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:

Giving citizens twice the voting power of other citizens is neither consistent nor compatible with our constitutional system.