Lani Guinier on merit opportunity and redistricting

As much as she might wish otherwise, Lani Guinier will probably always be best known as roadkill on the Washington, DC, Beltway. Nominated in 1993 to be assistant attorney general for civil rights, Guinier was savaged by conservatives as “Clinton’s Quota Queen,” a “dangerous radical” who would overturn democracy in favor of a system of “racial spoils.” Though a respected law professor at the University of Pennsylvania and a certified Friend of Bill who had known the Arkansas-governor-turned-president from law school–he and Hillary Rodham Clinton attended her wedding–and Renaissance Weekend skull sessions, Guinier was dropped like a hot potato, her nomination withdrawn without so much as a public hearing.

But before–and after–her unenviable moment in the sun, Lani Guinier has been one of the nation’s preeminent civil rights attorneys. Daughter of a Jewish mother and a father born in Jamaica who became the first chairman of Harvard’s Afro-American Studies department, the Radcliffe College and Yale Law School-educated Guinier litigated voting-rights cases for the Justice Department and the NAACP Legal Defense Fund. But for Guinier, her professional calling has always been about more than filing lawsuits and briefs, more even than railing against injustice; it’s involved thinking deeply about the meaning of exclusion, and of participation.

That deep thinking got her in trouble in the sound-bite mentality of Washington. In her law review articles–which were all the more notorious for being little read–she argued that the right to vote was only the starting point of democracy: The winner-take-all nature of elections in single-member legislative districts means that the result of any election will be a minority of voters who are “represented” by someone not of their choosing. And determining representation by geographic districts may make these majority and minority voting blocs all but permanent, disenfranchising the losers of election after election just as surely as any poll tax ever did. For Guinier, the goal of electoral reform is not the reshuffling of voting blocs but finding ways for all citizens to be represented by someone of their own choosing through schemes such as proportional voting. This makes her unconventional, to be sure, a “radical” perhaps, but less dangerous than dreamy.

“I am a democratic idealist, committed to making American politics open to genuine participation by all voters,” she wrote in the introduction to her 1994 collection of articles, The Tyranny of the Majority. “My vision of fairness and justice imagines a full and effective voice for all citizens.”

At Harvard Law School since 1998–the first African-American woman to be granted tenure there–Guinier has only deepened her thinking about the nature of exclusion, and extended it into new realms. Last winter, Guinier and Susan Sturm, a Columbia Law School professor, wrote an article entitled “The Future of Affirmative Action” for Boston Review, a political and literary journal, arguing that the dispute over racial preferences in college admission and hiring ought to move from “the contested periphery of the selection system to its settled core.”

To Guinier and Sturm, it is in treating ostensibly objective instruments such as college admissions tests and civil service exams as measures of “merit” that we make our mistake. Correcting for inequities by means of preferences that override, but do not challenge, these measures of merit, they say, simply casts their beneficiaries as undeserving and illegitimate. Instead, we should “shift. . . the model of selection from prediction to performance. . . . So instead of making opportunity depend on a strong prior showing of qualification, we should expand opportunities as a way of building the relevant qualifications.”

This article, together with a collection of responses from noted scholars, was published in August by Beacon Press as the book Who’s Qualified? Next February, Guinier has another book coming out, The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy, written with University of Texas law professor Gerald Torres.

“That book is really an effort to reframe the conversation about race,” says Guinier. Rather than trying to ignore racial difference in an attempt to treat everyone the same, she says we should recognize that race serves as an indicator of social inequities that cut much deeper. “We’re arguing that race plays that role,” says Guinier. “It’s a diagnostic that alerts us, if we allow it.”

Late last summer, I sat with the 51-year-old Guinier and talked about merit, opportunity, and congressional redistricting. What follows is a transcript of our conversation, edited for length.

CommonWealth: In the collection Who’s Qualified?, you and Susan Sturm wrote about “The Future of Affirmative Action.” But I have to ask, does affirmative action have any future at all? Racial set-asides and preferences are getting rolled back by courts and voters all across the country. Here in Boston, the Boston Latin School was forced to give up its set-aside of 35 percent of new admissions for minorities–hardly an unreasonable quota in a school district where 85 percent of students are nonwhite. Racial preferences for state college admissions have been tossed overboard in states from Florida to California. Whatever happened to the legal and, to a lesser extent, social consensus that a long history of racial discrimination required race-conscious remedies? Is there enough left of that consensus to have a future?

