Modern Law Review: Beyond Electocracy: Rethinking The Political Representative As Powerful Stranger
Modern Law Review: Beyond Electocracy: Rethinking The Political Representative As Powerful Stranger
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Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Beyond Electocracy
independent judgment.2 And we all know, other Lords said, the people are sick of
politicians. A hereditary elite, they argued, is a more reliable source of wisdom
and a more vigilant protector of the greater good.3
In this essay I take the question debated in the House of Lords seriously. Do
more elections produce more democracy? I answer that question with a quali¢ed
negative: rule by elections, or what I have come to call ‘electocracy’, does not ade-
quately serve the values of democracy. By electocracy I mean a political environ-
ment that de¢nes itself by sacred moments of choice. The act of choosing in a
competitive contest produces a clear winner. By casting their ballots, citizens
bestow democratic accountability on the victor. At the same time, who wins the
contest is even more important than who votes. And who votes is more important
than the quality and quantity of citizen participation in, or the policy conse-
quences of, other important political acts of self-government such as deliberation,
persuasion or collective mobilization.
My argument is that a preoccupation with elections ^ especially in a winner-
take-all environment ^ does not achieve the robust democratic accountability it
promises.While modern ideas about representation suggest that the representative
is bound in some way by the will of the represented, representatives were histori-
cally selected to bind their constituents, not the other way around.4 Consistent
with that history, our electocracy too often serves to convert political o⁄ce into
a form of hereditary privilege.
As the pivotal decisional event, elections ^ or even‘re-elections’ ^ fail as the pri-
mary source of democratic accountability. First, elections too easily encourage a
form of aristocratic deference.Voters are tutored to limit their authority over the
o⁄cial to one sancti¢ed moment of choice. The process teaches them to yield to
the judgment, character or vision of the elected o⁄cial until the next election.
Second, the process in£uences representatives to see themselves as agents of their
donors rather than of their constituents. Those who fund elections enjoy contin-
uous contact with the o⁄cials. By contrast, voters are not well positioned ^
between elections ^ to in£uence the connections between Election Day decisions
and their consequences.5
Third, the process of districting in winner-take-all electocracies, such as
in the United States, shifts the actual moment of choice to the politician and
away from the voter. Incumbent politicians control the drawing of election
district lines; they choose their voters rather than the other way around. The
real election takes place long before the voters come to the polls. Con¢dent of
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Lani Guinier
6 Nor do I suggest that it is the number of elections that are the problem. The argument ^ that it is
the proliferation of elections for too many kinds of o⁄ces ^ is often made in the US to explain
exceptionally low levels of voter turnout and increasingly high levels of voter disengagement.
The US is either last or next to last in terms of the percentage of eligible citizens who routinely
participate in the electoral process. S. Issacharo¡, P. S. Karlan and R. H. Pildes,The Law of Democ-
racy: Legal Structure of the Political Process (Westbury, NY: Foundation Press, 3rd ed, 2007) 88^89.The
United States ^ where most Americans don’t vote ^ ‘has more elections for more levels of govern-
ment with more elective o⁄ces at each level than any other country in the world.’ ibid 89.
7 See J. Mansbridge,‘Rethinking Representation’ (2003) 97 American Political Science Review 515.
8 I. M. Young, ‘State, Civil Society, and Social Justice’ in I. Shapiro and C. Hacker-Cordon (eds),
Democracy’sValue (Cambridge: Cambridge UP, 1999) 141, 147^148 (distinguishing between private,
civic and political association as discrete though potentially linked levels of associational activity).
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Beyond Electocracy
catalysts for citizen involvement, not just intermediaries or surrogates for citizen
views.9 In these instances, citizens and their representatives work together to
change the metric of success from winning elections to building the kind of col-
lective intelligence and collective power that provides more robust sources of
democratic accountability and legitimacy.
Collective e⁄cacy starts from the premise that citizens can become more than
mere denominators for those who stand in a legally de¢ned relationship to the
state and who, as a result, can vote. Although the term citizen technically refers
to someone who is a‘member’ of a political community, here citizenship becomes
an activity, not just an identity. But while that activity extends beyond the casting
of a ballot, at the same time, citizen mobilization enhances electoral accountabil-
ity rather than displacing it.
Collectively e⁄cacious citizens ^ those who mobilize to in£uence or reform
government policies and practices ^ have the potential to transform electoral pol-
itics by transforming the way elected representatives perform their roles.
Although collective e⁄cacy emphasizes the importance of mobilized citizens to
democracy, it is not presented either as a substitute for elections or as a full-blown,
stand-alone theory of democracy. My goal is to initiate ^ through example ^ a re-
imagining of what it means for the people ^ through their representatives ^ to
have a voice in the decisions that a¡ect their lives.
This essay proceeds in Four Parts. The ¢rst part describes the US electocracy
and situates it within the history of British/American practices of representation.
Part II problematizes electocracy, because it de¢nes the representational relation-
ship with constituents through a static, sancti¢ed and isolated moment of choice.
The second part speci¢cally identi¢es the important role that winner-take-all sin-
gle member districts (WTA SMDS) play in reinforcing the status of representa-
tives as powerful strangers who are tempted to view their seats as their
representational property.WTA SMDS privilege the act of choosing rather than
the process of deliberating, deciding, mobilizing, or changing one’s mind. The
third part suggests two intermediary positions that begin to move the debate
beyond the candidate-centered electocratic preoccupation of both the left and
the right.The fourth part then explores examples of ‘collective e⁄cacy’ as an alter-
native metric of democratic accountability, where mobilized citizens hold their
representatives accountable to a political or public agenda. As these examples
show, collective e⁄cacy shifts the metrics of success from the quality of (represen-
tative) services to the quality of (representative/citizen) relationships and facilitates
the development of citizens who actively help to make, rather than who merely
consume, democracy.
OUR ELECTOCRACY
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10 ‘[M]ost citizens can achieve [full and e¡ective] participation only as quali¢ed voters through the
election of legislators to represent them . . .’ Reynolds v Sims 377 US 533, 565 (1964).
11 Board of Estimate v Morris 489 US 688, 693 (1989) (quoting Daniel Webster: ‘the right to choose a
representative is every man’s portion of sovereign power’). See also D. Plotke, ‘Representation is
Democracy’ (1997) 4 Constellations 19.
12 The early development of the English Parliament ‘was in£uenced hardly at all by theories of
representation’. A. H. Birch, Representation (NewYork: Praeger, 1971) 27.
13 Birch, ibid.
14 See Pollard, n 4 above at 153.
15 ibid 152^153.
16 R.Wickson,The Community of the Realm inThirteenth Century England (London: Longman,1970) 71.
17 See generally G. L. Haskins, The Growth of English Representative Government (New York: Barnes,
1960) 1^20.
18 Pollard n 4 above at 155. The beginning of representation in England seems linked to the devel-
opment of a national taxation system.When the king began a national taxation scheme rather than
gathering taxes through barons, it became more e⁄cient to summon ‘representatives’ of the var-
ious lands to collect the taxes. See J. E. A. Jolli¡e,The Constitutional History of Medieval England: From
the English Settlement to1485 (London: Black, 1937) 308^312.
19 Issacharo¡ et al., n 6 above at 9.
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experience of being represented links back to the idea that representatives in the
early English Parliament bound their constituents rather than the reverse. And to
the extent that elections of representatives in the US were originally intended to
ratify a‘natural aristocracy’, that association between representation and member-
ship in a privileged class continues. Many politicians today are consumed not only
by attempts to secure reelection but also by the desire to increase their social status
during and after their term in o⁄ce.26 Moreover, as was true of the representatives
in the early English Parliament, the key relationships for today’s politicians are
primarily with other insiders rather than with voters. Informal (or what I shall
call ‘horizontal’) relationships with ¢nancial backers supersede formal (or what I
shall call ‘vertical’) relationships with constituents.27 On the informal level, politi-
cians, campaign funders, and lobbyists trade power through ongoing relation-
ships, not static choice points.28 At the same time, the demands of modern
campaigns encourage many politicians to demobilize, not just ignore, potential
voters.29
Feeling left out, constituents harbor deep distrust of the political system.
