Missouri GOP still see path for gerrymandered congressional map. Legal experts see little hope.

Attorney General Catherine Hanaway, right, speaks to reporters on Sept. 10 after the Missouri Supreme Court found Secretary of State Denny Hoskins, center, “was in contempt” for ordering use of an illegal congressional map (Rudi Keller/Missouri Independent)

Republican officials aren’t giving up on the congressional map they pushed through the Missouri legislature last year, despite two setbacks at the U.S. Supreme Court and a state Supreme Court ruling that the map never became law.

Their next chance comes Thursday before the 8th U.S. Circuit Court of Appeals.

But the legal path to getting the map back in place for November appears exceedingly narrow.

Even if the federal appeals court sides with Republicans challenging the use of Missouri’s old congressional districts, a U.S. Supreme Court order blocking the 2025 map would remain in effect unless the justices themselves lift it.

And there is another problem: The Missouri Supreme Court has already ruled that the map Republicans want to use never took effect under state law.

Former Missouri Supreme Court Judge Michael Wolff described that as an “insuperable obstacle.”

“The Supreme Court of Missouri is the final authority on what Missouri law is,” he said, “and the court has said that (the 2025 map) is not the law and never was, because it has not been approved by a vote of the people.”

For the Republican plaintiffs to prevail, he said, the 8th Circuit would effectively have to order Missouri to conduct an election using districts that the state’s highest court has determined are not legally in effect.

And even then, Wolff said, the U.S. Supreme Court’s stay would stand in the way.

“The chances,” Wolff said, “are between zero and zero.”

Justin Levitt, a law professor at Loyola Marymount University, told the St. Louis Post-Dispatch there is virtually no chance an 8th Circuit ruling will ultimately change the map used in the November election.

“The war’s over,” he said, “but there’s still soldiers fighting.”

Republican leaders see it differently.

Gov. Mike Kehoe, who called lawmakers into a special session last year to redraw Missouri’s congressional districts at President Donald Trump’s request, said after the U.S. Supreme Court intervened last week that he still hopes the appeals court will revive the map.

“I look forward to the 8th Circuit’s consideration of the merits of the Missouri First Map and remain confident in the legal process moving forward,” Kehoe said. “Voters deserve certainty and clarity.”

The 8th Circuit has set remote oral arguments for 10 a.m. Thursday, two days before the federal deadline for Missouri to send ballots to military and overseas voters.

The case was filed by U.S. Rep. Bob Onder, state Sen. Rick Brattin and two Missouri voters after the Missouri Supreme Court ruled Sept. 3 that a referendum petition challenging the new map was legal, sufficient and timely.

That unanimous decision put the map on the Nov. 3 ballot as Proposition A and held that the 2025 districts never took effect because a successful referendum petition suspends the challenged law until voters decide its fate.

The practical result is unusual: Missouri held its Aug. 4 congressional primaries under the 2025 map but is now preparing to hold the general election under the districts used in 2022 and 2024. Onder, Brattin and the other plaintiffs argue that switching maps between the primary and general election violates the U.S. Constitution by effectively nullifying votes already cast in the primary.

Chief U.S. District Judge Stephen Clark in St. Louis agreed they were likely to prevail on that argument and on Sept. 8 issued a temporary restraining order preventing Secretary of State Denny Hoskins from using any congressional map but the 2025 plan.

That set off two days of legal whiplash.

The 8th Circuit initially declined an appeal of Clark’s order, noting that appeals courts generally lack jurisdiction to review temporary restraining orders.

People Not Politicians, the group behind the referendum, then went to the U.S. Supreme Court, which Thursday morning stayed Clark’s order without any noted dissents.

The high court said its stay will remain in effect while the case is before the 8th Circuit and through any timely petition asking the justices to review the appeals court’s eventual ruling.

That means an 8th Circuit decision favoring Onder and the other plaintiffs would not, by itself, put the 2025 map back in place.

After the U.S. Supreme Court intervened, the 8th Circuit moved quickly, ordering expedited briefs and scheduling Thursday’s argument.

Hours after the U.S. Supreme Court acted, Hoskins reversed a directive he had issued to local election officials and told them to use the 2022 map. The Missouri Supreme Court found Hoskins had been in contempt of its Sept. 3 order but said he purged the contempt by reversing course.

During the contempt hearing, Chief Justice W. Brent Powell repeatedly pressed lawyers for Hoskins on a question that could hang over Thursday’s federal argument: Whatever the federal courts decide, can they change the Missouri Supreme Court’s conclusion that the 2025 map never became state law?

“(The 2025 map) never went into effect, right?” Powell asked William Seidleck, an assistant attorney general representing Hoskins.

“Per this court’s holding, yes,” Seidleck replied.

Powell returned to the point later, asking whether a future federal ruling could change the fact that the map had never taken effect.

“As a matter of state law,” Seidleck said, it could not.

Chuck Hatfield, an attorney for People Not Politicians, told the judges he believed the U.S. Supreme Court’s intervention had largely eliminated the immediate stakes of the federal appeal.

“I think we’re done, judge, as a practical matter,” Hatfield said, though he acknowledged the litigation could continue.

One of the biggest unanswered questions heading into Thursday is what position Attorney General Catherine Hanaway’s office will take.

Hanaway represents Missouri and Hoskins in the federal litigation. Her office sided with the Republican plaintiffs before Clark and urged him to block use of the 2022 map. It later asked the U.S. Supreme Court to leave Clark’s order in place.

But after the U.S. Supreme Court stayed that order and Hoskins agreed to follow the state court’s directive, Hanaway was less definitive about what comes next.

“As far as our strategy for the 8th Circuit, I don’t know, because it’s a very confusing posture,” Hanaway told reporters last week.

Asked whether any path remained to revive the 2025 map, she told reporters: “As I stand here today, no.”

Military and overseas ballots must be sent by Sept. 19. Local election officials spent much of last week waiting for the courts to decide which congressional districts they should use before Hoskins’ Thursday directive put them back on the 2022 map.

Missouri Independent is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Missouri Independent maintains editorial independence. Contact Editor Jason Hancock for questions: info@missouriindependent.com.