American elections aren’t what they used to be: Thanks to relentless, politically driven gerrymandering, fewer and fewer congressional seats are truly competitive. Millions of Americans are locked into districts where their vote will never elect the party of their choice.

But gerrymandering is also notoriously hard to fix. Many sitting lawmakers owe their seats to districts that have been wildly contorted to create secure seats. So asking legislators to ban gerrymandering often means asking them to endanger their own jobs.

Nevertheless, the stars may soon align for opponents of partisan electoral maps. Last time Democrats controlled the US House, they passed a bill that sought to eliminate gerrymandering. That bill died in the Senate. But, if the polls are correct, Democrats are poised to take both houses of Congress in November. If President Donald Trump remains an albatross around Republicans’ necks through 2028, Democrats could soon control both elected branches of government.

That’s good news for opponents of gerrymandered maps, because, as recent developments show, any viable solution to congressional gerrymandering will have to come from Congress and not the states. Some blue states, such as California and Virginia, had previously enacted constitutional amendments intended to halt gerrymandering in those states. But Democrats are now trying to bypass those bans because they prevent blue states from countering Republican gerrymanders in red states.

Still, even if Democrats win the next two federal elections in historic landslides, they then must overcome the final boss monster standing between the United States and fair elections: the Supreme Court.

And unless the Court’s membership changes dramatically, that will be no easy task. Until fairly recently, the Supreme Court often blocked racial gerrymanders — those intended to lock voters of a particular race out of power — and it at least held open the possibility that a state’s maps could be struck down because of excessive partisanship.

Now, by contrast, many of the Court’s redistricting decisions read like a love letter to partisan maps. The Court’s Republican majority held in Rucho v. Common Cause (2019) that federal courts are forbidden from hearing cases alleging that a particular legislative map was drawn to benefit one political party. More recently, in Louisiana v. Callais (2026), the Court’s Republicans abolished longstanding safeguards against racial gerrymandering, ushering in a new wave of maps that favor white Republicans in the South. 

There’s no way to guarantee that a Republican Supreme Court won’t simply make up a reason to toss out a Democratic voting rights law, no matter what that law says. Still, there are strategic ways to mitigate that risk. Opponents of gerrymandering can maximize the likelihood that redistricting reforms will survive judicial review by paying close attention to what the Supreme Court has already said about race, election law, and other related topics. Many of the Court’s recent cases suggest that Democrats may want to tweak their approach to a federal redistricting law — and the Court’s opinions give clues into how.

Don’t even think about passing a law that mentions race

The most obvious trap that Democrats could fall into when drafting an anti-gerrymandering bill is to mention race, or otherwise draw racial distinctions of any kind.

Until just a few months ago, the federal Voting Rights Act offered some of America’s strongest protections against gerrymandering. A 1982 amendment to that law prevented many racially polarized states — often states where white people vote Republican and Black people vote for Democrats — from drawing maps that maximized white power. This had the side effect of limiting partisan gerrymandering in that space, because requiring these red states to draw more Black-majority districts meant electing more Democrats.

But the Republican justices effectively repealed this amendment, which was signed into law by President Ronald Reagan, in Callais. That’s because all six of the Court’s Republicans swear fealty to an idea known as “colorblindness” — the idea that any law that draws racial distinctions, no matter the purpose, is equally repugnant. Under this theory, laws that aim to lift up historically disadvantaged racial groups are legally indistinguishable from the laws that codified Jim Crow. So, if a new act of Congress requires states to consider race when they draw legislative maps, that new law will almost certainly be struck down by this Court.

Congress takes an extraordinary risk, moreover, if it inserts a race-based provision into a broader law governing redistricting, even if the vast bulk of that law does not concern race at all. NFIB v. Sebelius (2012) is one big example of how that could go wrong: In that case, four of the Republican justices claimed that the entire Affordable Care Act must be struck down because those four concluded that just two provisions of the law are unconstitutional. 

The current Court is both much more conservative and much more Republican than the one that heard NFIB — and probably will be just as motivated on the issue of gerrymandering as they were on Obamacare —  so a majority of its members could potentially order an entire act of Congress repealed if they deem one provision in that law unconstitutional. And, even if they do not go that far, they still might carve giant holes in a law because of one provision that mentions race.

Democrats seem to understand these limitations: The last time Democrats controlled the House, it passed two significant voting rights bills (both of which died in the Senate). The For the People Act is an omnibus bill that includes many of the Democratic Party’s ideas to improve elections, including several provisions targeting gerrymandering. Meanwhile, the John R. Lewis Voting Rights Advancement Act seeks to undo many of the Supreme Court’s attacks on the Voting Rights Act, the landmark law barring race discrimination in voting, while also enhancing some of the VRA’s protections.

