ONE STEP FORWARD OR TWO STEPS BACK? ABRAMS v. JOHNSON AND THE VOTING RIGHTS ACT OF 1965 INTRODUCTION It is hostile to a democratic system to involve the judiciary in the politics of the people. And it is not less pernicious if such judicial intervention, in an essentially political contest be dressed up in the abstract phrases of the law.1 Article one, Section four of the United States Constitution gives states the responsibility of fashioning their own voting districts.2 The United States Supreme Court has consistently recognized this right of the states while at the same time drawing federal courts into the pro- cess.3 In Upham v. Seamon,4 the Supreme Court held that district courts are not free to disregard the political program of state legisla- tures when fashioning reapportionment plans.5 Since'Upham, courts have had to determine which circumstances require legislative 6 deference. In Abrams v. Johnson,7 the United States Supreme Court consid- ered the validity of a court drawn reapportionment plan.8 The Court in Abrams upheld a court drawn redistricting plan which contained one majority-minority district.9 The Georgia Legislature, with the assistance of the Department of Justice, had attempted to redistrict by creating two majority black districts.'0 The Supreme Court recog- nized that a court faced with redistricting should follow the policies of the state legislature." The Court also held that Upham did not re- quire a redistricting court to look to state legislative policy when the policy is based on an "overriding concern with race."12 1. Colegrove v. Green, 328 U.S. 549, 553-54 (1946), reh'g denied, 329 U.S. 825 (1946). 2. Bush v. Vera, 116 S.Ct. 1941, 1998 (1996) (Souter, J., dissenting). 3. See infra notes 120- 278 and accompanying text. 4. 456 U.S. 37 (1982)(per curiam). 5. Upham v. Seamon, 456 U.S. 37, 43 (1982) (per curiam). 6. Abrams v. Johnson, 117 S. Ct. 1925, 1933 (1997). 7. 117 S. Ct. 1925 (1997). 8. Abrams v. Johnson, 117 S. Ct. 1925, 1933 (1997): 9. Abrams, 117 S. Ct. at 1934-35. 10. Id. at 1935. 11. Id. at 1933. 12. Id. at 1934. The Court stated that "[ilt is not Justice Department interfererice per se that is the concern, but rather the fact that Justice Department pressure led the State to act based on an overriding concern with race." Id. CREIGHTON LAW REVIEW [Vol. 31 This Note will first carefully scrutinize the Supreme Court's hold- ing in Abrams.'3 Next, this Note will examine previous decisions of the Supreme Court concerning legislative redistricting policies.14 Fi- nally, this Note will criticize the Court in Abrams for (1) invading the political province of state legislatures, (2) eviscerating Department of Justice approval in reapportionment cases, (3) applying strict scrutiny and, therefore, negating the use of race as a factor in reapportion- ment, and (4) creating legislative confusion in the area of reapportionment.15 FACTS AND HOLDING Due to Georgia's discriminatory history and in order to secure mi- nority access to voting institutions Congress, in 1965, declared Geor- gia a covered jurisdiction under the Voting Rights Act of 1965 ('VRA").16 A covered jurisdiction under VRA must obtain either ad- ministrative preclearance from the Attorney General or approval by the United States District Court for the District of Columbia of any alteration in voting process made after November 1, 1964.17 Preclearance is required when congressional redistricting plans are created.'8 The requirement for obtaining preclearance is that the planned change "does not have the purpose and will not have the ef- fect of denying or abridging the right to vote on account of race or color."19 The 1990 Census revealed that Georgia was entitled to an addi- tional United States congressional district.20 Due to the addition of a district, Georgia began reformatting its congressional districts during 13. See infra notes 16-119 and accompanying text. 14. See infra notes 136-278 and accompanying text. 15. See infra notes 279-422 and accompanying text. 16. Miller v. Johnson, 515 U.S. 900, 905 (1995); Darin R. Doak, Note, Miller v. Johnson: Drawing The Line on Racial Gerrymandering, 17 N. ILL. L. REV. 155, 161 (1996). 17. 42 U.S.C. § 1973(c) (1994). Section Five of the Voting Rights Act states in pertinent part: Whenever a State... shall enact or seek to administer any voting qualification or prerequisite voting, or standard, practice, or procedure with respect to vot- ing different from that in force or effect on November 1, 1964, such State may institute an action in the United States District Court for the District of Colum- bia for a declaratory judgement that such qualification ... does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color .... Provided, That[sic] such qualification ... has been submitted ... to the Attorney General." Id. 18. Miller, 515 U.S. at 905-906 (citing Beer v. U.S., 425 U.S. 130, 133 (1976)). 