Hasbrouck insists that “black votes are worth less than white votes in this country” by focusing primarily on the electoral college, where smaller states have a higher percentage of white voters. Of course, there are a multitude of classifications affected by the electoral college, which was designed to protect smaller and less populous states, especially in the West. It prefers rural and less industrialized states. It favors western over eastern interests. In the end, however, Joe Biden was elected with a significant number of votes. However, Professor Hasbrouck adds that “despite the overwhelming support from blacks – 94 percent of Detroit voted for Biden! – the results in Georgia, Michigan, Wisconsin and Pennsylvania were worryingly close.”
Hasbrouck insists that the reduction in voting rights for blacks is “all intended”. Of course, blacks couldn’t vote at the time (and they wouldn’t be able to vote until the 19th century). Non-homeowners, women and other minorities have also not received voting rights in the US in the past. However, as Professor Hasbrouck correctly points out, the history of slavery remains our original sin as a nation. This story includes later election taxes and other methods of disenfranchising black voters. As a nation, we have worked to address this deep and lasting hurt. The question is not the underlying injustice, but the means.
This is not the first suggestion from Professor Hasbrouk that has caused a stir. He had previously spoken out in favor of filling the court with “racially conscious judges”. I’ve been a critic of court wrapping plans that came after Judge Amy Coney Barrett’s approval.
Hasbrouck argues “[t]The drafters of the constitution set up the electoral college to protect the interests of the slave states. “While others have made this argument, it is highly controversial when he argues that the electoral college was wholly or largely for this purpose. There have been a number of concerns from smaller states about joining a federal system and relinquishing the strong powers under the articles of the Confederation. The electoral college was designed as part of a republican model of government. As Judge Robert H. Jackson in his dissent Ray v. Blair, 43, US 214 (1952), wrote: “No one who remains true to our history can deny that the plan originally implied in his text that voters would be free agents to make independent and impartial judgment on men who are best qualified to hold the highest offices in the nation. “The state controlled the election of senators in a system that was a mixture of direct and representative democratic elements. In Federalist # 10, Madison explained how this structure was intended to stop impulse decisions by “an interested and arrogant majority” and to process such raw public sentiments by representative figures. In Federalist No. 68, Alexander Hamilton actually saw the elections as a strengthening of the power of the electorate by avoiding the pitfalls of party politics. The votes would ultimately select the voters. Moreover, through a representative government, these voters could give mature thought to such elections. Hamilton paraphrased Alexander Pope with the arguments: “For forms of government, let fools deny what is best administered is best.”
Hasbrouck and Johnson’s proposals would decouple our system from the “one man, one vote” concept and allow voting to be manipulated by any majority. In 1963, a young John Lewis referred to a photo in the New York Times of a group of black protesters in Rhodesia with signs that read: One man, one voice. Lewis explained from the Lincoln Memorial that “one man, one voice” is the African cry. It’s ours too. It has to be ours. “
This proposal would decouple voting rights from cases and statutes that are supposed to protect the equality of votes. In 1964, the Supreme Court enacted Reynolds v Sims to ensure equal vote and protect the concept of “one man, one vote.” This led to a long line of tied voting cases. It would also undo much of the work to secure the 1965 Voting Rights Act and subsequent civil rights measures to ban racial discrimination in votes. This would introduce such discrimination as a form of redress.
However, Hasbrouck insists that “[b]Since white votes currently count more than black votes, double counting the black votes would restore the electoral balance. “However, the proposal would not only introduce race-based voting, but also encourage manipulation of voting rights in order to achieve a“ more perfect union ”. To do this, he insists “we need to change the way we choose our government”. Indeed, it would change the entire shape of our government. The drafters could mix democratic and representative elements in the vote. This would lead to a system that is neither truly democratic nor representative. It should give certain voters more power than their fellow citizens. This would run counter to a long list of cases aimed at countering the “plague of racial discrimination in voting”. South Carolina v. Katzenbach, 383 US 301, 308, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966).
Professor Hasbrouck also gives no indication of how long black Americans will double their voting rights. According to the African American weighted vote, assuming that once a majority is reached, that majority would willingly return their weighted advance (and possible majority). After all, it takes time to build a “more perfect union” and, according to Hasbrouck’s analysis, this is reparation that would likely have to stay in place for a period that reflects the underlying disadvantage. There is also the logistical issue of how to qualify voters who claim voting enhancement – millions of such classification determinations have to be made by electoral officials.
When it comes to protecting the rule of law, the way we do things is often what we do. As Chief Justice Marshall wrote of the necessary and proper clause:
Giving citizens double the voting rights of other citizens is neither consistent nor compatible with our constitutional system.