Almost half of the respondents, and over 60 per cent of black respondents, in a
national poll were very concerned that their votes might not even be counted.30
Cynicism about politics now extends beyond the ‘institution’ of politics to citi-
zens’ own representatives. Between 34 per cent and 55 per cent of voters believe
26 See eg, D. Kirkpatrick,‘Democrats Find Ethics Overhaul Elusive in House’ NewYorkTimes 23 May
2007; D. Dagan, All too Often, Legislators’ Private Interests are Hidden from PublicView (Washington,
DC: Center for Public Integrity, 2004) available at http://www.publicintegrity.org/oi/report.
aspx?aid=377 (visited 20 Sept 2007). In 2004, Alaska Representative DonYoung used his position
to get over $2 billion for two‘bridges to nowhere.’ T. Egan,‘Built with Steel, Perhaps, but Greased
with Pork’ NewYorkTimes 10 April 2004, A1. The bridges were proposed to be some of the biggest
in the country, but they would only connect towns with ‘dwindling population[s] and virtually
nowhere to drive to’, so the main purpose of the bridges would be to serve as a‘symbol of power’
for the Representative. ibid. Or as former Senator Warren Rudman explains: ‘All of a sudden,
[members of Congress] start rubbing elbows with the mega-rich . . . I think some people get
exposed to that and say, I want to have at least some of that’. See P. Stone, ‘The Abramo¡ Wave’
NationalJournal 11 August 2007 (internal quotation marks omitted).
27 I use the term‘horizontal relationships’ to suggest interactions between peers, people of relatively
equal status who in£uence or coordinate with each other (often informally). ‘Vertical relation-
ships’ tend to be more regulated, ritualized or calibrated to accommodate the unequal status
between citizens and those with formal power, expertise or authority.
28 The number of Washington-registered lobbyists is now over 26,000, a number more than double
the number of registered lobbyists in the preceding ten years. P. Katel,‘Lobbying Boom: Should
the In£uence Industry be Regulated More Closely?’ (2005) 15 C Q Researcher 613, 613. In 2006,
lobbyists received an unprecedented $2 billion from their clients to in£uence Congress. ibid.
29 Politicians and parties often employ a strategy of disorienting the public and demobilizing voters
through negative campaign ads, with both Democratic and Republican campaign committees
spending six to eight times more money to attack their opponents than they did to support their
own candidates. C. Rodriguez,‘Meet the 7th Congressional DistrictWho let the Dogs Out to Get
out the Vote?’ Denver Post 5 November 2006, L3. Community members have few opportunities
for e¡ective participation because the main purpose of political parties has changed from mobiliz-
ing voters to raising money; politicians ‘have more incentive to raise money . . . than they do to
mobilize voters in their own districts.’ Weir and Ganz, n 5 above at 157.
30 D. A. Bositis, 2004 National Opinion Poll: Politics and the 2004 Election (Washington, DC: Joint Cen-
ter for Political and Economic Studies, 2004).
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31 M. Dimock, Independents Sour on Incumbents: Many SayTheir Member hasTaken Bribes (Washington,
DC: Pew Research Center for People and the Press, 2006).
32 D. Balz, ‘Survey: Americans Have Cynical Views of Politics’ Washington Post 28 July 2007. This
result is especially striking because public skepticism now extends to individuals’ own member
of Congress. Historically, Americans made an exception for their own representative.
33 Balz, ibid, quoting Celinda Lake. 71 per cent of respondents do not trust the government to do
what was right for the country. A. Nagourney and J. Elder, ‘Only 25 per cent in Poll Voice
Approval of the Congress’ NewYorkTimes 21 Sept 2006, A1. Support for the US federal govern-
ment was under 30 per cent. R. L. Cole and J. Kincaid,‘Public Opinion on Federal and Intergo-
vernmental Issues in 2006: Continuity and Change’ (2006) 36 J Federalism 443, 447.
34 African-AmericanVoters in South Carolina are Dissatis¢ed with Politics as Usual andWant Presidential Can-
didates to Address theWar, Health Care, and Economic Issues (Washington, DC: American Association
of Retired Persons and Joint Center for Political and Economic Studies, 2007).
35 George Soros, comments at Democracy and the Future, 10 April 2007 Symposium Dinner.
36 In ten states, more than 40 per cent of the legislators sat on a committee that had authority over at
least one of their personal interests. Dagan, n 26 above. This makes it easy to forget your consti-
tuents. As former Senator Rudman acknowledges: ‘You get a lot of high-powered people who
come to see you on legislation they want’. Stone, n 26 above.
37 Balz, n 32 above .
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38 But cf K. Tate, Black Faces in the Mirror: African Americans and their Representatives in the U.S. Congress
(Princeton: Princeton UP, 2003) (political representation consists of three forms: substantive,
descriptive, and symbolic).
39 Cf H. Pitkin,The Concept of Representation (Berkeley: University of California Press, 1967) 90 (‘A
man can only be held to account for what he has done, not for what he is; so at most a descriptive
representative might be held to account for whether he has given accurate information about the
constituents’). See also Shaw v Reno 509 US 630 (1993) (creating districts with a consciousness of
the racial identity of their constituents may constitute an ‘expressive’ harm; meaning it sends the
representative the message that she only needs to represent voters with the same racial identity).
40 Tate, above n 38, argues, for example, that the incentive system in the US Congress encourages
members to rely on descriptive characteristics as well as symbolic acts to signal that their relation-
ship is ongoing with their constituents. In addition, many representatives maintain district o⁄ces
to ensure personal service to their constituents, what Richard Fenno calls ‘home-style’representa-
tion. R. F. Fenno, Home Style: House Members inTheir Districts (NewYork: Longman, 2002).
41 It is not the election but the re-election that presumably provides democratic accountability. See
B. Ackerman,‘Meritocracy v Democracy’ London Review of Books 8 March 2007.
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42 Districting is essentially the process of deciding whose votes to waste, i.e., which votes should be
made super£uous or irrelevant. See L. Guinier,TheTyranny of the Majority (NewYork: Free Press,
1994) 133^137.
43 Reynolds v Sims 377 US 533 (1964); Baker v Carr 369 US 186 (1962). This is popularly referred to as
the ‘one person/one vote’ rule.
44 Vieth vJubelirer 541 US 267 (2004) (Kennedy J. concurring in the judgment) (even when the Court
has ‘the sense that legislative restraint was abandoned’, or that incumbents are ‘in the business of
rigging elections’ political gerrymandering is nonjusticiable); Karcher v Daggett 462 US 725 (1983)
(avoiding contests between incumbent representatives is a legitimate state policy); Lucas v Colorado
377 US 713 (1964) (Stewart J. dissenting)(Court does not question constitutional validity of geo-
graphic districting) . But cf League of United Latin American Citizens v Perry 126 S. Ct. 2594 (2006)
(LULAC v Perry) (incumbency protection may be problematic where the district lines are
obviously changed simply to bene¢t the o⁄ceholder, not the voters); Larios v Cox 300 F. Supp.
2d 1320 (N.D. Ga.) (three-judge court), summarily a⁄rmed at 542 US 947 (2004) (applied in a
‘consistent’ and ‘neutral’ manner, incumbency protection is legitimate state policy).
