Missouri’s state Supreme Court, relying on the state’s constitution, and a federal court judge – also in Missouri – relying on the U.S. Constitution, have now reached conflicting conclusions about which congressional district maps to use in this November’s election. For now, this leaves Missouri’s voters deeply uncertain about their right to vote eight weeks from now.
On Tuesday afternoon, a Justice of the U.S. Supreme Court – without giving a reason – added to the uncertainty by refusing to disturb the state Supreme Court’s decision.
The situation would be perplexing enough if just Missouri were involved. But because America’s voters are so closely divided over how they want to fill seats in the U.S. House of Representatives, and every seat counts, Missouri’s plight has national meaning. Serious constitutional issues about voting rights are also at stake.
As of Tuesday night, here was the situation unfolding over election of Missouri’s eight seats in the U.S. House:
· Last Thursday, the state Supreme Court barred state officials from carrying out the congressional election on November 3 using a new set of district maps drawn by the state legislature. At President Trump’s request, the new maps give Republicans a chance to pick up a seat now held by a Democrat – that is, a 7-to-1 Republican advantage. Those maps were used when 1.2 million Missourians voted in a primary on August 4. But instead of allowing the use of the new maps in the general election in November, the state court mandated the use of maps drawn in 2022 that had been used previously and had led to election of six Republicans and two Democrats.
· That is the result that state officials, supported by the national Republican Party, had asked the U.S. Supreme Court to block. But Justice Brett M. Kavanaugh refused. He had the power to do so, because he is the Justice responsible for dealing with emergency matters from Missouri and neighboring states. He acted in an unexplained, one-sentence order, and apparently did not involve his eight colleagues – a good sign that the state’s appeal was not very compelling. A single Justice seldom will act alone on an appeal if it appears to involve a significant dispute. But, since Kavanaugh did not explain, his order could not be interpreted as a formal ruling that the state court decision was correct, or not.
· Aware of what Justice Kavanaugh had done, U.S. District Judge Stephen R. Clark, who is chief judge of that federal court in St. Louis, on Tuesday evening ruled differently in a separate case. He issued a 13-page opinion, directing state officials to use the new maps in November. That order is to last for 14 days, while the judge ponders a more extensive ruling.
· Right after Judge Clark ruled, a Webster Grove, Mo., man, Richard von Glahn, who leads a voter advocacy group named People Not Politicians, filed an appeal to the U.S. Court of Appeals for the Eighth Circuit, challenging Judge Clark’s order. Von Glahn and his organization have led the court challenges to the new congressional districting maps.
It will be up to the Eighth Circuit Court and, maybe, the U.S. Supreme Court to sort this out.
While the state court and Judge Clark’s order conflict over which maps are mandated for the November general election, they do not clash directly over the disputed issues that have arisen under the U.S. Constitution.
The state court based its ruling on a provision in the Missouri constitution that allows voters, if they gather enough signatures, to set up a referendum to challenge laws passed by the state legislature. The state court ruled that this meant, in the current dispute, that the voters’ success in getting the referendum onto the November ballot meant that the 2022 maps had to be used, because state officials had largely forfeited their claims under the U.S. Constitution by failing to assert those claims in the way that state law requires.
In the federal court, however, Judge Clark ruled temporarily on those claims, saying they probably would be valid when the case moves ahead. He declared that using one set of maps for the U.S. House in the primary election in August and a different one in the general election in November likely would result in two violations of the U.S. Constitution.
According to the judge, it would be unconstitutional to nullify the voters’ choices in the primary by requiring them to vote in different districts in the general, because the primary is the election that decides who the candidates are. The judge said it also would be unconstitutional to discriminate in favor of voters who were not moved into different districts under the new maps and against voters who were moved into new districts. On that second point, the judge wrote: “Voters reassigned to different districts would have cast their votes in vain for candidates now connected to other districts, effectively nullifying their votes.”
Judge Clark’s ruling, however, did reject outright one federal constitutional claim by state officials: their challenge to the use of a state referendum to contest the legislature’s approval of the new maps. Presumably, voters will get a chance to vote on that.
Ordinarily, under the U.S. Constitution, if there is a conflict between an interpretation of a state law and a differing interpretation of federal law (including the Constitution), federal law is supreme and controls. It would appear, at least at this point, that Judge Clark’s directive to use the new maps would prevail over the state Supreme Court’s directive to use the 2022 map. Higher courts, though, may have a different view.
The state Supreme Court’s ruling came in a case filed by the People Not Politicians group and von Glahn, its executive director. Judge Clark’s ruling came in a case filed by two women voters who were shifted from one congressional district to another under the new maps. They had voted in the new district in the primary election, and wanted to do so again in the general election.
Also involved in that case, preferring to run in November in the same districts in which they were nominated in the primary in August, were a current Republican member of the House, Rep. Robert Onder, and Republican candidate Richard Brattin, who now serves in the state senate.
