The Missouri Supreme Court will soon decide if the congressional redistricting map passed by state lawmakers last year will be up to a vote of the people.
Members of the court heard arguments on Wednesday on the case, along with two others dealing with referendums. Two of the issues must be resolved by Tuesday. That is the deadline for court-ordered additions to appear on the Nov. 3 ballot.
If the high court decides to reverse the decision made last month by Circuit Judge Daniel Green, the referendum on the map will go to a vote and the map could be suspended.
That could put in jeopardy Republicans' plan to redraw the map to push out Congressman Emanuel Cleaver and gain a Republican seat in the Kansas City area.
That would also reverse the decision by Secretary of State Denny Hoskins to reject the proposed referendum because he did not believe that redistricting plans are subject to the referendum process.
Arguing for the plaintiffs in the case, attorney Chuck Hatfield said his clients did what the state authorizes them to do.
"The plain language is that the people have a right to a referendum on any act of the General Assembly. Was this an act? It says it was. I don't think there's any dispute about that," Hatfield said.
Arguing for the state, Solicitor General Lou Capozzi said a plain reading of the constitution actually bars a referendum on redistricting.
"Article Three, Section 7H says: 'No redistricting plan shall be subject to the referendum.' That plain text resolves this case," Capozzi said.
That argument was brought up when the case was heard in circuit court. At the time, Hatfield said that particular section refers to the redistricting of state Senate and House districts that is done by committee, not congressional redistricting.
Capozzi said if the court were to uphold the referendum, they should not freeze the new map and therefore stop it from going into effect before the November election.
"That would annihilate the General Assembly's redistricting authority because every time the state redistricts, the minority political party can easily get the signatures to freeze the map for an election cycle," Capozzi said.
Capozzi also said if the map is frozen before people vote, the U.S. Elections Clause prohibits that from happening.
The Missouri Supreme Court ruled in May that if the redistricting referendum qualifies for the ballot, the 2025 map will have been suspended as of December 2025.
Chief Justice W. Brent Powell referenced that ruling in court on Wednesday.
"We've already made that decision. We've already said that the new map, HB1, would not go into effect as of Dec. 9 (2025) if the certificate is sufficient," Powell said.
Powell also appeared skeptical of the state's argument that suspending the new map after it was already used for the August primary could have electoral consequences.
"Let's be honest, if this had been brought to us earlier, then we could be in a situation where we could be deciding this in time for the primary election," Powell said.
Powell said to both Capozzi and Hatfield that what is before the court is the referendum itself.
"What our court must review is whether or not the certificate of insufficiency should be reversed. That's all, and there's no then further discussion about consequences or anything like that," Powell said to Capozzi.
Hatfield disagreed, saying Green's order also placed HB1 in effect rather than suspension.
"We've got an issue here, which is that the secretary of state, the attorney general, and the circuit court are saying that for the November election, they're going to follow something that was not the law, and has not been the law ever, and we're asking this court to make that clear that you meant what you said," Hatfield said.
Capozzi said on Wednesday that if the Supreme Court only addresses the certificate of sufficiency, then the state would put the referendum on the ballot but would not revert to the 2022 map.
"The secretary has taken the position that federal law requires using the HB1 map. It would do so unless this court ordered otherwise," Capozzi said.
Speaking later, Hoskins said he intends to follow the order of the Missouri Supreme Court, but if it does not specifically say what map to use, he will use the 2025 map.
"We will continue to use the law of the land, the Missouri First map," Hoskins said.
Also speaking after the court hearing, Hatfield said Hoskins' actions leading up to this are why the state is in this predicament at all.
"I think the court made clear today that his 'I do the minimum I'm required to do' attitude is the reason we have this crisis now, and we're playing a big game of chicken about whether we're going to use the correct law when we run our congressional districts," Hatfield said.
Other cases on referendums
In addition to the referendum on the 2025 congressional map, the Missouri Supreme Court heard two other cases related to referendums.
The first case heard seeks to overturn Green's ruling that affirmed Hoskins' decision to deny a proposed constitutional amendment on voter ballot initiatives, saying the proposal violates the single-subject clause of the state's constitution.
Under the proposed amendment, the legislature would be unable to change anything passed in a voter-approved initiative without an 80% majority in both chambers.
If that unlikely scenario occurs, the change would then go to a vote of the people.
Hatfield argued before the court that this is the first time he's witnessed the Missouri secretary of state deny a petition on an issue other than signatures.
"The secretary has also taken what I believe is also an unprecedented step and purported to vacate the original ballot title that he had drafted and had approved by the attorney general and replace it with a new ballot title that he says is better," Hatfield said.
Hatfield was the attorney for the appellants in all three cases today.
Because all of the issues within the proposed Amendment 6 deals with initiatives and referendums, Hatfield said he doesn't see how the state can argue that there is more than one subject within the proposed amendment.
Representing the state, attorney Kathleen Hunker said Amendment 6 is a profoundly anti-democratic proposal.
"It not only strips the people of their right to use the legislative process, but more critically, it insulates itself as well as other laws and amendments, some dating back all the way to 2010, from being reconsidered by the people in the future," Hunker said.
Powell asked Hunker if proposed initiatives need to pass before they are questioned on their constitutionality beyond the signature threshold.
"Why does it apply to other constitutional provisions when we don't even know if the initiative will pass? Don't we have to wait to take up those challenges until that initiative passes? It may not pass," Powell said.
In addition to affirming Hoskins' ability to deny the proposed amendment, Hunker said it is within Hoskins' power to submit a new ballot title.
"The secretary, in short, acted within his authority when he determined that Amendment 6 exceeded his constitutional bounds. He also acted within his authority when he vacated the original ballot title and reissued a new one," Hunker said.
Hatfield disagreed.
"There is absolutely no authority to now revoke the ballot title and replace it with a new one. That should have been done, and that is crystal clear, way back at the first stages, and that's what the statute says," Hatfield said.
Like the case surrounding the congressional map, this case also must be resolved by Tuesday.
The final case the court heard deals with the actions taken by Hoskins when the referendum on the map was first submitted.
Hoskins initially rejected the referendum on the map because Gov. Mike Kehoe had not signed it into law yet.
He later approved the referendum but said in a press release that "no signatures gathered before this approval date are valid, and doing so constitutes a misdemeanor election offense."
A circuit court ruling on the issue said Hoskins properly rejected the first three referendum petitions issued before Kehoe signed the bill. The ruling also requires the secretary of state to approve a referendum petition before signatures can be collected.
Hatfield said this issue is a matter of constitutional interpretation.
"It's a matter of, does an act of the General Assembly mean an act of the General Assembly, or does it mean an act of the General Assembly that has also been signed by the governor? It matters a lot for the referendum," Hatfield said.
The state argued that this case is no longer relevant, because the state has conceded that there are enough signatures for the map referendum.
"This case is plainly moot. Any decision here will have zero impact on appellants," attorney William Seidleck said.
Hatfield said the issue is not moot, because this affects future referendums.
"You have to vacate, in my view, that trial court opinion because what we've seen in these cases is next time around, the secretary will wave that opinion around and say: 'Well, I was right about this. I'm going to reject all of these forms early on,'" Hatfield said.
Unlike in the other two cases, the Supreme Court does not need to rule quickly with this case.
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