19. Beer v. United States, 425 U.S. 130, 133 (1976). 20. Johnson v. Miller, 864 F. Supp. 1354, 1360 (S.D. Ga. 1994), affd, 515 U.S. 900 (1995). 1998] THE VOTING RIGHTS ACT 919 the 1991 session of the Georgia General Assembly.21 In order to de- fine the drafting process, the Georgia Senate and House adopted re- districting guidelines to aid the General Assembly.22 The guidelines included an allowance for submission of plans by third parties, the requirement of public hearings and a list of drafting criteria.23 One of the third party drafting plans submitted to the legislature in 1991 ("Max-Black Plan"), provided for three majority-minority districts; the Second, the Fifth, and the Eleventh.24 Majority-minority districts are "districts in which a majority of the population is a member of a spe- cific minority group."25 The already existing congressional plan con- tained only one majority-minority district: the Fifth.26 In October of 1991, the General Assembly submitted a congres- sional redistricting plan to the Attorney General of the United States through the Department of Justice ("DOJ") for preclearance.27 The plan provided for two majority-minority districts: the Fifth and the Eleventh.28 On January 21,1992, the DOJ rejected the plan.29 The DOJ referred to versions of the Max-Black Plan, arguing that three majority-minority districts could be created.30 The letter from the DOJ expressed apprehension that legislative leadership was attempt- ing to "limit black voting potential to two majority-minority dis- tricts."31 Although the submitted plan correctly exercised black voting potential in two districts, it did not account for minority concen- trations in Southwest Georgia.32 The DOJ concluded that the two- district majority-minority plan "had the purpose or will have the effect of denying or abridging the right to vote on account of race."33 On March 3, 1992, the General Assembly submitted another plan to the DOJ.34 This submission increased black voting strength consid- 21. Miller, 864 F. Supp. at 1360. 22. Id. 23. Id. (stating the drafting criteria included: "single-member districts only, equal- ity of population among districts, contiguous geography, avoiding dilution of minority voting strength, following precinct lines where possible, and compliance with § 2 and § 5 of the VRA ..... 24. Id. 25. Voinovich v. Quilter, 507 U.S. 146, 149 (1993). 26. Abrams, 117 S. Ct. at 1930. 27. Id. 28. Miller, 864 F. Supp. at 1363. The Court stated that "the plan also provided for a third district, the Second, where blacks comprised an influential but sub-majority per- centage of the voting age public." Id. 29. Miller, 864 F. Supp. at 1363. 30. Id. 31. Id. See also Miller v. Johnson, 515 U.S. 900 (1995) (stating "that the proposed plan did not 'recognize' certain minority populations by placing them in a majority black district"). 32. Miller, 864 F. Supp. at 1364. 33. Id. 34. Id. CREIGHTON LAW REVIEW [Vol. 31 erably in districts Two, Five and Eleven.35 The plan still had only two majority-minority districts.36 The DOJ rejected the plan, stating that, although the voting strength of the Second District black population had been increased, the district remained no more than a sway 37 district. On April 2,1992, the DOJ finally granted a letter of preclearance for the legislature's third plan.3s The accepted redistricting plan con- tained three majority-minority districts.39 The plan as a whole split twenty-six counties, including the city of Savannah.40 The Eleventh District itself covered 6784.2 square miles, split eight counties, and divided five municipalities.41 The densely populated areas were tied with sparsely populated areas by narrow land bridges.42 Elections were held under the new plan on November 4, 1992.43 All three majority-minority districts elected black candidates.44 On January 13, 1994, five white voters from the Eleventh District sued various state officials alleging racial gerrymandering.45 A three-judge panel of the United States District Court for the Southern District of Georgia determined that the redistricting plan violated Equal Protec- tion principles.46 The panel reasoned that the United States Supreme Court's holding in Shaw v. Reno47 rendered the Eleventh District 48 invalid. The district court interpreted Shaw as holding that whenever race is the overriding predominant force in the redistricting process, strict scrutiny is required.49 The court held that the plan did not sur- 35. Id. at 1365. The Court stated that the plan did, however, contain a Second District in which black voting strength had been increased to 45.01%, and a Fifth and Eleventh District where blacks comprised close to 60% of the voting age population. Id. at 1364. 