of people who were also interested in hailing a cab, and I put my bags down on the corner, ready to wait my turn. And all of a sudden, a taxicab pulled up and stopped right in front of me. And the driver got out and he said, "The man inside wants to take you to the airport."

Now I knew that people on the street thought that they could recognize me, but I wasn't quite ready for the idea that they could read my mind. I looked; I didn't recognize the man, and so I didn't move. The taxicab driver got out of the cab and started picking up my bags and lifting them and putting them in the trunk of the cab. And he saw that I was not moving and so again to reassure me, he said, "Well, the man inside says he knows you." So this time, I looked again and I saw a well-dressed business man, but I still didn't recognize him. And I thought, well, I'll sort of smile weakly and wait for another cue, and he looked at me and grinned broadly and said, "Zoey Baird!" And I said, "No, l'm Lani Guinier, but l'd still like a ride to the airport."

The Contradictions of Democracy

Now how did I get into this predicament--some may say this platform--in the first place? Well, I started to think about issues of democracy when l was a kid--I don't recall if it was the third or fourth grade--and we were studying the American Revolution. We were learning about Thomas Jefferson and James Madison and George Washington. And I was struck at the time by the irony, and I remember raising my hand and asking the teacher: "Why do we call these men great democrats when they owned slaves?" And the teacher really didn't have an answer for me, but I just thought it was a great question; I wasn't too concerned about the answer from the teacher.

And part of what I have been struggling with throughout my career is the answer to that question. On the one hand, we have a tremendous commitment as a country to the democratic ideal. If you ask Americans, they will, l'm sure to a person, endorse the notion that we are a democracy and that being a democracy is a good thing. But if you ask people other than Mrs. Buxton, my fourth grade teacher, how do you reconcile the notion that we are a democracy and yet, from the founding fathers of this democracy, we were essentially raised on a contradiction that all persons--at the time, all men--were created equal, but some of those persons were only three-fifths of a person?

And it is in part trying to deal with that contradiction that got me interested in representing voting rights litigants when I was an attorney with the NAACP Legal Defense Fund. And one of the cases that I worked on was a lawsuit against then-governor Bill Clinton in Arkansas, in which the NAACP Legal Defense Fund was challenging something called The Majority Vote Run-Off Requirement, as it applied in Phillips County, Arkansas.

Now Phillips County, Arkansas is a rural county on the eastern edge of the Arkansas delta. It abuts Mississippi, separated only by the Mississippi River--a very, very poor county. The per capita median income for blacks--from the 1980 census because we were reading this case in 1985-86--was $2,500 a year. Per capita for whites was $5,000 dollars a year. This is a poor county.

As I said, it's also a rural county; there's no public transportation. And in terms of polling places, they are dispersed--some of them 12-, 15-miles apart. In terms of access to these polling places, 40% of the blacks in Phillips County do not have access to a car, truck, or van, compared to 10% of the whites in Phillips County. Thirty percent of the blacks in Phillips County did not have a telephone, compared to 11% of the whites. So this was a county in which the black community was isolated by its poverty.

And it was not only economically disempowered, it was politically disenfranchised. They had the right to vote, but the problem was their votes didn't count. And the reason, they said to those of us from the NAACP Legal Defense Fund, that their votes didn't count is that even though blacks were a technical majority of the population in this county, they were not the majority of the registered voters, and they were not the majority of the electorate.

Everyone in that county, in terms of countywide offices, was elected pursuant to a winner take-all Majority Vote Requirement. And what that meant is if you won, if you got the most votes, you got all of the power. And if you did not get the most votes, you got nothing. Blacks would support candidates who might come in first if the white vote was split, but then they--because of this Majority Vote Requirement that you have to get 51% of the votes cast in order to be the winner--would then come in second in the run-off, which was held two weeks later.

