Introduction

One nagging issue that has bedeviled political thinkers relates to the tension between majority and minority interests in a democracy.  This debate has seen new life in recent years through a partisan lens.  Democrats lament the fact that two out of the last three Republican presidents won with fewer popular votes than the Democratic candidate.  Similarly, Democrats point to the U.S. Senate as an anti-majoritarian institution since each state has two senators whether its population is 580,000 (Wyoming) or 40 million (California).  Calculations show states represented by Republicans have far smaller populations than those represented by Democrats.  Even more contentious is the Senate filibuster rule, which requires 60 votes to bring closure to debate on a bill.  Without such closure, a bill can never advance to become law.  Once used rarely, the filibuster has evolved into a weapon by a minority over majority interests.  The debate rages on.

But the tension over majority and minority rights is not so easy to resolve – at least not as easy as defaulting to a winner-take-all, majority principle.  How we look at this tension in democracy often depends on each person’s vantage point.  Do we identify with the minority or majority interest?  And sometimes the minority is a powerful group protecting an unjust system.  Other times, a minority may be a group experiencing discriminatory or other harmful actions by a majority.  Finally, minority interests come in a myriad of forms, including ideology, class, religion, social status and sexual preference to name a few.  The diversity of minority interests can push any universal principle beyond our grasp.

Nevertheless, the tension between majority and minority interests in democracy merits serious attention.  Given that one of democracy’s central innovations and advantages over other forms of government relates to its ability to channel conflict in a productive way, political theorists have spent considerable energy on this issue.  John Adams coined the term “tyranny of the majority” when arguing against a unicameral legislature, but the concept has been applied more broadly to the abuse of a minority by a majority.  The unfair treatment of minorities can erode trust, undermining the cooperation needed during the transition of power from one election to the next.  It threatens to create a permanent group alienated from society, requiring resources to manage potential conflicts.  At its most extreme, tension between a majority and a minority can destroy the union of a nation and lead to civil war.

This essay looks at how this tension relates to electoral design.  It explores the work of John C. Calhoun, Thomas Hare and Lani Guinier, who all had very different motivations but also struggled over the conflict between majority and minority groups within a democracy.  Each one saw how a winner-take-all electoral system can disadvantage the political power of minority groups.  In general, they formulated two approaches: one reforming the structure of the electoral system to ensure a level playing field and the other encouraging more direct interventions in government.  Ultimately, these theorists laid the foundation for a significant innovation in democracy by answering two fundamental questions:  Is it enough for individuals to express their views through the ballot or should groups have an equal chance at representation?  If group interests do have relevancy, how can the design of the electoral system advance such interests without undermining majority rule?

The Madisonian Framework

Essay Three described the Founding Fathers’ view of conflict and the importance of managing it in a democracy.  Madison articulated two mechanisms to prevent a triumphant majority from abusing minorities.  The first mechanism was a system of checks and balances in government itself.  The Constitution created co-equal branches of government and reserved most powers for the states.  The very structure of government would mirror a diffuse society “broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.”

The second was his conception of representative democracy itself.  In Federalist 10, he advocated for a large republic to ameliorate powerful factions.  He noted, “A republic, by which I mean a government in which the scheme of representation takes place, … promises the cure for [factions].”  He continued:

Extend the sphere and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other.

Madison did place some limits on the extent of such sphere:  “By enlarging too much the number of electors, you render the representative too little acquainted with all their local circumstances and lesser interests.”  But if the sphere is too small, “you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects.”  In sum, Madison looked to an expansive republic, which captures a multitude of interests, as a brake against the potential abuse by majorities over minorities.  Of course, the “many parts, interests, and classes of citizens” comprised a small sliver of society at this time.

