“Vote Reparations”: Law Professor Calls For The Votes of Black Americans To Count Twice

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.

This is not the first proposal by Professor Hasbrouk that has caused a stir. He previously argued for packing the Court with “race-conscious justices.”  I have been a critic of court packing schemes raised after the confirmation of Justice Amy Coney Barrett.

Hasbrouck argues “[t]he Constitution’s framers set up the Electoral College to protect the interests of slave states.” Though others have made this argument, it 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.

What is striking is that Professor Hasbrouck makes the conclusory statement that, while monetary reparations can be opposed on the difficulty of implementation, voting reparations cannot:

One of the largest objections to monetary reparations is the impracticality of implementing them on a scale that would meaningfully address the injustices. Vote reparations, in contrast, would be a simple, low-cost way to begin to make amends.

It is hard to see how voting reparations would be “simple” under any program.  The question is how to qualify voters who claim the voting enhancement — millions of such classification determinations to be made by polling officials.  There is not only the question of what percentage of a race is determinative for enhanced voting but the proof required for such claim. Presumably, Professor Hasbrouck would not bar parties from challenging voters on enhancement, which would require a process for establishing sufficient “blackness” to qualify for greater voting power. That hardly seems “low-cost” or “simple.”

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.

198 thoughts on ““Vote Reparations”: Law Professor Calls For The Votes of Black Americans To Count Twice”

  1. CTHD says below that ‘science’ favors her race theories.

    It does not, but that is another matter.

    What is telling is that leftists demand that there be no scientific research into differences between races or populations.

    They say we are all identical but they have a fit whenever anyone dares to make a disciplined study of the issue.

    If they truly believed what they claim they would be promoting studies so they could gloat and tell all of us how wrong we were. Instead, they fight to shut down all scientific investigations. Despite their virtue posturing I think they have an idea what those studies will show.

    A few years ago a drug was developed that specifically treated black people for an ailment. The social justice folks fought against it because they would rather have real black people suffer than have any evidence that we are not identical

    Their ‘humanity’ has a very sharp and cruel edge to it..

  2. Silly article. But there are a lot of people whose votes do not count for President. Like all the people that live in NY or Mississippi. Presidential candidates who only need to pander to a handful of states will inevitably neglect the other ones; especially Trump.

  3. As long as we are supposed to entertain changes to the one vote rule, I recommend the following:

    Instead of changing the power of the voter, we should change the power of those elected. Require every eligible voter to take a civics test. Then compile the scores for each district and weight their elected representatives voting power based on the average score in their district. An average score of 50% means that representative’s voting power is cut in half. Follow the same process for Senators. And while we’re at it, the electoral college. 🙂

        1. Glad to know that you want the cities where a lot of naturalized citizens live to have more power.

          1. Don’t get too smug. They won’t take too kindly to the civically illiterate dragging down the average. Yes, that means you.

            1. I doubt that you have much idea of the distribution of the civically illiterate, and you certainly don’t know much about me.

        2. i just took a look at the civis practice test on the USCIS website

          Second question: what’s the last day to pay taxes ? April 15 of course. if you don’t have an extension that is. nothing about that

          and nothing about the future tax resistance against the billionaires

          itz coming

          Sal Sar

    1. @OLLY Your proposal is a bit drastic, but it does make a point. A large segment of voters are not informed. For example, a survey was taken just before the pandemic, and 40% of voters couldn’t tell you who was our governor and therefore had no idea of what he was doing or policies he was pursuing.

  4. Oh, my! Where to begin.


    – Ben Franklin admonished, we gave you “…a republic, if you can keep it.” Franklin’s was a restricted-vote republic, as one man, one vote democracy is impossible; always devolving into dictatorship.

    – The American Founders established a restricted-vote republic with these general vote criteria: Male, European, 21, 50 lbs. Sterling/50 acres.

    – The fundamental restriction was iterated four times in the Naturalization Acts of 1790, 1795, 1798 and 1802, that restriction being that citizens must be “…free white person(s).”

    – Upon the issuance of the wholly unconstitutional Emancipation Act, black persons must have been deported.

    – The “Reconstruction Amendments” were improperly ratified and are, thereby, unconstitutional, as they were imposed by those who prosecuted an unconstitutional war in an unconstitutional environment of unconstitutionally suspended Habeas Corpus and under the duress of brutal, post-war military occupation, intimidation and oppression. Blacks could not benefit from, counterintuitive, illegitimate and unconstitutional amendments, primarily because blacks could not become citizens, per the Naturalization Act of 1802, which was in full force and effect in 1863, and must have been immediately deported upon unconstitutional emancipation.

    – The right to private property was illegally and unconstitutionally violated by the unconstitutional Emancipation Proclamation.

    – Ultimately, capable and prescient freed blacks should have lobbied for the justice of compassionate repatriation. The Israelite slaves were out of Egypt before the ink was dry on their release papers.

