For years many of us have been calling for a national conversationabout what it means to be a multiracial democracy. We have enumeratedthe glaring flaws inherent in our winner-take-all form of voting, whichhas produced a steady decline in voter participation,underrepresentation of women and racial minorities in office, lack ofmeaningful competition and choice in most elections, and the generalfailure of politics to mobilize, inform, and inspire half the eligibleelectorate. Still, nothing changed. Democracy was an asterisk inpolitical debate and the diagnosis for what ailed it was encompassed invague references to "campaign finance reform." But the harm was not justin the money and its sources; the problem has been the rules of Americandemocracy itself.
Enter Florida and the surprising intervention by the United StatesSupreme Court in Bush v. Gore. On December 12, 2000, the SupremeCourt selected the next president when, in the name of George W. Bush'srights to equal protection of the laws, it stopped the recounting ofvotes. Excoriated at the time for deciding an election, the Courtmajority's stout reading of equal protection is an invitation not justto future litigation but to a citizens' movement for genuineparticipatory democracy. The Court's decision--and the colossal legalfight that preceded it--might stimulate a real national debate aboutdemocracy. At minimum the ruling calls on us to consider what it meansto be a multiracial democracy that has equal protection as its firstprinciple.
The decision invites future litigants to rely on the Court's newfoundequal protection commitments to enforce uniform standards for castingand tabulating votes in federal elections from state to state, county tocounty, and within counties. The conservative majority found that thesource of the fundamental nature of the right to vote "lies in the equalweight accorded to each vote and the equal dignity owed to each voter."We have not heard such a full-throated representation of the equalprotection clause in many years, at least not with regard to the rightsof voters to do more than cast a ballot. This language harkens back tothe 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 uniformstandards for a manual recount would lead to "arbitrary and disparatetreatment" of the members of the Florida electorate, the majority reliedon two expansive Supreme Court decisions, Harper v. Virginia Board ofElections and Reynolds v. Sims. These cases, from the saladdays of the Warren Court, explicitly affirm Lincoln's vision ofgovernment of the people, by the people, for the people. Perhaps--in thename of restoring "voter confidence in the outcome of elections"--theconservative majority will now welcome, as it did in Bush v. Gore,other lawsuits that seek to challenge the very discretion thefive-vote majority found so troublesome when exercised by local Floridacounty officials. Perhaps not.
It seems unlikely, of course, that the conservative majority will actin the future to rehabilitate our partial democracy. Some commentatorsundoubtedly will argue that the per curiam decision only addressesthe remedial power of a state court seeking a statewide remedy. Otherswill point to the great irony that the Court has shown itself moredeeply committed to safeguarding the rights of a major-party candidatethan to protecting disenfranchised voters across the board.
The Bush v. Gore majority, which went out on a limb to protectthe rights of a single litigant, George W. Bush, has been noticeablyless exercised about arbitrary or disparate treatment when suchconsiderations are raised by voters who are racial minorities. Indeed,in a 1994 concurring opinion, when the claim to a meaningful and equallyvalued vote was raised by black litigants, Justice Clarence Thomasdeclared that the Court should avoid examining "electoral mechanismsthat may affect the 'weight' given to a ballot duly cast." Even wherecongressional statutes, such as the Voting Rights Act, explicitly definethe term "voting" to "include all action necessary to make a voteeffective," Justice Thomas urged the Court to ignore the actual text ofthe statute.
The Bush v. Gore invitation to value votes equally, in orderto "sustain the confidence that all citizens must have in the outcome ofelections," should be heeded, but not in the form of legal wranglingbefore a judge. That it is time for political agitation rather thanjudicial activism may be the most important contribution of the Bushv. Gore opinion. In fact, that is already happening, at least in thelaw schools. The New York Times reported on February 1,2001--almost three months after the election--that the decisioncontinues to generate a beehive of activity among law professors furiousat 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 spurredtheir students to political action." As during the movements forabolition, women's suffrage, and black voting rights, we, the people,must take up the burden.
Indeed, the Court's choice of language explicitly valuing "noperson's vote over another's" ought to launch a citizens' movementsimilar to the 1960s civil rights marches that led to the Voting RightsAct, demonstrations in which citizens carried banners with the "oneperson, one vote" slogan. One vote, one value--meaning that everyone'svote should count toward the election of someone he or she votedfor--should be the rallying cry of all who wish to restore theconfidence that even the conservative Court majority agrees "allcitizens must have in the outcome of elections." This movement, let'srecall, began in the streets, was cautiously then boldly embraced byliberal politicians, and eventually led to raised grass-rootsconsciousness as well as national legislation. That is how democraticmovements change the course of events--and in the process enrich andrenew democracy.
