Cite as: 517 U. S. 952 (1996)
Souter, J., dissenting
A
In each of today's cases, the Court expressly assumes that avoiding a violation of the Voting Rights Act qualifies as a sufficiently compelling government interest to satisfy the requirements of strict scrutiny. See ante, at 977 ("As we have done in each of our three previous cases . . . , we assume without deciding that compliance with the results test [of § 2 of the Voting Rights Act] . . . can be a compelling state interest"); Shaw II, ante, at 915 ("We assume, arguendo, for the purpose of resolving this case, that compliance with § 2 could be a compelling interest"). While the Court's decision to assume this important point, arguendo, is no holding, see Seminole Tribe of Fla. v. Florida, ante, at 125 (Souter, J., dissenting), the assumption itself is encouraging because it confirms the view that the intentional creation of majority-minority districts is not necessarily a violation of Shaw I, ante, at 958 (strict scrutiny does not "apply to all cases of intentional creation of majority-minority districts"), and it indicates that the Court does not intend to bring the Shaw cause of action to what would be the cruelly ironic point of finding in the Voting Rights Act of 1965 (as amended) a violation of the Fourteenth Amendment's equal protection guarantee. Cf. Pildes & Niemi, 92 Mich. L. Rev., at 498 (observing that "[i]f the Court believed there were serious constitutional questions with the fundamental structure of this scheme, the Court had numerous means to avoid permitting an unconstitutionally composed legislature to assume power," and seeing the reservation of this question in Voinovich v. Quilter, 507 U. S., at 157, as "evidence that a majority of the Court is not prepared to find a general ban on race-conscious districting in the Constitution"). Justice O'Connor's separate opinion, ante, at 990-992, bears on each of these points all the more emphatically, for her view that compliance with § 2 is (not just arguendo) a compelling state interest and her statement of that position virtually insulate the Voting Rights Act from jeopardy under Shaw as such.
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