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who voted against the winner. 49 per cent of the voters are ‘virtually’ represented,
meaning the representative is an agent of ‘the’ district; he or she presumably serves
all of its citizens.Virtual representation means the elected o⁄cial is also an agent of
citizens who voted against her, ie did not support or ‘consent’to her representation
of their interests.45 Representatives ‘represent’ all those who live in the district ‘as
if’ all those in the district had in fact supported her election.46 At the same time, a
losing minority in one district is often deemed represented virtually by choices
made by members of that minority in another district in which they are the
numerical majority. The elected representative, in other words, is presumed to
represent those who voted against her as well as those who supported her. She also
arguably represents those who would have voted for her had they been able to
vote. As a result, the representative is both an ‘agent’ of the district’s identity and
its arbiter.
For example, after the congressional delegation from Texas had already been
redistricted following the 2000 census, Republicans, who were a majority in the
Texas state legislature, decided to take advantage of their political clout to redis-
trict yet again to increase Republican control over more of the seats for members
of the Texas delegation to the US Congress. Their plan, which treated the con-
gressional districts as the representational property of the Republican Party, was
adopted by theTexas legislature on a party line vote.The Democratic Party ¢led a
legal challenge to this mid-decade redistricting e¡ort in Texas. In LULAC v
Perry,47 the United States Supreme Court found no constitutional in¢rmity in
the way the Republican majority in theTexas state legislature redesigned congres-
sional districts mid-decade for purely partisan reasons. A political land-grab ^ that
seized power from the Democrats but also from the voters ^ did not present a
constitutional question.
The case, however, also raised a statutory question: whether the State of Texas
violated Section 2 of theVoting Rights Act of 1965 (as amended in 1982 to protect
the right of members of a ‘protected class’ to enjoy the same opportunity as other
members of the electorate to participate in the political process and ‘to elect repre-
sentatives of their choice’). Here the Court did ¢nd a violation. As part of their
45 The idea of virtual representation is used to create the ¢ction that voters whose candidates lose are
nevertheless represented. First, the voter is presumed to be represented when her district is repre-
sented. This is the Burkean notion that it is the district, not its residents, who are represented.
Second, the voter is represented by the majority who actually selected the representative because
of the reciprocity principle and the Golden Rule ^ the majority will be constrained from ignor-
ing the minority because the majority is not assured of its permanent status. Third, the voter is
represented by choices made by other voters who share her interests and who are a majority in
some other district. For a discussion of the theory of virtual representation, see Guinier, n 42
above, at 130^134.
46 Ironically, the doctrine of ‘one person/one vote’ in the US furthers the idea of virtual representa-
tion because it is a population based rule that all elected o⁄cials should have the same number of
persons within each of their districts. It is an equal population principle that works in tandem
with the virtual representation idea. A child, a disenfranchised felon or a person who is mentally
incompetent has no right to vote but is simply presumed to be represented by those who do vote.
Nevertheless, their presence in the district is counted for the purposes of establishing political
equality in terms of ‘one person/one vote.’ See L. Guinier and G.Torres,The Miner’s Canary (Cam-
bridge, Mass: Harvard UP, 2002) 179^182.
47 LULAC v Perry n 44 above.
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the people in the district. Even though 92 per cent of the Latinos in his district
voted against him, Representative Bonilla virtually represented all voters in his
district.
In this reading by the conservative dissenters, the Court was not in a position to
decide whether Bonilla represented the interests of the people who live in his dis-
trict. It is ‘the district’ qua district ^ not its residents ^ that is being represented. It is
the prerogatives of those ‘powerful strangers’ drawing the districts ^ not those liv-
ing in them ^ to which the Court should defer.
In his splendid case study of black mayors, especially the one term served by
NewYork City Mayor David Dinkins, political scientist James PhillipThompson
teases out a similar deference dynamic, but from the left rather than the right.
Here, too, incumbent politicians (in this case Democrats) viewed their districts
as their representational property.51 The local council members bound their con-
stituents: the constituents did not bind their elected representative.
Dinkins, a Democrat, was the ¢rst black mayor of New York City. Once
elected, he misread the depth of his support among black city council members,
who were also Democrats. Like most politicians, Dinkins sought election based
on personal qualities, including his commitment as a black man to the plight of
poor blacks and Latinos throughout the city. But he failed to organize a citywide
constituency with a clear agenda to guide him as well as his supporters after his
election. This left even his most ardent supporters substantively ill informed and
disconnected from each other after the election. Black civic organizations were
inexperienced and unprepared ‘to play a major role in policy battles in the years
in-between elections’; Dinkins was also weakened by his own inability to estab-
lish an alternative political coalition to provide support for the mayor when
opponents assailed his administration.52 Moreover, many community residents
thought the election of a black mayor relieved them of responsibility for acting
for themselves. Thompson quotes Earl Shinholster, former NAACP Southern
Director, on the limitations of using a static kind of descriptive representation as
the primary focus of an empowerment strategy: ‘once we elected somebody,
[community residents] stopped going [to civic meetings]’.53 Because a constitu-
ency of accountability was never mobilized, even Dinkins’ most faithful suppor-
ters were unable to protect him when he was attacked after the election. Dinkins
became increasingly vulnerable in the face of criticism from wealthy opponents,
tabloid journalists, and those who had not supported him in the ¢rst place.
Thompson describes a beleaguered Mayor Dinkins, who thought that he
could count on black members of the city council for support, since most of their
constituents were poor, black or both and Dinkins’ budget proposals were
designed to assist working men and women and the poor, especially poor blacks
and Latinos.54 Dinkins had assumed that black city council members would
collaborate with the city’s ¢rst black mayor ^ for the bene¢t of their common
51 J. P. Thompson, DoubleTrouble: Black Mayors, Black Communities, and the Call for a Deep Democracy
(NewYork: Oxford UP, 2006).
52 ibid 158, 211, 251^254.
53 ibid 98.
54 ibid 209.
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Beyond Electocracy
constituents and for reasons of racial identity. He discovered that the fact that citi-
zens may look like their elected o⁄cials does not alone mean that the elected o⁄-
cials all share the same political goals.55 Instead, their shared racial identities (as
descriptive representatives) provided a screen behind which some black city coun-
cil members chose to bargain for patronage plums at the expense of policy advo-
cacy on behalf of their poorest constituents.
What Mayor Dinkins did not anticipate is that several black members of the
city council took a proprietary view of their positions.They were not sel£ess pub-
lic servants. They systematically demobilized potential dissenters in their districts.
According toThompson, many opted to rule their districts as ¢efdoms, requiring
the equivalent of passports to assure ‘safe passage’ for other politicians who wanted
to visit their ‘territory’.56 For Dinkins, this meant they were unreliable allies, trad-
ing their votes for the ‘lulus’ (committee assignments and modest salary increases)
o¡ered by the City Council President. Because they represented politically safe
districts, these career-minded politicians ‘don’t have to deliver very much’, said Bill
Lynch, one of Dinkins’ key aides.‘They just [can’t] piss anybody o¡, and they can
get reelected forever’.57
In the Texas legislature and the New York City Council, self-dealing politicians
on both sides of the aisle took a proprietary interest in the districts they represent, an
interest that is manifest when they draw the district lines or when they substitute
patronage plums for policy advocacy. These governing units may thus reproduce
the conditions Tocqueville associated with mid-nineteenth century European vil-
lages.Winner-take-all districts can foster a passive citizenry which defers to its elected
o⁄cials and ultimately distances itself from its government, a government that is
viewed as ‘the property of a powerful stranger’. Even when more black or Latino
politicians get elected, they too need an organized or mobilized constituency to hold
them accountable after the election.What was missing in bothTexas and NewYork
City were institutional structures to support and encourage constituencies of
accountability ^ groups of citizens mobilized both to hold elected o⁄cials accoun-
table to a shared (though not necessarily ¢xed) agenda and to protect those o⁄cials if
they are attacked for promoting that agenda.
