Miller v. Johnson, 515 U.S. 900, 50 (1995)

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Cite as: 515 U. S. 900 (1995)

Ginsburg, J., dissenting

In adopting districting plans, however, States do not treat people as individuals. Apportionment schemes, by their very nature, assemble people in groups. States do not assign voters to districts based on merit or achievement, standards States might use in hiring employees or engaging contractors. Rather, legislators classify voters in groups— by economic, geographical, political, or social characteristics—and then "reconcile the competing claims of [these] groups." Davis v. Bandemer, 478 U. S. 109, 147 (1986) (O'Connor, J., concurring in judgment).

That ethnicity defines some of these groups is a political reality. Until now, no constitutional infirmity has been seen in districting Irish or Italian voters together, for example, so long as the delineation does not abandon familiar apportionment practices. See supra, at 944-945. If Chinese-Americans and Russian-Americans may seek and secure group recognition in the delineation of voting districts, then African-Americans should not be dissimilarly treated. Otherwise, in the name of equal protection, we would shut out "the very minority group whose history in the United States gave birth to the Equal Protection Clause." See Shaw, 509 U. S., at 679 (Stevens, J., dissenting).12

B

Under the Court's approach, judicial review of the same intensity, i. e., strict scrutiny, is in order once it is determined that an apportionment is predominantly motivated by race. It matters not at all, in this new regime, whether the apportionment dilutes or enhances minority voting strength. As very recently observed, however, "[t]here is no moral or

12 Race-conscious practices a State may elect to pursue, of course, are not as limited as those it may be required to pursue. See Voinovich v. Quilter, 507 U. S. 146, 156 (1993) ("[F]ederal courts may not order the creation of majority-minority districts unless necessary to remedy a violation of federal law. But that does not mean that the State's powers are similarly limited. Quite the opposite is true . . . .") (citation omitted).

947

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