John C. Calhoun:  Protecting a Vile Institution

In one of the great ironies of political thought, a champion of slavery, John C. Calhoun, charted a new theory about how democracies can protect minority interests.  His writing on this topic caused other political theorists to explore alternatives to the winner-take-all voting systems ultimately producing variants of proportional voting.  Calhoun rose quickly to political prominence.  Born to a slave-owning family in South Carolina, he attended Yale and graduated valedictorian in 1804.  Despite Calhoun’s early support for a strong national government, he gravitated towards states’ rights as the economic foundations of the North and South diverged – one based on emerging industries and the other based on the labor of enslaved people.

Calhoun served as vice president under both President John Quincy Adams and Andrew Jackson.  Calhoun’s tense relationship with Jackson worsened toward the end of Jackson’s first term over the issue of tariffs.  New England states pressed to raise tariffs against imports from Europe to protect fledgling industries in the North.  However, Southern states, and their slave-based economies, depended on strong exports to Europe.  After passage of the Tariff of 1828, Calhoun anonymously wrote “South Carolina Exposition and Protest.”  In it, he argued that any state could nullify federal laws that went beyond the enumerated powers in the Constitution.  After passage of the Tariff of 1832, Jackson threated to hang Calhoun and anyone else who endorsed nullification. In response, Calhoun resigned and ran for an open senate seat in South Carolina, beginning a long career in the U.S. Senate.

As Calhoun advanced in age, he increasingly focused his mind on preserving the vile institution of slavery and the powerful minority group that depended on it.  To further this goal, he devised his theory of nullification and an early form of the Senate filibuster rule.  Calhoun set forth his most elaborate thoughts in A Disquisition on Government completed at the end of his career and published after his death.  In it, Calhoun articulated the idea of the “concurrent majority,” which had a major impact on political theory.  In contrast to Madison, Calhoun lacked faith in the ability of a republic to manage the excesses of majorities.  He wrote, “government, although intended to protect and preserve society, has itself a strong tendency to disorder and abuse of its powers….”  The source of this tendency stems from our selfish nature:  “the individual [feelings] are stronger than the social feelings.”  Therefore, any power vested in those serving in government, “will, if left unguarded, be by them converted into instruments to oppress the rest of the community.”

A central part of Calhoun’s thesis relates to his distinction between a “numerical majority” and a “constitutional majority.”  The former refers to the existing winner-take-all voting system that simply looks at the numerical output of voting within “the whole community as a unit having but one common interest throughout.”  He exposes a flaw in this system because it treats the majority in an election as reflecting all interests in society.  He writes:  “the numerical majority, instead of being the people, is only a portion of them.  [S]uch a government, instead of being a true and perfect model of the people’s government, that is, a people self-governed, is but the government of a part over a part – the major over the minor portion.”  Predating Duverger by a century, Calhoun understands how a winner-take-all system can cause polarization or negative partisanship:

It is not wonderful then that a form of government which periodically stakes all its honors and emoluments as prizes to be contended for should divide the community into two great hostile parties; or that party attachments, in the progress of the strife, should become so strong among the members of each respectively as to absorb almost every feeling of our nature, both social and individual; or that their mutual antipathies should be carried to such an excess as to destroy, almost entirely, all sympathy between them and to substitute in its place the strongest aversion.

In such a system, “devotion to party becomes stronger than devotion to country.”

In contrast to a numerical majority, Calhoun describes a “constitutional majority” that considers “the community as made up of different and conflicting interests.”  A constitutional majority is one that has the restraint necessary to protect minority interests.  The mechanism to accomplish such restraint is the “concurrent majority:”

There is, again, but one mode in which [the concurrent majority] can be effected, and that is by taking the sense of each interest or portion of the community which may be unequally and injuriously affected by the action of the government separately, through its own majority or in some other way by which its voice may be fairly expressed, and to require the consent of each interest either to put or to keep the government in action.  [This can be accomplished] by dividing and distributing the powers of government, give to each division or interest, through its appropriate organ, either a concurrent voice in making and executing the laws or a veto on their execution.  (emphasis added)

