What We Must Overcome

For years many of us have been calling for a national conversation
about what it means to be a multiracial democracy. We have enumerated
the glaring flaws inherent in our winner-take-all form of voting, which
has produced a steady decline in voter participation,
underrepresentation of women and racial minorities in office, lack of
meaningful competition and choice in most elections, and the general
failure of politics to mobilize, inform, and inspire half the eligible
electorate. Still, nothing changed. Democracy was an asterisk in
political debate and the diagnosis for what ailed it was encompassed in
vague references to "campaign finance reform." But the harm was not just
in the money and its sources; the problem has been the rules of American
democracy itself.

Enter Florida and the surprising intervention by the United States
Supreme Court in Bush v. Gore. On December 12, 2000, the Supreme
Court selected the next president when, in the name of George W. Bush's
rights to equal protection of the laws, it stopped the recounting of
votes. Excoriated at the time for deciding an election, the Court
majority's stout reading of equal protection is an invitation not just
to future litigation but to a citizens' movement for genuine
participatory democracy. The Court's decision--and the colossal legal
fight that preceded it--might stimulate a real national debate about
democracy. At minimum the ruling calls on us to consider what it means
to be a multiracial democracy that has equal protection as its first
principle.

The decision invites future litigants to rely on the Court's newfound
equal protection commitments to enforce uniform standards for casting
and tabulating votes in federal elections from state to state, county to
county, and within counties. The conservative majority found that the
source of the fundamental nature of the right to vote "lies in the equal
weight accorded to each vote and the equal dignity owed to each voter."
We have not heard such a full-throated representation of the equal
protection clause in many years, at least not with regard to the rights
of voters to do more than cast a ballot. This language harkens back to
the broad commitment we once heard from the 1960s-era Warren Court,
which affirmed the people's fundamental right to exercise their suffrage
"in a free and unimpaired manner." Concerned that the lack of uniform
standards for a manual recount would lead to "arbitrary and disparate
treatment" of the members of the Florida electorate, the majority relied
on two expansive Supreme Court decisions, Harper v. Virginia Board of
Elections
and Reynolds v. Sims. These cases, from the salad
days of the Warren Court, explicitly affirm Lincoln's vision of
government of the people, by the people, for the people. Perhaps--in the
name of restoring "voter confidence in the outcome of elections"--the
conservative majority will now welcome, as it did in Bush v. Gore,
other lawsuits that seek to challenge the very discretion the
five-vote majority found so troublesome when exercised by local Florida
county officials. Perhaps not.

It seems unlikely, of course, that the conservative majority will act
in the future to rehabilitate our partial democracy. Some commentators
undoubtedly will argue that the per curiam decision only addresses
the remedial power of a state court seeking a statewide remedy. Others
will point to the great irony that the Court has shown itself more
deeply committed to safeguarding the rights of a major-party candidate
than to protecting disenfranchised voters across the board.

The Bush v. Gore majority, which went out on a limb to protect
the rights of a single litigant, George W. Bush, has been noticeably
less exercised about arbitrary or disparate treatment when such
considerations are raised by voters who are racial minorities. Indeed,
in a 1994 concurring opinion, when the claim to a meaningful and equally
valued vote
was raised by black litigants, Justice Clarence Thomas
declared that the Court should avoid examining "electoral mechanisms
that may affect the 'weight' given to a ballot duly cast." Even where
congressional statutes, such as the Voting Rights Act, explicitly define
the term "voting" to "include all action necessary to make a vote
effective," Justice Thomas urged the Court to ignore the actual text of
the statute.