55 The relationship between constituent and representative may fall short of the constituent’s expec-
tations when the similarity involved does not expand beyond racial identi¢cation. See C. Gay,
‘Spirals of Trust? The E¡ect of Descriptive Representation on the Relationship between Citizens
and Their Government’ (2002) 46 Am J Pol Sci 717. But Gay also found that the racial similarity
between the individual elected o⁄cials and the individual constituency member ‘may speak
volumes about [the elected o⁄cial’s] priorities and accessibility, factors that can in£uence the
member-constituent relationship and can endear an individual legislator to her constituents’.
ibid 731.
56 Thompson, n 51 above, 209^211.
57 ibid 210^211.
58 n 44 above.
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Rights Act in a way that focuses on the mobilization of the citizenry not just the
outcome of the election. I also describe Cory Booker’s e¡orts as the recently
elected Mayor of Newark, New Jersey to engage his constituents, making himself
available through‘o⁄ce hours’ in a local school in order to involve citizens in their
own government.59 Booker, who is black, is experimenting with the template of
‘a¡able neighbor’ (known by his outreach to his constituents not just by his race)
rather than‘powerful stranger.’
In LULAC, Justice Kennedy found a violation of Section 2 of the Voting
Rights Act when the Republican controlled Texas legislature used mid-decade
redistricting to protect Henry Bonilla, the Republican incumbent in District 23
who faced an increasingly tough re-election in 2006 in light of mushrooming
political activism among Latinos. Justice Kennedy’s focus in LULAC, however, is
not on the election outcome per se. Instead he emphasizes the fact that Latinos in
District 23 were ‘a racial group that was subject to voting related discrimination
and was becoming increasingly politically active and cohesive’. Kennedy empha-
sizes that the redistricting took place at the moment Latinos in the area were
becoming more ‘politically active, with a marked and continuous rise in Span-
ish-surnamed voter registration’. Latino‘voters were poised to elect their candidate
of choice,’ and the State ‘made fruitless the Latinos’ mobilization e¡orts’.What was
important to Justice Kennedy is that Latinos in District 23 ‘had found an e⁄ca-
cious political identity’.60
Justice Kennedy saw value in preserving District 23, but not simply to protect
an ethnic group qua ethnic group.What the Court should protect, under theVot-
ing Rights Act, is District 23’s political potential as re£ected in the high levels of
Latino mobilization.61 Such political energy was not yet in evidence among Lati-
nos in District 25 (the ‘bacon-strip’ district that was drawn as part of the state’s
e¡ort to compensate for dismantling District 23).62 Kennedy’s opinion found that
‘[t]he practical consequences of drawing a district to cover two distant, disparate
communities is that one or both groups will be unable to achieve their political
goals’.63 Kennedy concluded that the state attempted to ‘trade o¡’ the rights to
participate and mobilize of ‘some minority voters under Section 2 against the
59 See A. Jacobs,‘Through Mayor’s Open Doors, Many Problems, Not All Solved’ NewYorkTimes, 8
March 2007.
60 LULAC n 44 above at 2621, 2622 and 2623. Ellen Katz interprets Justice Kennedy’s emphasis on
the facts that Latino voters in District 23 were‘cohesive,’ and ‘politically active’ as a commitment to
competitive election districts. E. Katz,‘From Laredo to ForthWorth: Race, Politics, and theTexas
Redistricting Case’ (2006) 105 Mich L Rev 38.
61 Gerald Torres and I have termed this ‘political race’,’ where members of racialized minority groups
act politically rather than simply identifying individually. Political race suggests that those who
mobilize based on shared interests not just shared ancestry experience a sense of solidarity and
e⁄cacy, especially if they articulate their interests to build coalitions around structural changes
that also bene¢t others. See Guinier and Torres, n 46 above.
62 In other words, the State argued that the adverse e¡ect on Latino voting strength in District 23
was cured when the State created another majority Latino District, District 25, in a di¡erent part
of the state. Although Latinos in the old District 23 no longer had the numerical voting strength
to‘elect’ a representative of their choice, a representative chosen by a Latino majority in the newly
constructed District 25 virtually represents them in the Texas congressional delegation.
63 LULAC n 44 above (Kennedy opinion at 27).
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Beyond Electocracy
rights of other members of the same minority class.’64 Justice Kennedy found the
answer to Justice Roberts’ question in an emerging and more participatory
dynamic. The di¡erence between ‘being one’ and ‘looking like one’ is the di¡er-
ence between de¢ning a political identity through political activism and de¢ning
one’s political identity through visual inspection.
Kennedy’s opinion is signi¢cant for my argument, because it gestures toward a
form of collective e⁄cacy. Justice Kennedy’s opinion underscores the importance
of Latino political activity in District 23 as a way of distinguishing collective poli-
tical self-expression from identity politics, where racial classi¢cations are exter-
nally determined and enforced. In Justice Kennedy’s analysis, the preliminary,
albeit hazy, outlines of collective e⁄cacy emerge. Latinos in District 23 were con-
verting their relational social power into political power.They were organizing as
Latinos but they were organizing to defeat someone who shared their ethnicity
but not their political agenda. The salience of their Latino identity was alone not
the issue.65 In District 23, mobilized citizens were beginning to remake them-
selves into a constituency of accountability. They were exercising their political
power as citizens with common interests: linked fates, not just linked faces.
Like Justice Kennedy, but from the left, Cory Booker, a rising star in the
Democratic Party, is grappling with the distinctive merits of citizen participation.
In 2002, Booker, then serving his ¢rst term as a member of the city council of
Newark, ran for Mayor of Newark, New Jersey, a predominantly black and very
poor city in one of the wealthiest states in the US. Booker was a Rhodes Scholar;
he had graduated from Stanford University and Yale Law School. Although he
grew up in the a¥uent and predominantly white suburb of Harrington Park,
New Jersey, Booker moved to Newark and lived in a crime-ridden housing pro-
ject prior to making his ¢rst run for political o⁄ce as a city councilor in 1998.
Vigorous, charismatic and articulate, Cory Booker is the embodiment of what
the founders might have considered a ‘natural’ leader (although on this point it is
worth repeating that he is black). He attracted a growing national media follow-
ing and bene¢ted from a large infusion of campaign contributions from suppor-
ters outside of Newark. Nevertheless, the longtime incumbent mayor, Sharpe
James, was re-elected in 2002. James ran a vicious campaign that resonated in part
because many blacks in Newark were skeptical of Booker’s motives, seeing him as
a carpetbagger who relied too much on the advice of outsiders (ie his friends from
college and law school, none of whom hail from Newark).66 Although Booker
ran again and won the mayor’s race in 2006 in a landslide, some Newark residents
still saw him as an all-too-powerful stranger.67
64 ibid, slip opinion at 30 (citing Johnson v DeGrandy 512 US 997, 1019 (1994)).
65 Nevertheless, a shared identity can play a powerful role in galvanizing collective action: B. Sachs,
‘Employment Law as Labor Law:Toward a New Model’ (unpublished draft, July 2007, forthcom-
ing Cardozo L Rev 2008) at 47^49. At the same time, a belief in the possibility of success is critical:
R. Meyer, The Irony of Power: E⁄cacy and Collective Action in Working-Class Struggle (University of
Michigan, unpublished PhD dissertation, 2006) 4.
66 See‘Street¢ght’, a low budget documentary about Cory Booker; also A. Jacobs,‘New MayorTests
His Promises on Newark’s Reality’ NewYorkTimes 19 October 2006.
67 A. Jacobs,‘Newark’s Mayor Battles Old Guard and Rumors’ NewYorkTimes 3 July 2007.
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The mayor said that it would be impossible to ful¢ll the needs of everyone who
comes to see him, and that the point of the sessions was ‘not necessarily about sol-
ving their problem but helping them [as individuals] recognize their ability to solve
their own problem . . . Regardless of results, the mayor said, there is value in listen-
ing to people’s troubles and giving them words of encouragement.68
68 See Jacobs n 66 above. Booker’s o⁄ce estimated it had helped 30 per cent of those who had come
to the ten o⁄ce hours in Booker’s ¢rst eight months in o⁄ce.