Where's the Outrage?
Certainly many people outside the legal academy continue to feelalienated by the outcome of this presidential election. A surveyreleased in early December from the Harvard Vanishing Voter projectsuggests that large majorities of the American people believe electionprocedures have been "unfair to the voters." Not surprisingly,nationwide those most likely to feel disenfranchised are blacks. InDecember 2000, almost 90 percent of black voters felt that way. One outof 10 blacks reported that they or someone in their family had troublevoting, according to a national report produced by Michael Dawson andLawrence Bobo, of the Center for the Study of Race, Politics andCulture, and the W.E.B. Du Bois Institute. A CBS News poll, made publicon the eve of the inauguration, found that 51 percent of the respondentssaid they considered Bush's victory a legitimate one, but only 19percent of Democrats and 12 percent of blacks said so.
The anger over what happened in Florida has only been reinforced bythe failure of the Democratic Party leadership to move quickly andseriously to engage the legitimacy issue. Right after November 7, whenthe perception first emerged that the election was being hijacked, theGore campaign actively discouraged mass protest. On January 12, when AlGore presided over the counting of the electoral college votes, it wasonly members of the Congressional Black Caucus (CBC) who rose, one byone, to protest the filing of Florida's votes. They could not get asingle Democratic senator (from a body that includes not a single blackrepresentative) to join their objection. The silence of the whiteDemocrats in Congress turned the CBC demonstration into an emphaticrecapitulation of the election drama. As the presiding officer, Al Goreoverruled the protests. The moment was especially poignant, because theBlack Caucus members, in speaking out for Floridians whose votes werenot counted, were speaking out for all Americans, while even theirprogressive white colleagues sat in awkward silence. E.J. Dionne, acolumnist for The Washington Post, watched the drama unfold ontelevision. 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 Carrollwrote 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 democracyrequires. Florida made it obvious that our winner-take-all rules wouldunfairly award all of Florida's electoral college votes to one candidateeven though the margin of victory was less than the margin of error. Yetour elected officials in Washington are committed to those rules and,even more, to maintaining civility between those adversely affected bythe rules and those who benefited. As Carroll wrote, "Those who sit atopthe social and economic pyramid always speak of love, while those at thebottom always speak of justice."
The CBC protest shows that outrage over the election continues. Butthe CBC protest also speaks to the fact that the conversation about thetrue meaning of democracy is not happening yet, at least not at thehighest levels of government. There is talk, of course, about fixing themechanics of election balloting; but it is the rules themselves, and notjust the vote-counting process, that are broken. This is all the morereason that the conversation, which needs to address issues of justice,not just compassion, also needs to rise up from communities as acitizens' movement.
Those who were disenfranchised--disproportionately black, poorer, andless well educated--were not asking for pity; they wanted democracy.Stories of long lines at polling places, confusing ballots, and strictlimitations on how long voters could spend in the voting booth helpexplain why turnout numbers are skewed toward those who are wealthy,white, and better educated. We are a democracy that supposedly believesin universal suffrage, and yet the different turnout rates betweenhigh-income and low-income voters are far greater than in Europe, wherethey range from 5 percent to 10 percent. More than two-thirds of peoplein America with incomes greater than $50,000 voted, compared withone-third of those with incomes under $10,000. Many poor people are alsoless literate; for them time limits and complex ballots proved disablingwhen the menu of candidates was organized around lists of individualsrather than easily identified icons for political parties. Indeed, moreballots were "spoiled" in the presidential race than were cast forso-called spoiler Ralph Nader. The shocking number of invalid ballots isa direct result of antiquated voting mechanics, an elitist view of therelationship between education and citizenship, and an individualisticview of political participation that would shame any nation that trulybelieves in broad citizen participation.