The Bush v. Gore invitation to value votes equally, in order
to "sustain the confidence that all citizens must have in the outcome of
elections," should be heeded, but not in the form of legal wrangling
before a judge. That it is time for political agitation rather than
judicial activism may be the most important contribution of the Bush
v. Gore
opinion. In fact, that is already happening, at least in the
law schools. The New York Times reported on February 1,
2001--almost three months after the election--that the decision
continues to generate a beehive of activity among law professors furious
at the Supreme Court's role. The debate in law schools already has the
"flavor of the teach-ins of the Vietnam War era, when professors spurred
their students to political action." As during the movements for
abolition, women's suffrage, and black voting rights, we, the people,
must take up the burden.

Indeed, the Court's choice of language explicitly valuing "no
person's vote over another's" ought to launch a citizens' movement
similar to the 1960s civil rights marches that led to the Voting Rights
Act, demonstrations in which citizens carried banners with the "one
person, one vote" slogan. One vote, one value--meaning that everyone's
vote should count toward the election of someone he or she voted
for--should be the rallying cry of all who wish to restore the
confidence that even the conservative Court majority agrees "all
citizens must have in the outcome of elections." This movement, let's
recall, began in the streets, was cautiously then boldly embraced by
liberal politicians, and eventually led to raised grass-roots
consciousness as well as national legislation. That is how democratic
movements change the course of events--and in the process enrich and
renew democracy.

Where's the Outrage?

Certainly many people outside the legal academy continue to feel
alienated by the outcome of this presidential election. A survey
released in early December from the Harvard Vanishing Voter project
suggests that large majorities of the American people believe election
procedures have been "unfair to the voters." Not surprisingly,
nationwide those most likely to feel disenfranchised are blacks. In
December 2000, almost 90 percent of black voters felt that way. One out
of 10 blacks reported that they or someone in their family had trouble
voting, according to a national report produced by Michael Dawson and
Lawrence Bobo, of the Center for the Study of Race, Politics and
Culture
, and the W.E.B. Du Bois Institute. A CBS News poll, made public
on the eve of the inauguration, found that 51 percent of the respondents
said they considered Bush's victory a legitimate one, but only 19
percent of Democrats and 12 percent of blacks said so.

The anger over what happened in Florida has only been reinforced by
the failure of the Democratic Party leadership to move quickly and
seriously to engage the legitimacy issue. Right after November 7, when
the perception first emerged that the election was being hijacked, the
Gore campaign actively discouraged mass protest. On January 12, when Al
Gore presided over the counting of the electoral college votes, it was
only members of the Congressional Black Caucus (CBC) who rose, one by
one, to protest the filing of Florida's votes. They could not get a
single Democratic senator (from a body that includes not a single black
representative) to join their objection. The silence of the white
Democrats in Congress turned the CBC demonstration into an emphatic
recapitulation of the election drama. As the presiding officer, Al Gore
overruled the protests. The moment was especially poignant, because the
Black Caucus members, in speaking out for Floridians whose votes were
not counted, were speaking out for all Americans, while even their
progressive white colleagues sat in awkward silence. E.J. Dionne, a
columnist for The Washington Post, watched the drama unfold on
television. Turning to his eight-year-old son, seated next to him,
Dionne explained, "They are speaking out for us too."

"It was the Black Caucus, and the Black Caucus alone," James Carroll
wrote in The Boston Globe "that showed itself sensitive to ...
what is clearly true about the recent presidential election in Florida."
That truth is the gap between what the rules permit and what democracy
requires. Florida made it obvious that our winner-take-all rules would
unfairly award all of Florida's electoral college votes to one candidate
even though the margin of victory was less than the margin of error. Yet
our elected officials in Washington are committed to those rules and,
even more, to maintaining civility between those adversely affected by
the rules and those who benefited. As Carroll wrote, "Those who sit atop
the social and economic pyramid always speak of love, while those at the
bottom always speak of justice."

The CBC protest shows that outrage over the election continues. But
the CBC protest also speaks to the fact that the conversation about the
true meaning of democracy is not happening yet, at least not at the
highest levels of government. There is talk, of course, about fixing the
mechanics of election balloting; but it is the rules themselves, and not
just the vote-counting process, that are broken. This is all the more
reason that the conversation, which needs to address issues of justice,
not just compassion, also needs to rise up from communities as a
citizens' movement.