In this passage, Calhoun identifies two very different approaches to produce a concurrent majority:  one giving minorities a seat at the table and the other according them a veto power over majority decisions.  These two prescriptions become a recurrent theme when discussing minority rights in a democracy.  Unlike a numerical majority, this alternative system generates harmony according to Calhoun.  “By giving to each interest, or portion, the power of self-protection, all strife and struggle between them for ascendency is prevented.”  Since the threat of tyranny from a winner-take-all system is removed, “each sees and feels that it can best promote its own prosperity by conciliating the good will and promoting the prosperity of the others.”

Calhoun did not offer specific reforms to achieve his vision.  His notion of a veto on majority rule was a blatant effort to protect Southern interests.  However, his description of a system that can identify “the different interests, portions, or classes of the community” marked a step toward proportional voting.  A voting system that can “collect the sense of the community” so that “every individual of every interest might trust, with confidence, its majority or appropriate organ against that of every other interest” describes an important aspect of the proportional system.  Voters with common interests can find their own majority by joining together.

Calhoun predicted a civil war more than a decade before its outbreak.  Slavery increasingly split the U.S. into a growing majority of citizens who wanted it banned and a minority who would never accede.  Such a collision course subverted the ideal espoused by Madison where majority and minority interests can coexist in an ever-changing society.  Slavery was too powerful a dividing line to permit such resolution.  Calhoun devised a range of creative ideas to support the continuation of an abhorrent institution.  His theory of a concurrent majority offered a way democracy could possibly avoid the looming conflict – by giving a slave-owning minority veto power over the central issue of that time.  Several years later, Lincoln prophetically issued his rebuttal:  “A House divided against itself cannot stand….  It will become all one thing or all the other.”  Sometimes the division separating a majority from a minority is so deep and the cause so just that resolution rests on acceptance of the majority’s position or else war.

Thomas Hare:  Providing An Equal Voice for Minorities

A Disquisition on Government had a powerful influence on political thinkers at a time when other democracies were seeking to establish strong representative governments.  One of those paying close attention to Calhoun was political theorist Thomas Hare.  Hare was admitted as a student to the Inner Temple in 1833 and practiced in the chancery courts.  As a member of the Conservative Party, Hare was elected to British Parliament but resigned in 1846.  He joined a group that splintered from the Conservatives known as the Peelites after Robert Peel.  Peelites favored free trade over protectionism.  Hare refused to join the Liberal Party, preferring to remain independent.  He devoted the remainder of his life to electoral reform.

As relayed in the last essay, Hare is the father of proportional voting.  He wrote his influential Treatise on the Election of Representatives, Parliamentary and Municipal less than a decade after A Disquisition on Government.  This book reflected on the experience from the 1832 Reform Act, which significantly overhauled the districts or “boroughs” which elected members to Parliament.  Calhoun’s distinction between a numerical and constitutional majority helped Hare to see the shortcomings of these earlier reforms.  Hare acknowledged a debt to Calhoun who “employed his latest hours and his most elaborate efforts, in a work designed as a warning against the dangers of that absolutism which would result from committing the destinies of the country to the uncontrolled government of the numerical majority.”  However, unlike Calhoun, Hare was not motivated by a desire to protect an entrenched and powerful minority interest from a majority adverse to it.

Instead, Hare envisioned how representative democracy could treat all interests more equally and reflective of the population.  Consequently, Hare took Calhoun’s distinction between a numerical majority and constitutional majority in a different direction. This was a time when many political leaders in Britain saw a need to reform Parliamentary elections due to the wide disparities among districts.  Some reformers advocated a more equal division of electors in geographic districts.  Hare had a different perspective.  He was troubled by the fact that a numerical majority in each district could extinguish widespread, legitimate community interests dispersed among multiple districts such that “detached minorities … have no means of meeting their adversaries in the representative council….”  Hare knew there would be resistance to giving minorities a voice, but the unfairness of the winner-take-all system propelled him:

Those who, in this country, or who in establishing representative institutions in the colonies, have advocated the policy of conferring on minorities some power of securing, at least, a partial representation, have been stigmatized as unsound reformers, – as enemies to the sovereign will of the majority.  The majority which is meant is not the true, and, as it is termed by Mr. Calhoun, the concurrent and constitutional majority of the nation, – the result of a free and comprehensive organization of all interests, and all opinions, but the majority of mere numbers, at whose shrine all interests, and all opinions, are to be immolated.