Class, race, and balloting
In addition to class, the window into the workings of Florida'sballoting allowed us to see how race affects--and in turn is affectedby--voting rules and procedures. The election debacle revealed gaps notjust in our democracy but in the way our democracy racializes publicpolicy and then disenfranchises the victims of those policies. Oldvoting machines, more likely to reject ballots not perfectly completed,were disproportionately located in low-income and minorityneighborhoods. These problems contributed to stunning vote-rejectionnumbers. According to The New York Times, black precincts inMiami-Dade County had votes thrown out at twice the rate of Hispanic(primarily Cuban and Republican) precincts and at close to four timesthe rate of white precincts. In that county alone, in predominantlyblack 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 incidentallydisenfranchise minority voters; they apparently resulted from what manythink were aggressive efforts to suppress black turnout. The New YorkTimes also reported that county officials in Miami-Dade gave certainprecincts--mostly the Hispanic (that is, Cuban and Republican)ones--laptop computers so that they could check names against thecentral county voter file. In black precincts, where there were a lot ofrecently registered voters whose names didn't appear on the local list,the precinct workers were not given computers and were supposed to callthe county office to check the list--but no one answered the phones orthe lines were busy, so countless voters, who were in fact registered,were just sent away.
Florida's minority residents and many others faced another structuralhurdle to having their voices heard. Anyone convicted of a felony ispermanently banned from voting in Florida and 12 other states(disproportionately from the old Confederacy) even after they have paidtheir debt to society. As a result, 13 percent of black men nationwideand in some southern states as many as 30 percent of black men aredisenfranchised. In Florida alone, more than 400,000 ex-felons, almosthalf of them black, could not vote last November. Also worth noting isthat before the election Florida's secretary of state hired a firm toconduct a vigorous cleansing of the voting rolls--not just of Florida'sfelons, but also of ex-offenders from other states whose rights had beenrestored in those states and who were thus still legally eligible tovote in Florida. The Hillsborough County elections supervisor, forexample, found that 54 percent of the voters targeted by the "scrub"were black, in a county where blacks make up 11 percent of the votingpopulation. While Canada takes special steps to register formerprisoners and encourage citizenship, Florida and other states ostracizethem.
One short-term solution to the problem of the disenfranchisedex-offender population is to lobby state legislators to abolish thepermanent disenfranchisement of felons. Alternatively, Congress couldpass a statute providing voting rights for all ex-felons in federalelections.
The Soul of a democracy Movement
Unfortunately, in pursuit of bipartisan civility, the DemocraticParty leadership appears to be marching to a false harmony: Charmed bycompassionate conservatism and conscious of middle-of-the-road swingvoters' aversion to conflict, top Democrats have ignored issues ofjustice and the troubling disenfranchisement of many of the party's mostloyal supporters. If we learn anything from the Supreme Court's role inthe 2000 election travesty, it must be that when the issue is justice,the people--not the justices of the Court or the Democratic leaders inWashington--will lead. And if anything is true about the fiasco inFlorida, it is the need for new leaders who are willing to challengerather than acquiesce to unfair rules. New leadership will not come froma single, charismatic figure orchestrating deals out of Washington,D.C.; nor will it be provided by a group devoted only to remedying thedisenfranchisement of black voters. What is needed instead is acourageous assembly of stalwart individuals who are willing to ask thebasic questions the Black Caucus members raised--questions that go tothe very legitimacy of our democratic procedures, not just in Floridabut nationwide. These are likely to be individuals organized at thelocal level, possibly even into a new political party that is broadlyconceived and dedicated to real, participatory democracy. Such amovement could build on the energy of black voter participation, whichbetween 1996 and last year went from 10 percent to 15 percent in Floridaand 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 mechanicsof election day voting, the danger is that whites will be suspicious ofthe struggle if they perceive that its aim is simply to redress wrongsdone to identifiable victims or to serve only the interests of people ofcolor. And people of color can alienate potential supporters if theyfocus exclusively on vindicating the rights of minority voters and failto emphasize three dramatic distortions in our present rules thatundermine the ability of low-income and working people, women, andprogressives, as well as racial minorities, to participate in agenuinely democratic transformation. These rules (1) limit voting to 12hours on a workday and require registration weeks or even months inadvance; (2) disenfranchise prisoners for the purpose of voting butcount them for the purpose of allocating legislative seats [see sidebaron page 30]; and (3) waste votes through winner-take-all elections. Apro-democracy movement has a good chance to succeed if it focuses onunfair rules whose dislocations may be felt first by blacks but whoseeffects actually disempower vast numbers of people across the country.
A pro-democracy movement would need to build on the experience ofFlorida to show how problems with disenfranchisement based on race andstatus signify systemic issues of citizen participation. Suchmobilization would seek to recapture the passion in evidence immediatelyafter the election as union leaders, civil rights activists, blackelected officials, ministers, rabbis, and the president of the Haitianwomen's organization came together at a black church in Miami, remindedthe assembly of the price their communities had paid for the right tovote, and vowed never to be disfranchised again. "It felt likeBirmingham last night," Mari Castellanos, a Latina activist in Miami,wrote in an e-mail describing the mammoth rally at the 14,000-member NewBirth Baptist Church, a primarily African-American congregation.