Guinier: One of the things that Susan Sturm and I do in Who’s Qualified? is similar to the move that Gerald Torres and I are making in The Miner’s Canary. That is a move that says, if we really want to do something about the terrible injustice that this country has visited upon some of its citizens, it may not be enough to just fix the problems for the canary. In fact, the canary is the diagnostic that alerts us to problems affecting everyone. Our position. . .[is] that affirmative action has really not gone far enough in terms of identifying the fundamental unfairness of the present distribution of educational resources, as it affects everyone. And it has tried only to remedy that problem vis-à-vis people of color. It’s as if you take a system that is deeply flawed and you’re going to alter or modify a very small portion of it. Then that modification becomes the focus of everyone’s attention. In that sense, it’s almost a distraction.

For instance, think about Boston and the allocation of educational opportunity. Think of the exam school, Boston Latin. The Boston Globe had a really excellent mapping of the elementary schools that feed into Boston Latin, in August of, I want to say, 1999. It might have been 1998. I don’t recall. But it was in August. If you look at that mapping, you will see that there are some elementary schools that are actually feeding students to Boston Latin and to the other exam schools. Those elementary schools I believe were between six and eight, in the entire city. That means that a public school system that’s being supported by all of the taxpayers of Boston is somehow only working in six or eight elementary schools. It’s not just that black students or Latino students are being left out of the process of being trained to go to Boston Latin. There are working-class white kids at elementary schools that are not feeding into Boston Latin. The real problem is the way in which we’re allocating educational opportunity in a publicly funded system.

“Our claim is that you really need race in order to see class.”

Looking at what’s happening with the black and Latino students, again, becomes the canary. . . . We don’t tend to notice class differentials the way we notice race differentials. That’s not to say that class differentials are more important. It’s just that those tend to be less visible. Our claim is that you really need race in order to see class. You want to start with race and follow what’s happening to the students of color. That will help you to see the deeper inequities that are affecting everyone.

So in terms of affirmative action, to just remedy a system in which only six to eight elementary schools are feeding into Boston Latin by saying, “Oh, we’re going to have a set-aside for kids of color,” doesn’t really get at the fundamental question. That is, why aren’t more elementary schools feeding into Boston Latin? Why is Boston Latin using a particular test for a cut-off for admission? Is that test, in fact, the fairest way and the most reliable way of identifying who can take advantage of Boston Latin? What are the goals of Boston Latin? All of this needs to be put on the table. Yet, none of it is.

CommonWealth: So tell me about the more fundamental inequities that have to do with affirmative action in higher education and employment.

Guinier: Okay. In higher education, I know more about the tests. . . . Here, I’m not talking about achievement tests. I’m not talking about the tests that give you feedback on what you’ve learned. I’m not talking about tests that teachers give you to figure out what they’ve taught. I’m talking about aptitude tests, tests that are supposed to predict your performance in the future based on your performance at a particular point in time. These are a snapshot, presumably of your aptitude, not of your accomplishment, in context.

I actually did a study of women at the University of Pennsylvania Law School. Now, this was done with other collaborators–you may think that I like collaborating; that’s what you should think–I ended up looking at the LSAT [Law School Admission Test] scores of all of the students at the University of Pennsylvania Law School, over a four-year period. . . . We found that the LSAT was a very weak predictor of first-year grades for all students. We started out looking at gender, but we found that the LSAT was not a good predictor of grades for anybody. Now, when I say not a good predictor, I’m not saying that it doesn’t predict at all. If you knew someone’s LSAT, 14 percent of the time you would be able to predict their first-year grades; if you knew someone’s LSAT, you would be able to predict their second-year grades 15 percent of the time–which meant that 85 percent of the time, you’d be wrong. Now that’s not, to me, a very reliable predictor. Yet, we come to think about those tests as being a neutral measure of merit. So any deviation or departure from a strict reliance on ranking according to those test scores [for the purpose of affirmative action] is considered admitting less-qualified people. Well, our argument is, how do you know if someone is qualified based on their test scores, if the test scores don’t even predict first-year grades?