36. Abrams, 117 S. Ct. at 1931. 37. Miller, 864 F. Supp. at 1365. 38. Miller, 515 U.S. at 909. 39. Id. The lower court noted that the final submission contained "the Second, with 52.33% black voting age population, the Fifth with 57.47%, and the Eleventh, with 60.36%." Miller, 864 F.Supp. at 1366. 40. Miller, 515 U.S. at 908. 41. Id. 42. Id. 43. Id. at 909. 44. Miller, 864 F. Supp. at 1369. The Court noted that one of the electees was Georgia's first black congresswoman. Id. 45. Miller, 515 U.S. at 909. 46. Id. See 28 U.S.C. § 2284(a) (1994) (stating in pertinent part "[a] district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body"). 47. 509 U.S. 630 (1993). 48. Miller, 515 U.S. at 909. 49. Id. at 913. 1998] THE VOTING RIGHTS ACT vive strict scrutiny because, even though compliance with VRA is a compelling interest, VRA did not require three majority-minority dis- tricts.50 As required by statute, state officials appealed directly to the United States Supreme Court.51 The United States Supreme Court held the Eleventh District as drawn was unconstitutional.52 Justice Anthony M. Kennedy, writing for the majority, reasoned that race was the overriding factor in draw- ing the Eleventh District.53 As a result, the Supreme Court viewed the redistricting plan under strict scrutiny.54 The Court explained that although there is a "significant state interest in eradicating the effects of past racial discrimination," Georgia was not attempting to remedy these effects in creating the Eleventh District.55 Rather, ac- cording to the Court, Georgia was attempting to satisfy the DOJ's preclearance requirements.56 The Court explained that a state does not have a compelling interest in satisfying whatever preclearance mandates the DOJ issues.57 The Supreme Court, therefore, remanded the case to the United States District Court for the Southern District 58 of Georgia. On remand, the district court faced redrawing the congressional districts.59 Due to the "contorted" shape of the Eleventh District, it was not probable that the district could be redrawn without effecting several of Georgia's other congressional districts.60 Additionally, at this time, the complaint was amended to challenge the Second District on grounds of racial gerrymandering.61 The district court held that the Second District was also improperly drawn.62 The district court deferred to Georgia's legislature to draw a new plan.63 The legislature could not reach a decision.64 The court then drew its own plan which contained only one majority-minority dis- 50. Id. at 910. 51. Id. See also 42 U.S.C. § 1973 (b)(5) (1994) (stating that an appeal is to be taken directly to the United States Supreme Court). 52. Abrams, 117 S. Ct. at 1927. 53. Miller, 515 U.S. at 920. 54. Id. 55. Id. at 920 (citing Shaw v. Reno, 113 S. Ct. 2831 (1993)). 56. Id. at 921. 57. Id. at 922. 58. Id. at 909, 928. 59. Abrams, 117 S. Ct. at 1929. 60. Id. 61. Id. 62. NAACP Brief for Appellant at 5, Abrams v. Johnson, 117 S. Ct. 1925 (1997) (No. 95-1425). 63. Abrams, 117 S.Ct at 1929. 64. Id. CREIGHTON LAW REVIEW [Vol. 31 trict.65 The 1996 general elections were held under it.66 Subsequent to the election, Abrams and several other black voters appealed to the United States Supreme Court arguing that the district court's redis- tricting plan did not adequately consider Georgia's black population.67 On appeal, the Supreme Court affirmed the decision of the district court.68 Justice Anthony M. Kennedy, writing for the majority, held that the trial court acted within its discretion in determining that it could not fashion more than one majority black district without engag- ing in racial gerrymandering.69 The Court also held that the remedial plan did not violate the VRA.7° The Court based this conclusion on the fact that the black population was not adequately compact for a second majority-minority district.71 The Court decided that the plan did not violate Section five of the VRA because court ordered plans are not required to obtain preclearance.72 Finally, the Court held that the court