The sanctuary was standing room only. So were theoverflow rooms and the school hall, where congregants connected vialarge TV screens... . The people sang and prayed and listened. Storyafter story was told of voters being turned away at the polls, ofballots being allegedly destroyed, of NAACP election literature beingallegedly discarded at the main post office, of Spanish-speaking pollworkers being sent to Creole precincts and vice-versa.
Although not encouraged by Democratic Party leaders, by joining theirvoices these Florida voters were beginning to realize their collectivepotential--as ordinary citizens--to become genuine democrats (with asmall d). By highlighting our nation's wretched record on votingrules and practices, these impassioned citizens were raising the obviousquestions: Do those in charge really want large citizen participation,especially if that means more participation by poor people and people ofcolor? Even more, do Americans of all incomes and races realize thateveryone loses when we tolerate disenfranchisement of some? And how canwe tolerate the logjam of winner-take-all two-party monopoly, especiallyat the local level?
Enriching Democratic Choice
As the Florida meltdown suggests, the problem includes mechanicaldefects, but it is the rules themselves, not just old technology, thatlimit the political clout of entire communities. Weak democracy feeds onitself. There are some technical fixes worth pursuing [see "ReclaimingDemocracy" by Burt Neuborne, on page 18, and "Democracy's Moment" byMiles Rapoport, on page 41]. But reform of voting mechanisms--whileimportant--is not enough. The circumstances of this last election callfor a larger focus on issues of representation and participation. Alonger-termand more-far-ranging solution to the problems in Florida aswell as those around the country would be to enrich democracy bybroadening ways of reflecting and encouraging voter preferences.
For example, in South Africa, where the black majority now sharespolitical power with the white minority, there is a successful system ofproportional representation. Voters cast their ballots for the politicalparty they feel most represents their interests, and the party getsseats in the legislature in proportion to the number of votes itreceives. Instead of a winner-take-all situation in which there arelosers who feel completely unrepresented when their candidate doesn'tcapture the top number of votes, each vote counts to enhance thepolitical powerof the party of the voters' choice. Under South Africa'sparty-list system, the party that gets 30 percent of the vote gets 30percent 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 becauseof this system does South Africa's white minority have anyrepresentation in the national legislature. Ironically, South Africa,only seven years out of apartheid, is more advanced in terms ofpracticing democratic principles than the United States is 150 yearsafter slavery and 40 years after Jim Crow.
As June Zeitlin, executive director of the Women's Environment andDevelopment Organization points out, proportional representation systemsalso benefit women. In a letter that The New York Times declinedto publish, Zeitlin wrote: "Women are grossly underrepresented at alllevels of government worldwide. However, women fare significantly betterin proportional representation electoral systems... . The 10 countrieswith the highest percentage of women in parliament have systems thatinclude proportional representation." Zeitlin, who spearheads acampaign--50/50 Get the Balance Right--aimed at increasing women'sparticipation in government, has noticed that proportionalrepresentation mechanisms work in many countries in tandem with thedeliberate political goals of progressive parties.
Proportional representation reforms for legislative bodies, evenCongress, would not even require an amendment to the U.S. Constitution.Nothing in the Constitution says that we have to use winner-take-allsingle-member districts. Since seizing the initiative in 1995, twoDemocratic members of the Congressional Black Caucus, RepresentativesCynthia McKinney of Georgia and Mel Watt of North Carolina, haverepeatedly introduced legislation called the Voter Choice Act, whichprovides for states to choose proportional representation voting. It's asystem that should have great appeal not just for African Americans butfor every group that has ever felt disenfranchised.
A pro-democracy movement would look seriously at forms ofproportional representation that could assure Democrats in Florida,Republicans in Democratic-controlled states, and racial minorities andwomen in all states fair representation in the state legislatures. Itwould focus renewed attention on the importance of minorityvoters--racial, political, and urban minorities--gaining a moremeaningful voice as well as a real opportunity to participate throughoutthe democratic process and not just on election day. The five-memberSupreme Court majority allowed the interests of the Florida legislature(in obtaining the safe-harbor benefits of a congressional statute forcertifying electors) to trump any remedy to protect the rights of thevoters, about whom it was ostensibly so solicitous.
