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TESTS OF POLITICAL FAIRNESS
The Case for Cumulative Voting
Lani Guinier

Three Tests of Political Fairness

Under conditions of sharp racial division, so-called simple "majority rule" can serve as an instrument to suppress a minority and, in some cases, to undercut the will of the majority. Majority rule through winner-take-all elections is not a fair way to resolve disagreements, where it does not promise reciprocity.

One way to remedy its unfairness is through the conventional remedy of race-conscious districting in which some single-member districts are drawn so that they are majority black (or Latino or other minority group). However, race-conscious districting, like any system of winner-take-all elections, may not ensure fair political representation according to three reasonable tests of political fairness from the perspective of minority interests:

• Does the system mobilize or discourage participation?
• Does the system encourage genuine debate or foster polarization?
• Does the system promise real inclusion or only token representation?

Race-conscious districting often does not do well on any of these three tests. While it may be true that no election structure alone can do all that I envision, we need to consider alternatives to single-member districts -- in particular, to consider systems of modified at-large representation, which promise politically cohesive minorities both potential electoral success and reasonable influence throughout the extended political process.

There are many such alternative systems, but here I will focus on a scheme used in corporate governance called "cumulative voting." Under cumulative voting, voters cast multiple votes up to the number fixed by the number of open seats. If there are five seats on city council, then each voter gets to cast five votes. But they may choose to express the intensity of their preferences by concentrating all of their votes on a single candidate.

Let's return now to the three tests sketched earlier, and consider how cumulative voting fares in mobilizing participation, encouraging debate and fostering inclusion.

Cumulative Voting and Participation

If voting is polarized along racial lines, as voting rights litigation cases hypothesize, then a system of cumulative voting would likely operate to provide at least a minimal level of minority representation. Unlike race-conscious districting, however, cumulative voting allows minority group members to identify their own allegiances and their preferences based on their strategic use of multiple voting possibilities.

Instead of having the government authoritatively assign people to groups and districts, cumulative voting allows voluntary interest constituencies to form and regroup at each election; voters in effect "redistrict" themselves at every election. By abandoning geographic districting, it also permits a fair representation of minority voters who do not enjoy the numerical strength to become a district electoral majority or who -- as is true of Latinos living in dispersed barrios -- are so geographically separated that their strength cannot be maximized within one or more single-member districts.

In these ways, cumulative voting would likely encourage greater electoral participation.

Cumulative Voting and Political Debate

Cumulative voting also looks good as a way to encourage genuine debate rather than foster polari-zation. Cumulative voting lowers the barriers to entry for local third parties since supporters of such parties can concentrate all their votes on the candidates from their party. With barriers reduced, minority political partes might reclaim, at a newly invigorated grassroots level, the traditional party role of mobilizing voter participation, expanding the space of organized alterna-tives and so stretching the limits of political debate.

Additionally, locally-based political parties might then organize around issues or issue-based coalitions. Since the potential support for the minority political party is not confined by a geographic or necessarily racial base, cross-racial coalitions are possible

Cumulative Voting and Inclusion

Cumulative voting is more inclusive than winner-take-all, race-conscious districting. Cumulative voting begins with the proposition that a consensus model of power sharing is preferable to a majoritarian model of centralized, winner-take-all accountability and popular sovereignty.

Cumulative voting takes the idea of democracy by consensus and compromise and structures it in a deliberative, collective decision-making body in which the prejudiced white majority is "disaggregated." The majority is disaggregated both because the threshold for participation and representation is lowered to something less than 51 percent and because minorities are not simply shunted in "their own districts." These changes would encourage and reward efforts to build cross-racial electoral alliances.

A Vision for the Future

The principle of proportionality, or "political fairness," is molded by the hope that a more cooperative political style of deliberation and ultimately a more equal basis for preference satisfaction is possible when community-based minority representatives are reinforced by structures to empower them at every stage of the political process. Ultimately, however, representation and participation based on principles of political fairness are also an attempt to reconceptualize the ideal of political equality, and so the ideal of democracy itself.

The aim of that reconstruction should be to re-orient our political imagination away from the chimera of achieving a physically integrated legislature in a color-blind society and toward a clearer vision of a fair and just society. In the debate over competing claims to democratic legitimacy based on the value of minority group representation, I side with the advocates of an integrated, diverse legislature. A homogeneous legislature in a heterogeneous society is simply not legitimate.

But while black legislative visibility is an important measure of electoral fairness, taken by itself it represents an anemic approach to political fairness and justice. A vision of fairness and justice must begin to imagine a full and effective voice for disadvantaged minorities, a voice that is accountable to self- identified community interest, a voice that persuades and a voice that is included in and resonates throughout the political process. That voice will not be achieved by majoritarian means or by enforced separation into winner-take-all racial districts.

For in the end democracy is not about rule by the powerful -- even a powerful majority -- nor is it about arbitrarily separating groups to create separate majorities in order to increase their share. Instead, the ideal of democracy promises a fair discussion among self-defined equals about how to achieve our common aspirations. To redeem that promise, we need to put the idea of proportionality -- meaning political fairness and the notion of taking turns -- at the center of our conception of representation.

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Lani Guinier is a professor law at the University of Pennsylvania Law School and a former attorney for the NAACP Legal Defense and Educational Fund. This article is adapted from an essay that originally appeared in The Boston Review. For more on Professor Guinier's ideas, see her book The Tyranny of the Majority (Martin Kessler of the Free Press).