Then you step back and say, why just focus on first-year grades? Maybe we should look at how people do as lawyers. So the University of Michigan actually did a study of the performance of its graduates, over a 30-year period. . . . The most interesting finding of that study was that those who had the highest LSATs were the least likely to do public service. That is, they were less likely to sit on community boards or to mentor younger attorneys or to do pro bono work. And the students who had come in through affirmative action actually were most likely [to perform those public services]. The only other variable that affected your likelihood of doing public service work or pro bono work was years out of law school. The second most-important variable was whether you were black or Latino. That’s not to say that Michigan graduates did not do public service. It says that the students who were most likely to do public service were those who’d come in through affirmative action. [That] says to me that our notion of merit or our notion of qualification really needs to be interrogated, because we have assumed that we know what merit looks like. We assume that it looks like a score on a timed paper-and-pencil test.

One of the hypotheses about this is that the admissions committee that reviewed the files of the students who were coming in through affirmative action actually looked at the whole person. They looked to see how motivated they were, how much they had overcome, what evidence there was of leadership. So if you look for those qualities and you select for those qualities, then you’re more likely to get those qualities. We’re not saying that those are the only qualities you should look for. We’re saying that the question of who’s qualified really needs to be put on the table. We cannot assume that we know the answer simply based on someone’s performance on a timed paper-and-pencil test. Life is not a timed paper-and-pencil test.

CommonWealth: In fact, the responders in the collection raise a number of critical points about your critique of testing. One charge is that perhaps you overstate the role of tests in college admission, where test scores are only one factor, usually, in selective institutions, and especially in employment, where civil service-type tests are increasingly rare as the gatekeeper for jobs. I wonder if you’re also overlooking changes in the tests that are used. Colleges are increasingly discounting the aptitude versions of the SAT–the SAT I, which is the test most often criticized as discriminatory and also as not terribly predictive of ultimate success. But they’re putting more stock in SAT IIs, which are achievement tests that test students’ command of specific subject matter they have studied in high school. Similarly, the standards movement in education reform is increasingly forcing students to be tested on a curriculum that they supposedly have been taught. Don’t racial disparities in these types of test scores tell us something important about the education that poor minority students are or aren’t getting, particularly in city schools?

Guinier: Well, that’s not just one question.

CommonWealth: Fair enough.

Guinier: The first thing I want to say is that these tests, these aptitude tests, are discriminatory not just racially and not just against women–there is a lot of evidence that women don’t do as well on these standardized tests as they then do in college. These tests are discriminatory against poor and working-class white people. When people say, “discriminatory,” that tends to suggest they’re making an argument that somehow this only affects people of color. In fact, these tests are [most strongly related to] socioeconomic status. William Julius Wilson and others have done studies showing that the best predictor of your performance on these aptitude tests is your grandparents’ socioeconomic status. These tests are a form of intergenerational wealth transfer. I just want to make that clear. We’re not going after these tests simply because of what they’re doing to people of color. It all goes back to this theme: What happens to people of color is the most visible. If you look at it and you follow the line of inquiry to its source, you will discover there are many other people who are also being disadvantaged by something we are trained to think of as otherwise neutral.

So that’s the first. The second is that it is absolutely true that some selective colleges are becoming more skeptical about the use of these tests. But many of the public institutions, which have large numbers of applicants, are not discounting the tests. Frankly, I’m more worried about the way in which public universities distribute resources, because those are resources that are being paid for by all of the taxpayers. I think we have a right to scrutinize that selection process as citizens, as taxpayers, as people who are concerned about the health of our democracy.

