{"id":163188,"date":"2026-09-18T16:04:09","date_gmt":"2026-09-19T00:04:09","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/09\/18\/eighth-circuit-gives-dead-horse-mouth-to-mouth\/"},"modified":"2026-09-18T16:04:09","modified_gmt":"2026-09-19T00:04:09","slug":"eighth-circuit-gives-dead-horse-mouth-to-mouth","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/09\/18\/eighth-circuit-gives-dead-horse-mouth-to-mouth\/","title":{"rendered":"Eighth Circuit Gives Dead Horse Mouth To Mouth"},"content":{"rendered":"

Everyone in Missouri understands that this game of election map tractor chicken is over. The Supreme Court has told elected officials twice<\/em> to quit screwing around and run the midterms with the old maps. But the Eighth Circuit is still trying to copulate with that chicken and ruin Justice Kavanaugh\u2019s weekend.<\/p>\n

The barnyard funtimes started last year when Trump demanded that Republicans gerrymander congressional districts even more aggressively, so as to wring out a dozen more seats. Missouri\u2019s legislature obliged with HB-1, which cracked Rep. Emanuel Cleaver\u2019s Kansas City district so as to turn an already gerrymandered 6-2 map into a 7-1 middle finger. But Missouri\u2019s constitution allows for a veto referendum, whereby the citizens can challenge legislation by putting it on the ballot. <\/p>\n

A group called People Not Politicians did just that with HB-1, collecting enough signatures to force a referendum on the new maps. And because the state constitution says that \u201cAny measure referred to the people shall take effect when approved by a majority of the votes thereon, and not otherwise,\u201d that meant the new map could not be used<\/em> for the 2026 election. <\/p>\n

Missouri Republicans weren\u2019t subtle about their intent to defy the law. Secretary of State Denny Hoskins rejected three versions of the veto referendum on various contrived technicalities, and then threw out all the signatures previously collected when he approved their fourth effort. Then in December, after People Not Politicians submitted almost three times times the number of signatures needed to qualify, Hoskins publicly smirked that he would begin a \u201cslow and steady\u201d review of the signatures.<\/p>\n

\u201cI\u2019m going to do everything I can to protect Gov. (Mike) Kehoe\u2019s Missouri First Map \u2014 the map the General Assembly passed,\u201d he told<\/a> the AP.<\/p>\n

Missouri\u2019s Attorney General Catherine Hanaway chimed in<\/a> to assure the voters that she, too, was in on the conspiracy to drag this process out so as to deny the petitioners their rights under the law: \u201cAs long as the status quo is the new maps, delay works in our favor.\u201d<\/p>\n

By statute, Hoskins had to certify the ballot question by August 4 at 5 p.m. An hour before the deadline, he issued a \u201ccertificate of insufficiency\u201d citing his own legal opinion that the Missouri Constitution does not specifically authorize a referendum on congressional redistricting plans passed by the General Assembly.<\/p>\n

Hoskins is not a lawyer, but the justices on the Missouri Supreme Court are, and so they\u00a0ruled<\/a>\u00a0on September 3 that the new HB-1 map \u201cis not the law and has never been the law\u201d and ordered Hoskins to \u201cissue a certificate of sufficiency as to the referendum petition, place the referendum petition on the November 2026 general election ballot, and to take any and all additional steps necessary to place the referendum petition on the ballot at that election before September 8, 2026.\u201d<\/p>\n

On September 4, Hoskins asked for emergency relief from the U.S. Supreme Court, which denied<\/a> his application four days later.<\/p>\n

But Hoskins had another trick up his sleeve. At the same time he was asking SCOTUS to do him a solid, he was also cooking up a friendly lawsuit in the Eastern District of Missouri, where three state legislators sued<\/a> to force him to implement the new HB-1 map. This would appear to violate the Rooker-Feldman<\/em> doctrine, at least in spirit. But the case landed on the docket of Judge Stephen Clark, a Trump appointee, who was unconcerned with such niceties<\/a>. He granted<\/a> a TRO instructing Hoskins to use the HB-1 map just hours before the Supreme Court told him not to.<\/p>\n

The Eighth Circuit panel included George H.W. Bush appointee James Loken, plus Trump appointees David Stras and Justin Smith (Trump\u2019s former personal lawyer). They refused to stay<\/a> Judge Clark\u2019s order, forcing Justice Kavanaugh once again to tell Missouri to knock it off<\/a> and quit screwing with an election that was already underway.<\/p>\n

Well, to be fair, what he said was:<\/p>\n

\n

The September 8, 2026 order entered by the United States District Court for the Eastern District of Missouri in case No. 4:26\u2013cv\u20131424 is stayed pending the disposition of the appeal in the United States Court of Appeals for the Eighth Circuit and disposition of a petition for a writ of certiorari in this Court, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.<\/p>\n<\/blockquote>\n