    Earlier Resettlement Plans

    The view that America’s apparently intractable racial problem should be solved by removing Blacks from this country and resettling them elsewhere — “colonization” or “repatriation” — was not a new one. As early as 1714 a New Jersey man proposed sending Blacks to Africa. In 1777 a Virginia legislature committee, headed by future President Thomas Jefferson (himself a major slave owner), proposed a plan of gradual emancipation and resettlement of the state’s slaves. In 1815, an enterprising free Black from Massachusetts named Paul Cuffe transported, at his own expense, 38 free blacks to West Africa. His undertaking showed that at least some free Blacks were eager to resettle in a country of their own, and suggested what might be possible with public and even government support.7

    In December 1816, a group of distinguished Americans met in Washington, DC, to establish an organization to promote the cause of Black resettlement. The “American Colonization Society” soon won backing from some of the young nation’s most prominent citizens. Henry Clay, Francis Scott Key, John Randolph, Thomas Jefferson, James Madison, James Monroe, Bushrod Washington, Charles Carroll, Millard Fillmore, John Marshall, Roger B. Taney, Andrew Jackson, Daniel Webster, Stephen A. Douglas, and Abraham Lincoln were members. Clay presided at the group’s first meeting.8

    Measures to resettle Blacks in Africa were soon undertaken. Society member Charles Fenton Mercer played an important role in getting Congress to pass the Anti-Slave Trading Act of March 1819, which appropriated $100,000 to transport Blacks to Africa. In enforcing the Act, Mercer suggested to President James Monroe that if Blacks were simply returned to the coast of Africa and released, they would probably be re-enslaved, and possibly some returned to the United States. Accordingly, and in cooperation with the Society, Monroe sent agents to acquire territory on Africa’s West coast — a step that led to the founding of the country now known as Liberia. Its capital city was named Monrovia in honor of the American President.9

    With crucial Society backing, Black settlers began arriving from the United States in 1822. While only free Blacks were at first brought over, after 1827, slaves were freed expressly for the purpose of transporting them to Liberia. In 1847, Black settlers declared Liberia an independent republic, with an American-style flag and constitution.10

    By 1832 the legislatures of more than a dozen states (at that time there were only 24), had given official approval to the Society, including at least three slave-holding states.11 Indiana’s legislature, for example, passed the following joint resolution on January 16, 1850:12

    Be it resolved by the General Assembly of the State of Indiana: That our Senators and Representatives in Congress be, and they are hereby requested, in the name of the State of Indiana, to call for a change of national policy on the subject of the African Slave Trade, and that they require a settlement of the coast of Africa with colored men from the United States, and procure such changes in our relations with England as will permit us to transport colored men from this country to Africa, with whom to effect said settlement.

    In January 1858, Missouri Congressman Francis P. Blair, Jr., introduced a resolution in the House of Representatives to set up a committee

    to inquire into the expediency of providing for the acquisition of territory either in the Central or South American states, to be colonized with colored persons from the United States who are now free, or who may hereafter become free, and who may be willing to settle in such territory as a dependency of the United States, with ample guarantees of their personal and political rights.

    Blair, quoting Thomas Jefferson, stated that Blacks could never be accepted as the equals of Whites, and, consequently, urged support for a dual policy of emancipation and deportation, similar to Spain’s expulsion of the Moors. Blair went on to argue that the territory acquired for the purpose would also serve as a bulwark against any further encroachment by England in the Central and South American regions.13

    – Robert Morgan

  5. This proposal violates the fairness principle of proportionality. The proposal does not have a verifiable condition necessary for enforcement or adjudication. What is the test to ascertain the privilege? What to do about recent immigrants from the Caribbean or Africa, or how to allocate the privilege to those of mixed race are left to the reader.

    1. This proposal violates the fairness principle of proportionality….. What to do about recent immigrants from the Caribbean or Africa, ….

      Easy. Apply Le Chatelier’s Principle

      If a dynamic equilibrium is disturbed by changing the conditions, the position of equilibrium moves to counteract the change.

      Or as I told many Gringos who insulted Caribbeans like me as a child, because Cubans were arriving in large numbers to America, my reply was simple: one day we will take over Miami, secure electoral offices and you Gringos will move to Broward County


  6. “Giving citizens twice the voting power of other citizens is neither consistent nor compatible with our constitutional system.”
    One of the things I loath about academia is the sincerity and seriousness it responds with when faced with patently ridiculous and noxious ideas. To refuse to call a spade a bloody shovel is lying, too.

  7. Reported that Newsom of California has decreed that it will be a felony meriting prison time to sing Christmas Carols.

    That one got me, too, until I read down to see it was Babylon Bee.

    California is insane enough that even harsh satire seems plausible about it. Often I see headlines that I initially think are from the Bee only to discover they really were stupid enough to do it.

    1. “Goofy Gavin Nuisance” already imposed martial law, including stay-at-home orders, wear-a-mask orders, do-not-travel orders, a 10 PM curfew, etc.