Thirdly, in terms of the achievement tests, I think each test should be taken into context. The fact that some people aren’t doing as well on achievement tests is an indicator of a problem. I don’t deny that. The question is, what problem does it indicate? That’s really the core of the controversy. If you use even achievement tests to determine who’s going to get a chance to attend the flagship school at the University of Texas-Austin, the research universities in California, the University of Michigan–that suggests that somehow people earn their right to have a higher education. It’s not something that we want to distribute to everyone in as broad a fashion [as possible]. We have somehow divorced higher education from its democratic value. Higher education is certainly a means of getting a better job. It’s a means to network into a better set of friends who can then help you in terms of your career. But it’s also a way of providing citizens a voice, a critical voice, an education that can enable them to participate as citizens in a democracy. It is a training ground for leaders. These are aspects of higher education that we have really not recognized, in my view, or adequately recognized. If this is about training leaders, then we should want to have leaders that come from all walks of life and from all parts of a city or a state.

In Texas, for example, after affirmative action was thrown out by the Fifth Circuit [Court of Appeals], a group of black and Latino activists, legislators, and professors came up with a new proposal called the Ten Percent Plan, which the Legislature passed, which George Bush signed when he was governor. One of the reasons they were able to pass this law–which said that anyone in the top 10 percent of their high school graduating class was eligible for admission to one of the two flagship universities–was they were able to show to legislators representing rural white constituencies that none of their constituents had been admitted to the University of Texas-Austin or Texas A&M using the traditional measures. Very similar to what you see in Boston, in terms of the feeder school problem with the exam schools, in Texas there are 1,500 high schools and about 150 of them provided 75 percent of the entering class at the University of Texas-Austin. So there’s a disparity here in terms of how we’re making a resource available to all of our citizens. I don’t say that the Ten Percent Plan is a panacea. I’m not crusading for a particular remedy. I’m suggesting that this is a moment to really investigate the fundamental question that is lurking in the background, that we keep wanting to avoid.

“A lottery is arbitrary, but then so is what we’re doing now.”

I think that much of the reliance on these tests is a question of efficiency, not merit. . . . We have all of these people who want to come to the school. So admissions officers have to come up with some system for deciding, out of 10,000 applicants, how are we going to pick 5,000? Now, if efficiency is truly the driving value, then I say, use a lottery. A lottery is arbitrary, but then so is what we’re doing now. And the value of a lottery, in my view, is the message that it conveys to people who didn’t get in, which is they were unlucky, as opposed to they were stupid. The other value of a lottery–and I’m using lottery as a heuristic, more than as a prescription–is that it makes it clear that there’s not enough places for all of the people who want to go to school and who could, in fact, do well in school and could, in fact, use that education to make a contribution to the society. So the real problem is that we are not willing, as a society, to invest in education. . . .

CommonWealth: Nonetheless, even if we were to put more resources into making more opportunities available in higher education, as well as more opportunities for high-paying jobs, there is still the matter of how to distribute these opportunities. How should we be reinvestigating, as you put it, the notion of merit? Frankly, a lottery is arbitrary. In fact, it sort of punts on the question of merit. Isn’t it appropriate to say that yes, these are goods that ought to be earned?

Guinier: Well, that’s an interesting question. A friend of mine teaches philosophy at Harvard. He gave me an example–maybe this example doesn’t work; you can tell me. Think about a hospital. Would you want that hospital to only admit people based on how deserving they were [of treatment]? That they had lived a good life, or had been good parents? Or would you want the hospital to treat people based on their need? This person is in critical condition and needs to be in the hospital. The reason I thought that was a helpful analogy. . .is that merit depends on what the goal of the institution is. If the hospital is there to treat sick people then you want it to take in the people who are sick and who can actually use its services. But you first have to decide what the purpose of the hospital is. I’d say the same thing about an institution of higher education. What’s its function? What’s its goal? What are you trying to do with this institution? Why are you raising money from the taxpayers to fund this institution? Is it simply to give a credential to people who have worked hard in school and happen to have wealthy parents who have been able to give them SAT prep, send them to programs in Mexico in order to learn Spanish, and do other travel so that they appear well-rounded? Is that the group that you want public institutions to reward because they “earned” it? Or rather, is the goal of this institution something else? That’s what has to be put on the table. . . .