69 See J. Mansbridge,‘Representation Revisited: Introduction to the Case against Electoral Account-
ability’ (2000) 2 Democracy and Society 1, 12^13.
70 M.Walzer,‘Multiculturalism and Individualism’ (1994) 41 Dissent 185.
71 Contrary to the free rider problem of collective action, the new ‘logic of reciprocity’posits that the
opportunity to observe others participating may enhance the likelihood of one’s own participa-
tion. Sachs, n 65 above, 71^72.
72 See F. Poletta, Freedom is an Endless Meeting: Democracy in American Social Movements (Chicago: Uni-
versity of Chicago Press, 2002) 56.
73 See E. Fehr U. Fischbacher and S. Gachter, ‘Strong Reciprocity, Human Cooperation and the
Enforcement of Social Norms’ (2002) 13 Human Nature 1; H. Gintis, ‘Modeling Cooperation
among Self-Interested Agents: A Critique’ (2004) 33 Journal of Socio-Economics 695. But cf R. D.
Putnam,‘E Pluribus Unum: Diversity and Community in the Twenty-First Century’ 30 Scandi-
navian Political Studies 137 (2007).
74 Over repeated simulations of a prisoner’s dilemma game, strong reciprocators can encourage nor-
mally sel¢sh actors to cooperate or risk punishment long term. See Fehr et al, ibid.
75 See J. Mansbridge, ‘Practice-Thought-Practice’ in A. Fung and E. O. Wright (eds), Deepening
Democracy: Institutional Innovations in Empowered Participatory Governance (London:Verso, 2003).
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Beyond Electocracy
76 Currently, even where individuals can participate, such as in the administrative notice and com-
ment process, most individual citizens lack the ability to discuss an issue with the sophistication
required for a comment to be viewed as one worthy of serious consideration by the administrative
agency. See, eg M.-F. Cuellar,‘Rethinking Regulatory Democracy’ (2005) 57 Admin L Rev 411.
(‘laypeople . . . lack the time, energy, inclination or knowledge to say much [that administrators
¢nd useful] in the regulatory process’).
77 See M. Harris-Lacewell, Barbershops, Bibles and Bet (Princeton: Princeton UP, 2004) (explaining
how ordinary spaces of ‘everyday talk’ allow for the development and revision of political ideol-
ogies within the black community).
78 A. Fung and E. O.Wright,‘Thinking About Participatory Governance’ in Deepening Democracy, n
75 above. But cf D. B. Spence and F. Cross, ‘A Public Choice Case for the Administrative State’
(2000) 89 Geo LJ 97 (arguing that voters are rationally ignorant and have less information than
politicians or administrative agency members).
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fellow church members and friends) that enable citizen mobilization. Under the
right circumstances, the elected representative could become an agent of a
broader, deeper vision of democracy. But Justice Kennedy ultimately measures
the outcome in electocratic terms.79 In both Newark and Texas the representative,
whether a ¢xture or a friend, still faces the danger of remaining a distant stranger
not a linked partner.
79 For example, Kennedy’s criticism of District 25, the bacon strip district, relies on testimony that it
would be di⁄cult to‘control election outcomes’ in District 25 ‘because of the size and diversity of
the newly con¢gured districts.’ LULAC n 44 above, slip opinion at 28.
80 Social power, which arises from participation in social exchanges, and friend or kinship ties
increases mutual trust and shared expectations for collective action in support of a neighborhood.
See, eg R. J. Sampson, ‘Local Friendship Ties and Community Attachment in Mass Society: A
Multi-Level Systemic Model’ (1988) 53 Am Sociological Rev 766; J. Kasarda and M. Janowitz,
‘Community Attachment in Mass Society’ (1974) 39 Am Sociological Rev 328. At the same time,
power becomes a communication medium rather than a ¢xed status, enabling individuals and
groups to question‘the encapsulation of power within a power holder.’ See, eg X. Le£aive,‘Orga-
nizations as Structures of Domination’ (1996) 17 Organization Studies 23, 33.
81 I link the term collective e⁄cacy to the de¢nition of power as ‘relational’ in the organizing litera-
ture. See, eg M. Grinthal,‘Power-with’ (15 May 2006) (draft on ¢le with author); also Meyer, n 75
above at 4.
82 See G. L. Kelling and J. Q. Wilson, ‘Broken Windows: The Police and Neighborhood Safety’
(1982) 249 Atlantic Monthly 29.
83 R. J. Sampson S.W. Raudenbush and F. Earls,‘Neighborhoods and Violent Crime: A Multilevel
Study of Collective E⁄cacy’ (1977) 277 Science 918.
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Beyond Electocracy
84 ibid 918.
85 W. Simon,‘Visions of Practice in Legal Thought’ (1984) 36 Stan L Rev 469.
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86 ibid 489.
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Beyond Electocracy
In 1992 a Brazilian dramatist, Augusto Boal, ran on a platform ‘vote for me, elect
my theater company’ and was elected to the city council in Rio de Janeiro. Fol-
lowing through on his slogan, he used company members to convene problem-
solving constituency meetings among, for example, teachers, AIDS activists,
environmentalists and unionized bank employees. He created a network of
‘forum theater’ groups, so called because an audience inspired theatrical enact-
87 Such outcomes would be considered in terms of competence not just responsiveness. In terms of
both these considerations, the outcomes presumably would be more informed by those with local
on the ground intelligence; they would be more sustainable because more people would be
invested in their success; and the right answers might be more likely, at least when measured over
time.
88 See discussion in the second section, above, concerning the value of participation.
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ment of a real problem created a ‘forum’ for audience intervention in, and discus-
sion of, the con£ict. Using forum theater techniques, citizens from the relevant
constituency gathered to improvise a dramatic reconstruction of the challenges or
con£icts they share. Audience members were then invited to interrupt the action
and substitute for one of the characters when they had an idea that might resolve
the con£ict.89 The scene was then replayed numerous times with di¡erent inter-
ventions and proposed alternatives in response to the question: could there be a
law that would help solve this problem? The dramatic re-enactments were then
collectively presented at a theater festival, where the same process was repeated ^
this time with the other constituency groups providing feedback. Out of this pro-
cess, Boal ultimately introduced and got passed 13 bills. All of the bills were a
product of the collective expertise of the participants.90
At one point Boal deviated from his collaborative protocol and introduced a
bill that he alone drafted. Boal was goaded into acting unilaterally by his collea-
gues on the city council who teased him, dismissing his legislative record because
he was overly dependent on his constituents for ideas. Determined to introduce
an ‘original’ proposal, Boal went home one night and on his own drafted a bill
modeled on a Swedish tra⁄c convention, in which the sound of birds accompa-
nies the changing of the visual tra⁄c signals to alert blind pedestrians that it is safe
to cross the street. Only after Boal dropped the bill into the legislative hopper did
he meet with his disabled constituents to proudly report his personal policy mak-
ing. The audience members were outraged.‘Do you want to get us killed?’ they
asked.‘Not at all,’ Boal responded.‘I saw it work with my own eyes in Sweden.’
‘Yes,’ his constituents replied in unison.‘But in Sweden drivers stop at red lights!’
Boal immediately withdrew the bill.
Encouraged by Boal’s willingness to engage them in the process of agenda set-
ting and problem solving, his disabled constituents converted their social power
into political power. They became a constituency of accountability that made
Boal a more responsive and responsible legislator. Their collective intelligence
meant they knew more about the problem at hand than did their representative.
Boal successfully broadened his role to involve the people themselves in setting
the agenda not just making sure he implemented it.
89 For example, the group of teachers would be invited to make a forum about the problems in
education in their neighborhood ^ problems, in Boal’s words,‘that they know about better than
anyone else’. J. Cohen-Cruz, ‘Theatricalizing Politics: An Interview with Augusto Boal’ in
M. Schutzman and J. Cohen-Cruz (eds), Playing Boal:Theatre,Therapy, Activism (London: Routle-
dge, 1994) 234^235.