Those who were disenfranchised--disproportionately black, poorer, and
less well educated--were not asking for pity; they wanted democracy.
Stories of long lines at polling places, confusing ballots, and strict
limitations on how long voters could spend in the voting booth help
explain why turnout numbers are skewed toward those who are wealthy,
white, and better educated. We are a democracy that supposedly believes
in universal suffrage, and yet the different turnout rates between
high-income and low-income voters are far greater than in Europe, where
they range from 5 percent to 10 percent. More than two-thirds of people
in America with incomes greater than $50,000 voted, compared with
one-third of those with incomes under $10,000. Many poor people are also
less literate; for them time limits and complex ballots proved disabling
when the menu of candidates was organized around lists of individuals
rather than easily identified icons for political parties. Indeed, more
ballots were "spoiled" in the presidential race than were cast for
so-called spoiler Ralph Nader. The shocking number of invalid ballots is
a direct result of antiquated voting mechanics, an elitist view of the
relationship between education and citizenship, and an individualistic
view of political participation that would shame any nation that truly
believes in broad citizen participation.

Class, race, and balloting

In addition to class, the window into the workings of Florida's
balloting allowed us to see how race affects--and in turn is affected
by--voting rules and procedures. The election debacle revealed gaps not
just in our democracy but in the way our democracy racializes public
policy and then disenfranchises the victims of those policies. Old
voting machines, more likely to reject ballots not perfectly completed,
were disproportionately located in low-income and minority
neighborhoods. These problems contributed to stunning vote-rejection
numbers. According to The New York Times, black precincts in
Miami-Dade County had votes thrown out at twice the rate of Hispanic
(primarily Cuban and Republican) precincts and at close to four times
the rate of white precincts. In that county alone, in predominantly
black precincts, the Times said, "one in 11 ballots were rejected,
... a total of 9,904"--thousands more than Bush's margin of victory.

The balloting rules in Florida did not just incidentally
disenfranchise minority voters; they apparently resulted from what many
think were aggressive efforts to suppress black turnout. The New York
Times
also reported that county officials in Miami-Dade gave certain
precincts--mostly the Hispanic (that is, Cuban and Republican)
ones--laptop computers so that they could check names against the
central county voter file. In black precincts, where there were a lot of
recently registered voters whose names didn't appear on the local list,
the precinct workers were not given computers and were supposed to call
the county office to check the list--but no one answered the phones or
the lines were busy, so countless voters, who were in fact registered,
were just sent away.

Florida's minority residents and many others faced another structural
hurdle to having their voices heard. Anyone convicted of a felony is
permanently banned from voting in Florida and 12 other states
(disproportionately from the old Confederacy) even after they have paid
their debt to society. As a result, 13 percent of black men nationwide
and in some southern states as many as 30 percent of black men are
disenfranchised. In Florida alone, more than 400,000 ex-felons, almost
half of them black, could not vote last November. Also worth noting is
that before the election Florida's secretary of state hired a firm to
conduct a vigorous cleansing of the voting rolls--not just of Florida's
felons, but also of ex-offenders from other states whose rights had been
restored in those states and who were thus still legally eligible to
vote in Florida. The Hillsborough County elections supervisor, for
example, found that 54 percent of the voters targeted by the "scrub"
were black, in a county where blacks make up 11 percent of the voting
population. While Canada takes special steps to register former
prisoners and encourage citizenship, Florida and other states ostracize
them.

One short-term solution to the problem of the disenfranchised
ex-offender population is to lobby state legislators to abolish the
permanent disenfranchisement of felons. Alternatively, Congress could
pass a statute providing voting rights for all ex-felons in federal
elections.

