Democrats can use Republicans’ tactics to overturn the Virginia Supreme Court’s gerrymandering decision.

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Democrats are weighing their response to a dangerous Virginia Supreme Court ruling last week that struck down the new voter-approved election districts—a measure that would allow them to counter nationwide GOP gerrymandering. Democratic lawmakers have reportedly decided not to adopt a proposal to radically lower the mandatory judicial retirement age and choose new justices. Instead, they’ve filed a quixotic appeal to the U.S. Supreme Court, which is responsible for the torrent of GOP gerrymandering that’s sweeping the nation. Some argue that Democrats should take a much harder line, with New York Times columnist (and Virginia resident) Jamelle Bouie arguing for defying the state supreme court.

It wouldn’t be the first time that legislators have played hardball to work around restrictions on gerrymandering. Across the country, Republican lawmakers have done everything they could to defy these constitutional bans, spitting in the face of voters and packing any courts that get in the way. The GOP has already established the precedent of going to war with a state judiciary that attempts to rein in partisan redistricting; if Virginia Democrats try to revive their own map, they’ll merely be borrowing from the Republican playbook.

Consider Utah, whose state Supreme Court has faithfully enforced a voter-approved gerrymandering ban. Republicans responded by packing the court, adding two new seats to push it rightward. They also set up a new “constitutional court” to hear challenges to their bills and election districts, transferring a pending appeal in the gerrymandering case to the new, more pliant court. Earlier this year, lawmakers filed impeachment charges against a lower court judge who stood in the way of unfair election districts. The result of all these power grabs in Utah will be a radically different judiciary than the one that struck down the GOP’s unconstitutional gerrymanders.

In Florida, the state Supreme Court is poised to let Republicans flagrantly violate a voter-approved amendment that has banned gerrymandering for 16 years. The amendment even bans mid-decade redistricting strictly for partisan purposes. Gov. Ron DeSantis argues the amendment violates the federal Constitution by requiring lawmakers to avoid discriminating against Black voters. The state Supreme Court has already weakened the nondiscrimination requirement; soon, it will likely hold that the amendment’s protections for Black voters render the entire measure invalid.

How did Florida end up with this high court? The state ostensibly has a “merit selection” system, in which nominating commissions compose lists of the most qualified applicants for judgeships, and the governor chooses from the list. But after the disputed 2000 presidential election, in which the Florida Supreme Court ruled for the Democratic candidate, Republican lawmakers gave the governor a majority of the appointments to the nominating commissions. DeSantis and his predecessor have appointed a court that seems more loyal to the GOP than the voters.

Republicans in states across the country have undermined merit selection systems. They put a constitutional amendment on the ballot in Kansas this year that would end merit selection. Lawmakers in other states have similarly attacked merit selection after courts ruled against Republicans in cases involving abortion or voting rights.

In Ohio, lawmakers radically changed judicial elections as the state Supreme Court was refusing to back down on gerrymandering. After Republicans blatantly violated the voter-approved fair districts amendment, the high court repeatedly ruled against them and ordered fair districts. So the GOP filed a federal lawsuit. And Judge Amul Thapar, a Donald Trump appointee, ordered the state to adopt the unconstitutional districts. Of all the possible maps, Thapar mandated that Ohio use the only map that had been ruled unconstitutional.

The GOP adopted partisan high court elections and spent millions to create a new Ohio Supreme Court that’s more to their liking. The former Republican chief justice, who had voted with Democrats to block the districts, was replaced with a justice who voted with his GOP colleagues to allow the legislature to draw unfair districts.

Ohio was only the second state in the past 100 years to adopt partisan judicial elections. North Carolina was the first to do so, a decade ago.

Republicans in Raleigh had read a memo about how the GOP could control the state government “for 114 years.” It outlined a plan to change judicial elections and the courts to ensure their gerrymandered election districts wouldn’t be struck down. “Lose the courts, lose the war,” the memo said. Republicans spent the next few years trying to pack the court, gerrymander judges, threaten impeachment, and repeal a public financing program that kept wealthy donors from dominating judicial races.

North Carolina Democrats managed to keep their high court majority for a few years. And as the court was weighing a gerrymandering case, Republicans threatened to impeach Democratic justices, an echo of a threat leveled at the Pennsylvania Supreme Court after it un-gerrymandered election districts in 2018.

Despite the threats, the Democratic majority ruled in 2022 that the North Carolina Constitution didn’t allow for the kind of extreme gerrymandering that had kept the state’s elections tilted toward the GOP. But Republicans seized control of the high court in a partisan election that November and dismantled most of the previous majority’s rulings to protect democracy. The new Republican majority didn’t even wait for a new lawsuit; it immediately exercised a rare power to “reconsider” the court’s rulings and overturned the anti-gerrymandering decision. Predictably, GOP legislators then carved up big cities and netted three more congressional districts for their party.

Virginia’s high court could similarly reverse course next year. In January 2027, the state legislature will have the chance to replace Justice D. Arthur Kelsey, author of last week’s decision. (In Virginia, the General Assembly chooses the justices.) If legislators replace Kelsey with a justice more faithful to the will of the voters, the high court can overturn its ruling and reinstate the new map before the 2028 election. This reversal would carry much more democratic legitimacy than North Carolina Republicans’ switcheroo: In Virginia, the voters approved the map, while North Carolina voters had no say in the imposition of a brutal gerrymander.

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But some want the Democrats to act in time for this year’s crucial midterms. Law professor Quinn Yeargain of Michigan State University recommended changing the judicial retirement age as a potential Democratic response to the state Supreme Court’s ruling. (North Carolina Republicans have already changed their state’s judicial retirement age to keep a corrupt chief justice in charge.) Yeargain suggested lowering the retirement age to 54 years old.

“A modification of the judicial retirement age could be added to the next budget, which is due by June 30, and would come into effect upon passage,” he said. “Then, after the bill is approved, the entire court would retire.” Democrats could appoint new justices and seek to restore the recently invalidated map, countering the GOP’s national assault on democracy.

It appears that Virginia Democrats do not have the stomach for this maneuver, further illustrating the asymmetry between the parties when it comes to compliance with the courts. But this is exactly the kind of constitutional hardball that Republicans have played in state capitols across the country for decades now. Critics may argue that tit-for-tat escalation only makes things worse. But if America is really in an era of “competitive authoritarianism,” the fact is that one party wants to move us away from autocracy, while the other side wants to get rid of any competition and rule permanently.

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