This was understood<\/a> by everyone in Missouri as settling the matter, and even AG Hanaway agreed that HB-1 would go on the ballot, and the congressional election would proceed with the old map. But the Eighth Circuit heard something else, and scheduled the matter for oral argument<\/a> yesterday.<\/p>\n

\u201cIt\u2019s on our plate and I think the Supreme Court has said \u2018get to it.\u2019 So, here we are. They told us: \u2018Get to work!’\u201d Judge Loken insisted. \u201cAnd I learned long ago not to try to predict what courts mean, just to read what they say.\u201d<\/p>\n

No one else reading that boilerplate order thought that the justices were telling the Eighth Circuit to \u201cGet to work!\u201d and start evaluating the legality of Missouri\u2019s congressional districts. The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA)\u00a0requires ballots to go out today<\/em> to service members deployed abroad and American expats. And Hoskins himself transmitted notice to every state election official to proceed with the 2022 maps, thereby purging his contempt<\/a> of the Missouri Supreme Court.<\/p>\n

Literally the only people outside of stringboard wingnutistan who think the war is still going are three judges at the Eighth Circuit, who are apparently squatting up in the hills subsisting on coconuts and plotting their next attack.<\/p>\n

\u201cWe\u2019re fighting over which map, which map do we go to the general election on? And of course, time is of the essence,\u201d Loken said, during a rambling introductory speech.<\/p>\n

And \u2014 unbelievably! \u2014 he\u2019s blaming People Not Politicians for trying to run out the clock.<\/p>\n

\u201cYou\u2019re not going to get a remand so you can write more briefs until the election passes,\u201d he snapped. \u201cYou\u2019re not going to get that. At least not \u2014 maybe you will \u2014 but that will be over my dissent.\u201d<\/p>\n

All of which sounds like the Eighth Circuit absolutely does intend to wade back into this mess next week, if not sooner. And so it will fall to Justice Kavanaugh to hike into the jungle and hand this panel a newspaper \u2026 again.<\/p>\n

Onder v. Missouri<\/a> [Trial Docket]<\/p>\n

Onder v. Von Glahn<\/a> [Eighth Circuit Docket]<\/p>\n

\n

Liz Dye<\/a>\u00a0produces the Law and Chaos\u00a0Substack\u00a0<\/a>and\u00a0podcast<\/a>.<\/strong><\/em>\u00a0You can subscribe by clicking the logo:<\/strong><\/em><\/p>\n

\"\"<\/a>
<\/figcaption><\/figure>\n

\n

The post Eighth Circuit Gives Dead Horse Mouth To Mouth<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"<\/figure>\n

Everyone in Missouri understands that this game of election map tractor chicken is over. The Supreme Court has told elected officials twice<\/em> to quit screwing around and run the midterms with the old maps. But the Eighth Circuit is still trying to copulate with that chicken and ruin Justice Kavanaugh\u2019s weekend.<\/p>\n

The barnyard funtimes started last year when Trump demanded that Republicans gerrymander congressional districts even more aggressively, so as to wring out a dozen more seats. Missouri\u2019s legislature obliged with HB-1, which cracked Rep. Emanuel Cleaver\u2019s Kansas City district so as to turn an already gerrymandered 6-2 map into a 7-1 middle finger. But Missouri\u2019s constitution allows for a veto referendum, whereby the citizens can challenge legislation by putting it on the ballot. <\/p>\n

A group called People Not Politicians did just that with HB-1, collecting enough signatures to force a referendum on the new maps. And because the state constitution says that \u201cAny measure referred to the people shall take effect when approved by a majority of the votes thereon, and not otherwise,\u201d that meant the new map could not be used<\/em> for the 2026 election. <\/p>\n

Missouri Republicans weren\u2019t subtle about their intent to defy the law. Secretary of State Denny Hoskins rejected three versions of the veto referendum on various contrived technicalities, and then threw out all the signatures previously collected when he approved their fourth effort. Then in December, after People Not Politicians submitted almost three times times the number of signatures needed to qualify, Hoskins publicly smirked that he would begin a \u201cslow and steady\u201d review of the signatures.<\/p>\n

\u201cI\u2019m going to do everything I can to protect Gov. (Mike) Kehoe\u2019s Missouri First Map \u2014 the map the General Assembly passed,\u201d he told<\/a> the AP.<\/p>\n

Missouri\u2019s Attorney General Catherine Hanaway chimed in<\/a> to assure the voters that she, too, was in on the conspiracy to drag this process out so as to deny the petitioners their rights under the law: \u201cAs long as the status quo is the new maps, delay works in our favor.\u201d<\/p>\n

By statute, Hoskins had to certify the ballot question by August 4 at 5 p.m. An hour before the deadline, he issued a \u201ccertificate of insufficiency\u201d citing his own legal opinion that the Missouri Constitution does not specifically authorize a referendum on congressional redistricting plans passed by the General Assembly.<\/p>\n

