1008
Stevens, J., dissenting
While complying with a multitude of other political and legal requirements, then, Texas created three new majority-minority congressional districts and significantly reconfigured one pre-existing district. The District Court concluded that the State impermissibly emphasized race over nonracial factors when it drew two of these new districts (District 30 in Dallas and District 29 in Houston) and the reconfigured District 18 in Houston. To determine whether the Court correctly affirms that decision, I begin, as does the plurality, by asking whether "strict scrutiny" should be applied to the State's consideration of race in the creation of these majority-minority districts.
II
We have traditionally applied strict scrutiny to state action that discriminates on the basis of race. Prior to Shaw I, however, we did so only in cases in which that discrimination harmed an individual or set of individuals because of their race. In contrast, the harm identified in Shaw I and its progeny is much more diffuse. See Shaw II, ante, at 921- 925 (Stevens, J., dissenting). Racial gerrymandering of the sort being addressed in these cases is "discrimination" only in the sense that the lines are drawn based on race, not in the sense that harm is imposed on specific persons on account of their race. Ante, at 923-924 (Stevens, J., dissenting).
Aware of this distinction, a majority of this Court has endorsed a position crucial to a proper evaluation of Texas' congressional districts: Neither the Equal Protection Clause nor any other provision of the Constitution was offended merely because the legislature considered race when it deliberately
effective than the political gerrymandering had been: District 29, created as a majority-Hispanic district, elected an Anglo, former State Senator Green, in 1992, and reelected him in 1994. America Votes 21, at 437. Given his substantial role in crafting the district to meet his electoral needs, see n. 4, supra, Green's success suggests the power of incumbency over race.
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