🥊 If courts undermine democracy, blue states have tools for reform.
It’s time to treat state supreme courts like the partisan actors they are.
Let’s talk about what just went down in Virginia. On Friday, a 4-3 partisan majority of the Virginia Supreme Court invalidated the will of millions of Virginia voters — overturning a voter-approved measure to replace the state’s congressional map. Now, VA AG Jay Jones is appealing to the U.S. Supreme Court.
If we’re being real, appealing to SCOTUS is likely to be a dead end given the way it has, in the last two weeks alone, relied on faulty data to support its decision to gut the Voting Rights Act and cleared the way for Alabama to eliminate one of its two majority-black districts. At this point, both federal and state courts have picked a side in the national redistricting battle — and partisan judges are putting a thumb on the scale for the GOP.
The GOP advantage in the judiciary is part of a plan to neuter opposition from voters and democratically-accountable branches. For decades, the GOP has slowly and carefully packed the courts with partisan judges to build a reliably right-wing judiciary, with two aims: combat purported left-wing bias (or as some call it, the Constitution) AND preserve and consolidate conservative political power.
Democrats need a mindset shift. The courts are a prime battleground. The GOP is going to seize every legal loophole, and break and rewrite the rules until Democrats create some consequences. There’s no referee coming in to break up the fight — the only choice for Democrats is to win.
And importantly, in blue states they have (mostly unused) power. In many states — and at the federal level, too — legislatures and governors control key aspects of how courts function including their size, jurisdiction, and funding. Conservatives know this, and when courts don’t fall in line, red-state officials have repeatedly shown they are willing to change the rules or play games to circumvent the courts. A quick refresher:
The Arizona and Utah GOP packed their courts. Just this year, “moderate” UT Gov. Spencer Cox (R) expanded the state supreme court in apparent retaliation after the court repeatedly sided with voters during a nearly decade-long redistricting fight. A decade ago, former AZ Gov. Doug Ducey (R) also expanded the state supreme court from five to seven justices, giving Ducey an opportunity to appoint two new justices that would align with him.
The Ohio GOP simply ignored the court. Repeatedly. The Ohio Supreme Court struck down Republican-drawn legislative maps five separate times — and congressional maps twice. The response? Pass essentially the same maps over and over again until the clock ran out. The result? Ohio held its 2022 elections under maps the state supreme court had already found unconstitutional.
Louisiana and Alabama had no problem holding elections using maps federal courts had ruled against. After a federal court ordered Louisiana to create a second majority-minority district, the legislature decided to adjourn rather than comply. The always-helpful U.S. Supreme Court then stepped in to help pave the way for the state to hold the election anyway. Similarly, in Alabama, the Supreme Court paused a lower court’s preliminary injunction against the state’s maps, forcing voters to cast ballots on a map the Supreme Court would later find likely violated the Voting Rights Act.
The Wyoming GOP is considering shrinking the court. After the state supreme court struck down the state’s abortion ban, GOP lawmakers met to discuss reducing the court from five members to three in a direct effort to thwart the will of the voters and put the court in more pliant hands.
The message: The courts don’t have the final word. Red-state officials do.
It’s time to turn the tables — and show the GOP that rigging the game comes with a cost. Until the incentives change, they’ll keep breaking the rules. It’s up to blue-state officials to stand up.
So listen up:
THE PUNCH LIST
Are you VA House of Delegates Speaker Don Scott? Retire the Supreme Court. The Virginia Constitution allows the legislature to determine the judicial retirement age — a.k.a. a great way to flip the court overnight. If VA Dems want to succeed in overcoming the latest redistricting setback in the future, it’s going to require new judges. Drop the mandatory retirement age (currently 73). Appoint new judges. Use the power you have. Another idea here? Term limits.
Are you a blue-state governor? Pack the courts now to protect democracy, and the Constitution. It’s time for Democrats to take the partisan nature of courts seriously — and stop clinging to norms the other side has long abandoned. Blue-state leaders like CA Gov. Gavin Newsom and VA Gov. Abigail Spanberger stood up to Trump on redistricting; now more blue-state governors (and others) should seize the opportunity to stand up for democracy (we’re looking at you, Massachusetts, Maryland, and Virginia). If Republicans are committed to dismantling rights, Democrats should be even more aggressive in standing up for them.
Are you a blue-state legislator? Limit where challenges to key cases (including on redistricting) can be heard. As red states attempt to rewrite state court rules — blue states should follow suit. When the Texas GOP passed a bill expanding abortion restrictions, it sought to restrict state courts from reviewing its constitutionality. As a Republican legislator said: “We make the rules. We set the jurisdiction.” In Montana, Republican legislators attempted to strip jurisdiction from the state supreme court to hear original challenges to ballot measures. There are limits — but if particular partisan state courts cannot be trusted to rule impartially, don’t let them. Legislators could also write venue provisions into law to get in front of judges who aren’t reliable votes for every Republican wish-list item.
IT’S TIME TO RALLY THE TROOPS
While the courts may have set it back, the redistricting effort in Virginia is not over. VA House of Delegates Speaker Don Scott said it best:
“Virginia voters were with us! This is not the time to despair — this is the time to keep fighting. Keep your head up and keep moving forward. One battle at a time, one fight after another. We’ve come too far to stop now.”
Upper Cut is a collaboration between Salt River Valley Project and Evergreen Legal — two organizations that believe punching back is the policy playbook this moment demands. It’s how we fight a rigged system, make courage contagious, and deliver for people against the leaders holding them down.