With the framework of a numerical and constitutional majority in mind, Hare set to work on a new system of voting – one that could advance the equality of all interests in a representative democracy.  But rather than protecting minorities with a veto power in government, Hare focused on giving minorities a voice in representative democracy.  He argues that geographically-based districts – even ones that follow city and county boundaries – cannot adequately represent the interests of voters:  “There is, however, no such indissoluble bond uniting together the dwellers in every borough.”  “The people of this country have always evinced great reluctance to be arbitrarily parceled out … like a chessboard.”  On the contrary, a voter “is not precluded from choosing his friends or associates beyond the boundaries of his own borough; and there does not seem to be any sound reason why he should not be allowed, with a like freedom, to seek elsewhere his fellow constituents.”

Hare realized the unfairness minorities face when forever trapped in a district unreflective of their views.  To liberate voters from such a geographic trap, Hare devised the single transferable vote.  This voting system lowers the threshold needed to win seats and expands the universe of voters with multi-member districts, making it easier for minorities to gain a voice in Parliament.   This system treats all interests fairly.  No group has a guarantee of representation.  If “an elector be unable to find any constituency with whom he can concur, it must be owing to the singularity or eccentricity of his political views, and the unrepresentative minority is reduced to the smallest limits….”

Like Madison, Hare had faith in democracy.  He believed conflict could be managed through the electoral system if diverse interests, including minority groups, operated on a level playing field.  “Numerical majorities” in a geographic district cannot fairly reflect the range of views in society, which are distributed unevenly across districts.  By eliminating the ability of politicians to “exhaust themselves in ingenious contrivances to parcel the electors into such divisions that some may neutralize others,” Hare redefined the concept of representation.  Hare created a voting system that, as suggested by Calhoun, could take “the sense of each interest or portion of the community” and thereby allow minority interests to gain influence when they are freed from a small district and can coalesce with sympathetic voters across a larger area.  Not only did this new system give minorities a voice, it gives every voter a sense of power – “to see and feel that he is personally responsible for what he does.”

Lani Guinier:  Advancing Civil Rights

A civil rights scholar and the first woman of color appointed to a tenured professorship at Harvard Law School, Lani Guinier has advanced new theories relating to minorities and majorities in a democracy.  As a child, Guinier set her sights on a career in civil rights after watching the news as James Meredith was escorted into the University of Mississippi as its first Black student.  After graduating from Yale Law School in 1981, Guinier joined the NAACP Legal Defense and Educational Fund.  Guinier quickly established herself both as an attorney in the courtroom and as a scholar in the classroom.

Unfortunately, many know her as an early casualty of the culture wars when an outcry from different quarters caused President Clinton to withdraw her nomination as assistant attorney general in charge of the Civil Rights Division.  The media often mischaracterized her ideas.  She endured racist and dismissive comments as a “quota queen” – a thinly veiled reference to Reagan’s pejorative term for welfare recipients. After that painful experience, Guinier compiled much of her work in The Tyranny of the Majority:  Fundamental Fairness in Representative Democracy.  In it, she includes several of her law review articles and provides context to the remedies she pioneered.

