Shaw v. Hunt, 517 U.S. 899, 26 (1996)

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924

SHAW v. HUNT

Stevens, J., dissenting

ular race-based districting will presumably be received in equal measure by all state residents. For that reason, the claimed violation of a shared right to a color-blind districting process would not seem to implicate the Equal Protection Clause at all precisely because it rests neither on a challenge to the State's decision to distribute burdens and benefits unequally, nor on a claim that the State's formally equal treatment of its citizens in fact stamps persons of one race with a badge of inferiority. See Bush v. Vera, post, at 1052-1054 (Souter, J., dissenting).

Indeed, to the extent that any person has been burdened more than any other by the State's districting plan, geography rather than race would seem to be to blame. The State has not chosen to subject only persons of a particular race to race-based districting. Rather, the State has selected certain geographical regions in which all voters—both white and black—have been assigned to race-based districts. Thus, what distinguishes those residents who have received a "color-blind" districting process from those who have not is geography rather than racial identity. Not surprisingly, therefore, Shaw I emphasizes that the race of the members of the plaintiff class is irrelevant. Shaw I, 509 U. S., at 641.

Given the absence of any showing, or, indeed, any allegation, that any person has been harmed more than any other on account of race, the Court's decision to entertain the claim of these plaintiffs would seem to emanate less from the Equal Protection Clause's bar against racial discrimination than from the Court's unarticulated recognition of a new substantive due process right to "color-blind" districting itself. See id., at 641-642.4 Revealed for what it is, the constitu-4 The Court's decisions in Powers v. Ohio, 499 U. S. 400 (1991), and Batson v. Kentucky, 476 U. S. 79 (1986), are not to the contrary. There, we have held that defendants have third-party standing, no matter what their race, to assert the rights of jurors, who have been deprived because of their race of a benefit available to all others. No voter in this litigation

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