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Guinier's Ideas Viewed as Largely Theoretical : Nominee: In her 'academic' article on voting rights, the conclusions she reaches appear to be tentative.

June 05, 1993|DAVID G. SAVAGE | TIMES STAFF WRITER

WASHINGTON — C. Lani Guinier's 77-page article in the Michigan Law Review does not make for easy reading.

It is, as its author admitted Friday, an "academic, very ponderous (and) very nuanced" treatise on the ideas and assumptions that have motivated voting-rights litigation since 1965.

Nor is it the kind of article many people, let alone the President of the United States, would choose to read on a spring afternoon.

Yet Bill Clinton spent part of Thursday doing just that and cited the article as a reason for withdrawing her nomination.

Guinier's writings "clearly lend themselves to interpretations that do not represent the views I expressed on civil rights during the campaign," Clinton told reporters Thursday night. She "seems to be arguing for principles of proportional representation and minority veto as general remedies that I think are inappropriate as general remedies, anti-democratic and very difficult to defend."

Unquestionably, the words in Guinier's article could have thrown more fuel on the already fiery controversies over civil rights policy.

At one point, for example, she says that the Voting Rights Act does not merely protect a black person's right to vote but should be wielded to ensure "just results" in the political system for "America's subjugated minorities."

And unlike many civil rights activists, she seems unimpressed with the election of more black representatives, deriding the trend as a "triumph of tokenism."

"As a general rule," she writes, "whites do not vote for blacks."

Yet, for all that, most of her writing is not provocative or pointed. Her ideas are mostly theoretical and her conclusions tentative.

"I simply invite voting rights activists and litigators to consider," she writes, "a different conceptual, remedial and pragmatic approach" to furthering the goals of the law. "I am not articulating a grand theory of politics. Nor do I argue that these proposals are statutorily or constitutionally required."

Her most controversial notion is that the Voting Rights Act applies not just to ordinary voters but also to votes by elected officials. That issue, however, was effectively rendered moot by the Supreme Court last year, 10 months after Guinier's article was published.

In 1991, lawyers for the NAACP Legal Defense Fund had appealed to the high court when white officials in Etowah County, Ala., stripped newly elected black county commissioners of their power to control road maintenance within their districts. They were joined by attorneys for the George Bush Administration who agreed that black voters were denied their right to vote if the white majority could nullify the power of newly elected blacks.

But on a 6-3 vote in Presley vs. Etowah County, the court ruled that the Voting Rights Act applies only to matters of voting and elections, not to the actions of elected officials.

As Clinton said, Guinier does indeed propose "proportional representation" as a new theory to guide voting-rights lawsuits. The law should be read to give minorities a "meaningful voice" in government, not just the right to cast a ballot, she says.

She says she does not propose these notions as a "general remedy" for most of America. It is rather an alternative solution in areas where voting follows strictly racial lines.

She cites this example: "Suppose a jurisdiction contained two kinds of people: the yellow and the blue." The blues make up 25% of the voters, the yellows 75%.

In the 1980s, voting rights lawyers would have tried to carve out a mostly "blue" district so a blue person would be virtually guaranteed election to the city council. But the three yellow representatives would then have no incentive to pay attention to the wishes of blues, she says.

Guinier suggests, instead, that the city form a single district represented by four council members. Each voter would be given the opportunity to cast four votes, all of which could be cast for a single candidate. Presumably, the blues could elect one representative. But in addition, the council may get a "green" representative, too, someone who sought votes of both yellow and blue voters.

This approach protects minorities and encourages "cross-racial coalitions" in voting, she writes, and is more likely to produce a council that takes into account the interests of all voters, blue as well as yellow.

"Each legislator would be elected from the entire constituency," she writes. "By giving dignity to strongly held sentiments of minorities, interest proportionality principles may also produce more reasoned, just decisions."

But, she added, if this reform still did not impel the majority to bargain with minorities, minority representatives could be given a veto over "legislation of vital importance to minority interests" or legislatures might be required to adopt "supermajority" provisions that would allow bills to pass only if a majority of the minority, as well as a majority of all other representatives, approved them.

Although Guinier in her public appearances this week has emphasized her support for cross-racial legislative cooperation, in her article she says that such coalitions "are only possible between relatively equal groups" in legislative bodies "where majoritarian controls are modulated."

In her press conference Friday, Guinier agreed that her writings were often unclear and subject to vastly different interpretations. In words that could have been uttered five years ago by Judge Robert H. Bork, the University of Pennsylvania law professor warned about the danger of political attacks that "distort (and) caricature" academic writing.

"I hope that we are not witnessing," she said, "the dawning of a new intellectual orthodoxy in which thoughtful people can no longer debate provocative ideas without denying the country their talents as public servants."

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