During that two-week period, the polling places would be changed. And they would change the polling places in the black neighborhood something like eleven times in two years. And they would give notice of this change by publishing the notice in the Helena World, which was mailed to its subscribers on the Monday before the Tuesday election. And the reason that the Majority Vote Requirement, which required that you get 51% of the votes in order to win, operated as a constraint on the political aspirations of the black community is because the whites would vote along racial lines and the blacks would vote along racial lines, and there were more whites voting than blacks.

John Dunne, who was the head of the civil rights division under the Bush administration, called the Majority Vote Requirement as it operated in places like Phillips County, "an electoral steroid for white candidates," because it basically gave whites the opportunity to have a free-for-all in the first primary, decide who their best white candidate was, and then support that one white candidate against a black in the second primary. And no black had ever won a single county-wide election in Phillips County, Arkansas, in this century. Blacks were 53% of the population and 44% of the electorate.

They invited us in to litigate this case, to challenge the Majority Vote Requirement. Under the 1982 amendments to the Voting Rights Act, we basically had to show that this Majority Vote Requirement was acting in concert with racially polarized voting to dilute the voting strength of blacks. And the Voting Rights Act gave us a number of factors that we were to look at and, if I do say so myself, we were able to prove all of the factors. In fact, it was almost a textbook case for the Voting Rights Act because the politics in Phillips County were so extremely, racially polarized. There were some precincts in which not a single white person voted for any black. And this was regardless of qualification.

Indeed, one of our witnesses, Sam Whitfield, testified that he was first in the first primary, but he carne in first with about 44% of the votes, just tracking the black vote, and he was going to have to run two weeks later against the second runner-up. The third runner up was Kenneth Stoner, and Sam Whitfield testified that he and Kenneth Stoner had a conversation and Kenneth Stoner--the third runner-up, who was white, and who was not going to be competing in the election two weeks down the road--said to Sam Whitfield, "You are the best qualified candidate in my opinion. I agree with you on the issues. But I am a white farmer in this county and my wife is a schoolteacher and I cannot publicly support you and remain in this county." That was the testimony from Sam Whitfield.

We also have testimony from a white Republican, one of the few in the county. He testified that he had gone to a Jesse Jackson rally. He was a Republican and wasn't particularly prepared to vote for Jesse Jackson, he said, but he was curious because he had heard that Reverend Jackson was a terrific speaker. He went to the rally. He was the only white person at this rally. By the time he got back to his home, he said his home was surrounded by neighbors demanding to know what he, as a white man, was doing at a Jesse Jackson rally. So when I say that voting in this county was extremely racially polarized, I do mean extreme.

And we proved that, again according to the Voting Rights Act, a number of the other factors that the Congress had said were relevant to this inquiry, were present in Phillips County. And the court agreed that we had proved the factors, and indeed Governor Clinton agreed, because although he was able to get out of the lawsuit--he got himself dismissed as one of the defendants--he came to me after we had tried the lawsuit and said, "Lani, you should have called me as a witness, because I would have testified for you."

But he didn't testify for us and the state, the Democratic Party that was defending the lawsuit, put on one witness, who had never been to the county, had just been hired by the Democratic Party, was very young, and essentially said, "We didn't mean to do anything wrong." And that was the defense. He testified for 14 pages of transcript including both direct and cross-examination. And we lost. And we lost that case because the judge said, even though we showed all of the factors, even though we showed that there was a problem in the way that voting was conducted in this county, because we were challenging something called the Majority Vote Requirement, we were challenging democracy.

Majority Tyranny

I thought about that, and we appealed. A panel of the Eighth Circuit agreed with us that we had proved the case and reversed the lower court opinion. Then, on its own, the Eighth Circuit--the whole court--vacated the panel judgment, reheard the case, and essentially upheld the District Court opinion without issuing an opinion of their own. They didn't tell us why. But they endorsed the District Court opinion and the Supreme Court declined to hear the appeal.

That obviously got me thinking--as I had been in fourth grade--how can this be a democracy? How can we believe that the Majority Vote Requirement is an essential ingredient of democracy where it is functioning in this county to give 56% of the electorate, 100% of the power, year after year after year. I had always thought democracy meant not rule by some of the people all of the time, but rule by all of the people all of the time. Little did I know.