The Soul of a democracy Movement

Unfortunately, in pursuit of bipartisan civility, the Democratic
Party leadership appears to be marching to a false harmony: Charmed by
compassionate conservatism and conscious of middle-of-the-road swing
voters' aversion to conflict, top Democrats have ignored issues of
justice and the troubling disenfranchisement of many of the party's most
loyal supporters. If we learn anything from the Supreme Court's role in
the 2000 election travesty, it must be that when the issue is justice,
the people--not the justices of the Court or the Democratic leaders in
Washington--will lead. And if anything is true about the fiasco in
Florida, it is the need for new leaders who are willing to challenge
rather than acquiesce to unfair rules. New leadership will not come from
a single, charismatic figure orchestrating deals out of Washington,
D.C.; nor will it be provided by a group devoted only to remedying the
disenfranchisement of black voters. What is needed instead is a
courageous assembly of stalwart individuals who are willing to ask the
basic questions the Black Caucus members raised--questions that go to
the very legitimacy of our democratic procedures, not just in Florida
but nationwide. These are likely to be individuals organized at the
local level, possibly even into a new political party that is broadly
conceived and dedicated to real, participatory democracy. Such a
movement could build on the energy of black voter participation, which
between 1996 and last year went from 10 percent to 15 percent in Florida
and from 5 percent to 12 percent in Missouri.

But while black anger could fuel a citizens' movement or a new,
European-style political party that seeks reforms beyond the mechanics
of election day voting, the danger is that whites will be suspicious of
the struggle if they perceive that its aim is simply to redress wrongs
done to identifiable victims or to serve only the interests of people of
color. And people of color can alienate potential supporters if they
focus exclusively on vindicating the rights of minority voters and fail
to emphasize three dramatic distortions in our present rules that
undermine the ability of low-income and working people, women, and
progressives, as well as racial minorities, to participate in a
genuinely democratic transformation. These rules (1) limit voting to 12
hours on a workday and require registration weeks or even months in
advance; (2) disenfranchise prisoners for the purpose of voting but
count them for the purpose of allocating legislative seats [see sidebar
on page 30]; and (3) waste votes through winner-take-all elections. A
pro-democracy movement has a good chance to succeed if it focuses on
unfair rules whose dislocations may be felt first by blacks but whose
effects actually disempower vast numbers of people across the country.

A pro-democracy movement would need to build on the experience of
Florida to show how problems with disenfranchisement based on race and
status signify systemic issues of citizen participation. Such
mobilization would seek to recapture the passion in evidence immediately
after the election as union leaders, civil rights activists, black
elected officials, ministers, rabbis, and the president of the Haitian
women's organization came together at a black church in Miami, reminded
the assembly of the price their communities had paid for the right to
vote, and vowed never to be disfranchised again. "It felt like
Birmingham last night," Mari Castellanos, a Latina activist in Miami,
wrote in an e-mail describing the mammoth rally at the 14,000-member New
Birth Baptist Church, a primarily African-American congregation.

The sanctuary was standing room only. So were the
overflow rooms and the school hall, where congregants connected via
large TV screens... . The people sang and prayed and listened. Story
after story was told of voters being turned away at the polls, of
ballots being allegedly destroyed, of NAACP election literature being
allegedly discarded at the main post office, of Spanish-speaking poll
workers being sent to Creole precincts and vice-versa.

Although not encouraged by Democratic Party leaders, by joining their
voices these Florida voters were beginning to realize their collective
potential--as ordinary citizens--to become genuine democrats (with a
small d). By highlighting our nation's wretched record on voting
rules and practices, these impassioned citizens were raising the obvious
questions: Do those in charge really want large citizen participation,
especially if that means more participation by poor people and people of
color? Even more, do Americans of all incomes and races realize that
everyone loses when we tolerate disenfranchisement of some? And how can
we tolerate the logjam of winner-take-all two-party monopoly, especially
at the local level?