CommonWealth: How about employment opportunities? That’s one area where competition is unavoidable. Not everybody who wants to can be CEO of a corporation. There’s still the matter of how to provide opportunities in a way that do reward true merit and contribution to the institution, in this case the company, the firm, the organization. One thing you suggest is moving away from tests and other sorts of ostensibly objective qualifications that are taken as predictors of future job performance and toward more performance-based assessments and tryout opportunities, which give candidates a chance to show how they might perform if given a chance to do the job. Some of the responders to your piece raise the point that those sorts of subjective evaluations‹when somebody gets evaluated based on someone else’s assessment of their performance–have tended to disadvantage women and minorities, compared to more objective measures, such as test scores and years of experience or other formal credentials. Making those kinds of subjective judgments is when discrimination and stereotypes creep in to the decision-making process.

Guinier: Right.

CommonWealth: But I also wonder how realistic it is to expect not only companies but organizations to provide these sorts of elaborate, on-the-job trial-runs for prospective candidates?

Guinier: Well, again, that has a lot of parts to it. The commentator’s absolutely right. If you simply move the moment of discretion to a different place, and you have the same decision-makers exercising that discretion, they will continue to exercise it in a way that is familiar, comfortable. . . . So one thing you have to do is change who’s making the decision. You don’t give the prerogative to one individual, but rather you might have a group of people. That group has to be representative of all of the people being served by the company. [For] a public institution like the police force you’d want to have community leaders or representatives involved in some of these decisions and not just delegate it to a bureaucrat or to a commanding officer who has been exercising discretion in a single-minded way that enables him or her to reproduce themselves. Discretion needs to be monitored and it has to be held accountable. That’s absolutely correct. This is not about simply moving opportunities to discriminate under the table as opposed to on top of it.

I also think that while your question has this very strong and reasonable concern underneath it, that it again tends to move us away from the real problem. The assumption is that what we’re doing now somehow works–it works for most people; it just doesn’t work for these poor women or these poor people of color or these poor, marginalized people. My view, and the evidence that I’ve seen, is that the present system is not really working. If we think, for example, that Horatio Alger is in fact alive and well in the United States–since 1980, only 4 percent of people who are CEOs and running companies come from poverty. That was not true at the turn of the last century. In 1900, you had maybe 38 percent of people who do well–and I’m talking about very well–coming from poverty. So there was much more of an escalator effect. That’s no longer true. So we are thus operating under the assumption that all of these people who are running companies have gotten there because of their “merit,” as opposed to the people they know and the network that they’ve been part of. All of that is not only arbitrary, but discriminatory. Those networks are not intentionally discriminatory in a way that we have been taught by the law to think of as intentional discrimination. It’s unconscious. It’s discriminatory in the sense that you’re reproducing for yourself an environment in which you feel comfortable. The current term would be “cloning.”

CommonWealth: So how about the question of practicality? You give the example of the woman you call Bernice. She was a corporate lawyer who was able to win the job as chief counsel in a financial services firm on the basis of a nine-month chance to share a job with two other candidates for this position. That’s a real opportunity to show what you can do. But that’s also a pretty unusual situation.

Guinier: But again, that goes back to the point I was making before. Selection has to be an integral part of any organization’s function. It can’t be put in personnel. It can’t be put over to one side to be conducted by administrators who are primarily interested in efficiency, because that means we’re measuring efficiency in very short-term ways, and we are overlooking the ways in which we are externalizing all the things that make that particular approach inefficient. The second point I made is that that approach may be unfair, because it leaves out all these people who could, in fact, do the job, maybe even do it better. The third point, now, is it’s also inefficient if we were to bring in all the ways [the traditional process of selection] doesn’t work. For example, in San Diego, the sanitation department had a requirement that, in order to be hired, you have to be able to lift a certain amount of weight, because you have to be able to lift garbage cans. A number of women couldn’t lift that weight, so San Diego was not hiring women to be sanitation workers. You may say, “These women are nice people; they need a job. But why should we hire people who can’t lift garbage cans to be sanitation workers?” It turned out that many of the workers they hired could lift the garbage cans initially, when they were first hired. Over the course of a 10-year or 20-year career, they were no longer as capable. In fact, the city was spending enormous sums of money on disability payments for all of those workers who could no longer lift those garbage cans. So they looked at this and realized that they needed to have a different system for hauling the garbage. They started using some of the technology that airlines use to move baggage. More women could therefore get the jobs. [The department also] had fewer disability complaints. And overall, the city paid out less money. That, to me, is a more efficient system.