So I started thinking about this issue of majority rule and this issue of associating majority rule with democracy and I started reading back to the founding fathers like James Madison and I discovered that this was an issue that troubled James Madison as well. Madison was worried about a different kind of majority, but he was worried about this problem. And what Madison said is that we believe in majority rule where we are confident that the majority is ruling on behalf of everyone. We are willing to give 51% of the people 100% of the power, if the 51% are going to be generous and think about the 100%, not about their own narrow interests. And James Madison said if the 51% are self-interested--if they are assured of permanent power, if they don't have to worry about the 49%--then we may have a problem. Because the 51% may not function as majority rule, they may function as majority tyranny.

And why would they function as a majority tyranny? Because, as Madison said, what constrains the impulse of the majority, what makes us believe that the majority is fair is essentially the golden rule. What makes us believe that the majority is going to act on behalf of all of us is the notion that the majority is not permanent, the majority is not assured of being a permanent majority. The majority has to worry that the present minority may attract defectors from the majority and become the next governing coalition the next time. And remember the golden rule: Do unto the present minority as you would like to have them do unto you when they are the majority.

What happens if the majority is permanent? What happens if the majority doesn't have to worry about defectors? What happens if race operates as a cue, as in Phillips County? And assures the majority that they don't have to worry about defections because as Kenneth Stoner said, as a white man living in this county, he cannot publicly support a black and stay in that county. Well, then you don't have majority rule, you have majority tyranny. Then you have a majority that is not ruling on behalf of everyone, but is ruling on behalf of itself.

Now, that may sound like a very abstract, complicated, pedantic, academic and scholarly exercise that l've just gone through. So l'll try to break it down. And in order to make it plain, l'll give you an example from a conversation I had with my son, Nicholas. Nicholas and I were reading a Sesame Street magazine and the magazine pictured six kids and the headline for the magazine article was "Vote!" So I was very excited because here I am writing these articles about voting and I could have--at the time Nicholas was four--a substantive conversation with my son about voting courtesy of Sesame Street magazine.

And there was six kids in there trying to decide what game to play, and the magazine said: The kids whose hands are raised want to play tag; the kids whose hands are down want to play hide and seek. Count the number of kids whose hands are raised and then decide what game the children will play. Four kids had their hands raised. They wanted to play tag. Two had their hands down. They wanted to play hide and seek. So I said, "Okay Nicholas, what game will the children play?" And he said, "Well, they'll play both. First they'll play tag and then they'll play hide and seek." And he was four, remember, and for a four-year-old giving the privilege of going first to the majority was recognizing the fact that there were more of them--there were four who wanted to play tag. But he was also trying to include the minority. And he was giving the minority a chance to play hide and seek. In his view, this was a taking-turns solution.

Cumulative Voting

Well that's what I decided made sense in the context of the Phillips Counties of the world. And I was not talking about a panacea for American democracy all over the country, because I had not studied American democracy all over the country. But I knew about Phillips County. And I started to think about a solution that would allow people in Phillips County to take turns. And I started to imagine a system based, as it turns out, on a system that is used by corporate governing bodies to elect members of a Corporation board of directors, and it's called cumulative voting.

In a Corporation, if there are five members of the board of directors, every shareholder gets five votes and is allowed to distribute those votes in any combination of their choice. So if they want to put all five of their votes on one candidate for a board of directors, they can. Cumulative voting allows any politically cohesive minority to cumulate their votes to gain representation, assuming that they meet the threshold. So if there are five positions in the City Council or in the County Commission of Phillips County, all voters of Phillips County could get five votes. And the voters, if they chose, could put five on one candidate; they could put three on one candidate; and two on another; or they could put one on each of five candidates. What cumulative voting does is it allows a cohesive minority to act strategically to express the intensity of their preferences by putting all five of their votes on one candidate. And in Phillips County, a minority--defined there by race--could use cumulative voting to gain representation.

