'Quota Queen' Strikes At Mis-Representation

BOOK

The Tyranny of the Majority by Lana Guinier The free Press, $24.95

The success of the ANC in the recent South African elections, coupled with the cooperative spirit in which Nelson Mandela has begun to form the country's new government, has provided enemies of racial discrimination all over the world with a cause to celebrate. One might argue that, finally, South Africa is on the way to possessing an egalitarian political system similar to our own; a system in which, as Justice O'Connor recently put it in a Supreme Court rejection of a race conscious districting proposal in North Carolina, "race on longer matters."

One might equally, however, argue that the spirit of inclusion which characterised Mandela's acceptance of the South African presidency (and F.W. de Klerk's concession of the same position) provide a sharp contrast with the hopeless inadequacy of minority political representation in the United States. It is this second argument which is pointed out powerfully by the recent publication of Lani Guinier '71's collection of articles,The Tyranny of the Majority.

It is, in effect, the same point which was made rather less precisely and logically by the furor over Guinier's nomination to the position of assistant attorney general in charge of the civil rights division in the Clinton Administration early in 1993. The characterization of her work as "profoundly anti-democratic" and of Guinier herself as a "Quota Queen" by the press, which led eventually to the President's withdrawl of her nomination, can itself be read as a signal of a "national discomfort with the brute facts of racial injustice." At least, this is the interpretation placed on last year's events both by Stephen L. Carter's foreword to the collection, and by Guinier's specially written introduction. Framed in this way, the book becomes a forum for the public hearing on her views that Guinier never had.

The presentation of Guinier's own arguments directly after the quoted views of her critics drives home Stephen Carter's point that "many of the reporters who covered the Guinier story did not bother to read the scholarship about which they were writing...". In proof of this, an entire essay is devoted to the case against quotas, or what the author terms "tokenism." Here she argues persuasively that focusing on the number of Black representatives elected replaces political with electoral outcomes as the major cause for concern. For example, "one Black elected official proportionately represented on a small city council operating by majority vote may be isolated and ignored." In other words, the only change effected by tokenism is to put Black representatives, rather than Black voters, in a powerless minority.

This, among other points, leads Guinier to propose the solution of "cumulative voting." Under this system, a single representative would on longer be tied directly to a particular geographical area. Instead, an expanded constituency would elect a number of representatives, each member of the electorate possessing the same number of votes as there were spaces to fill. such a change would, in Guinier's opinion, allow minority groups to block their votes together in order to elect a genuinely 'representative' candidate. It would also force incumbents into a more direct accountability to their constituents as, since re-election now depends on high, rather than low voter turnout, "incumbents will find it necessary to mobilize voter interest and participation in an election."

This proposal is where Guinier is genuinely controversial, as it could be, (and was) forcefully argued, that cumulative voting the assumption of a "a preexisting general, common, uniform perspective or cultural understanding," which we do not have, and have never had. But even had Guinier been permitted to take up the position to which she was appointed, the power actually to affect such systemic change would never have been hers. The power she would have had, however, would have been to awaken the public to the idea that dominatesThe Tyranny of the Majority."Voting is not just about winning elections. People participate in politics to have their ideas and interests represented, not just to win contested seats."

If there is one criticism of this book it is that its framing as a vindication of Guinier's qualification for the role from which she was debarred detracts from the interest and complexity of her arguments themselves. The unfairness of her treatment is so obvious from the introduction and foreword that her Law Review articles themselves begin to seem like a rather unwieldy piece of evidence, rather than the main substance of the book. This problem is reinforced by the fact that, although the articles have been adapted for re-publication and each is prefaced by a note of explanation, the text is still so permeated by academic language and legal references that it remains unfriendly to lay readers.

Despite this,The Tyranny of the Majorityremains both a testimony to Guinier's innovation in the face of the problems of minority representation she describes, and a caution against the complaceny demonstrated by officials such as Justice O'Connor. It therefore seems appropriate to finish with a statement from her own Epilogue:

"There are real problems affecting real people in this country, people who are still the victims of unlawful discrimination....I hope that despite the unfairness of the way I have been treated by the political process, that people will nevertheless work within that system to resolve the more important unfainesses that other continue to suffer in their daily lives."