926
Stevens, J., dissenting
the Midwest to identify their race on the census form, I do not doubt that only persons living in States in that region who filled out the forms would have standing to bring the constitutional challenge. I do doubt, however, whether our equal protection jurisprudence would require a federal court to evaluate the claim itself under strict scrutiny. In such a case, the only unequal treatment would have resulted from the State's decision to discriminate on the basis of geography, a race-neutral selection criterion that has not generally been thought to necessitate close judicial review.
The majority ignores these concerns and simply applies the standing test set forth in United States v. Hays, 515 U. S. 737 (1995), on the apparent assumption that this test adequately identifies those who have been personally denied "equal treatment" on account of race. Id., at 745. In Hays, the Court held that a plaintiff has standing to challenge a State's use of race in districting for Shaw claims if he (1) lives in a district that allegedly constitutes a racial gerry-mander or (2) shows that, although he resides outside such a district, he has been personally subject to a racial classification. Ante, at 904. On this basis, the Court concludes that none of the plaintiffs in this action has standing to challenge District 1, but that two of them have standing to challenge District 12. Ibid.
As I understand it, the distinction drawn in Hays between those who live within a district, and those who do not, is thought to be relevant because voters who live in the "gerry-mandered" district will have suffered the "personal" injuries inflicted by race-based districting more than other state residents.5 Those injuries are said to be "representational" harms in the sense that race-based districting may cause officeholders to represent only those of the majority race in
5 As I have explained, even if the Hays test showed that much, it would still only demonstrate that the State had used geography, rather than race, to select the citizens who would be deprived of a color-blind districting process.
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