Sept 23, 20264:54 PM

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The Republican judges on the 8^th U.S. Circuit Court of Appeals won’t stop trying to help the GOP hold on to Congress, even if it means defying the Supreme Court. On Tuesday, the 8^th Circuit again ruled for Missouri Republicans who want to use new, gerrymandered congressional districts in the November election. The decision sought to overturn an order issued by the U.S. Supreme Court.

The 8^th Circuit was already smacked down by the Supreme Court—twice—for intervening in this lawsuit, which is entirely about state law and not federal law. But the three-judge panel, which includes a couple of Donald Trump appointees and another Republican, ordered Missouri to use the districts that violate state law for a third time. The ruling was swiftly appealed, and Justice Brett Kavanaugh ordered the lawmakers seeking to continue with the GOP’s preferred map to respond by Wednesday afternoon.

In the meantime, the panel has ordered the state to use the new districts for the general election, because the Republican secretary of state used them for the primary. The judges noted that if the districts that comply with state law are used, “more than 1.4 million Missourians could not vote for the congressional district nominees who will appear on their November 2026 general election ballot.”

The panel cited the elections clause of the U.S. Constitution when it created a new right to vote in the same district in both the primary and general elections. But that clause gives states the power only to regulate the “time, place, and manner” of elections.

The ruling radically expands the power of federal courts and state legislatures under the elections clause, something the Supreme Court has repeatedly declined to do. And law professor Justin Levitt notes that there are many other circumstances in which general elections include candidates who weren’t on the primary ballot, such as when a candidate withdraws or a voter moves to a new district after a primary. “The 8^th Circuit didn’t bother to explain whether any of those circumstances also violates a constitutional provision that doesn’t ever mention primary elections,” Levitt notes. It’s worth adding that primary elections are an entirely modern construction.

Most notably, the ruling conflicts with the binding order from the Supreme Court. The voters who challenged the new districts immediately asked the 8^th Circuit to undo its decision, warning that the panel had “revived in substance the very relief the Supreme Court stayed—in direct conflict with the Court’s order.” Some have blamed the Supreme Court justices for setting a bad example for other federal judges by regularly disregarding precedent and any sense of judicial restraint.

The panel shifted the blame for the chaos to the state Supreme Court and its “last minute” ruling, while failing to fault the secretary of state for his needless eight-month delay before he rejected a petition that would have invalidated the new map in 2026. The judges smugly said they “trust that the Missouri Supreme Court will respect this court’s decision,” because federal law is supreme throughout the country.

But the 8^th Circuit seems to have forgotten that the Missouri Supreme Court gets the final say on state law. And if these congressional districts don’t comply with state law, they can’t go into effect.

The federal judges claimed they weren’t overturning the Missouri court’s ruling on the state-law issue. But they also suggested that federal courts must intervene in a state-law matter if it influences federal elections. “Allowing state courts to issue, without any federal-court review, last-minute decisions affecting the conduct of federal elections would … potentially allow a handful of state judges to render decisions that decide the outcome of a presidential election or party control of Congress,” they noted.

The U.S. Constitution, though, allows states to establish the rules, and federal courts can’t intervene, unless there’s a federal law at issue, such as the Voting Rights Act or the U.S. Constitution.

Earlier this month, the Missouri Supreme Court ruled in favor of 300,000 voters who signed a petition demanding a referendum on the gerrymandered districts, which Trump had requested last year. The secretary of state waited until the day of the primary election to reject the petition, but the state Supreme Court overturned his decision and ordered him to use the districts enacted in 2022, even though he had held the primary in the new districts.

Instead of complying, the secretary ran to a Trump-appointed federal judge and asked him to order the state to use the new districts. The Missouri Supreme Court—which includes a majority of Republican appointees—wasn’t happy and threatened to hold him in contempt for not immediately complying, which led lawmakers to threaten impeachment if they did. The 8^th Circuit upheld the federal judge’s decision, but the U.S. Supreme Court overruled him and deferred to the state court.

Federal courts, including the U.S. Supreme Court, have no power to overturn the Missouri Supreme Court’s interpretation of state law. The justices in Washington have declined several Republican attempts to upset state-court rulings on gerrymandering. In 2022, they rejected an appeal from North Carolina Republicans seeking to undo a state court ruling that required fairer election districts. Like the 8^th Circuit, lawmakers in that case had argued that the state-court ruling violated the elections clause. Since then, the justices have rejected GOP appeals from other states that relied on similar arguments.

Despite all this, the 8^th Circuit just won’t stop trying to insert itself into this gerrymandering fight to help the GOP. Even the U.S. Supreme Court, which now gives Republicans virtually everything they want in redistricting cases, rejected this appeal. Twice! And nothing has changed with respect to the federal law claims. That’s why the justices are expected to overrule the 8^th Circuit for a third time.

Voters in Ohio were not so lucky a few years ago. Judge Amal Thapar, a Trump appointee, ordered the state to use election districts that had been repeatedly ruled unconstitutional by a bipartisan majority on the Ohio Supreme Court. Thapar’s ruling was never overturned, and voters cast their ballots in gerrymandered districts.

If the U.S. Supreme Court does the right thing again, Missouri will have to scramble to hold the election in different districts than it used for the primary. Voters in the state have also filed multimillion-dollar lawsuits against the secretary for failing to approve the petition.

The 8^th Circuit’s actions show that some federal judges will even try to defy the U.S. Supreme Court to help Republicans maintain the unfair advantage that they get through gerrymandering.