Now, cumulative voting does not mean that the minority rules, it means the minority gets a turn. The majority still rules, but the majority doesn't get all of the power. You may think this is a very exotic remedy, although it's used by corporations. Why should we think that corporations are particularly fair? Well cumulative voting is also used in Chilton County, Alabama today, and it is used in the school board and in the county commission. Not only have blacks been able to use cumulative voting in Chilton County to elect representatives of their choice, but Republicans have used cumulative voting to elect representatives of their choice because Republicans could plump, or cumulate their votes.

In North Carolina, there are some towns that use cumulative voting and women have been able to get elected for the first time, because women also benefit from a system that lowers the threshold, something lower than 51% but more than 1%. Now, this is a radical idea. Well, the system in Chilton County was approved by the Bush Administration under the Voting Rights Act.

If you look around the world--and you don't have to look too far--if you turn on your television and you look at South Africa, they don't use cumulative voting, they use something that's even more proportionate than cumulative voting. South Africa now says 5% of the voters are guaranteed some voice in the national government. They use the system where your vote has a value. Everyone's vote counts towards the election of someone who represents their interests. If South Africa did what we do, the black majority would not only have control of the presidency but the vice presidency, all of the cabinet positions, all of the legislative positions. And we would say, looking at South Africa: That may not be democratic. But looking here, that's exactly what we do.

Making the U.S. A More Democratic Place

So essentially, I have taken the same essays that got me into trouble, and I have made them available--in this book "The Tyranny of the Majority," title courtesy of James Madison--to people who are curious about my radical ideas, or to people who are committed to making America a more democratic place. Now, cumulative voting, super majority rules and other procedures that I have discussed in this book are simply that: procedures. They are not the answer.

What we have to think about, and what I have tried to do by publishing this book, is not to promote my particular little procedural remedies that may work in Phillips County but have absolutely no application elsewhere. What I have committed to doing is to starting a debate. I would like to have a debate on the state of our democracy. It is not a debate that I think we need just because blacks are a minority and I have represented African-Americans as an attorney for the NAACP Legal Defense Fund. It's not just because women are under-represented and I am on the board of the NOW Legal Defense Fund. I think that we need to have a debate about democracy because, rather than being a premier democracy, I think that on some level, we are failing as a democracy. If you look at the turnout rate in this country and then you look at South Africa, and you see people lined up in South Africa for miles waiting to vote. And then you turn on the television, you switch the channel and you hear about the most recent majority vote run-off election in Texas where the candidate who won, basically won in an electorate where 11% of the people eligible to vote, voted.

In Philadelphia we just had an election where we were nominating someone for governor. Eleven percent of the Democrats and 14% of the Republicans turned out to vote. That means, essentially, that 25% of the voters who were eligible to vote participated in that election. That is not majority rule either. So, l'm committed to having a debate.

Q: How do I propose to start this debate, given that some of what l'm saying and, according to the questioner, most of what l'm saying, is fundamentally threatening to people who are invested either in the status quo or in not thinking?

A: I happen to be a democratic idealist and what that means is that when you take the glass and you say: Is it half full or is it half empty? I say it's half full. But then I say, okay, we've decided it's half full. You think it's half empty. We both agree it needs more water. So let's talk about pouring more water into the glass.

When I published this collection of essays, I knew that I was taking a risk because I was opening myself up to the same critics who had had such a good time talking about my ideas, or what they attributed to me, last June. And I thought about that risk, but I decided that it was worth it, and indeed I have discovered that it is well worth it because it's made an entire world of difference, when people criticize you, and you have a chance to respond. You have to take a risk. And l'm here having taken a risk, but it's well worth it because you will have a chance to respond. That's number one.

Number two, I think that many more people are alienated and disturbed by the state of our democracy than you or I can even imagine. I think that the fact that only 25% of the eligible voters in Pennsylvania showed up two weeks ago to cast a ballot and only 11% of the eligible voters showed up a month ago to cast a ballot in Texas, suggests that we have a country where there are more people who are alienated from the voting process than who are participating in it. Well, that suggests that people are ready, I think, to listen to alternative ideas about how we can conduct ourselves as a democracy.