ordered plan did not violate the one person-one vote guarantee of the Constitution.73 The district court's plan, according to the Court, had the lowest population deviation of any plan presented and, there- fore, satisfied the de minimis variation requirement.74 The Supreme Court held that, although as a rule courts faced with the task of drawing district lines should follow the policies of the state legislature, in this case, racial considerations tainted the 1991 plan.75 The Court noted that the Georgia legislature was forced by the DOJ to adopt an unconstitutional districting plan.76 The Court explained that a court's duty is not to follow unconstitutional plans, but rather, correct them.77 According to the Court, if the district court had used the precleared plan as a benchmark for remedying the plan, it would have validated the very plan that was to be avoided as uncon- 65. Id. at 1929-30; Brief for Appellant at 11, Abrams (No. 95-1425) (stating that "if Georgia had a concentrated minority population large enough to create a second major- ity-minority district without subverting traditional districting principals, the Court would have included one since Georgia's legislature probably would have done so"). 66. Abrams, 117 S. Ct. at 1930. 67. Id. at 1930. See also 42 U.S.C. § 1973 (b)(5) (stating that an appeal is to be taken directly to the United States Supreme Court). 68. Abrams, 117 S. Ct. at 1930. 69. Id. at 1935. 70. Id. 71. Id. at 1936. 72. Id. at 1938. 73. Id. at 1939. See generally U.S. CONST. art. I, §2, cl. 1. (Article 1, section 2 has been interpreted as requiring that congressional districts must be apportioned so as to effect population equality as nearly as possible.) (citations omitted). 74. Abrams, 117 S. Ct. at 1939-40. The de minimis variation mandate requires congressional districts to attain population equality as nearly as feasible. Id. at 1939. 75. Abrams, 117 S. Ct. at 1933. 76. Id. at 1933-34. 77. Id. at 1933 (citing Upham v. Seamon, 456 U.S. 37, 43(1982)). 1998] THE VOTING RIGHTS ACT stitutional.78 The Court then stated that because a large geographic area of Georgia was affected by the districting, the district court had acted appropriately by making substantial alterations to the existing 79 plan. The Court then addressed the effect of the DOJ's influence on the 1991 plan.80 The Court reasoned that although the 1991 plan, which contained two majority black districts, "was not perceived as a 'racial gerrymander'", the fact that the DOJ caused the State to base its reap- portionment on an overriding concern with race was problematic.81 The Court held that a second majority-minority district could not be drawn without race predominating over traditional districting princi- ples.82 Thus, the Court ruled that the district court acted within its discretion when it determined that it could not draw two majority- minority districts without engaging in racial gerrymandering.83 The Court next set out the framework for establishing a VRA Sec- tion two claim against single member districts.84 The Court noted that under its prior holding in Thornburg v. Gingles,85 a plaintiff bringing an action under Section two of the VRA must show that (1) the minority group is large and concentrated enough to constitute a majority in a single member district, (2) that the minority group is "politically cohesive", and (3) that the majority vote is sufficient to bloc the minority's preferred candidate.86 Once a plaintiff has met the bur- den of proof, the court then determines whether minorities have not been provided an equal opportunity to take part in the political pro- cess based upon the totality of circumstances.8 7 In Abrams, the Court held that none of the Gingles factors were satisfied.8 The Court held that the black population was not ade- 78. Abrams, 117 S. Ct. at 1933. 79. Id. 80. Id. at 1933-34. 81. Id. at 1934 (citing Brief for Appellants, Miller v. Johnson, 515 U.S 900 (1994) No. 94-631)). 82. Abrams, 117 S. Ct. at 1934. 83. Id. at 1935. The court stated "[i]nterference by the Justice Department, leading the state legislature to act based on an overriding concern with race, disturbed any sound basis to defer to the 1991 udprecleared plan." Id. 84. Abrams, 117 S. Ct. at 1935-36 (citing Growe v. Emison, 507 U.S. 25 (1993)). Section 2 of V.R.A. is violated when a political procedure leading to election in a state or political subdivision is unequally open to participation by members of a racial minority. Id. at 1935. The Black voters in Abrams argued that the court ordered plan, containing only one majority black district, resulted in impermissible vote dilution of majority votes. Id. at 1935. 