Re: I don't mean to get political but...

J.D. Baldwin wrote:
> Most interestingly, the FAIR article tries simply to pretend that the
> infamous Cardozo Law Review, in which she implied that the
> Constitution is itself unconstitutional (in a sense) because majority
> rule is inherently racist, does not and never did exist. The cite,
> since you asked for one, is:
>
> "The Representation of Minority Interests: The Question of Single
> Member Districts," Cardozo Law Review, April 1993, vol 14 number 5,
> p.1135.
>
> Its content does not appear to be available online, and it's been more
> than ten years since I read the thing, so I'm open to correction by
> anyone who has it at hand, but what I remember about it is that
> Guinier showed herself to be about ten times farther "out of the
> mainstream," as the phrase goes, than anyone that any Republican has
> even tried to nominate for anything in my lifetime.

Lucky for you, I have Lexis access.

The money quote from Guinier is that "winner-take-all majority rule can
be fundamentally at odds with traditional notions of democracy." I
don't think this is particularly controversial or out of the
mainstream.

Below, I reproduce a little more context from the article.
==================================================
As I use the term, a fair share or a fair opportunity to influence is a
principle of proportional power designed primarily to maintain
legitimacy from the perspective of minority interests. Some argue,
however, that the one person one vote principle was designed primarily
to restore a competing principle: the principle of majority legislative
power. In this understanding, the Court's fair share rule was limited
to the majority. In order to give a fair share of power to the
majority, the Court (perhaps unwittingly) devised a one person one vote
rule that actually gives the majority disproportionate power in
winner-take-all districts. The majority - in a now equally populous
district - gets all the power.

Yet, by definition majority rule need not mean that a simple majority
controls all the legislative power. A simple majority exercising most,
but not all the power, is also majority rule. Indeed, I have argued
elsewhere that winner-take-all majority rule can be fundamentally at
odds with traditional notions of democracy. 25

In fact, the proportional power principle is consistent with the core
concept of the one person one vote cases, meaning that each voter
should get to cast an equally weighted vote. 26 In this sense, the one
person one vote cases are not necessarily about majority rule at all.
Arguably, they can be better understood as simply voiding minority rule
(that is, a system in which a minority actually decides all, or even a
majority, of the decisions). Although the Supreme Court found minority
domination unconstitutional, it did not necessarily constitutionalize a
particular decision-making or aggregating alter-
native.

For example, in considering a sixty percent vote requirement, the
Supreme Court recognized that "any departure from strict majority rule
gives disproportionate power to the minority." 27 Yet, the Court found
nothing unconstitutional per se in the sixty percent decisional rule
that gave a minority temporary political leverage: "There is [*1144]
nothing in the language of the Constitution, our history, or our cases
that requires that the majority always prevail on every issue." 28

To a great extent, the norm of proportional influence and the idea of
interest constituencies already shape our views regarding political
participation. For example, in the same reapportionment cases that
voided minority rule, the Supreme Court declared that representative
government provides "each and every citizen ... with an inalienable
right to full and effective representation ...." 29 The notion of full
and effective representation has two components. First, full and
effective representation envisions an equality norm - that is, the
right of all citizens to equal treatment as citizens in a democracy.
The equality norm was based upon the Supreme Court view of legislative
reapportionment, in particular, the aforementioned constitutional
principle of one person, one vote. 30 The equality norm provides that
every citizen has the right to vote and every citizen has the right to
an equally weighted vote. 31 Additionally, the equality norm supports
an equal right to government services for every person. 32

The right to "full and effective representation" thus subsumes concerns
about equal voting and equal access. As the Court stated in one of its
early reapportionment cases, "equal representation for equal numbers of
people is a principle designed to prevent debasement of voting power
and diminution of access to elected representatives." 33 I would also
argue that implicit in the equality norm is the moral proposition that
every citizen has the right to equal legislative influence. 34

Footnotes:
n25. See Guinier, supra note 16, at 1477-84 (arguing that
winner-take-all majority rule is illegitimate under certain
circumstances).

n26. It is also consistent with one person one vote because each voter
casts the same number of ballots or votes on the same number of
choices. In addition, it is consistent with the disclaimer against
"proportional election" in the 1982 Amendments to the Voting Rights
Act. See infra note 70.

n27. Gordon v. Lance, 403 U.S. 1, 6 (1971).

n28. Id.

n29. Reynolds v. Sims, 377 U.S. 533, 565 (1971).

n30. See Alan Howard & Bruce Howard, The Dilemma of the Voting Rights
Act: Recognizing the Emerging Political Equality Norm, 83 Colum. L.
Rev. 1615, 1633 (1983) (discussing the Supreme Court's articulation of
a political equality norm in reapportionment cases).

n31. Id. at 1636.

n32. The equal right to government service is not the same as the right
to equal government services. In this sense, the right to service is
equated with the right of access to the benefits of government.

n33. Kirkpatrick v. Preisler, 394 U.S. 526, 531 (1969).

n34. See Alexander Yanos, Note, Reconciling the Right to Vote with the
Voting Rights Act, 92 Colum. L. Rev. 1810 (1993) (stating that
reapportionment cases, taken together, stand for a broad notion of
equality among citizens of their respective influence on the political
process; this entails both equality of participation - that is,
equipopulous districts - and equality of success - namely, equal shots
at getting a satisfactory result).

.

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