Enriching Democratic Choice

As the Florida meltdown suggests, the problem includes mechanical
defects, but it is the rules themselves, not just old technology, that
limit the political clout of entire communities. Weak democracy feeds on
itself. There are some technical fixes worth pursuing [see "Reclaiming
Democracy"
by Burt Neuborne, on page 18, and "Democracy's Moment" by
Miles Rapoport, on page 41]. But reform of voting mechanisms--while
important--is not enough. The circumstances of this last election call
for a larger focus on issues of representation and participation. A
longer-termand more-far-ranging solution to the problems in Florida as
well as those around the country would be to enrich democracy by
broadening ways of reflecting and encouraging voter preferences.

For example, in South Africa, where the black majority now shares
political power with the white minority, there is a successful system of
proportional representation. Voters cast their ballots for the political
party they feel most represents their interests, and the party gets
seats in the legislature in proportion to the number of votes it
receives. Instead of a winner-take-all situation in which there are
losers who feel completely unrepresented when their candidate doesn't
capture the top number of votes, each vote counts to enhance the
political powerof the party of the voters' choice. Under South Africa's
party-list system, the party that gets 30 percent of the vote gets 30
percent of the seats. Or if the party gets only 10 percent of the vote,
it still gets 10 percent of the seats in the legislature. Only because
of this system does South Africa's white minority have any
representation in the national legislature. Ironically, South Africa,
only seven years out of apartheid, is more advanced in terms of
practicing democratic principles than the United States is 150 years
after slavery and 40 years after Jim Crow.

As June Zeitlin, executive director of the Women's Environment and
Development Organization
points out, proportional representation systems
also benefit women. In a letter that The New York Times declined
to publish, Zeitlin wrote: "Women are grossly underrepresented at all
levels of government worldwide. However, women fare significantly better
in proportional representation electoral systems... . The 10 countries
with the highest percentage of women in parliament have systems that
include proportional representation." Zeitlin, who spearheads a
campaign--50/50 Get the Balance Right--aimed at increasing women's
participation in government, has noticed that proportional
representation mechanisms work in many countries in tandem with the
deliberate political goals of progressive parties.

Proportional representation reforms for legislative bodies, even
Congress, would not even require an amendment to the U.S. Constitution.
Nothing in the Constitution says that we have to use winner-take-all
single-member districts. Since seizing the initiative in 1995, two
Democratic members of the Congressional Black Caucus, Representatives
Cynthia McKinney of Georgia and Mel Watt of North Carolina, have
repeatedly introduced legislation called the Voter Choice Act, which
provides for states to choose proportional representation voting. It's a
system that should have great appeal not just for African Americans but
for every group that has ever felt disenfranchised.

A pro-democracy movement would look seriously at forms of
proportional representation that could assure Democrats in Florida,
Republicans in Democratic-controlled states, and racial minorities and
women in all states fair representation in the state legislatures. It
would focus renewed attention on the importance of minority
voters--racial, political, and urban minorities--gaining a more
meaningful voice as well as a real opportunity to participate throughout
the democratic process and not just on election day. The five-member
Supreme Court majority allowed the interests of the Florida legislature
(in obtaining the safe-harbor benefits of a congressional statute for
certifying electors) to trump any remedy to protect the rights of the
voters, about whom it was ostensibly so solicitous.

If legislatures are to enjoy such power to speak for all citizens, it
is imperative that voters' voices be reflected in fully representative
legislative bodies. Florida voters are closely divided along party
lines, but in the legislature they are represented by an overwhelmingly
Republican leadership. And the partisan acts of the Florida legislature
in the 2000 election should focus renewed attention on how the
winner-take-all system in a state legislature can fail to recognize the
will of racial and political minorities: It wastes the votes of those
whose ballots are cast and tabulated but don't lead to the election of
any candidate they selected.