85. 478 U.S. 30 (1986). 86. Abrams, 117 S. Ct. at 1936 (quoting Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986)). 87. Id. at 1936. 88. Id. CREIGHTON LAW REVIEW [Vol. 31 quately compact to warrant a second majority black district.89 The Court then reasoned that, due to the large degree of crossover voting in Georgia, there was no evidence of bloc voting present.90 The Court considered evidence of crossover voting when it concluded that the mi- nority group was not politically cohesive.91 The Court then held that the remedial plan did not violate Section five of the VRA.92 A Section five violation occurs when a covered juris- diction fails to obtain preclearance from the DOJ or approval from the United States District Court for the District of Columbia.93 The Court reasoned that a decree of a district court is not of such a nature that it must be precleared.94 The Court explained that the exception for dis- trict court decrees applies to court created judicial plans fashioned without interference of the state legislature.95 In this case, the Court noted that the district court indisputably fashioned an independent 96 plan. Finally, the Court held that the district court's plan did not vio- late the Constitutional guarantee of one person-one vote.97 Noting that the Constitution requires that congressional districts achieve population equality as much as feasible, the Court held that slight de- viations are tolerable where there are exigent circumstances.98 The 89. Id. at 1936. See generally Johnson v. De Grandy, 512 U.S. 997, 1022 (1994) (holding that section 2 of the V.R.A. does not require a state to create a district that is not sufficiently compact on predominately racial lines). 90. Abrams, 117 S. Ct. at 1936. The Court stated that "the average percentage of whites voting for black candidates across Georgia ranged from 22% to 38%, and the average percentage of blacks voting for white candidates ranged from 20% to 23%."(cita- tions omitted) Id. A multimember District is a large district which elects several repre- sentatives. Binny Miller, Who Shall Rule and Govern? Local Legislative Delegations, Racial Politics and the Voting Rights Act, 102 YALE L.J. 105, 153 (1992). Bloc voting results where majority and minority voters invariably favor different candidates and the majority, by virtue of its numerical superiority, repeatedly overpowers the choice of minority voters. Gingles, 478 U.S. 30 at 48. 91. Abrams, 117 S. Ct. at 1936. 92. Id. at 1939. 93. Id. at 1938 (citing 42 U.S.C. § 1973(c)). 94. Id. 95. Id. 96. Id. (citing McDaniel v. Sanchez, 452 U.S. 130, 148-52 (1981) (holding that "[t]he exception applies to judicial plans, devised by the court itself, not to plans submit- ted to the court by the legislature of a covered jurisdiction in response to a determina- tion of unconstitutionality")). 97. Id. at 1939-40. One person, one vote is the imperative that equal legislation representation is given to all citizens of all places. Reynolds v. Sims, 377 U.S. 533, 568 (1963), reh'g denied, 379 U.S. 870 (1964). See also Gray v. Sanders, 372 U.S. 368, 379- 80 (1963) ( stating that "[o]nce the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote- whatever their race, whatever their sex, whatever their occupation, whatever their in- come, and wherever their home may be in the geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment."). 98. Abrams, 117 S. Ct. at 1939. 1998] THE VOTING RIGHTS ACT Court reasoned that due to state policies and conditions the slight de- viations in this case were justifiable.99 The Court based this conclu- sion on "Georgia's strong historical preference for not splitting counties outside the Atlanta area and for not splitting precincts ... includ[ing] maintaining core districts and communities of interest."100 The Court concluded that reapportionment is best accomplished by state legislatures which are more capable than the courts of fashion- ing legitimate districting policies.10' Justice Stephen Breyer, joined by Justice John Paul Stevens, Jus- tice David Souter and Justice Ruth Bader Ginsburg, dissented. 