90 See Guinier and Torres, n 46 above at 214^216.
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Beyond Electocracy
At the same time, the process of deliberative struggle allows individuals and their
representative to change their minds as to what the appropriate outcome of that
struggle might be. To illustrate these process-based points I focus on the atten-
dance by maids and porters at the mass meetings that framed and helped sustain
the 1955^6 Montgomery Bus boycott during which more than 50,000 blacks in a
single Alabama city refused to ride city buses for more than a year until the buses
were desegregated. Although most popular accounts of the boycott elevate Rosa
Parks and Martin Luther King as the main characters, the role of the mass meet-
ings helps dispel the idea that the boycott was either a one man or a one woman
show.91
Over the course of the year long boycott of the city buses, mass meetings were
held at black churches at least weekly.92 The mass meetings were a tool for disse-
minating information.They helped build morale,93 in part by providing decision-
making opportunities for the boycotters.94 Participants spoke from the £oor, not
just the pulpit.95
King admits that it was the mass meetings that de¢ned the boycott. In the
aftermath of the very ¢rst mass meeting, King writes ‘I said to myself, the victory
is already won, no matter how long we struggle to attain the three points of the
resolution. It is a victory in¢nitely larger than the bus situation. The real victory
was in the mass meeting, where thousands of black people stood revealed with a
new sense of dignity and destiny.’ 96
The mass meetings evoked the familiar call and response common in many
black churches between the people and the preacher, but they also secured the ties
between and among the people themselves. King could surely arouse the congre-
gation, but he was more than a powerful stranger uplifting a crowd with a brilli-
ant synthesis of religious fervor, moral purpose and legal justi¢cation.97 He also
91 T. Branch, Parting theWaters: America in the KingYears,1954^1963 (NewYork: Simon & Schuster,1988)
178.
92 On signi¢cant occasions there might have been as many as seven mass meetings in a single night,
with some people attending more than one. ibid 161.
93 ibid 149: ‘Speakers built morale at the predominantly female meetings by singling out some of the
walking women as heroes.’ See also ibid 178 (after King’s house was bombed, it was decided to re-
organize the mass meetings around prayers to renew the spiritual commitment of the boycotters
facing a long ordeal ahead).
94 Indeed, although the key members of the newly constituted organization created to spearhead the
boycott ^ Montgomery Improvement Association (MIA) had met earlier in the day to choose
their leader, the issue of whether to continue the one day boycott was ultimately left to those
who turned up at the mass meeting. More than 5000 blacks showed up and loudspeakers were
set up so the crowd, ‘which stretched over several acres and across streets and around cars that
had been parked at all angles’, could hear what was happening inside. A few weeks later, King
put the alternatives to a‘taxi army’ to the mass meeting after the City police commissioner threa-
tened to arrest taxi drivers who charged less than the regular fare.‘King was stunned when the
crowd greeted his proposal (for a car pool, with cars ^ still a luxury item at the time ^ donated
and driven by middle class blacks) . . . with a church-rocking roar of approval . . . That ¢rst night
more than 150 car owners signed up to lend their cars to the boycott.’ Branch, ibid 146.
95 ibid 163^164. Indeed, a key movement refrain was ¢rst heard at a mass meeting when one of the
speakers quoted a congregant who declared ‘my feets is tired but my soul is rested’. ibid 149.
96 Martin Luther King, Jr, StrideToward Freedom:The Montgomery Story (NewYork: Harper, 1958) 50.
97 At his very ¢rst address on the day Rosa Parks was arraigned, King’s oration blended scripture,
common sense, and a reference to the US Supreme Court decision in Brown v Board of Education.
Branch, n 91 above at 140^141.
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formed a close bond with the boycotters, such that e¡orts to discredit him when
he was out of town failed easily. 98 And when warrants were issued by local autho-
rities for the arrest of King and 90 other black ministers, crowds quickly sur-
rounded the police station where they were being booked, to make sure nothing
happened to them.
Just as important as their ties to Dr King were their ties to each other. Some of
the boycott participants would arrive early in order to reconnect to their friends,
neighbors and fellow walkers.The maids and day laborers found solace in the‘joy-
ous unity’ of the mass meetings but they also found support in the connections
forged with their peers. At one mass meeting, Bayard Rustin witnessed the
church begin ¢lling up at 4pm and watched ‘the crowd sing hymns and pray on
their own for three hours’ before the mass meeting was scheduled to begin.99
The mass meetings enabled poor, black people to become democratic actors.
Their relationship with Dr King was not cabined by the traditional yet static cate-
gories of the descriptive representative (who mirrors her constituents), the dele-
gate (who carries forward a predetermined mandate) or the trustee (who relies on
her wisdom or virtue and consults her conscience rather than her constituents in
deciding how to act). That relationship also demonstrated Bill Simon’s claim that
the interests of participants are not necessarily captured in their ¢rst articulation.
Interests evolve over time. The initial call was for a one-day boycott to protest the
arrest and arraignment of Rosa Parks. The idea was germinated by a group of
black women who were outraged by the arrogant mistreatment several black
women had experienced at the hands of the bus drivers and the police. At least
two of these women were, like Rosa Parks, arrested for refusing to give up their
seats to a white person. At the outset, the goals of the boycott, like its limited
term, were quite modest. They included hiring more black bus drivers on bus
routes through the black section of town and greater courtesy displayed toward
black passengers. But over time, working with a young black lawyer, Fred Gray,
the boycotters became more willing to consider a challenge to the idea of segre-
gation of the buses, not just to the way segregation was being implemented. It was
not until three months after the boycott began that the MIA agreed to the ¢ling
of a desegregation lawsuit; at the time, a lawsuit was considered the ‘nuclear’
option. Ultimately that lawsuit settled the boycott when the Supreme Court
a⁄rmed a three-judge court decision that segregation of the buses was unconsti-
tutional.100
Robert Moses once said that the most important thing the civil rights move-
ment brought to blacks in Mississippi was not the vote. It was the opportunity to
meet. Of course some may immediately shudder at the prospect: beware the end-
less meeting they will shout. But as the mass meetings in Montgomery demon-
strate, there is a public value in meetings that create the capacity for citizens to
participate in the act of self-government. Such meetings can take many forms. In
98 At one point in dispersing a crowd assembled at his house after it was ¢rebombed, King reminds
them,‘I did not call this boycott . . . I was asked by you to serve as your spokesman.’ Branch, ibid at
166.
99 Branch, ibid 178.
100 Browder v Gayle 352 US 903 (1956).
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Beyond Electocracy
the Montgomery bus boycott, the mass meetings were spiritual havens but also
opportunities to learn about, and begin to implement, civil and constitutional
rights.101
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to being chosen. However, once invited into the process, people were eager to be
chosen and participated diligently as one of the CA members.108
The CA carried out its mandate in three phases: the learning phase, the public
hearings phase, and the deliberations phase.109 CA members engaged in the learn-
ing phase for three months, during which the structure of the assembly and CA
sta¡ worked to ensure that the CA members would be able to participate, regard-
less of prior information or socioeconomic position.110 Many CA members parti-
cipated 30^40 days in the year and attendance at meetings was over 90 per cent.111
They spent weekends hearing expert presentations, reading materials, and parti-
cipating in small group discussions to develop a set of shared values and a preli-
minary statement to the public.112 In the next phase, the CA held ¢fty public
hearings across the province.113 The public hearings attracted approximately
3,000 British Columbians and consisted of presentations, then comments, peri-
ods, and suggestions.114 CA members also met with community organizations
and accepted over 1,600 written submissions through its website.115 Many British
Columbians communicating with the CA con¢ded that the party politics,
encouraged by the electoral system, did not allow for a strong citizen voice, public
discussion, or the opportunity for people to in£uence their representatives or con-
vey their values.116 A frequently proposed solution was to reform the electoral
system in a way that opened parties to more citizen discussion, participation, and
in£uence.117
In the CA’s deliberation phase, small groups decided the most and least important
values for choosing an electoral system. 118In televised plenary sessions that were
open to the public,119 CA members designed more detailed models of Mixed Mem-
ber Proportional (MMP) and Single Transferable Vote (STV) systems.120
tessential democratic selection device, while elections were considered a means of ensuring more
aristocratic rule’. Issacharo¡ et al, n 6 above at 1151.