CommonWealth: I want to save a little bit of time to cover a different subject, and that’s congressional redistricting. This is a once-a-decade exercise, redistricting. It ought to have been pretty simple here in Massachusetts, where we’re retaining our 10 seats in the House of Representatives–no loss of seats, no need to combine districts. But we’ve managed to make a controversy out of it all the same. House Speaker Tom Finneran has put out a plan that had the political effect, it would seem, mainly of stealing Congressman Marty Meehan’s seat out from under him. But the plan is also advertised as having various merits. On the one hand, it replaces the snake-like districts of the current map with compact, contiguous districts that approximate coherent regions, especially in the southeastern part of the state, which has been, for the last 10 years, carved up into little pieces. The Finneran plan also creates a nominally majority-minority district in and around Boston. So on the one hand, the map has been praised by some as a thoughtful and sensible advance over the current political jigsaw puzzle. But it’s also been slammed for carving up the Merrimack Valley, where Meehan is based. And some minority activists have slammed the plan as well, saying the supposed majority-minority congressional district is a fraud: The voting age population of the district is less than 50 percent nonwhite, even though the population as a whole is over 50 percent nonwhite, and the traditional white-ethnic voters of the North Shore who have been drawn into the proposed district are less inclined to support a minority candidate than are the residents of liberal Cambridge, who are in the district now. Given that you say, in your law review articles, that at some level, all districting is gerrymandering, I wonder what your take is on our current redistricting dilemma.

“[Redistricting] is about the political agenda of the cartographer.”

Guinier: I am very skeptical of districting as a fair way of allocating political power, primarily because of who does the districting. Districting is not something that’s being done by the voters, who are districting themselves by the way they cast their ballots, or even districting themselves by where they move, because these districts change. There’s no stability in a particular district, because of the requirement of one person-one vote, the Supreme Court rule that says every 10 years you have to redistrict, and especially in congressional districts you have to redistrict as close to zero as possible, in terms of the difference between the number of people living in one district compared to the number of people living in another. Once you realize that districting is a scheme that politicians use to advantage themselves and to disadvantage their opponents, whether their opponents are members of the same party or a different party, then you have to step back from every effort and wonder, what is the districter’s agenda?. . . .It’s about the political agenda of the cartographer, who is usually a politician. I don’t think that politicians are bad people. I just think that they’re playing a game. The game is called districting. To me, democracy should not be about games.

CommonWealth: Well, let’s take Tommy Finneran’s game at face value, at least in one respect, and that’s the creation of a new 8th District that would be majority-minority, or at least over time become one, as the population ages. First of all, is this something we should be striving for? If so, how far should we go in order to achieve it?

Guinier: It’s very hard for me to answer that question, because I’m so skeptical of the rhetoric, of the explanations that are given for drawing districts. That’s one part; I’ve already said that. But there’s a deeper skepticism. . . . The project of districting itself, of trying to put people in a district where they will be able to elect a candidate of their choice or be influential and be represented and be engaged in an ongoing relationship with their representative and be able to have a say about public policy–that, to me, is a project that’s beyond the capacity of human beings.

So, having put those reservations on the line, if you were working within a flawed game, then yes, everyone wants to have a little piece of the action. If you’re working within a flawed game and there is a viable community of interest that is composed of people of color, who feel they have a common set of concerns, then certainly they should be the core of a district. But first of all, you have to realize that you’re working within a flawed game. The flaws extend way beyond whatever is visible or made visible by trying to create a majority-minority district. Secondly, you then have to examine the flaws of that game in conjunction with the claim that this is a majority-minority district. That’s where some of the evidentiary questions are. Is this in fact a district in which a particular community that has been fragmented in the past, yet has a coherent political agenda‹is this, in fact, a district that’s going to allow that community realize its political goals? I think that the evidence is out on that one.