Hoskins is not a lawyer, but the justices on the Missouri Supreme Court are, and so they\u00a0ruled<\/a>\u00a0on September 3 that the new HB-1 map \u201cis not the law and has never been the law\u201d and ordered Hoskins to \u201cissue a certificate of sufficiency as to the referendum petition, place the referendum petition on the November 2026 general election ballot, and to take any and all additional steps necessary to place the referendum petition on the ballot at that election before September 8, 2026.\u201d<\/p>\n

On September 4, Hoskins asked for emergency relief from the U.S. Supreme Court, which denied<\/a> his application four days later.<\/p>\n

But Hoskins had another trick up his sleeve. At the same time he was asking SCOTUS to do him a solid, he was also cooking up a friendly lawsuit in the Eastern District of Missouri, where three state legislators sued<\/a> to force him to implement the new HB-1 map. This would appear to violate the Rooker-Feldman<\/em> doctrine, at least in spirit. But the case landed on the docket of Judge Stephen Clark, a Trump appointee, who was unconcerned with such niceties<\/a>. He granted<\/a> a TRO instructing Hoskins to use the HB-1 map just hours before the Supreme Court told him not to.<\/p>\n

The Eighth Circuit panel included George H.W. Bush appointee James Loken, plus Trump appointees David Stras and Justin Smith (Trump\u2019s former personal lawyer). They refused to stay<\/a> Judge Clark\u2019s order, forcing Justice Kavanaugh once again to tell Missouri to knock it off<\/a> and quit screwing with an election that was already underway.<\/p>\n

Well, to be fair, what he said was:<\/p>\n

\n

The September 8, 2026 order entered by the United States District Court for the Eastern District of Missouri in case No. 4:26\u2013cv\u20131424 is stayed pending the disposition of the appeal in the United States Court of Appeals for the Eighth Circuit and disposition of a petition for a writ of certiorari in this Court, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.<\/p>\n<\/blockquote>\n

This was understood<\/a> by everyone in Missouri as settling the matter, and even AG Hanaway agreed that HB-1 would go on the ballot, and the congressional election would proceed with the old map. But the Eighth Circuit heard something else, and scheduled the matter for oral argument<\/a> yesterday.<\/p>\n

\u201cIt\u2019s on our plate and I think the Supreme Court has said \u2018get to it.\u2019 So, here we are. They told us: \u2018Get to work!’\u201d Judge Loken insisted. \u201cAnd I learned long ago not to try to predict what courts mean, just to read what they say.\u201d<\/p>\n

No one else reading that boilerplate order thought that the justices were telling the Eighth Circuit to \u201cGet to work!\u201d and start evaluating the legality of Missouri\u2019s congressional districts. The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA)\u00a0requires ballots to go out today<\/em> to service members deployed abroad and American expats. And Hoskins himself transmitted notice to every state election official to proceed with the 2022 maps, thereby purging his contempt<\/a> of the Missouri Supreme Court.<\/p>\n

Literally the only people outside of stringboard wingnutistan who think the war is still going are three judges at the Eighth Circuit, who are apparently squatting up in the hills subsisting on coconuts and plotting their next attack.<\/p>\n

\u201cWe\u2019re fighting over which map, which map do we go to the general election on? And of course, time is of the essence,\u201d Loken said, during a rambling introductory speech.<\/p>\n

And \u2014 unbelievably! \u2014 he\u2019s blaming People Not Politicians for trying to run out the clock.<\/p>\n

\u201cYou\u2019re not going to get a remand so you can write more briefs until the election passes,\u201d he snapped. \u201cYou\u2019re not going to get that. At least not \u2014 maybe you will \u2014 but that will be over my dissent.\u201d<\/p>\n

All of which sounds like the Eighth Circuit absolutely does intend to wade back into this mess next week, if not sooner. And so it will fall to Justice Kavanaugh to hike into the jungle and hand this panel a newspaper \u2026 again.<\/p>\n

Onder v. Missouri<\/a> [Trial Docket]<\/p>\n

Onder v. Von Glahn<\/a> [Eighth Circuit Docket]<\/p>\n

\n

Liz Dye<\/a>\u00a0produces the Law and Chaos\u00a0Substack\u00a0<\/a>and\u00a0podcast<\/a>.<\/strong><\/em>\u00a0You can subscribe by clicking the logo:<\/strong><\/em><\/p>\n

\"\"<\/a>
<\/figcaption><\/figure>\n","protected":false},"excerpt":{"rendered":"

Everyone in Missouri understands that this game of election map tractor chicken is over. The Supreme Court has told elected officials twice to quit screwing around and run the midterms with the old maps. But the Eighth Circuit is still trying to copulate with that chicken and ruin Justice Kavanaugh\u2019s weekend. The barnyard funtimes started […]<\/p>\n","protected":false},"author":3,"featured_media":163189,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[16],"tags":[],"class_list":["post-163188","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/163188","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=163188"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/163188\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/163189"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=163188"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=163188"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=163188"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}