02 The dissent argued that the majority "created a legal doctrine that will unreasonably restrict legislators' use of race," in redistricting plans even for the most antidiscriminatory purposes.'03 The dissent also reasoned that the majority's doctrine would entangle the Court in an area of legislative responsibility.104 The dissent asserted that the Georgia legislature made obvious its preference for a two majority-minority district plan.'05 The district court was not free to disregard this preference if the two-district plan was constitutional.'0 6 The dissent argued that Upham v. Seamon,'07 which held that a court is not free to disregard legislative policies when involved in the task of reapportionment, should govern the pres- ent case.'08 The dissent argued that the district court's conclusion that the Georgia legislature did not prefer a two majority-districting plan was wrong as a matter of fact and of law.109 The dissent first noted that the pressure of the DOJ was not unu- sual and it probably reflected the DOJ's concern with Georgia's dis- criminatory history."i 0 The dissent explained that the majority was 99. Id. at 1939-40. 100. Id. at 1940. 101. Id. at 1941. 102. Id. at 1943 (Breyer, J., dissenting). 103. Id. at 1951 (Breyer, J., dissenting). 104. Id. (Breyer, J., dissenting). 105. Id. at 1943 (Breyer, J., dissenting). 106. Id. (Breyer, J., dissenting). 107. 456 U.S. 37 (1982). 108. Abrams, 117 S. Ct. at 1943 (Breyer, J., dissenting). 109. Id. at 1944 (Breyer, J., dissenting). 110. Id. See Rogers v. Lodge, 458 U.S. 613, 622-623 (1982) (holding that the at-large electoral system in Burke County, Georgia was being maintained for the invidious pur- pose of diluting voting strength), reh'g denied, 459 U.S. 899 (1982); Busbee v. Smith, 549 F. Supp. 494, 499-500 (D.D.C. 1982) (holding that historical discrimination, overt racial statements, conscious minimization of black voting strength, and an absence of legitimate non racial reasons for adopting a congressional reapportionment plan which split a large and contiguous black population between districts mandated that Georgia's Reapportionment Act had a discriminatory purpose in violation of the Voting Rights Act.) affd, 459 U.S. 1166 (1983). 926 CREIGHTON LAW REVIEW [Vol. 31 factually wrong in ignoring that Georgia twice submitted a plan that contained two majority-minority districts, thus evincing a preference for such a reapportionment plan regardless of the DOJ's involve- ment. 1 ' The dissent argued that the majority was legally wrong due to the fact that Upham requires a court to fashion a state's reappor- tionment plan by looking to the proposed plans of the state legisla- ture.112 The dissent noted that the court is not entitled to examine political pressures that might have influenced legislatures in their de- cisions.113 The dissent stated that the political pressures are part of the legislative process and should therefore be denied 4 consideration. 1 The dissent concluded by arguing that the majority's "predomi- nant racial motive" test will prove to be impracticable."15 It argued that the test removes the redistricting authority from the legislatures to the courts and prevents the use of race as a political factor in redis- tricting."16 The dissent noted that the majority neglected to state the situations in which race is not a criterion."17 Due to this omission, the court will become increasingly entangled in redistricting, a task that inherently belongs to legislatures." 8 The dissent predicted that the majority's test forbidding the overt use of race as a consideration will lead to significant litigation."19 BACKGROUND THE CONSTITUTIONAL AND LEGIsLATIVE FRAMEWORK Article one, Section four of the United States Constitution gives states the responsibility of fashioning their own voting districts.' 20 Article one, Section four states "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be pre- scribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations .... ,"121 This 111. Abrams, 117 S. Ct. at 1944-45 (Breyer, J., dissenting). 112. Id. at 1944 (Breyer, J., dissenting). 113. Id. (Breyer, J., dissenting). 114. Id. at 1944-45 (Breyer, J., dissenting). 115. Id. at 1949 (Breyer, J., dissenting). 116. Id. at 1950 (Breyer, J., dissenting). The dissent stated "the Court has not said that the Constitution forbids the use of race in all these instances." Id. at 1949 (Breyer, J., dissenting). 117. Abrams, 117 S. Ct. at 1950 (Breyer, J., dissenting). 118. Id. (Breyer, J., dissenting). 119. Id. (Breyer, J., dissenting). The dissent stated "[a] Court test that forbids the overt use of race in any (or all) circumstances... will simultaneously permit plaintiffs to bring lawsuits complaining about the covert use of what was overtly forbidden." Id. (Breyer, J., dissenting). 120. Bush v. Vera, 116 S. Ct. 1941,1999 (1996) (Souter, J., dissenting). 121. U.S. CONST. art. I ,§ 4, cl 1.