If legislatures are to enjoy such power to speak for all citizens, itis imperative that voters' voices be reflected in fully representativelegislative bodies. Florida voters are closely divided along partylines, but in the legislature they are represented by an overwhelminglyRepublican leadership. And the partisan acts of the Florida legislaturein the 2000 election should focus renewed attention on how thewinner-take-all system in a state legislature can fail to recognize thewill of racial and political minorities: It wastes the votes of thosewhose ballots are cast and tabulated but don't lead to the election ofany candidate they selected.
If we are not to abolish the electoral college, we might at leastmitigate its winner-take-all effect and apportion electoral votes basedon the popular split. In Florida, where all of the state's 25 electoralvotes went to the Republican candidate, Bush could have gotten 13 votesand Gore 12 (or vice versa!). Such a system is perfectly constitutionaland can be readily enacted by the state legislature. Two states do thisalready, although they use unfairly gerrymandered congressionaldistricts rather than statewide proportions to allocate electoralcollege votes.
Proportional representation voting, which is used in most of theworld's democracies, ensures that each voter's ballot counts when it iscast. Voters essentially "district" themselves by how they mark theirballots. The method thus eliminates the problem of gerrymandering byincumbents protecting their seats. Proportional voting could alsoencourage the development of local political organizations to educateand mobilize voters. Only when voters are vigilant, even after the votesare counted, shall we return to a government of, by, and for the people.Developing local grass-roots organizations that can monitor not onlyelections but also legislative actions is especially important in 2001,a year when every state legislature will be engaged in the decennialtask of redistricting. The spread of such organizations--which aproportional representation system makes possible because theparticipants actually have a chance to win elections--could also fuel anew era of issue-centered politics in which people exercise theirpolitical views through advocacy groups focused on issues of concern tothem. As Richard Berke has written in The New York Times:
The first half of the last century was dominated byparty-centered politics. Then came candidate-centered politics. Now,some foresee an era where the power moves to activists, who create localcoalitions around specific issues. That could happen because, with therise of the Internet, activists have far greater access to communicationand organizing tools--and no longer have to rely on help from campaignsor party committees.
Local grass-roots and issue-centered coalitions are more likely if weadopt proportional representation because it rewards those who mobilizedirectly with seats in the local collective-decision-making body. Andlocal multiparty organizing could effectively generate citizenengagement and meaningful participation not merely on election day butin between elections, too.
Of course, there are downsides to a politics that depends primarilyon activists building multiple coalitions of overlapping constituenciesthrough issue-oriented organizing. Creating such coalitions requiresenormous energy; they often have to be built from scratch, and for everyone that gets it together, dozens will fall short. Moreover, they canencourage a fragmentation of progressive energy and what Urvashi Vaid,the gay rights activist who is now at the Ford Foundation, memorablycalled "a misuse of powerlessness."
But the upside is that coalitions that start with narrowly focusedissues and then engage multiple constituencies can create sustainablealliances even after an election. They can grow into institutions thatuse their aggregated power again and again--getting organized labor tojoin fights that affect Latinos and gays, civil rights groups to joinlabor, and so forth. These coalitions can also aspire to an electoralstrategy and nurture leaders who can eventually become candidates.
Over time, the best of these permanent coalitions might begin to looka little bit like parties: presumably they would have broad platforms,sizable but loose constituencies, and candidates and elected officialsallied to them. Proportional representation would lower the bar tosuccessful cross-constituency and multiracial-coalition organizing. Buteven with a proportional voting system, realizing a fully democraticmovement would still require us to fight fragmentation and to aggregate,rotate, and share power among progressive interests in a lasting andsustainable way.
"One vote, one value," a notion underscored by the conservativeSupreme Court majority, ironically could become the rallying cry of amultiracial and multi-issue grass-roots movement of voters throughoutthe nation. It could herald a new era of issue-centered rather thancandidate-centered politics. Black leaders may be key in somecommunities; union activists or environmentalists in others. But in theend, an aroused and engaged citizenry--one committed to a broad,multiracial democracy--will be our best, indeed our only protection toensure that every vote counts and that every citizen can truly vote.Mobilizing citizens requires local, grass-roots political organizationsaccountable to the people themselves instead of ad hoc candidatemachines that are too often driven by money. Voting should not be anobstacle course of arbitrary deadlines, lousy lists, untrained pollworkers, and outdated ballot technology. Rather, voting should be justthe first step in a democratic system by which we, the people--throughdemocratic institutions that are accountable to all of us--actuallyrule.