CommonWealth: What are reasonable steps to take to provide that sort of opportunity? Some of the critics of this proposed new district talk as if the district had to be completely congenial to a minority candidate in order to offer a meaningful opportunity for minority representation.

Guinier: Here’s the problem with districting. This goes beyond just the power that districting gives to the person drawing the line. Even if you have this superhuman commission that draws lines that are perfectly compact, and everyone who’s in the district knows they’re in the district, wants to be in the district–you’re still going to have losers. That is, the district is going to be represented by only one person. That’s why it’s called a single-member district. The district elects a single member of the legislature–in this case, a single member of Congress. Unless that person is elected by unanimous consent, there will be people in that district who voted for someone else. Yet those people are presumed, the day after elections are held, to be represented by somebody they voted against. To me, that’s an oxymoron, that you should be represented by someone you did not choose. . . . So the claim that a district has to be of a certain percentage basically is a claim that if that group is going to be the group that wins, as opposed to the group that loses, they have to have a certain number of voters in order to be a majority. That’s just a simple mathematical point. That has nothing to do with race. It has to do with the fact that there’s a tension in districting. It’s an anti-democratic tension, because it is a system that invariably will have losers, who will invariably be represented by someone they did not vote for.

CommonWealth: You have a wonderful phrase for describing this. You write: “Districting is, in essence, the process of distributing wasted votes.”

Guinier: Yes.

CommonWealth: By wasted votes, you mean that the ballots of voters that are never cast for winners, because they disagree with majority sentiment.

Guinier: In that particular community.

CommonWealth: In that district, however arbitrarily drawn. So how do we stop wasting votes?

Guinier: There are two ways. One is that you say, every district should be competitive, so that we don’t know who’s going to be the winner nor who’s going to be the loser. Therefore, it’s a fight to the finish, and everyone has an incentive to come out [and vote], because they might be the winner. Indeed, it’s so close that the district changes hands several times over a 10-year period.

CommonWealth: Incumbents aren’t going to like that idea.

Guinier: No, they will not. In fact, I think there were three congressional districts in which that was true, between 1990 and 2000. If not three, a handful. So that doesn’t seem to be a very realistic possibility. I don’t know that that’s an ideal, but it’s certainly a system in which you would at least be making sure that the same group of people isn’t always wasting their votes. This idea of being in some sense permanently cast as losers is deeply offensive to me. But look around the world. How do most democracies allocate political power? Do they use single-member districts, winner-take-all? No. The only countries that do are former colonies of Great Britain.

So we are a minority. We are a shrinking minority, and we do not represent the future. We represent the past, in our choice of territorial districting. Now, there are some countries, like Germany, which use a mixed system. They use some districts, but then they also use something called proportional representation. Just uttering the words is dangerous in this society, because people assume you mean quotas, you mean something that’s unfair. In fact, it is the opposite, in the context of democracy.

Meet the Author

Proportional representation means that the legislature reflects the percentage of people who voted for the particular individuals in the legislature. In our system, you would be the loser if you got 30 percent of the vote. In a proportional representation system, your party or your team would have 30 percent of the seats in the legislature. You would not be the loser; you would be the minority within the legislature. You would not be absent, entirely, from the legislature. That’s the difference. Do you want to have a system in which only those that win 51 percent of the votes are represented in the legislature and those people who get 49 percent of the votes are absent, not represented, their voices not heard? Or do you want to have a system in which the seats in the legislature are allocated based on the percentage of votes cast in the electorate?

There are lots of advantages to this. It can mobilize more participation, because people know they’ll be represented by somebody they actually voted for. It tends to open up the political process to more political parties, not just two, which I happen to think is a good thing, because I don’t think the Democrats and the Republicans represent all manner of views [in society]. Indeed, having just two parties tends to polarize things. You either have a right answer or a wrong answer, as opposed to a third answer that might be a little bit of each. Now, proportional representation is not a panacea. But it is at least a way of seeing that our commitment to winner-take-all, single-member districting is not the most democratic. We can do better.