108 Carty, n 106 above at 4. CA members were diverse: ages ranged from nineteen to seventy-eight;
they worked in a variety of professions; and 11 per cent of CA members were visible minorities.
Ratner, n 103 above, 22. However, visible minorities composed 22 per cent of the population;
double their representation on the CA. Lang, n 102 above at 40^41.
109 H. Milner, Making Every Vote Count: Reassessing Canada’s Electoral System (Peterborough, Ont:
Broadview Press, 1999) 10^13.
110 One member commented: ‘We really felt we were part of some historical very important process
. . . . They made everybody feel that they were as important as anybody else.’ Lang, n 102 above at
41^42.
111 A. Blais, K. Carty and P. Fournier, ‘Citizens’ Choice of an Electoral System: The Decision of the
BC Citizens’Assembly’ (1^4 Sept. 2005) 3 (unpublished paper, presented at the 2005 Annual Meet-
ing of the American Political Science Association).
112 The assembly’s shared values are: respect people and their opinions; challenge ideas not people;
listen to understand; commitment to the process; focus on mandate, preparedness; simple, clear,
concise communication’; respect inclusivity (all members are equal); positive attitude; and integ-
rity. Milner, n 109 above, 11.
113 ibid 12.
114 ibid.
115 ibid.
116 See Carty, n 106 above, 4.
117 ibid.
118 Lang, n 102 above, 46.
119 Milner, n 102 above, 6.
120 ibid 13.
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Beyond Electocracy
According to one CA participant, her own views evolved as a result of her face-
to-face encounters with other assembly members. As a resident of Vancouver, she
learned from her fellow citizens whose rural backgrounds had been foreign to her
about ‘the barriers that are in place in the frozen north.’ Just having those discus-
sions about what British Columbia is like from all over the territory, she said, led
to something that the political science experts did not anticipate:‘We started ques-
tioning traditional de¢nitions of what things meant from what was a stable sys-
tem. Is it really stable if the next government is from the other party and they have
to spend the next 2 years remaking everything? Throw out everything?’ They
also started talking to people and discovered barriers preventing majoritarian sys-
tems from delivering real representation:‘voters [were] looking for more nuanced
representations than they were getting’.121
After the Assembly agreed upon a proposal to endorse STV, it was put to the
voters of the province. The referendum received 57.4 per cent of the overall vote
and a majority of the vote in 77 of 79 constituency districts, but fell just short of
the super-majority it would have needed to pass.122 The large vote in favor cer-
tainly re£ected the fervor of the CA participants. Although the CA disbanded ¢ve
months prior to the election,142 of the CA members volunteered their time to try
to drum up support at local meetings and one member estimates that each of her
cohorts chipped in at least $500.00 of their own money to publicize the referen-
dum.123 The large vote also suggests that the assembly’s association with the word
‘citizens’signaled to voters this was something they could trust.The imprimatur of
‘citizens’ was like the Good Housekeeping Seal of Approval.124 CA members
enjoyed unexpected ‘legitimacy’ in representing their peers as they attempted to
in£uence public policy. The proposal was anchored in horizontal relationships ç
among CA members and also between CA members and the citizens they
encountered at town halls, public forums and the grocery store. Those relation-
ships helped CA members break through divisions.125
On the other hand, the measure lost.The narrow defeat re£ects the high thresh-
old that the Premier set for passage.That the measure lost can also be explained by
the fact of very little public discussion regarding the referendum.126 Neither of the
major parties took a position on the issue,127 and the CA education budget was
121 Open source interview with Shoni Field, former member of the British Columbia Citizens’
Assembly, 2 November 2006.
122 The referendum would have passed if it had been supported by 60 per cent of all voters. See J. H.
Snider, ‘Solving a Classic Dilemma of Democratic Politics: Who Will Guard the Guardians?’
(Winter 2005) National Civic Rev 22, 25.
123 Shoni Field, interview: ‘142 of the CA members committed to stay on for another 5 months.
Between us we did about 600 public presentations, a couple hundred media interviews.’
124 H. Gerken, ‘The Double-Edged Sword of Independence: Inoculating Electoral Reform Against
Everyday Politics’ (2007) 6 Election L J 184, 195.
125 Shoni Field, interview: ‘This province that everyone says is really divided and polarized and
extreme was actually united. Actually the political system drives us apart.We kept hearing across
the political spectrum people were looking for the same thing’.
126 Half of the electorate had not heard of the referendum before voting and one-third of the popula-
tion had not heard of the referendum or even the CA. Lang, n 102 above at 47.
127 Almost no political party had an incentive to support an electoral system that would so weaken
the role of political parties. Snider, n 122 above, 25^26.
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28 (2008) 71(1) 1^35
Lani Guinier
negligible.128 Whereas the Assembly had a budget of more than $5.5 million dol-
lars to educate itself about election procedures around the world, CA members
had an o⁄cial budget of $800 to disseminate information to the general public
about its proposal.
Though British Columbia did not become ‘the ¢rst political jurisdiction in the
world to change its electoral system by citizen-deliberative means’,129 and despite
lack of widespread public debate, the referendum was still an a⁄rmation of a par-
ticipatory and deliberative process. Even after its defeat, citizens put pressure on
politicians to re-run the referendum in a fair fashion (by providing money for
public education and allowing a sample map to be drawn). More importantly,
they succeeded in demonstrating that once citizens get involved they change the
terms of the debate.130 British Columbia’s Citizen’s Assembly illustrates George
Kateb’s point that the essence of representative democracy is that we all ‘take turns
standing for the whole.’131
The institution of participatory budgeting in Porto Alegre also shows how many
ordinary citizens are willing to spend time in meetings that o¡er a chance to a¡ect
public policy; at the same time the institutionalization of these meetings means
that ordinary citizens get to become representatives. The experience of participat-
ing renews citizen con¢dence in their government; it also produces competent
outcomes that citizens are willing to support, as evidenced by increases in tax
revenues.
The new Brazilian Constitution of 1988 embraced decentralized policymaking
and established processes for citizens to participate in formulating, managing, and
monitoring social policies.132 The two mechanisms that gained the most momen-
tum in the 1990s were management councils and participatory budgeting
(‘PB’).133 PB creates nested councils of representation to allow citizens
some opportunity ^ beyond simply voting for elected representatives ^ to bring
their lived experience to bear on both the criteria for, and content of, decision
making.
The major goal of PB is to ‘encourage a dynamics and establish a sustained
mechanism of joint management of public resources through shared decisions
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(2008) 71(1) 1^35 29
Beyond Electocracy
134 B. de Sousa Santos, ‘Participatory Budgeting in Porto Alegre: Toward a Redistributive Democ-
racy’ (1998) 26 Politics and Society 461.
135 A. Fung and E. O. Wright, ‘Deepening Democracy: Innovations in Empowered Participatory
Governance’ (2001) 29 Politics and Society 5, 13.
136 de Sousa Santos, n 134 above. The three principles are: a) all citizens are entitled to participate,
community organizations having no special status or prerogative in this regard; (b) participation
is governed by a combination of direct and representative democracy rules and takes place
through regularly functioning institutions whose internal rules are decided upon by the partici-
pants; (c) investment resources are allocated according to an objective method based on a combi-
nation of ‘general criteria’çsubstantive criteria established by the participatory institutions to
de¢ne prioritiesçand ‘technical criteria’çcriteria of technical or economic viability as de¢ned
by the executive and federal, state, or city legal normsçthat are up to the executive to implement.
