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Vieth v. Jubelirer is a significant setback to efforts to challenge partisan gerrymandering in court. Four members of the Supreme Court repudiated Davis v. Bandemer and concluded that partisan gerrymanders present a nonjusticiable question, while the fifth, Justice Kennedy, determined that the Court ought to "refrain from intervention" at this time, although he left open the hope that gerrymandering might become justiciable if the right standard of proving a gerrymander is ever found. Yet, strikingly, all nine members of the Supreme Court agreed that, justiciable or not, partisan gerrymanders do raise a constitutional question and some partisan gerrymanders are unconstitutional. Indeed, Justice Scalia's plurality opinion noted that "severe partisan gerrymanders" are incompatible with "democratic principles" and are presumptively unconstitutional. Justice Scalia analogized "severe partisan gerrymanders" to a decision by the Senate to "employ, in impeachment proceedings, procedures that are incompatible with its obligation to 'try' impeachments." Such an action would "violate the Constitution" even though it might not be "for the courts to say when a violation has occurred, and to design a remedy." Justice Kennedy apparently agreed with the unconstitutionality of gerrymandering as, of course, did the four dissenters. Presumably because the plurality concluded that gerrymandering claims are nonjusticiable, Justice Scalia said very little about why partisan gerrymandering is unconstitutional. The concurring and dissenting justices also focused on the linked questions of justiciability and standard of proof of gerrymandering, and said relatively little about what makes gerrymandering unconstitutional.

Professor Daniel Lowenstein, in his article, Vieth's Gap: Has the Supreme Court Gone from Bad to Worse on Partisan Gerrymandering?, differs with the plurality on the question of justiciability and with the Court as a whole on the question of constitutionality In his view, partisan gerrymandering does present a justiciable question, but, on the merits, he finds that gerrymandering is almost never unconstitutional. Only when gerrymandering is aimed at a "pariah" group subject to the "pervasive kind of discrimination" comparable to that inflicted on African- Americans in the Jim Crow South or when it is used to "permanently" exclude a majority group from control of a state legislature would Professor Lowenstein find that gerrymandering violates the Constitution. Professor Lowenstein rightly concludes that the likelihood of the first type of claim arising is "small" and of the second "even smaller." He emphatically rejects the "excessive partisanship" theory of the unconstitutionality of gerrymandering. He asserts as a matter of principle – and not just out of a pragmatic concern about "manageability" – that excessive partisanship in legislative apportionment is not only constitutional but is also consistent with both the letter and spirit of the Constitution. The heart of his argument on the constitutionality of gerrymandering is that "the Constitution does not try to prevent political competition from going 'too far.' It depends on competition to preserve the balanced structure of the government."

I agree with Professor Lowenstein on two key points – that the substantive merits of the constitutionality of partisan gerrymandering must be given much greater attention than they have so far received, and that excessive partisanship is the most important constitutional argument against partisan gerrymandering.