"Vote Reparations": Law Professor Calls For The Votes of Black Americans To Count Twice
By: Theodore Johnson (JONATHAN TURLEY)
S E E D E D C O N T E N T
Brandon Hasbrouck is an assistant professor at Washington and Lee University School of Law, has written an article in The Nation calling for a new form of reparations based on voting. Featured prominently on the law school's website, the article pushes a similar proposal made in the Washington Post in 2015 by Theodore Johnson, a senior fellow at the Brennan Center for Justice. Johnson wanted black votes to be worth five-thirds that of non-black votes. Ironically, the proposals would upend decades of civil rights litigation to defend the "one man, one vote" principle.
Hasbrouck insists that "black votes in this country are worth less than white votes" by primarily focusing on the Electoral College where smaller states have a higher percentage of white voters. Of course, there are a host of classifications impacted by the Electoral College which was designed as a protection for smaller and less populated states, particularly out West. It favors rural and less industrial states. It favors Western over Eastern interests. Yet in the end, Joe Biden was elected by a sizable number electoral votes. Professor Hasbrouck adds however that "even with overwhelming Black support—94 percent of Detroit voted for Biden!—the outcomes in Georgia, Michigan, Wisconsin, and Pennsylvania were worryingly close."
Hasbrouck insists that the reduction of the voting power of black people "is all by design." Of course, at the time, blacks could not vote (and would not be able to do so until the Nineteenth Century). Non-property owners, women, and other minorities have also been denied voting rights historically in the United States. Yet, the history of slavery remains, as Professor Hasbrouck correctly states, our original sin as a nation. That history includes later poll taxes and other methods of the disenfranchising black voters. As a nation, we have struggled to address this deep and lasting injury. The question is not the underlying wrong but the remedy.
Hasbrouck argues "[t]he Constitution's framers set up the Electoral College to protect the interests of slave states." That is a highly contestable proposition if he is arguing that the Electoral College was entirely or largely for that purpose. There were a host of concerns of smaller states in joining a federal system and surrendering the strong powers under the Articles of Confederation. The Electoral College was designed as part of a republican model of government. As Justice Robert H. Jackson wrote in his dissent Ray v. Blair, 43 U.S. 214 (1952), "No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices." State controlled the election of senators in a system that was a mixing of direct and representational democratic elements. In Federalist No. 10, Madison explained how this structure was designed to stop impulse decisions of "an interested and overbearing majority" and to process such raw public sentiments through representative figures. In Federalist No. 68, Alexander Hamilton saw the electoral as actually enhancing the power of voters by avoiding the pitfalls of party politics. The votes after all would select the electors. Moreover, these electors could bring mature deliberations to such elections through representative government. Hamilton paraphrased Alexander Pope in arguing "For forms of government let fools contest, That which is best administered is best."
The proposals of Hasbrouck and Johnson would decouple our system from the concept of "one man, one vote" and allow for the manipulation of the voting by any majority. In 1963, a young John Lewis referred to a photo in The New York Times of a group of black women demonstrators in Rhodesia holding signs that read: one man, one vote. Lewis famously declared from the Lincoln Memorial that "'One man, one vote' is the African cry. t is ours, too. It must be ours."
This proposal would decouple voting rights from cases and statutes designed to protect the equality of voting. In 1964, the Supreme Court handed down Reynolds v. Sims to guarantee equal voting populations to protect the concept of "one man, one vote." That led to a long line of cases protecting voting equality. It would also undo much of the work to secure the Voting Rights Act of 1965 and subsequent civil rights measures to prohibit racial discrimination in voting. This would introduce such discrimination as a form of reparations.
Hasbrouck insists however that "[b]ecause white votes currently count more than Black ones, double-counting Black votes would restore electoral balance." The proposal however would not only introduce race-based voting but invite manipulation of voting power to achieve "a more perfect union." To do that, he insists "we must transform how we choose our government." Indeed, it would change the entire form of our government. The Framers could to mix democratic and representative elements in voting. This would make for a system that was neither truly democratic nor representative. It is designed to give certain voters more power than their fellow citizens. That would run counter to a long line of cases seeking to counter the "blight of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966).
Professor Hasbrouck also does not give any hint as to how long black Americans will exercise twice their vote franchise. After giving African Americans a weighted vote, the assumption that is, once a majority is secured, that majority would willingly give back its weighted advance (and possible majority). After all, it takes time to build a "more perfect union" and, by Hasbrouck's analysis, this is a reparation that would presumably have to stay in place for a period reflective of the underlying deprivation. There is also the logistical question of how to qualify voters who claim the voting enhancement — millions of such classification determinations to be made by polling officials.
In protecting the rule of law, how we do things is often as what we do. As Chief Justice Marshall wrote regarding the Necessary and Proper Clause:
"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." McCulloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579 (1819)
Giving citizens twice the voting power of other citizens is neither consistent nor compatible with our constitutional system.
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Does it seem crazy? Progressives throw it out there to see how Republicans react. If they don't push back (no matter how crazy the idea) the radical agenda becomes real.
A few observations:
Johnson wanted black votes to be worth five-thirds that of non-black votes
It would have to be 5 times a non-black vote since Black Americans comprise 13% of the population.
The proposals of Hasbrouck and Johnson would decouple our system from the concept of "one man, one vote" and allow for the manipulation of the voting by any majority.
Or in this case manipulation by the minority.
I'm sure we have some who think this would be a good idea. Fortunately, I don't expect to hear from them. Very good. This seed stays civil for our readers.
Trump and his supporters are obviously off topic.
No skirting!
No pictures or cartoons.
Open to civil discussion
It's never going to happen so it isn't worth comment.
That's what they said about the police standing down during a riot.
