BY: RUDI KELLER
Missouri Independent
With ballot deadlines looming, judges questioned whether there is still time to order Missouri to use the 2025 congressional districts in November
The last legal battle over Missouri’s 2025 redistricting plan played out Thursday, with a panel of federal appeals court judges hearing from Republicans that they should reinstate the map designed to help the GOP flip a Democratic-held congressional seat.
The hearing via videoconference before the 8th U.S. Circuit Court of Appeals featured sharp exchanges over the meaning of a recent U.S. Supreme Court order, which parties were legally allowed to argue the case and whether it is too late to change Missouri’s congressional districts before the Nov. 3 election.
The hour-long hearing took place just a day before local election authorities are scheduled to mail ballots to overseas voters and five days before absentee ballots are supposed to be ready for people who can’t make it to the polls on Election Day.
As Thursday’s hearing began, Judge James Loken, the panel’s presiding judge, said the case needs a final resolution and he expected to hear arguments that time to change the map again has already passed.
“Can we do that?” he said. “Can we come to a disposition in time for there to be an election?”
It is the court’s duty, he said, to try.
“Whether it’s impossible or not, we have to do our best to follow the Supreme Court’s instructions and get it to a place where there is an order that they consider final order from their perspective, so they can decide these issues that are worthy of their review,” he said.
The judges on the panel were all appointed by Republican presidents. Loken was appointed to the court by President George H.W. Bush in 1990. Judges David Stras and Justin Smith were appointed by President Donald Trump, Stras in 2017 and Smith earlier this year.
If the judges order a change in the district map, it would be the fourth time since Sept. 3 courts have altered which districts Missouri is supposed to use in November.. And it could change a fifth time, if the U.S. Supreme Court reversed the decision.
All the questions before court stem from the referendum petition filed by the political action committee People Not Politicians to have a statewide vote on the redistricting plan Republicans passed during a special legislative session in 2025. Prior cases have resolved the power of the General Assembly and the governor to revise district lines in a special session and the power of the secretary of state to set the pace of reviewing signatures.
Secretary of State Denny Hoskins waited until the day of the primary to reject the referendum, declaring it unconstitutional even though his attorneys acknowledged in court that it had met the signature threshold. The Missouri Supreme Court ordered Hoskins to use the map created in 2022 for the Nov. 3 election when it found the referendum was legal and the Missouri Constitution means what it says when it prevents a legislative act subject to a vote from being enforced until after it is approved.
That was the first change and it put the referendum on the ballot as Proposition A. A “yes” vote will approve the map and it would be used in 2028. A “no” vote will reject it and the map drawn in 2022 will continue to be used.
The second change came as a result of a temporary restraining order from Chief U.S. District Judge Stephen Clark that directed Hoskins not to use any congressional district map except the one passed by lawmakers in 2025.
Clark issued the order in a case filed by U.S. Rep. Bob Onder, a Lake St. Louis Republican, state Sen. Rick Brattin, a Republican from Harrisonville, and two voters. Onder represents the 3rd District. Brattin is the Republican nominee in the 5th District and the voters are people who will have voted in the 5th District in the primary but will vote in the 3rd District if the map used in 2022 and 2024 is used this fall.
Two days after Clark’s order came the third change. The U.S. Supreme Court stayed Clark’s order, putting the 2022 districts back in place while the federal appeal proceeds.
The Supreme Court said Clark’s order would remain blocked “pending the disposition of the appeal in the” 8th Circuit “and disposition of a petition for a writ of certiorari in this court, if such a writ is timely sought.”
Loken and Chuck Hatfield, attorney for People Not Politicians, clashed over what that language allows the appeals court to do.. Loken said the Supreme Court meant the 8th Circuit could issue a final ruling. Hatfield argued that the Supreme Court’s stay prevents the 2025 map from taking effect while that process plays out.
And, Hatfield said, the case has never been fully argued. Hatfield urged the court to send the case back to Clark and allow a full trial.
“We haven’t been given an opportunity to do any of that,” Hatfield said.
Loken, however, said that would mean it was certain no decision would be reached before it was too late to change anything.
“You’re not going to get a remand so you can write more briefs until the election passes,” Loken said. “You’re not going to, at least, maybe you will, but over my dissent.”
Judge David Stras focused much of his questioning on whether People Not Politicians has standing to pursue the appeal.
Onder and Brattin sued Hoskins, and People Not Politicians intervened when the filings from Hoskins did not defend the Missouri Supreme Court’s decision.
Marc Ellinger, representing Onder and Brattin, said the only interest of People Not Politicians in the case was whether the referendum occurred. It will, he said, and he did not ask the court to stop it.
“Their sole interest was to put a referendum together and all their filings indicate that,” Ellinger said. “The intervenors in this case have gotten all the relief they get.”
Lou Capozzi, Missouri’s solicitor general, submitted filings in the case supporting Onder and Brattin and asking the court to tell the state to use the map created in 2025. But he disagreed on the question of whether People Not Politicians had a right to argue the case.
“That argument was before the U.S. Supreme Court, and they proceeded,” Capozzi said. “And so the state operates from the position that we have to sort of take the U.S. Supreme Court hints and abide by them.”
Hatfield argued People Not Politicians was an essential party to the case because Capozzi was not defending the Missouri Supreme Court’s interpretation of state law.
“They cannot object to our intervention because without my client, no one is willing to defend the unanimous decision of the Missouri Supreme Court under state law,” Hatfield said.
Richard von Glahn, director of People Not Politicians, is also an intervenor. Stras asked Hatfield if von Glahn changed districts under the 2025 map, like the voter plaintiffs.
He has, Hatfield said.
“We have the same allegations as the plaintiffs,” he said.
In other arguments, Ellinger tried to convince the judges that there was still time to order Missouri to conduct the election under the 2025 map. Capozzi backed that argument and added that it was wrong to allow the Missouri Constitution to direct that a law not take effect because of a petition.
“There’s an opportunity to prevent this catastrophe from recurring every time Missouri does redistricting,” Capozzi said.
The discussion between Hatfield and the judges over legal questions raised in the suit went beyond the 20 minutes allotted for his argument. After about five minutes debating points of law at the end, Loken was ready to end it.
“We could go all day,” he said, “and the voters would just have more confusion and upset.”