One Step forward or Two Steps Back - Abrams v. Johnson and the

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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.