Missouri election map hearing could tee up fresh Supreme Court scrutiny

Justices have already weighed in twice on the fate of the gerrymandered map, which would give the GOP a 7-1 advantage in the U.S. House.ST. LOUIS (CN) — Missouri’s embattled congressional map seems primed to return to the U.S. Supreme Court for a third time following a hearing Thursday in the Eighth Circuit.In promising an expedited ruling, U.S. Circuit Judge James B. Loken acknowledged that possibility as he concluded the hour-long proceeding. Republican lawmakers are desperately trying to revive the gerrymandered map in time for November’s midterm election.“We’ve got to figure out where we are and where we think the Supreme Court would want us to leave them in the future as fast as we can do it, because we’ve got to decide, and then they’ve got to decide, and then the poor election officials have to deal with where everything is,” said Loken, a George H.W. Bush appointee.Heeding President Donald Trump’s call to redraw congressional districts outside the normal 10-year window, Missouri legislators passed a new map that would favor Republicans for seven of the state’s eight U.S. House seats. The current split is 6-2.Legal wrangling over the map has extended deep into election season.Redistricting opponents submitted over 300,000 petition signatures to put the map to a vote, but Missouri Secretary of State Denny Hoskins rejected them, claiming the state Constitution doesn’t allow referendum petitions on congressional redistricting.But the Missouri Supreme Court tossed a lower court’s ruling in favor of Hoskins. The justices said the referendum petition effectively suspended the new districts, retroactive to last December, pending voter approval, even though the new maps were used in the August primary.U.S. Supreme Court Chief Justice Brett Kavanaugh, a Trump appointee, denied emergency relief to the state on Sept. 8, allowing the Missouri Supreme Court ruling to stand. But the same day, U.S. District Judge Stephen R. Clark, another Trump appointee, issued an injunction reinstating the gerrymandered map, finding voters would be disenfranchised by using different maps in the primary and general elections.Hoskins immediately said he would follow Clark’s ruling and instructed local election authorities to use the Republican-backed map, drawing the ire of the Missouri Supreme Court, which issued a contempt order to Hoskins.The issue returned the same week to the Supreme Court, which barred the gerrymandered map for use in the November election on Sept. 10 with no notable dissents, pending the outcome of the appeal in the Eighth Circuit.Later that afternoon, Missouri’s Supreme Court found Hoskins in contempt for failing to comply with its redistricting ruling. When Hoskins relented and said he would use the 2022 map, Chief Justice W. Brent Powell said he “corrected his contemptuous conduct” and reversed the decision.The majority of the Thursday’s hearing centered on the standing of the group People Not Politicians and its Executive Director Richard von Glahn, which led the effort to gather signatures for the referendum on the map. All three judges questioned the group’s attorney Charles W. Hatfield on the issue, since the group was not party to the case in which Clark ruled.“If the intervenor’s not here, who’s going to defend Missouri law?” Hatfield, of Stinson LLP, said. “Now that doesn’t necessarily mean we have standing, right? But the other real issue under Article Three, and I think that the state in its briefing in the district court sort of acknowledged this, that maybe the intervenor does need to be here. They did not object to our intervention because without my client, no one is willing to defend the unanimous decision of the Missouri Supreme Court and the state law.”Marc H. Ellinger, of Ellinger Bell LLC, represented the plaintiffs who filed the lawsuit in federal court seeking to keep the gerrymandered map in place. He argued the intervenors have no standing because Missouri voters will ultimately decide.“They’re a voter and they’re the proponent of a referendum, a referendum that is going to go on the ballot, so at that point they have no interest in this case,” Ellinger said.U.S. Circuit Judge David R. Stras, a Trump appointee, pushed further, noting Missouri said it would do whatever the state high court said until the federal court stepped in.“There’s no allegation in this complaint that the Secretary of State was going to follow that order,” Hatfield said. “In fact, he did not follow that order until the Missouri Supreme Court later found him in contempt of court or threatened to find him in contempt, and later did issue a contempt proceeding.”Missouri’s attorney Louis J. Capozzi said the decision by the Missouri Supreme Court sets a dangerous precedent.“It’s hard to imagine a greater destruction of state legislative authority than what the Missouri Supreme Court sanctions here,” Capozzi said. “Again, if this maneuver stands, and it will unless the federal courts intervene, we will have redistricting paralysis in Missouri, and every time the state tries to redistrict, at a minimum, 3.3% of voters can force the use of their preferred map for at least two years. That’s not democracy.”U.S. Circuit Judge Justin D. Smith, another Trump appointee, rounded out the three-judge panel, which is expected to rule quickly with ballot deadlines looming.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads