The Primary Chose the Map

Absentee voting in Missouri opens today on the congressional districts drawn in 2022. Under an order issued last night, the state may have to start again on different ones within a week.

On Monday a three-judge panel of the Eighth Circuit Court of Appeals held that “Missouri’s current plan to use the 2022 map in the November 2026 general election violates the Constitution,” and that “only use of the 2025 map complies with the Constitution and federal law.” The opinion directs the district court to enter a permanent injunction requiring the 2025 map, which divides Emanuel Cleaver’s Kansas City district and would turn a delegation of six Republicans and two Democrats into seven and one. Then the panel paused its own order until 5 p.m. Central time on 28 September, so that the Supreme Court can look at it first.

That will be the third time in three weeks the justices have been asked about this map. As this magazine explained after the second, the map was suspended not by any finding that it was unfair but by a referendum petition, which under Missouri’s constitution keeps a law from taking effect until voters approve it. The appeals court left that reading of state law alone and made the order of events the whole case.

Two halves of two procedures

The opinion, issued per curiam by Judges James Loken, David Stras and Justin Smith, rests on Article I, Section 2, which says members of the House are “chosen every second Year by the People.” Since United States v. Classic in 1941 the Supreme Court has read that clause to reach primaries wherever state law makes them part of the choice, and Missouri law does: the winner of a party’s primary is its only candidate in November.

From there the court took one step. The right to take part in choosing a member of Congress, it wrote, “requires continuity in the constituency throughout all stages of a single election.” A voter moved between the primary and the general election helps pick the nominees in one district and the winner in another. In a footnote the panel put it more sharply: the right “cannot be satisfied by giving voters two halves of two different procedures.”

The scale comes from an amicus brief filed by the Club for Growth, whose figures the court adopted with the caveat “if these estimates are correct.” About 1.42 million Missourians, 23.1 percent of the population, live in different districts under the two maps. Roughly 284,000 people voted in one district in August and would receive a ballot for another in November. Fifty-seven percent of residents of the Fifth District as drawn in 2025 would find themselves somewhere else.

The argument has force. It is also, unusually for a constitutional holding, entirely a product of timing. The court was explicit that it does not “freeze congressional district lines indefinitely.” Nothing in the 2025 map made it constitutionally required. What made it required, on the panel’s theory, was that Missouri voted on it first.

Who set the calendar

How did a primary come to be held on a map that the state’s highest court would later rule had never taken effect? The answer is in the opinion’s own chronology. People Not Politicians filed its referendum petition the day after Governor Mike Kehoe signed the map in September 2025, and in December submitted what it counted as more than 300,000 signatures. Under state law, the parties agreed, Secretary of State Denny Hoskins had until 4 August 2026 to certify whether the petition was sufficient. The primary was held on 4 August. Hoskins issued his decision that day, rejecting the petition on the ground that congressional maps cannot be put to a referendum at all.

The court notes that no party identified any law Hoskins broke by running the primary on the 2025 map, and state courts had separately refused to hold that filing the petition suspended the map automatically. This is not a charge of bad faith. It is an observation about where the power sat. The office that controlled when the petition would be ruled on also controlled which map more than 1.2 million Missourians would vote on before anyone could test that ruling. By the time the Missouri Supreme Court ruled against him, on 3 September, the answer it gave had become, in the federal court’s view, unconstitutional to apply.

The two courts are now arguing about the same thing in different vocabularies. People Not Politicians, relying on the state court’s opinion, argued that the 2025 map “was never the legal status quo.” The Eighth Circuit replied that this “imagines away all the lawful activity conducted under the 2025 map,” and turned the Supreme Court’s own caution about late changes, the principle of Purcell v. Gonzalez, against the state court. “The Purcell principle is a presumption against disturbing the status quo,” it wrote, quoting an earlier Eighth Circuit case, and on that account the status quo was the legislature’s map. The late change, on that view, was the state courtThe late change was Missouri’s.rsquo;s.

What the justices will be asked

The Supreme Court has so far leaned the other way. On 8 September Justice Brett Kavanaugh refused Hoskins’s request to pause the state ruling. Two days later the Court stayed a district judge’s order requiring the 2025 map “pending the disposition of the appeal” in the Eighth Circuit and of any petition for certiorari. Hoskins then told local officials to use the 2022 map, and the Missouri Supreme Court, which had opened contempt proceedings against him for following the federal order, found that he had purged the contempt by doing so.

Ballots for military and overseas voters went out on 18 September on the 2022 districts. “Votes have already been cast by military members,” Chuck Hatfield, a lawyer for People Not Politicians, told St. Louis Public Radio. Representative Bob Onder, one of the plaintiffs, put the stakes the other way round: “the question is whether 1.2 million Missouri voters would be disenfranchised by an activist Missouri Supreme Court.”

The group’s executive director, Richard von Glahn, told Missourinet that “HB 1 is not the law and cannot be the law unless voters ratify it,” and the group says it will ask the justices to step in again, against what NBC News called long odds for the map’s supporters given the Court’s two earlier orders.

Whatever the Court does, the lesson for the next legislature is already written. Missouri’s referendum lets voters stop a map before it takes effect. The Eighth Circuit’s theory lets a map that has been used once become impossible to stop for the rest of the cycle. Put together, the two rules reward whoever gets a vote held first. In Missouri this year that was not the legislature, the voters or either court. It was the office that chose the date on the certificate.