If we are not to abolish the electoral college, we might at least
mitigate its winner-take-all effect and apportion electoral votes based
on the popular split. In Florida, where all of the state's 25 electoral
votes went to the Republican candidate, Bush could have gotten 13 votes
and Gore 12 (or vice versa!). Such a system is perfectly constitutional
and can be readily enacted by the state legislature. Two states do this
already, although they use unfairly gerrymandered congressional
districts rather than statewide proportions to allocate electoral
college votes.

Proportional representation voting, which is used in most of the
world's democracies, ensures that each voter's ballot counts when it is
cast. Voters essentially "district" themselves by how they mark their
ballots. The method thus eliminates the problem of gerrymandering by
incumbents protecting their seats. Proportional voting could also
encourage the development of local political organizations to educate
and mobilize voters. Only when voters are vigilant, even after the votes
are counted, shall we return to a government of, by, and for the people.
Developing local grass-roots organizations that can monitor not only
elections but also legislative actions is especially important in 2001,
a year when every state legislature will be engaged in the decennial
task of redistricting. The spread of such organizations--which a
proportional representation system makes possible because the
participants actually have a chance to win elections--could also fuel a
new era of issue-centered politics in which people exercise their
political views through advocacy groups focused on issues of concern to
them. As Richard Berke has written in The New York Times:

The first half of the last century was dominated by
party-centered politics. Then came candidate-centered politics. Now,
some foresee an era where the power moves to activists, who create local
coalitions around specific issues. That could happen because, with the
rise of the Internet, activists have far greater access to communication
and organizing tools--and no longer have to rely on help from campaigns
or party committees.

Local grass-roots and issue-centered coalitions are more likely if we
adopt proportional representation because it rewards those who mobilize
directly with seats in the local collective-decision-making body. And
local multiparty organizing could effectively generate citizen
engagement and meaningful participation not merely on election day but
in between elections, too.

Of course, there are downsides to a politics that depends primarily
on activists building multiple coalitions of overlapping constituencies
through issue-oriented organizing. Creating such coalitions requires
enormous energy; they often have to be built from scratch, and for every
one that gets it together, dozens will fall short. Moreover, they can
encourage a fragmentation of progressive energy and what Urvashi Vaid,
the gay rights activist who is now at the Ford Foundation, memorably
called "a misuse of powerlessness."

But the upside is that coalitions that start with narrowly focused
issues and then engage multiple constituencies can create sustainable
alliances even after an election. They can grow into institutions that
use their aggregated power again and again--getting organized labor to
join fights that affect Latinos and gays, civil rights groups to join
labor, and so forth. These coalitions can also aspire to an electoral
strategy and nurture leaders who can eventually become candidates.

Over time, the best of these permanent coalitions might begin to look
a little bit like parties: presumably they would have broad platforms,
sizable but loose constituencies, and candidates and elected officials
allied to them. Proportional representation would lower the bar to
successful cross-constituency and multiracial-coalition organizing. But
even with a proportional voting system, realizing a fully democratic
movement would still require us to fight fragmentation and to aggregate,
rotate, and share power among progressive interests in a lasting and
sustainable way.

"One vote, one value," a notion underscored by the conservative
Supreme Court majority, ironically could become the rallying cry of a
multiracial and multi-issue grass-roots movement of voters throughout
the nation. It could herald a new era of issue-centered rather than
candidate-centered politics. Black leaders may be key in some
communities; union activists or environmentalists in others. But in the
end, an aroused and engaged citizenry--one committed to a broad,
multiracial democracy--will be our best, indeed our only protection to
ensure that every vote counts and that every citizen can truly vote.
Mobilizing citizens requires local, grass-roots political organizations
accountable to the people themselves instead of ad hoc candidate
machines that are too often driven by money. Voting should not be an
obstacle course of arbitrary deadlines, lousy lists, untrained poll
workers, and outdated ballot technology. Rather, voting should be just
the first step in a democratic system by which we, the people--through
democratic institutions that are accountable to all of us--actually
rule.

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