Conversation
-
After Further Review, the Missouri Supremes Were Right
source
Last week, I wrote about Missouri’s Supreme Court slapping down the wingnuts of the GOP legislature who sought to gerrymander this November’s congressional elections, the Missouri Secretary of State who did their bidding to make that happen, and the Missouri Attorney General who apparently ditched her law degree to support not the Missouri Constitution but the GOP rulers in the legislature. Over the weekend, they filed for an emergency stay via Brett Kavanaugh (who handles emergency petitions from this circuit), asking him to stop the Missouri Supreme’s orders from taking effect while the legal battles unfold, thus ensuring the use of the gerrymandered map rather than the 2023 map approved after the last census.Like many soccer/football fans after a ball ends up in the back of their opponent’s net, I had both a moment of celebration but then quickly muted it. In soccer/football, this is when the dreaded Video Assistant Referee (VAR) looked at the goal from every conceivable angle. Would it be overturned for offside, or was there a hand ball, or perhaps a foul that should have stopped play before the shot? Replays are shown on screens in the stadium and on television screens in homes, while everyone waits to see if the goal is disallowed
Today, VAR — sorry, I mean Justice Kavanaugh, said “No.” The ruling of the Missouri Supremes was vindicated, and the celebrations of beating back the gerrymandering in Missouri could begin in earnest.
On the surface, this was not a surprise. The Missouri Supremes were unanimous in overturning the gerrymandered map, and unanimous in the scathingly direct manner in which they did so. The footnotes in their opinion are perhaps the most scathing of all, especially footnote 8 near the end:
8 The secretary devotes a significant portion of his briefing to discussing the confusion, expense, and practical difficulties that may result from not utilizing the congressional redistricting in HB 1 for the November 2026 election. Besides being irrelevant to the secretary’s sole basis for declaring the referendum petition insufficient, these arguments are particularly misplaced given the secretary’s delay created the confusion, expense, and practical difficulties of which he complains. In December 2025, a federal district court advised the secretary and the state that, if the referendum petition is sufficient, “the new map will be frozen until after the referendum, which could significantly disrupt the 2026 elections.” Mo. Gen. Assembly v. Von Glahn, No. 4:25-CV-1535-ZMB, 2025 WL 3514277, at *2 (E.D. Mo. Dec. 8, 2025). At the same time, the federal district court noted the secretary had the ability to declare the petition insufficient based on his argument in the federal litigation—identical to his argument now—that the Missouri Constitution does not permit a referendum as to congressional redistricting passed by the General Assembly. Id. at *4. “[T]here is no apparent reason why [the secretary] would incur the significant cost of signature verification given his stated belief that the petition is constitutionally deficient.” Id. at *2 n.2. In two separate cases in May, this Court stated it could not determine whether the congressional redistricting in HB 1 was in effect until the secretary issued his certification and the judicial review authorized by the General Assembly was complete. Maggard, 733 S.W.3d at 419-20; NAACP, 734 S.W.3d at 341 n.4. Despite this clear guidance from the federal district court and this Court, the secretary chose to delay his certification until the last possible day—August 4—and, in the meantime, utilized the congressional redistricting in HB 1 while incurring the time and expense of signature verification despite having represented to the federal district court he believed the referendum petition was constitutionally deficient. The secretary also chose to request verification of every signature, making the signature verification deadline July 28, when he could have chosen random sampling verification, with a deadline of not more than 30 days from the date the election authority received the petition from the secretary. See sec. 116.130.2. The secretary delayed certification until the last possible date and chose not to seek resolution of the constitutional question despite having been told at least as early as December 2025 he had the unique ability as secretary to do so under Missouri statutes. Given these undisputed facts, the secretary’s arguments about confusion, expense, and practical difficulties are wholly unpersuasive.
Perhaps worse, these arguments fundamentally misunderstand the status of HB 1 pending the referendum vote. HB 1 is not the law and has never been the law. There is only one valid congressional redistricting in effect—the congressional redistricting the General Assembly established in 2022. Under article III, section 52(b), HB 1 “shall take effect when approved by a majority of the votes cast thereon, and not otherwise.” Unless and until the voters approve HB 1 at the November 2026 general election, HB 1 is of no force and effect and did not take effect on December 11 because it is subject to a sufficient referendum petition filed on December 9. Regardless of any confusion, expense, or practical difficulties caused by the secretary’s delay and incorrect assumption about whether the referendum petition would be deemed sufficient, simply continuing to utilize the congressional redistricting in HB 1 does not comport with the Missouri Constitution because the 2022 map is the only map in effect.
Now, while it should not have been a surprise that Kavanaugh refused — without comment, and (per Steve Vladeck) without bringing it to the full court — the GOP request for an emergency stay, this is the SCOTUS of the Trump Era, which has bent laws and precedent all out of shape when it seems to suit them, in service to GOP policies and practices, so all bets are off.
While waiting through the weekend poring over the emergency request, I was delighted when the lawyers for Richard Von Glahn (the petitioner) filed their response. First, and immediately comforting, was seeing who Von Glahn’s appellate lawyers were. In addition to four lawyers from the local Missouri firm of Stinson LLP, they had three from the Elias Group. Second, after working my way through their response, I was much more comforted to read the way they dismantled the legal arguments put forward by the Secretary of State and MO AG, but also laid out chapter and verse of how Secretary of State Hoskins and MO AG Hannaway tried to delay, deny, and confuse matters.