I think that the movement for term limits is an example of that I don't happen to support term limits. I think that term limits arbitrarily cut off the choice of voters. And since l've set up that l'm a democratic idealist, I believe that we should empower the choices of voters, not reduce them. But I understand the impulse behind the movement of term limits and I am sympathetic to it. What I think people who are moving for term limits are saying is that they feel cut off, they feel separated from those who claim to represent them and the issues that they would like to see debated and addressed collectively. And what they are talking about in other words, is trying to mobilize and reinvigorate the electorate, and I think that there are alternative ways to do that other than term limits.

Alternative election systems--these semi-proportional and proportional systems--are used by democracies all around the world that enjoy a much higher level of participation in their elections than we do. And one of the reasons that they are used in countries that enjoy a higher level of participation is not because these countries have better ideals or better people. It's because they are a system that gives each voter a chance to cast their ballot in a way that will define who is going to represent the one vote/one value. It's not just one person/one vote. It's that with your vote you get a voice. That's number one, and number two, they are used by democracies that have a vigorous political culture with political parties that play an important role in enlivening and enriching public discourse, not shutting it down. So l'm not going to start the debate. All of us are going to start the debate.

Q: Isn't there a danger n trading diversity for efficiency?

A: There's always a tradeoff between efficiency and diversity, and it's a tradeoff that's not just in politics, but in nature. And what that means is you don't go to one extreme or the other. You have to, as my son says, "take turns." You do both. You have to worry about efficiency, yes, but you have to all insure that your organism, that your institution is open to new ideas and diversity because that's what make the species, or the political culture, vital. That's what helps us to solve problems. Old ideas are old. You need to hear from different people about new ways to think about old problems.

But you're absolutely right, that l'm not advocating--in fact, when I talk, I think cumulative voting, interestingly enough, is a compromise. And I am now being criticized, and I think justly so, from the left, that cumulative voting is not the best election system. And I say, I realize that But if I went to the best election system, I don't even know if they would even allow me to talk. Cumulative voting is a compromise. Way over here, where you have South Africa, you also have Israel. And in Israel, 1% of the voters get to elect someone who gets a seat in the Knesset. That's extreme factionalism in my opinion, to allow every 1% their own representative. But that is one extreme. And l'm not advocating that extreme.

At the other extreme is the United States. Fifty-one percent of the voters get 100% percent of the power and 49% of the voters get nothing. So we're talking here about two extremes and between those two, there are seven or eight different kinds of election systems used throughout the world that would moderate those concerns, as you put it, between diversity, which you have in the extreme as it is in Israel, and I guess they would claim we have efficiency here in the United States.

Q: Can I comment on the fact that I was never given an opportunity to explain my views at the time of my nomination?

A: What would you like me to say. It was a horrible experience. It was a humiliating experience because not only was I gagged, I was told not to speak, as a courtesy to the pending Senate confirmation hearings. But there was no one else speaking, defending my views, which is why I was so committed to the notion of having a hearing. Not because I felt that I was entitled to the job or not also because I was assured of being confirmed, having had a hearing. What I was committed to was the hearing. And it was a personal hearing, but it was also a public hearing. It was an opportunity to engage the country in a public discussion about issues of race, issues of democracy, issues of fundamental fairness. So I saw it as an opportunity.

Well, I was speaking at a university not too long ago and I described this experience as a public nightmare. Then I told the person who happened to be seated next to me that I had always had anxiety dreams when I was kid, the day before the first day of school. And I would dream that as a girl, I had gone to school wearing pants, at the time girls were not allowed to wear pants or that even worse, I had gone to school with a slip and failed to remember to put my dress on top of the slip. And I walked down the hall in high school or junior high school and all the kids would be pointing at me and laughing and I would have no idea why they were laughing. And so he turned to me and he said, "Well, you know l'm a professor of psychology." And then he said, "Well, now you're cured. You have confronted your worst nightmare and you have survived."