These writings reflect the fact that Guinier began her career at a time of significant backlash against the Voting Rights Act.  No longer able to use literacy tests, poll taxes and other tools to prevent voter registration, white politicians looked to erect new barriers to Black political power.  The winner-take-all voting system provided a useful tool to accomplish that.  A key tactic of officials was to draw districts in a way to dilute Black voting power.  For example, governments switched from district seats to at-large seats.  Local districts where Blacks comprised a majority of voters were replaced by at-large districts where whites made up over 50% of the voters.  This permitted white candidates to win every single seat.  These tactics led to an amendment of the Voting Rights Act in 1982.  Lawmakers extended its reach beyond voter registration to cover “qualitative vote dilution.”  Now courts could consider ways to provide Blacks a realistic opportunity to elect candidates of their choice.

As Guinier searched for legal tools to counter tactics by white officials, she arrived at the source of the problem:

This history of struggle against tyrannical majorities enlightens us to the dangers of winner-take-all collective decision-making.  Majority rule, which presents an efficient opportunity for determining the public good, suffers when it is not constrained by the need to bargain with minority interests.  When majorities are fixed, the minority lacks any mechanism for holding the majority to account or even to listen.  Nor does such majority rule promote deliberation or consensus.  The permanent majority simply has its way, without reaching out to or convincing anyone else.

This passage suggests that minority and majority status can be “fixed” and “permanent.”  Such a view leads Guinier toward the concept of concurrent majorities espoused by Calhoun.  However, instead of giving minorities veto power in government, she suggests that governmental action may, in certain cases, require a super-majority vote.  The media and lawmakers attacked Guinier for this view.  They missed the fact that she saw it as a court-mandated remedy in extreme situations.  In fact, the Reagan Administration imposed supermajority voting on the City of Mobile where white elected officials had a simple majority lock on decision making.  By requiring a supermajority vote, Black representatives could have a voice in governmental decisions.

In another essay, “Groups, Representation, and Race Conscious Districting,” Guinier turns her attention toward the electoral system similar to Thomas Hare.  She wrote this piece at a time when state legislatures were drawing minority majority districts such as North Carolina’s infamous 12^th Congressional District that ambled along Highway 85 held by Rep. Mel Watt.  These majority minority districts were well intentioned — designed to help ensure Black representation.  However, Guinier exposes the trouble with addressing racial inequity through single member districts.

She points out the manifold invalid assumptions with this approach:  Just because the district has a Black representative does not mean other groups in the district are adequately represented.  Also, just because this district has a Black representative does not mean that person can adequately represent Blacks in all the other majority white districts in the state.  Finally, just because the district has a Black representative does not mean any intra- and inter-minority conflicts within the district are resolved.  She writes, “race-conscious districting incorporates a static, somewhat monolithic, view of representation that, after the initial drawing of a majority minority district, diminishes the subsequent importance of broad authority from a consenting group of participants…. [R]ace-conscious districting arbitrarily reduces voters to their ethnic or racial identity and then only represents that characteristic in a way that isolates or balkanizes the population.”

Guinier then turns to the source of the problem.  “But the real complaint is not with the race consciousness of the districting, but with the districting process itself.”  As an antidote, Guinier looks to proportional voting:  “Everybody’s vote should count for somebody’s election.  Voters are directly represented only if they actively choose who represents their interests.”  By freeing voters from the constraints of a geographic district designed for a particular race, “[proportional voting] gives voters the opportunity to associate with the identity that fits their own view of psychological, cultural, and historical reality.”

Guinier notes all of the benefits that come with proportional systems.  Voter participation increases as wasted votes decrease.  More diverse, interest-based political coalitions allow for a deeper and more robust discourse.  Giving minority groups a voice in government affords these interests legitimacy and the potential to participate in coalition governments.  She weighs the potential for paralysis that could come with proportional systems against the alienation associated with a winner-take-all one and concludes, “that exclusiveness is a greater evil than controversy, that passivity does not equal contentment, and that differences need not be permanently enshrined in the electoral configuration.”  She concludes that “By directly confronting the problem of wasted voting [in a majority system], we may make the system more legitimate from the perspective of previously disenfranchised groups and more fairly representative of issue-based groups who previously have been aggregated and silenced within the majority.”

