The nomination of Lani Guinier to head the Civil Rights Division of the Justice Department was undermined by a conscious campaign to mischaracterize her scholarly writings as radical.
Seldom mentioned is that Ms. Guinier, a longtime champion of civil rights, has high-level practical experience. She served as special assistant to the head of the Civil Rights Division during the Carter administration. Subsequently, while heading the NAACP Legal Defense Fund's voting-rights litigation and legislative program, she argued the case that helped define the 1982 amendments to the Voting Rights Act.
The controversy about her, however, centers not on her considerable abilities as a litigator, but on several scholarly articles she wrote since joining the University of Pennsylvannia law faculty.
Professor Guinier's scholarship addresses two quite serious and real problems that she saw in her work as a litigator: the irrationality of prejudice and the present ineffectiveness of legislative representation of minorities, particularly African-Americans.
That prejudice affects voting behavior is hardly a new or radical notion. The American ideal of ever-changing majorities and minorities which shift in accordance with group interests is thwarted when prejudice inhibits the building of coalitions. The inability ev- er to see oneself as having interests comparable to -- or aligned with -- those against whom one is prejudiced helps create a permanent minority.
Studies indicate that voting along racial lines occurs more often than not, particularly among whites. White voters tend to shun black candidates even when their economic or ideological interests might well be served by an African-American candidate.
Professor Guinier observes that the effect of this irrational prejudice is not easily overcome by the creation of legislative districts from which minority members may be elected. It is this problem that she seeks to solve by suggesting cumulative voting and supermajority voting requirements in state legislatures.
Professor Guinier does not advocate the use of these kinds of techniques everywhere at all times. In her words: "I am not articulating a grand moral theory of politics. Nor do I argue that these proposals are statutorily or constitutionally required. My purpose has been to attempt to conceive of a deliberate process in which racism does not control all outcomes."
In other words, she suggests these measures as voluntary means of settling violations of the Voting Rights Act.
hTC The problem Professor Guinier's writings addressed can be demonstrated by the following hypothetical example. Assume that the 100 people in the state of Agape, 40 of whom are black and 60 of whom are white, vote for their 10 representatives along strict racial lines. In an at-large election the black people will never seat a candidate -- they will always lose by a 60-40 margin.
If single-member districts are created, instead of all members being elected at large, the black voters may elect four representatives. Yet if the six white representatives base their decisions on irrational prejudice -- or decide to have nothing to do with the black representatives -- the black voters of Agape will still be shut out of legislative decision-making.
Under a cumulative-voting process, each person would be given 10 votes to use as each sees fit among the candidates in at-large elections. She could cast one vote each for 10 different candidates or 10 for a single candidate. Professor Guinier posits that this would encourage coalition building, because candidates would have to rely on more of the population to get elected. This type of election is used by shareholders in some corporations to elect boards of directors and by some local governments. Cumulative voting apparently has been successful in forging coalitions across racial and other interest lines.
Professor Guinier's detractors refer to her proposal for a "supermajority" requirement as endorsing a minority veto. But such a requirement is currently used by the U.S. Senate, where )) certain matters cannot come to a vote unless three-fifths of the body agrees to end debate. In our hypothetical state of Agape, the state legislature might be required to have seven votes to pass legislation instead of only six. In this way, white representatives would be forced to build some sort of coali- tion with at least one of the black representatives in order to pass certain measures. Neither cumulative voting nor supermajority techniques are radical departures from accepted democratic electoral models.
Professor Guinier is being pillo- ried by the ultra-conservative press, and mainstream newspapers pass on these intentional mischaracterizations of her scholarship. Lani Guinier's life and ideas deserve better explanation and analysis than she has been given in the press.
It is not unreasonable to speculate that this attack on Professor Guinier is part of a scheme of revenge by the supporters of Robert Bork whose nomination to the Supreme Court was defeated in 1987, in large part due to the efforts of civil-rights organizations who attacked his scholarship.
But Judge Bork was being nominated to a lifetime position on a judicial body of co-equals that makes constitutional policy. As assistant attorney general, Ms. Guinier would not have the same freedom to influence policy.
Moreover, many of Professor Guinier's ideas would require congressional action. In other words, her scholarly writings are only marginally relevant to the litigating position for which she was nominated.
It is her litigation record that is most relevant, a record even conservatives admit is above question.
Democracy cannot flourish where intentional mischaracterizations of marginally relevant matters prevent qualified individuals from entering public service.
Taunya Lovell Banks and Odeana Neal teach at the University of Maryland School of Law.