Jonathan Tilove

JONATHAN TILOVE

May 30, 1993
c. Newhouse News Service

WASHINGTON  – There are four whites and three blacks on the Mobile City Council. But, by law, it takes five votes to do almost anything.

It is, in effect, a minority veto. Nothing can happen in Mobile, a city nearly 40 percent black, without some black support.

To Clinton Johnson, the council’s vice president, who is black, the so-called “supermajority” requirement is “the best thing to have happened to Mobile. It has created an environment for greater harmony and cooperation between the races.”

But to Charles Chapman, the council president, who is white, it is a remedy that has outlived its usefulness and unnecessarily “maintains a focus along racial lines. It’s like giving someone an unfair advantage that really doesn’t need it.”

Here, in a nutshell, is a debate over race and rights that will soon resound on Capitol Hill as the Senate takes up President Clinton’s nomination of Lani Guinier to be his assistant attorney general for civil rights.

Mobile offers the best practical example of what Guinier considers a sensible safeguard against the “tyranny of the majority.” To her defenders, a discussion of Mobile’s experience would bring something entirely new to the debate over her nomination – a touch of reality.

To date, she has been bombarded by ideological epithets. She is the “quota queen,” the “vicar of victimization.” Yet, her admirers contend, Mobile’s experience demonstrates that Guinier is onto something quite extraordinary – race-based remedies that protect black interests while at the same time diminishing racial polarization.

But to her critics, the minority veto is a dangerous step toward what conservative legal activist Clint Bolick of the Institute for Justice describes as the “tyranny of the minority.”

Bolick, who dubbed her the “quota queen,” says Guinier sees in the Voting Rights Act what few others do – a mandate to meddle with majority rule in legislative procedures in order to protect the interests of minority communities.

“That puts Guinier way out of the mainstream,” he says.

“She is the voice of black separatism,” says Abigail Thernstrom, author of the book, Whose Votes Count? Affirmative Action and Minority Voting Rights. Guinier, says Thernstrom, is someone who sees race as everything and racism everywhere, someone whose ideas would only further roil race against race.

But Johnson, the vice president of the Mobile council, says that far from dividing or immobilizing Mobile, the supermajority requirement forced blacks and whites, for the first time, to recognize they would have to work together to get anything done and they have.

“It is not odd and it is not radical,” Johnson says of the requirement, which was agreed to as part of the settlement of a voting rights lawsuit brought by black plaintiffs. In fact, black ministers in Mobile are now campaigning to extend the supermajority provision to other public bodies, including the county school board, which remains starkly divided by race.

Guinier, 43, is an accomplished civil rights litigator who served in the Carter Justice Department in the civil rights division she would now head.

What has gotten Guinier into political trouble are her provocative academic writings as a law professor at the University of Pennsylvania.

In those writings, Guinier portrays the proliferating numbers of black elected officials as little more than “spokesmodels for political equality,” whose ability to meaningfully improve the black condition has been thwarted by implacable white legislative majorities that consistently outvote them.

Her writings have established Guinier as a cutting-edge advocate of increasing black electoral and legislative power through such methods as the minority veto and what is known as cumulative voting.

Even with her confirmation hearings still weeks off, the attack on Guinier has been devastating. Already, some natural allies on the Senate Judiciary Committee have warned that to survive, Guinier must recant.

The job is the most important in the administration in defining race policy, but Clinton appears to have chosen her more on the basis of personal ties than policy considerations.

Called upon to comment on Guinier’s views, Clinton has glibly promised that his race czar will only implement policy, not make it.

In fact, as Guinier, who is not now giving interviews, will no doubt note at her confirmation hearings, remedies like the Mobile supermajority were OK’d by the Reagan-Bush Justice Department.

Moreover, Guinier’s advocacy of what is called cumulative voting is based on her acid critique of the arguably more starkly race-conscious policy of gerrymandering districts to ensure that they will elect minority candidates. That latter remedy, with its guaranteed racial outcome, is supported both by mainstream black leaders, who gain sure-fire electoral opportunities, and by Republicans, who stand to win seats in neighboring districts from which black voters have been removed.

Writing in the Michigan Law Review on “The Triumph of Tokenism,” Guinier argues that black single-member districts isolate black elected officials and leave them less able to influence whites from white districts.

Furthermore, Guinier argues that black districts are as likely to produce flabby representation as any other safe seat.

Instead, Guinier suggests cumulative voting, a modified at-large system in which, for example, in a contest for four seats, each voter would have four votes to apportion as he or she sees fit, including casting two or three or four of their votes for a single candidate.

Cumulative voting allows voters to express the intensity of their feelings, and it guarantees that a cohesive minority can win some representation. For example, in a four-seat race, 21 percent of the voters can, if they bunch all their votes behind a candidate, elect that candidate.

Guinier believes blacks will do that.

And they have in places like Chilton County, Ala., where the county adopted a cumulative voting plan to settle a voting rights lawsuit brought by black plaintiffs. As a consequence, Bobby Agee was elected one of seven commissioners even though the county is only about 12 percent black. Most blacks, Agee says, gave him all seven of their votes.

But Agee notes that blacks weren’t the only minority to benefit from the new system. Under cumulative voting, Republicans were also elected to the commission for the first time.

“This system gave everybody more of a voice,” he says.

Cumulative voting has also elected blacks in other Alabama jurisdictions, as well as making the difference for a Hispanic candidate in Alamogordo, N.M., and an American Indian running for the school board in Sisseton, S.D.

However, in Peoria, Ill., Nat LeDoux, the first black elected at-large to the city council, says an analysis of his election found it did not figure in his success.

Peoria adopted cumulative voting to settle a voting rights complaint brought by black voters there, but LeDoux considers as patently racist its underlying assumption that blacks vote as a bloc. “That’s a lot of crap. We’re not different from any other ethnic group in this country,” he says.

“I get very upset with these super liberals and their theories,” says LeDoux, a Republican. “People like (Guinier) I consider as dangerous as (South Carolina Republican Sen.) Strom Thurmond.”

(In kind, Guinier has her doubts about black Republicans. In a footnote to her Virginia Law Review article she wonders whether “descriptively black representatives who were also Republicans qualify as black representatives?”)

While Guinier argues that cumulative voting also encourages building coalitions with sympathetic whites, critics contend it more likely leads to extremism and division.

“It has a tendency to divide the community into groups, and I don’t think that’s healthy,” says Ed Glover, a white councilor in Peoria.

Bolick says he is most alarmed by Guinier’s proposals to impose legislative procedures like the minority veto and cumulative voting on legislation, which would enable minorities to pass bills important to them without majority support.

And, Bolick says, judging from her writings, Guinier sees virtually every legislature in America as fair game for her tinkering.

As Guinier writes in the Virginia Law Review, “Simply put, racism excludes minorities from ever becoming part of the governing coalition, meaning that the white majority will be permanent.”

“I argue,” she writes, “that simple-minded notions of majority rule or winner-take-all procedures interact with racial bloc voting to make statutorily protected groups perennial legislative losers.”

Author Thernstrom says this represents a thorough misreading of the current state of affairs in America.

“In America in 1993 there ain’t many places where you want drastic remedies to deal with the exclusion of blacks from power,” she says.

But to Alabama civil rights attorney Jim Blacksher, who won the Mobile case among many others, it is Thernstrom, not Guinier, who is out of touch.

“These claims for avoiding race consciousness,” he says, “are understood down here to be pretty unabashed appeals for maintaining white supremacy in one form or another.”