As Missouri await for the U.S. Supreme Court to consider a last-minute push from GOP leaders to put a new congressional map into effect, both sides of the high-stakes fight acknowledge that last week's Missouri Supreme Court decision could make it much harder for the legislature to dismantle the St. Louis-based 1st Congressional District.
The state Supreme Court unanimously ruled on Thursday that People Not Politicians' referendum aimed at overturning a congressional map lawmakers approved in 2025 could go before voters in November. The ruling also stated that because the referendum was sent to voters, the 2025 map never took effect. That means the congressional map Missouri used in 2022 and 2024 will be used for the November 2026 election — unless the U.S. Supreme Court intervenes.
Secretary of State Denny Hoskins and Attorney General Catherine Hanaway are asking U.S. Supreme Court Justice Brett Kavanaugh to put the Missouri Supreme Court's order on hold, allowing Missouri to use the same map it used in the August primary. What Kavanaugh decides is critical, since the 2025 map contains a district that's much harder for Congressman Emanuel Cleaver to win — and the 2022 plan includes a safe seat for the Kansas City Democrat.
But the filing from Solicitor General Louis Capozzi makes a notable concession: The attorney general's office is no longer asking Kavanaugh to prevent the referendum from going before voters. Instead, the state is asking the U.S. Supreme Court to allow the 2025 map to be used for the November election, even while allowing voters to decide the map's fate at the same time. (A brief from an attorney for the national and state Republican Party is still arguing that Missouri should not be able to conduct referendums on congressional maps.)
"On the one hand, [People Not Politicians Executive Director Richard von Glahn] would suffer no meaningful prejudice from a stay. Regardless of this Court's decision, [People Not Politicians] will get a statewide vote on [the 2025] congressional map," Capozzi wrote in his request for a stay late last week. "At most, a stay would merely prevent him and a small minority of Missourians from forcing the State to use a congressional map rejected by the People's elected representatives — who at least presumptively reflected the majority's wishes in enacting the HB 1 map."
The fact that Hanaway's office is no longer disputing that the referendum process can be used to combat congressional redistricting plans is significant.
That acknowledgment pertains greatly to the St. Louis-based 1st District.
For months, Republicans including Hoskins noted that even if the referendum against the 2025 map is successful, there's nothing stopping lawmakers from coming back and drawing a new map in 2027. Hoskins in particular has advocated that lawmakers split up the 1st District, something that's possible now after the U.S. Supreme Court weakened protections against majority-minority districts in Louisiana v. Callais.
But von Glahn noted on Friday that the Missouri Supreme Court's referendum decision could give voters a way to block that effort, too.
In other words, the state could still try to break up and redraw the 1st District, but lawmakers would now have to consider the possibility that voters could use the referendum process to challenge the new map.
"Elected officials have the right to propose bad ideas," von Glahn said on an episode of "The Politically Speaking Hour on St. Louis on the Air." "But I think they should look at these things and say: 'Do we really want to continue to position ourselves in opposition to what the public clearly wants, which is a democracy that keeps power with the people?'"
Hoskins conceded on Friday that the Missouri Supreme Court decision could complicate efforts to go after the 1st District next year. "It could make it harder to actually do a congressional map if congressional maps are indeed like the Supreme Court just ruled, subject to referendum," he said.
Some Republicans, including Hoskins, have argued that the 1st District amounts to an unconstitutional racial gerrymander since it historically contained either a majority or plurality African American population. But Republicans have supported keeping the 1st District a majority-minority seat for decades since it makes the 2nd and 3rd districts much more GOP-leaning — which arguably makes the 1st District a political gerrymander that the U.S. Supreme Court has consistently allowed.
Washington University School of Law professor Travis Crum said Thursday's Missouri Supreme Court decision does likely give the legislature less free rein to go after the 1st District. But he added that the referendum process is not cheap or easy.
"Once a tactic is used once, it is more likely to be used again, but it's not as if it's cheap to run an initiative campaign," Crum said. "And so, we'll have to see whether or not people are willing to put boots on the ground and get signatures."
Legal flurry over the weekend
Capozzi's filing to Kavanaugh argues, among other things, that "a federal-election-administration disaster is unfolding in Missouri." He went on to write that "looking backwards, the order renders a completed federal primary election utterly pointless — disenfranchising hundreds of thousands of voters who will now be moved into new districts and forced to vote for candidates they had no role in selecting."
"Candidates — who have campaigned for over a year and raised tens of millions of dollars based on the HB 1 districts — now face the prospect of all that time and expense being wasted and being forced to campaign afresh before very different electorates," Capozzi wrote. "Voters across the State are confused."
While Capozzi also contends that the state is "genuinely unsure whether it can switch its governing congressional map in time to run a timely federal election," both Republican and Democratic election officials have disputed that argument and have added it would not be that difficult to switch back to the 2022 map for the November election.
In a filing sent to Kavanaugh on Monday, attorneys from the Washington, D.C.-based Elias Law Group and People Not Politicians attorney Chuck Hatfield wrote that the election administration complications are entirely Hoskins' fault — since he made the decision to reject the referendum on the same day as the primary election.
Among other arguments, the reply brief stated "this Court need not rescue the Secretary from a timing problem of his own making — much less by authorizing use of a map Missouri's highest court has held has never been law."
"Now that the Missouri Supreme Court has rejected his gambit, he asks this Court to deliver him the political victory to which he was never entitled under the Missouri Constitution, the reply brief states. "This Court cannot and should not reward the Secretary's scheme to outsmart Missouri voters, Missouri law, and the Missouri Supreme Court by granting Applicants the extraordinary relief they seek."
Meanwhile, Republicans Bob Onder and Rick Brattin filed a separate lawsuit to try to get the 2025 map put back in place for the November elections. They filed their lawsuit against Hoskins, who agrees with what Onder and Brattin want to do.
Capozzi, who represents Hoskins' office, filed a response telling U.S. District Judge Stephen Clark that they agree with Onder and Brattin's request for a stay. People Not Politicians is seeking to intervene, arguing that the entire case amounts to a "collusive lawsuit."
The legal filings come with a Sept. 8 deadline to make alterations to the November ballot.
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