My column today in the Pittsburgh Post-Gazette.

Bruce Ledewitz: Democratic states can save the Constitution without imitating Texas

Special to the Post-Gazette

Aug 25, 2025

4:30 AM

I think former Attorney General Eric Holder has lost his mind. He suggested that Democrats in New York and California engage in extreme congressional district gerrymandering to counter similar efforts by Republicans in Texas, acting at the behest of President Donald Trump. California has done so and New York is considering doing so. Other states with governments dominated by one party may follow their example.

Sure, political hardball is sometimes necessary. When the other side blocks your nominees, you block theirs.

But when one party engages in unconstitutional conduct, as this is, you don’t respond in kind. You don’t undermine the Constitution just because the other party has. You don’t help them damage the system even more.

Democrats should run on the Constitution

A mid-term, purely partisan, redistricting effort is unconstitutional. There are state courts that would so hold.

The problem is that in a 2019 case, Rucho v. Common Cause, the U.S. Supreme Court held that partisan gerrymandering is a political question that cannot be litigated in the federal courts. Chief Justice John Roberts did not uphold such partisanship — he called it “unjust” — but he held that the federal courts lacked standards to write new congressional maps.

Rucho does not excuse Democrats from obeying the Constitution. What will Democrats do when their own extreme gerrymanders are challenged in state court? Will they say, yes, this is unconstitutional, but the Republicans did it first? That does not even work on a playground.

So, what should Democrats do? First, run in Texas against the Republicans’ obvious cheating. Republicans are undermining constitutional democracy. Put up billboards all over the state with a simple slogan — “Don’t Vote for Cheaters.”

Remember, extreme gerrymandering can backfire. You can only create so many safe seats. Overdo it and you can lose a lot of seats in a hurry.

Second, Democrats should run nationally in 2026 on the slogan, “Democrats Defend Democracy.” This is just one example of Republicans trampling the Constitution. You think indiscriminate ICE raids are popular? You think people want the army on the streets?

Extreme gerrymanders involve a handful of House seats. Democrats should go for a landslide. Give Americans a chance to save the Constitution. Trust the people.

Finally, change the law. Congress can ban extreme gerrymandering, including midterm changes, by a simple statute.

Reject ideal theories

But the federal courts should also be pressed to limit the reach of Rucho. The political question in Rucho was really the fault of over-zealous voting rights activists.

For years, they brought lawsuits trying to get the federal courts to impose new voting maps according to various theories generated by complex computer data about “ideal” voting districts.

There never was going to be a Supreme Court majority to adopt any of any these theories.

That complexity is why Rucho happened.

In contrast, in 2018, the Pennsylvania Supreme Court struck down a highly gerrymandered state congressional voting map without adopting any specific theory of ideal voting. There was a lot wrong with that judicial decision, but, because of it, Pennsylvania today has a fair map and politicians here know better than to try any weird redistricting stunts.

In that case, the late Chief Justice Max Baer — then Justice Baer — showed the way forward in this field. Baer dissented in part because he felt the majority had not given the General Assembly enough time to draw a new map.

But he agreed that Pennsylvania’s current map was unconstitutional. In a separate opinion, Baer wrote that redistricting is unconstitutional when partisan considerations “predominate over all other valid districting criteria” and result in the dilution of a particular group’s vote — in that case, Democrats.

This is a simple and easy to apply formula. Under it, a redistricting plan adopted pursuant to unusual procedures, like a mid-decade redistricting, or with weirdly shaped districts, like the 7th Congressional District in the Pennsylvania case that was said to look like “Goofy kicking Donald Duck,” is unconstitutional.

Justice Baer was telling Pennsylvania’s politicians to use normal procedures to produce normal looking maps. Then the maps will be upheld. Politicians are free to seek a lot of political advantage under the Baer standard, but they cannot go to extremes, as the Republicans are proposing to do in Texas.

Go back to the Court

Democrats and voting rights groups need to go back to the Supreme Court and admit that their previous attempts at sophisticated voting theories did not work.

They should urge the Court not to apply Rucho to extreme gerrymandering efforts, without trying to create ideal maps. It will be good enough if politicians are forced to use normal procedures to produce normal looking maps.

If the Court accepted that invitation and adopted the Baer approach, we would not have fairness in districting. But it would be better than the current free-for-all in which even normally sensible politicians like Eric Holder are tempted to violate existing political norms.

Justice Antonin Scalia once wrote that you could fight cross burning without adding the First Amendment to the fire. The same thing is true here. You can prevent extreme partisanship, you can even fight fire with fire, but you have to be careful not to burn up the Constitution in the process.

Bruce Ledewitz is professor of law emeritus at the Thomas R. Kline School of Law of Duquesne University. He writes every other Monday. The views expressed do not represent those of Duquesne University. His previous article was “Republicans, please learn from the relentless summer of 2025.”

First Published: August 25, 2025, 4:30 a.m.