Of course, the way the electoral college is currently working, rural voters count as more than a single vote now.
Did you miss it:
In Federalist No. 10, Madison explained how this structure was designed to stop impulse decisions of "an interested and overbearing majority" and to process such raw public sentiments through representative figures.
A farmer's vote has to count just as much a band of city dwellers.
It counts more than a vote from a city dweller.
We have a Republic as opposed to an Athenian radical democracy. At the risk of inviting the interpretation of our resident wordsmith, let me again point to what Hamilton said in Federalist 10:
"A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure, and the efficacy which it must derive from the union.
The two great points of difference between a democracy and a republic, are first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.
The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice pronounced by the representatives of the people, will be more consonant to the public good, than if pronounced by the people themselves convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests of the people. The question resulting is, whether small or extensive republics are most favourable to the election of proper guardians of the public weal; and it is clearly decided in favour of the latter by two obvious considerations.
In the first place it is to be remarked, that however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence the number of representatives in the two cases not being in proportion to that of the constituents, and being proportionally greatest in the small republic, it follows, that if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice.
In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practise with success the vicious arts, by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre on men who possess the most attractive merit, and the most diffusive and established characters."
Technology steadily changed that, from the demise of newspapers and magazines to television,
followed by the demise of TV to the internet and social media
where the vicious arts are alive and well, some may say victorious...
In other words, you are afraid to say what you think. Either its a good idea, or a bad one, regardless of whether it's going to happen. Which is it?
I have no problem saying it would destroy the country. Why can't you?
What have progressives just done with the vaccine?
Dr. Harald Schmidt, a supposed expert on ethics and health policy at the University of Pennsylvania, advised other so called experts that essential workers, not the elderly, should be the first to receive COVID-19 vaccines. Why you ask? “Older populations are whiter.” “Society is structured in a way that enables them to live longer. Instead of giving additional health benefits to those who already had more of them, we can start to level the playing field a bit.”
Gee those people who were only counted as 3/5s of a person for so long and denied basic rights
sound so bitter sometimes, don't they?
It's hard to tell when they are serious or just saying "pull a finger, any finger".
It is not they! Black Americans are not complaining. It's white progressives, specifically Professor Brandon Hasbrouck.
It's hard to tell when they are serious or just saying "pull a finger, any finger".
Um-hum....People teaching our children!
Sorry to burst your bubble there Vic, Brandon Hasbrouck identifies as black.
Pretty sure he is related to Dawn Hasbrouck the Fox anchor in Chicago.
Maybe you watched her when she was stationed in Boston?
Yeah, them black people teaching our children, lol.
btw he is just a lowly Assistant professor, no doctorate yet, but I'm guessing it will be controversial.
Oh dear! And I thought he was just another white progressive.
maybe you watched her when she was stationed in Boston?
Sorry I missed her. Give her my regards.
btw he is just a lowly Assistant professor, no doctorate yet
Oh yes, we wouldn't know one from the other without the doctorate.
pretty hard to miss in the article...
in vic's defense, that probably wasn't the part of the article that would catch his readers eyes.
Wrong again? Oh My...
Hear anything from Durham yet? Time is running out...
Barr just declined to add any more Special Counselors either...
So I guess the premise is all wrong then./s It's Hasbrouck we should listen to and double all those Black votes!/s
I don't expect to. He had to first wait for Horowitz to end his investigation and submit his report. Then came the deadly pandemic from China. It was kind of hard to convene a Grand Jury at that point. A lot of time was lost. I'm satisfied that it's still going on.
Time is running out...
You mean Joe is going to shut it down? How will that look? Oh, that's right it's the thing to do when democrats in power!
Barr just declined to add any more Special Counselors either...
To the Durham investigation? I don't think they're needed.
I like the sidebar conversations. Is everyone allowed to do that? I get tickets for that!
I dont think anyone should get to vote twice.
I also dont think our national government and our national policies should be determined by places that have more cows than people.
Cows have a lot of leverage...
They and the rural Americans that live there and raise them are a major source of greenhouse gasses, they blow a lot of hot air...
I agree, but I can also see this guys point. If some are so unwilling to agree to financial reparations, proposing voting reparations is likely just a way to highlight the continued inequities we still find.
I think it would put more attention on the issues if we suggested perhaps just reversing the discrimination and putting up signs on virtually every public restroom and restaurant that say "blacks only" while refusing to accept whites at any major universities or colleges or refusing to loan them money or refusing to rent to them or sell homes to them in all but the poorest communities. Of course, that's not a realistic ask, but it's worth thinking about and allows those who continue to harbor prejudice and white grievance to walk a mile in a black Americans shoes.
The reality is, no white American would ever put up with what our fellow black Americans have been forced to endure for centuries. They would be doing more than just marching in the streets burning a few cars or dumpsters or throwing a few rocks, they would be using their stockpiles of weapons and ammo to attack our government institutions and feeling justified in gunning down anyone who dared disrespect them in such a way. I have often heard them repeat Thomas Jefferson quote "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants" when they believe their rights are being hindered, yet they lash out at any other minority who would dare raise their hand in violence against the established white Christian patriarchy no matter how justified the anger might be. If there were a scourge of black cops killing unarmed white Christians ending with us watching the slow and brutal murder of a white Christian as a black cop knelt on their neck as they begged for breath, we know that conservative white Christians everywhere would have taken up arms, not just had 95% peaceful protests with a handful of protests turning to violence or vandalism.
As opposed to city dwellers - from young urban professionals all the way down to human derelicts.
I'm closing this one down and filing it under another slam dunk for Jonathan Turley.
If anyone absolutely, desperately needs the last word, you can join the others on the WTP comment wall.