137 ibid.
138 Porto Alegre, the capital of the Brazilian state of Rio Grande do Sul, has a population of approxi-
mately 1.3 million and is of major economic importance in the state. In recent decades, it has
experienced signi¢cant population growth and an accelerated process of urbanization.
139 A. Schneider and M. Baquero, ‘Get What You Want, Give What You Can: Embedded Public
Finance in Porto Alegre’ (Institute of Development Studies at the University of Sussex, Brighton,
WP no 266, May 2006, at www.ids.ac.uk/ids/bookshop/wp/wp266.pdf (visited 20 Sept 2007) 10.
140 Fung and Wright, n 135 above, 14.
141 G. Baiocchi,‘Citizens of Porto Alegre: In which Marco borrows bus fare and enters politics’ Boston
Rev Mar/Apr 2006 at http://bostonreview.net/BR31.2/baiocchi.html (visited 8 Oct 2007).
142 Fung and Wright, n 135 above, 14.
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143 ibid.
144 ibid.
145 ibid.
146 Schneider and Baquero, n 139 above, 13.
147 Baiocchi, n 141 above.
148 Schneider and Baquero, n 139 above, 13.
149 ibid.
150 ibid.
151 ibid.
152 ibid, 13^14.
153 Exame considered the following indicators: literacy, enrollment in elementary and secondary edu-
cation, quality of higher and postgraduate education, per capita consumption, employment, child
mortality, life expectancy, number of hospital beds, housing, sewage, airports, highways, crime
rate, restaurants, and climate. The state capitals of Belo Horizonte and Belem are also considered
cities that ‘work’ because they have achieved unheard of levels of social-service provision, includ-
ing very high rates of preschool enrollment and universal clean water and sewers. Baiocchi, n 141
above.
154 de Sousa Santos, n 134 above. The author also notes that ‘if an evaluation of ‘‘medium plus’’ is
considered positive’ the government actually had an approval rate of 85 per cent.
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Beyond Electocracy
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162 The representative is selected by lottery in the Citizens Assembly; by a self-constituted nominat-
ing committee in the bus boycott; by those who show up for a meeting open to all residents in
Porto Alegre, and by formal election to the city council in the case of Augusto Boal. The manner
of selection is not the focus, although it is no doubt relevant.
163 Cf Mansbridge, n 7 above.
164 This is precisely what US Senator Barack Obama, community organizer turned politician, claims
as his original goal. He attempted to apply the techniques of community organizing to mobilize
people to work for change. J. Scott,‘At State Level, Obama Proved to be Pragmatic and Shrewd’
NewYorkTimes 30 July 2007, A1, A12. Of course, not all politicians need become community orga-
nizers or teachers themselves; but the principle of collective e⁄cacy suggests they should be sen-
sitive to the need to work alongside community organizers and teachers.
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Beyond Electocracy
Moreover, institutional structures (the black church, the interactive theater, the
citizen’s assembly) helped incubate greater citizen con¢dence in government deci-
sions and infused those decisions with local knowledge. In Porto Alegre, unedu-
cated workers routinely join with lawyers and businesspeople to determine the
criteria for allocating state funds within their municipality. Since participatory
budgeting was introduced in the early 1990s, more than 100,000 citizens of Porto
Alegre have played a role in the budgeting process, in£uencing outcomes that are
accountable to the concerns of the poor, not just the rich.To varying degrees, such
institutional arrangements encourage the belief among groups of people that
achieving their goals is possible; enhance the capacity of groups of people to
act consistent with that belief; and succeed over time in increasing levels of
citizen participation in agenda setting, decision making and relationships of
accountability.
Augusto Boal’s legislative theater, the Montgomery Bus Boycott, British
Columbia’s Citizen’s Assembly and Participatory Budgeting in Porto Alegre are
each, in their own ways, schools of our democratic imagination. They teach us to
picture horizontal, not just vertical, relationships among citizens as a vital source
of collective political power.They educate all of us, not just those who participate.
We all learn that an informed public is capable of thinking creatively, asking cri-
tical questions and acting e⁄caciously. And most of all we learn that representa-
tion itself can become more e⁄cacious when it is treated neither as a proprietary
status nor a ¢xed identity but as a relationship.
CONCLUSION
This essay has considered the narrowing and distorting e¡ect of the focus on elec-
tions rather than the e⁄cacy of individuals working together, with their represen-
tatives, to address their needs and pursue ways to make changes in society. In a
similar vein, my own work as a civil rights attorney in the 1970s and 1980s was
animated by, and preoccupied with, elections as the primary means to attain a
richer, fuller sense of participation in democratic self-governance. As a lawyer in
the Civil Rights Division of the United States Department of Justice and
subsequently as the head of the voting rights project of the NAACP Legal
Defense Fund, I sought to extend an‘ancient and honorable tradition’ of participa-
tion through voting to black citizens who were denied equal access to the
franchise in the deep South of the United States. For blacks then and for
many immigrants today, a focus on citizenship has included a focus on participat-
ing in elections. In particular, I worked in 1981 and 1982 with a coalition of
civic and law reform organizations across the political spectrum to extend and
amend the Voting Rights Act of 1965 to assure blacks and Latinos and other his-
torically disenfranchised people of color the same opportunity as other members
of the political process to elect representatives of their choice. I helped litigate the
¢rst case to reach the United States Supreme Court interpreting those amend-
ments to the VRA in a case out of North Carolina. Opportunity to participate
in the political process, ¢rst and foremost, meant the ability to elect candidates of
choice.
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Lani Guinier
Given my own experience, I can hardly dispute the idea that elections are ‘an
ancient and honorable tradition’. I acknowledge the symbolic and functional sig-
ni¢cance of elections. I recognize as well that those who support electocracy and
those who support collective e⁄cacy agree on many things.We agree that legiti-
macy, accountability, good public services and competence are important demo-
cratic goals. Where we seem to disagree is on the extent to which citizen
participation is crucial to the realization of these goals and to the extent it is
crucial, whether it can be cabined into competitive contests.165
What I question, in other words, is the conventional wisdom that the way to
¢x democracy is primarily to ¢x its election system. The idea of electocracy is a
crabbed view of democracy, especially to the extent it distances political represen-
tatives from their constituents and constituents from one another. Despite its
self-a⁄rming origins, the claim by members of the British House of Lords that
elections are no panacea has merit. Rule by powerful strangers, whether elected,
appointed or knighted, is a challenge for democracy.
I have argued that those committed to democracy in the US should contem-
plate the potential of building collective e⁄cacy among our fellow citizens to
answer that challenge. I ask: can we move beyond impoverished ideas about
representation, where representation is anemically virtual, where representatives
act as ¢xed surrogates rather than dynamic partners, and where winner-take-all
district based elections short circuit the need to encourage all voters to join in their
own self-de¢nition as a community and as a vibrant constituency of accountabil-
ity? This question ultimately seeks to illuminate a larger truth: that democracy is
about self governance not just self government.
Admittedly preliminary and unabashedly utopian, this essay raises without
answering other equally important and even more practical questions. It gives
examples at the municipal or provincial level but does not explore their applic-
ability to regional or national constituencies. It anticipates new responsibilities for
the representative that many will resist. More work needs to be done to elaborate
and integrate the details of such responsibilities.This essay is an invitation for that
process of elaboration to begin.
165 See M. Kang,‘Race and Democratic Contestation’ (unpublished draft, on ¢le with author). Kang
seeks to dislodge the idea that inter-party competition within a two party system is an adequate
proxy for democracy. Kang’s surrogate, the notion of ‘democratic contestation’, emphasizes poli-
tical competition among political leaders. However, Kang simply moves the idea of competition
to another level ^ contestation among political elites rather than contestation within the electo-
rate.
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