BIG news out of the 8th Circuit Court of Appeals late Monday as a three-judge panel (in a 2-1 vote) has now affirmed a district court temporary restraining order regarding the ongoing dispute over Missouri's congressional redistricting efforts.
It's been quite a roller coaster ride of late in the Show-Me State regarding the state's congressional map. I must confess that I was one of those who thought that once the primary election was held using the new 7-1 map (aka "Missouri First" or HB 1), things were fairly well settled on the matter. Boy, was I mistaken.
In the span of roughly a week, we got:
- Missouri Supreme Court (which had previously held it constitutional for the legislature to conduct mid-decade redistricting and further found the 7-1 map sufficiently compact) holds that the referendum petition regarding the new map was valid and timely and must be placed on the November ballot, meaning (basically) that HB 1 never took effect and the 2022 congressional map remained in place.
- U.S. Supreme Court Justice Brett Kavanaugh denies Missouri Secretary of State Denny Hoskins' application for stay of SCOMO judgment.
- District Judge Stephen Clark (Eastern District of Missouri) issues temporary restraining order (TRO) prohibiting Hoskins from using any map other than HB 1 — the new map — for the November 3 general election.
- Hoskins issues directive to local election officials to finalize ballots based on the HB 1 map — i.e., the 7-1 map.
- 8th Circuit Court of Appeals denies referendum supporters' motion for stay pending appeal and for summary reversal of Clark's TRO, noting that it may lack jurisdiction to review the TRO at all.
- SCOTUS steps in and stays Clark's TRO pending the disposition of the appeal in the 8th Circuit, and any subsequent petition for Supreme Court review.
- SCOMO holds Hoskins in contempt for violating its order but also finds that he purged the contempt by notifying local election authorities of the SCOMO order and directing them to use the 2022 map.
- 8th Circuit says: "Submit your briefs; we'll hear oral argument on Thursday."
As an added wrinkle, Friday (September 18) was the deadline for election authorities to send out overseas and military ballots under the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), so a quick turnaround from the 8th Circuit was anticipated.
That put the case before a three-judge 8th Circuit panel Thursday morning, with the judges well aware that the clock was ticking. So, here's what they ruled:
The court holds that because Missouri conducted the August primary under the 2025 map, switching to the 2022 map for the November general election would violate Article I, Section 2 of the U.S. Constitution. The court's key point is that the primary and general election are parts of one process for choosing members of Congress, and that requires “continuity in the constituency throughout all stages of a single election.”
So, the court affirms Clark's TRO and remands the case to the district court with instructions to enter a permanent injunction barring Hoskins — and people acting in concert with him — from using anything other than the 2025/HB 1 map for the November election.
BUT...the district court is instructed to stay that permanent injunction until Monday, September 28, at 5 p.m. Central, specifically to give People Not Politicians (PNP — the group behind the referendum) time to seek Supreme Court review. If SCOTUS hasn't stayed or altered it by then, Hoskins and local election officials must implement the 2025 map.
Some other key aspects of this ruling:
- The court does not decide the Equal Protection or the Elections Clause issues. They say the plaintiffs make a colorable Equal Protection argument and call the district court's analysis compelling, but because Article I § 2 resolves the case, they decline to reach either that claim or the Elections Clause claim.
- The court turns PNP's argument on the Purcell principle (the idea that federal courts should avoid changing election rules close to Election Day) completely around. The majority says the relevant status quo is the 2025 map, because candidates filed and campaigned under it and 1.2 million Missourians voted under it in August. In their view, it was the Missouri Supreme Court's September 3 decision that disrupted the election status quo. They expressly say “Purcell supports, not prevents,” their ruling.
- Even the election-administration problem did not stop them. They acknowledge that the UOCAVA ballot-transmission deadline passed September 18, but hold that wasn't a point of no return, citing the availability of hardship waivers and cases in which ballots were changed after overseas/absentee ballots had already been sent.
- They reject every procedural escape hatch PNP offered: appellate jurisdiction, three-judge-court requirement, alleged collusion/lack of adversity, Rooker-Feldman (federal trial courts generally can't act as appeals courts reviewing state-court judgments), Younger (federal courts generally shouldn't interfere with certain ongoing state-court proceedings), mootness, and the bond issue. In fact, they note that PNP never actually requested a three-judge court below — and, regardless, a single judge could issue a TRO.
- The court squarely addresses the dueling-court-orders mess. The Supremacy Clause means the Missouri Supreme Court's state-law injunction must yield to the federal constitutional ruling. The majority even says: “The Court trusts that the Missouri Supreme Court will respect this Court's decision under the Supremacy Clause.”
As noted above, the decision was 2-1, with Judge David Stras dissenting only on the issue of standing. He does not take issue with the majority's core Article I, Section 2 analysis — in fact, he opens his dissent by calling it a “probable violation of Article I, Section 2 of the Constitution as interpreted.” His disagreement is that the court should never have gotten there. His reasoning is a bit nuanced, and will keep for another day.
Here's the bottom line: Per today's 8th Circuit ruling, Missouri cannot hold the two halves of the same congressional election using two different sets of districts. Because voters chose the parties' congressional nominees under the 2025 map in August, moving district lines before the November general election would leave hundreds of thousands of voters choosing among candidates they had no opportunity to nominate — while their primary votes helped select candidates they could no longer vote for in November.
Practically speaking, however, nothing changes just yet. The 2022 map remains in place while the 8th Circuit's permanent injunction is stayed through 5 p.m. Central on September 28, giving PNP a week to ask the Supreme Court to intervene. If SCOTUS doesn't do so by then, Missouri election officials will have to switch back to the 2025 map for November — which means this roller coaster may have one more rather consequential turn or loop left in it.