As a civil rights attorney, Guinier focuses on legal responses to specific violations of statute.  She understands a majority voting system can be easily weaponized to hurt minorities.  But she does not set out to reform the entire electoral system.  She is looking for a judicial remedy and suggests a proportional system known as cumulative voting.  Used most commonly by corporations for the election of board members, this system gives voters a number of votes to use as they choose multiple seats.  They can use all votes to support a particular candidate or spread them evenly across multiple candidates.  This system has not been employed widely by electoral designers, and it has shortcomings as a voting system.  Most importantly, voters have no way of knowing how many votes are required to gain a seat and may waste votes unnecessarily in the hope of seeing a minority candidate win.  Regardless, this system guarantees no group a quota.  In fact, it requires parties to organize and compete for seats on an equal basis in contrast to a winner-take-all system where the outcome of an election can be predetermined by the drawing of district lines.  Guinier dared to advance ideas that challenged convention and paid a price.  In light of the current threats to democracy, her thinking deserves careful consideration.

Conclusion

The threat posed to minorities by an over-zealous majority has captured the attention of political theorists since the founding of this nation.  The motivations of these theorists have been vastly different – protecting a powerful minority group resisting social change, providing a way for minorities to have an equal voice in government, and advancing the civil rights of a disenfranchised group.  Despite these divergent motivations, political thinkers have identified the winner-take-all voting system as the primary means for suppressing minority interests unfairly, and at time recklessly.  In response to this threat, two strategies emerged to protect minority interests.  One strategy – giving minorities a mechanism in government such as a veto over majority decisions – turned out to be a dead end.  While the U.S. Senate continues to hold onto the filibuster as a way to enhance the power of a minority, such devices do not help ameliorate conflicts between majorities and minorities but can worsen them due to the potential for abuse, particularly when operating within a polarized environment spawned by a winner-take-all system.

The other strategy – proportional voting – has proven a more effective way to manage the tension between minority and majority interests.  It does not artificially inflate the power of minorities to block the majority.  It treats all voters equally but provides a way for minorities to get a seat at the table in government.  By giving minority groups a voice in government, minorities and majorities can interact and at times form coalitions on issues.  The majority, however, ultimately rules, avoiding gridlock.  For these reasons, proportional voting marked an advancement in electoral design.   It strengthens the two key innovations associated with democracy.  It helps channel conflict in a productive direction by permitting minorities to “[meet] their adversaries in the representative council.”   It also more accurately reveals the collective mind of voters by freeing minority interests from the distortions created by limited geographic districts and showing the level of support for minority interests over a much larger area.  In sum, one of the great innovations in representative self-government arose from creative efforts to find an appropriate balance between minority interests and government based on majority rule.

Mack Paul is a member of the state advisory board of Common Cause NC and a founding partner of Morningstar Law Group.

Parts in this series:

Introduction: Building Democracy 2.0

Part 1: What Is Democracy and Why Is It Important?

Part 2: How the Idea of Freedom Makes the First Innovation Possible

Part 3: The Second Innovation that Gave Rise to Modern Democracy

Part 4: The Rise and Function of Political Parties – Setting the Record Straight

Part 5: How Political Parties Turned Conflict into a Productive Force

Part 6: Parties and the Challenge of Voter Engagement

Part 7: The Progressive Movement and the Decline of Parties in America

Part 8: Rousseau and ‘the Will of the People’

Part 9: The Dark Secret of Majority Voting

Part 10: The Promise of Proportional Voting

Part 11: Majorities, Minorities and Innovation in Electoral Design

Part 12: The Misdirected Attempts at Electoral Reform in the U.S.

Part 13: Building Democracy 2.0: The Uses and Abuses of Redistricting in American Democracy