Did Missouri Concede Away Its Redistricting Case on the Shadow Docket?

As Rick and Ned have flagged, Missouri has moved for a stay of the Missouri Supreme Court’s decision that (1) put the referendum on repealing the 2025 “Missouri First” map on the November 2026 ballot and (2) voided the August 2026 primary elections and ordered the use of the 2022 congressional map for the November 2026 elections. Going beyond my last post, I want to disentangle these two important points, which have distinct legal and political significance. And most importantly, Missouri has now made a concession as to the first issue—namely, that the referendum will be on the November 2026 ballot—that comes dangerously close to conceding away the merits of the underlying dispute.

The Missouri Supreme Court’s decision squarely addressed the first point. It rejected Secretary of State Hoskins’s stated reason for refusing to put the referendum on the ballot. As the Missouri Supreme Court explained, the Missouri Constitution makes congressional redistricting plans subject to the referenda process and nothing in the federal Constitution prevents that. Once again, the independent state legislature theory has been invoked by a State and beaten back by the courts. After Moore v. Harper, I don’t think SCOTUS is going to be interested in this first ISLT question.

The political upshot is that Missourians will be able to vote on the referendum in November. And given that Missourians have zealously guarded the referenda power and often adopted liberal policies in popular votes, it would not surprise me if this referendum passes and the Missouri First map is repealed. Thus, the 2022 map would be used for the 2028 and 2030 elections. This would be a boon for Democrats who would likely win the Kansas City district—provided that Missouri doesn’t go back to the drawing board and engage in another mid-decade redistricting.

The second question is downstream from the first. In holding that the referendum should be on the November 2026 ballot, the Missouri Supreme Court concluded that the Missouri First map had never been the law and that the 2022 map remained operative. The consequence was that the August 2026 primaries were illegal and void. Given that this was obvious under Missouri law and given that Missouri SoS Hoskins was plainly trying to run out the clock in bad faith, the Missouri Supreme Court pointedly rejected his Purcell arguments.

Unfortunately, the Missouri Supreme Court did not clearly spell out how to resolve who is running in a general election given the radically different districts around Kansas City—though political parties do have authority under Missouri law to determine their candidates. As Ned mentioned, there are interesting statutory and constitutional issues raised by this part of the Missouri Supreme Court’s ruling. And I agree with him that they might attract the Justice’s attention—far more so than the ISLT issue.

But here, I want to flag Missouri’s concession on the shadow docket. Missouri concedes that “Richard von Glahn—the referendum petition’s proponent—will get his referendum vote on Missouri’s congressional map regardless of what this Court does. The only question is whether he (joined by a small minority of the State’s voters) can void a congressional map before he gets his vote.” Br. 5 (first emphasis mine); see also Br. 34 (similar point).

At first blush, this appears to be a strategically savvy move. In plain English, Missouri is now arguing that the Missouri First map should be used for the 2026 election but that the people get to vote on whether to use that map going forward. This is the type of compromise position that harkens back to Justice O’Connor’s approach to judging. But it is also internally inconsistent.

Missouri’s entire merits argument is that the referendum itself violates the independent state legislature theory. If Missouri concedes that the referendum will be on the ballot regardless of a SCOTUS stay, then what, exactly, is the underlying argument about at this point? Is Missouri stating that it would abide by the results of that vote in all circumstances? Or would Missouri void the referendum vote if it won at SCOTUS? If the latter, then Missouri’s shadow-docket arguments about voter confusion and disenfranchisement are beyond cynical.

To be sure, Missouri is now raising equal protection claims on behalf of its voters and UOCAVA concerns with the Missouri Supreme Court’s remedy. But that is distinct from the underlying dispute, which Missouri comes close to conceding away in a belated effort to look reasonable on the shadow docket. Bluntly, Missouri’s shadow docket strategy reveals that the goal all along has been to keep the Missouri First map in place for the 2026 elections by exploiting the Purcell principle.