  8. I think it would greatly benefit our nation’s self-awareness of the amount of racial mixing in our genomes to do a national
    genetic heritage census (possibly folded into the 2030 Census). It would use the best DNA Heritage kits and algorithms to
    expose for all to see 500 years of inter-racial mixing as composes our current makeup. This would help to deligitimize “colloquial” (subjective and superficial) racial categorizations, and elevate the use of scientific facts wherever classifications are attempted. These results will show that much of the hyper-race-consciousness is ill-founded. It will replace oversimplifications and urban myths with the beauty of reality in all its complexity.

    1. well that professor is very “light skinded” as some of my black friends used to observe of each other. I make him for about 3/4 white. they used to call that a quadroon. and yet he proposes to reduce white votes by half. this is due to the “social construction of race” which ever works against the poor white guys and ever works in favor of the affirmative action tokens. and the billionaires who maintain that system to fake out poor black folks as much as whites.

      Sal Sar

      1. I make him for about 3/4 white.

        He isn’t. I’ve a quadroon grand-niece and her black ancestry is hardly present in her facial features or skin tone. Her aunt and her mother are lighter than this professor.

    2. You cannot force everyone to provide DNA, and before you encourage people to so, you should understand the risks (data hacking, companies selling your data, …).

      What oversimplifications do you think exist? Most Black Americans know that they have some white ancestry, often because their slave ancestors were raped.

  9. Did Little Miss [I don’t leave home without my] Affirmative Action, NeedsToBeCommittedToAnInsaneAsylum, say “Discovery” in Dominion Voting Systems, Smartmatic et al. v Sidney Powell?

    “On Sunday night Attorney Lin Wood responded to Dominion Voting Machines.

    Lin Wood: “I am not impressed. Ms. Powell retracts nothing.”

    This ought to get REAL interesting when they call in Dominion Antifa hack Eric Coomer in to testify!”

    – Jim Hoft

    Oltmann claimed he had infiltrated local antifa groups in Colorado, and in September 2020 took part in a telephone conference call. He said during that conversation, he heard a man named Eric speak, and

    another caller referred to him as “Eric, the Dominion guy.” According to Oltmann, another participant in the call asked “What are we going to do if (expletive)ing Trump wins,” to which, according to Oltmann, “Eric” replied

    “Don’t worry about the election. Trump is not going to win, I made (expletive)ing sure of that. Hahaha.”

    – Snopes

    1. Because we thought Bernie Sanders was just crazy and no one would listen to him we got Alexandria Ocasio Cortez and Ilhan Omar. Because we thought Alexandria Ocasio Cortez and Ilhan Omar were just crazy and no one would listen to them we get the Hasbouck’s of the world saying the most outlandish things. If we just ignore these people eventually they will take over. But that’s just crazy, isn’t it?

  10. Hasbrouck insists that “black votes in this country are worth less than white votes“.

    That would be because they continue to vote for Democrats, who use and abuse their vote.

  11. Brandon Hasbrouck is further proof that, in academia, if you can’t be erudite then you have to be shocking. Another nut with a law degree here in the Old Dominion. Too bad they pass ’em out like candy now.

    Apparently he clerked for Judges Emmett Sullivan (DC) and Roger Gregory (4th Cir.). He’s got a whole nine years of experience!! Move over Cicero, we got a live one.

  12. Lani Guinier’s schemes were rather more sophisticated than this. It was embarrassing enough at that time to scotch her nomination to a position in the DoJ. Washington and Lee is actually promoting this mess on their website. And, of course, this got past an editor at The Nation (no surprise there; it has a long history as America’s worst and stupidest journal of opinion).

    And it’s yet another example, in case you needed one, of how the combine of academe, the media, Democratic Party hacks, and the usual poverty pimps simply has no interest in the welfare of ordinary blacks. Everything is designed to provide more swag to a small and self-selected set of miseducated bourgeois blacks while attempting to injure non-exotic white people (white wage-earners especially). With an exception here and there (Robert Bowers, Anthony Williams), black politicians tend to be purveyors of city-government-business-as-usual when they’re not frankly destructive. Very few of them make a positive difference for their constituents. Doubling the number of people like Eleanor Holmes Norton in office benefits no one.

    That from which ordinary blacks might benefit would be (1) more public order on the streets and (2) more order in the schools (3) more vocational training in schools and (4) a restructuring of common provision wherein subsidies for mundane expenditures are replaced with matching funds for earned income and (5) a program to improve the built environment which incorporates rebalancing property tax burdens and supplementary sanitation patrols. They’ll get none of it, of course, because none of these measures generate more jobs for social workers or school administrators.

  13. A 17 year old girl was at the bus stop. A guy drive up and she got in. “I gotta get my check!” She said and off she went. “Why doesn’t that guy just give her cash?” I asked. To her mom. “She needs to get knocked up, have her babe, and get her welfare check.”
    Oh. Reparations.

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