The response brief came out with guns blazing on the very first page, with a brutal first sentence that previewed what was to come in the dozens of pages that followed:
The Emergency Application for Stay does not present a real emergency, and it does not actually request a stay. Applicants, by their own admission, waited as long as possible to manufacture the present dispute over Missouri’s congressional districting map. See App. 739a (Missouri’s Attorney General publicly proclaiming that “delay works in our favor”). After the General Assembly passed HB 1, a mid-decade redistricting bill, voters timely submitted a valid referendum petition, which—by operation of Missouri law—prevented HB 1 from taking effect. As the Missouri Supreme Court explained, “HB 1 is not the law and has never been the law.” App. 12a n.8. “[T]he congressional districts the General Assembly established in 2022 remain in full force and effect for the November 2026 election.” App. 13a.
Yet Missouri’s Secretary of State waited until the last possible day—and only after he had implemented HB 1 in the congressional primary—to object to the referendum, in the hopes of running out the clock on the judiciary’s tolerance for a last-minute reversion to the 2022 districts. 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. 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.
[snip]
If Applicants clear that hurdle, the next problem is the request itself: a stay will not provide the relief Applicants seek. What Applicants really seek is a green light from this Court to allow the Secretary to violate the Missouri Constitution by implementing HB 1, notwithstanding the Missouri Supreme Court’s ruling that HB 1 is not and never has been the status quo under Missouri law. But that extraordinary request would require an injunction—not a stay—relief Applicants have not sought, and which requires an exceptionally demanding showing Applicants cannot make. See Nken v. Holder, 556 U.S. 418, 428–29 (2009).
That was the opening, calling the Secretary of State out for abusing his office, and calling the lawyers for the defendants out on a basic legal error — or an attempt at legal misdirection — neither of which is the kind of opening the defendant’s lawyers would be happy to read. The rest of the response expands on this opening nicely. Closer to the end, on pp. 35-36, it appears to pick up the last sentence from that footnote from the MO Supremes quoted above and run with it:
IV. The equities foreclose relief for Applicants’ self-inflicted harm.
Applicants cannot meet their burden to show that they will be “irreparably injured absent a stay,” that the stay will not “substantially injure the other parties,” or that a stay serves the public interest. Nken, 556 U.S. at 434 (quoting Hilton, 481 U.S. at 776). The Secretary’s asserted harm is both largely hypothetical and entirely self-inflicted. And granting relief would impose concrete injuries on the other side of the ledger: voters would be required to elect their congressional representatives in districts that never lawfully took effect, while being denied the referendum rights that Missouri’s Constitution guarantees them.
A. The Secretary manufactured the timing he now invokes as a basis for relief.
Applicants’ equitable argument centers on the assertion that implementing the 2022 districts in November would produce electoral chaos because the Secretary conducted the primary under HB 1. Appl. 32–36. But the Secretary engineered the timing he now presents as an insurmountable burden. The Secretary chose to conduct the primary under HB 1 even though both a federal court and the Missouri Supreme Court had expressly warned that HB 1’s legal status could not be determined until the referendum-certification process—including judicial review—was complete. See Mo. Gen. Assembly, 2025 WL 3514277, at *2; Maggard, 733 S.W.3d at 419–20; NAACP, 734 S.W. 3d at 341 n.4; see also App. 12a n.8. The Secretary then waited until the statutory deadline—the day the primary was already underway—to issue a certification resting on a one-sentence rationale the State had already been advancing for months. App. 599a. The Attorney General publicly acknowledged the strategic benefit of delay: “As long as the status quo is the new maps, delay works in our favor.” App. 739a.Equity does not reward that sort of manufactured emergency. This Court applies “a strong equitable presumption against the grant of a stay” when the need for emergency relief results from a litigant’s own delay, including through “piecemeal litigation.” Hill v. McDonough, 547 U.S. 573, 584–85 (2006) (quoting Nelson v. Campbell, 541 U.S. 637 (2004)). Equitable relief likewise may be denied where a party’s timing reflects an “attempt at manipulation” of the judicial process. Gomez v. U.S. Dist. Ct. for N. Dist. of Cal., 503 U.S. 653, 654 (1992) (per curiam). Here, the Secretary’s manipulation of the calendar is apparent not just from the sequence of events but also from the boastful pronouncements of the Missouri Attorney General laying bare that strategy.
Shorter Missouri Supremes: You made this mess, so you can’t complain.
Shorter Von Glahn lawyers: What they said, ’cause they are absolutely right.
Shorter Justice Kavanaugh: What they all said, ’cause this isn’t even close.And let all the people of Missouri say “Amen!”
Politically, this means the the main target of the gerrymandered map — KC’s Emanuel Cleaver II — is much much more likely to retain his seat. Similarly, less dramatic changes affecting St. Louis will make efforts to hold that seat (affected but much less threatened by the gerrymander than Cleaver’s seat) will not happen.
It’s another loss from Trump and the minions who serve him, right on the eve of the increasingly lamentable Trumpapallooza in Dallas. I can’t wait to see how Trump reacts. In the hotel hallways, Mike Johnson might be asking his colleagues for help in boxing up his stuff from the Speaker’s Office come January.
The post After Further Review, the Missouri Supremes Were Right appeared first on emptywheel.