Democrats’ decision to, well, segregate racial reforms from their other voting rights proposals shows that they understand many of the tactical decisions they need to make because of this Court. By placing race-related reforms in the John Lewis Act, while passing non-race-related ideas in the separate For the People Act, Democrats reduce the likelihood that the later bill will fall. It would be extraordinary, even for this Supreme Court, to strike down one law because five or more justices deem an entirely separate law unconstitutional.

But let’s say the Democrats decide the best way to get gerrymandering reform through early next year is by reviving the For the People Act. That bill’s anti-gerrymandering provisions do still contain some references to race which Democrats may want to strip out in an abundance of caution. The bill, for example, would require states to draw their congressional districts using a commission made up of Democrats, Republicans, and people affiliated with neither party. One provision of this bill provides that the pool of potential members of these commissions should be screened to ensure that it is “representative of the demographic groups (including racial, ethnic, economic, and gender) and geographic regions of the State.” 

Because this provision requires the government to consider race, this Court would very likely strike it down. If that happens, the Court might simply excise the reference to race from the broader statute and leave the rest of it intact, but there’s a danger that this Court could strike down all of the For the People Act’s provision calling for congressional maps to be drawn by independent commissions — or even possibly the entire Act. 

So If Democrats decide the best way to enact gerrymandering reform early next year is by reviving that bill and finally getting it passed, they may want to strip out any mentions of race in an abundance of caution.

Relying on independent redistricting commissions to draw congressional districts is a dicey proposition with this Supreme Court

At least eight states currently use independent commissions to draw legislative maps, and several other states involve commissions in their mapmaking process. It’s a promising model because empirical research does suggest that these commissions are effective in reducing partisanship in legislative maps. One recent study, for example, found that moving from legislatively drawn maps to commissions “would increase the share of competitive seats within a state from 25 percent to 38 percent on average.”

The idea behind an independent commission is to take the task of drawing maps away from a partisan state legislature, and give it to a multipartisan body tasked with drawing maps that favor neither major political party. The For the People Act adopts this model. It proposes that each state should have a 15-member commission consisting of five Democrats, five Republicans, and five people affiliated with neither major party. Elected officials and their immediate family, candidates for office, significant political donors, and lobbyists are all barred from commission membership.

But there’s a constitutional problem with this approach, which arises out of a surprisingly banal question: Who, exactly, would employ these commissioners?

One possibility is to make them federal officials. But if these commissioners are employed by the federal government, the Constitution would probably classify them as “principal officers,” which would mean that they would have to be chosen by the president and confirmed by the Senate. And, in any event, the Court’s “unitary executive” cases establish that, if these commissioners count as federal officials, either the president or one of the president’s subordinates would have to have the power to fire them at-will.

Classifying the mapmaking commissioners as federal officials, in other words, would defeat the purpose of creating the redistricting commissions in the first place — because the commissioners would be partisan officials and not independent actors.

The For the People Act attempts to get around this problem by calling for state-run commissions. It requires each state to “establish a nonpartisan agency,” which will appoint commissioners to draw the state’s maps. But under the Supreme Court’s “anti-commandeering” doctrine, a doctrine that precedes the Roberts Court, the federal government is typically forbidden from ”issu[ing] direct orders to the governments of the States.” So that suggests that Congress may neither order a state to appoint these commissioners, nor control how a state’s commissioners draw the state’s maps.

In fairness, there is a plausible argument that the anti-commandeering doctrine does not apply to federal laws governing congressional elections. The Constitution allows states to determine the “Times, Places and Manner” for holding such elections, but it also permits Congress to “make or alter such Regulations.” So that suggests that, when Congress writes laws governing congressional elections, it may effectively rewrite a state’s laws to conform to the federal government’s wishes.

Still, this argument is untested. And the question of whether Congress can require states to set up redistricting commissions would ultimately be decided by a Supreme Court with a 6-3 Republican majority that is often hostile toward voting rights legislation. The fate of a federal law requiring states to set up their own commissions would depend on six Republican political appointees who were confronted with a law whose very purpose is to take the Republican Party’s gerrymandering tactics off the table. 

Maybe these justices would set partisanship aside and allow a law calling for mandatory state-run commissions to exist. But Congress takes an enormous risk if it bets the future of redistricting on an untested legal theory that, at least, plausibly violates the anti-commandeering doctrine. If the Republican justices want to strike such a law down, they won’t have to work hard to come up with an argument for doing so.

Democrats may want to reconsider whether to rely on independent commissions as their primary solution to gerrymandering. At the very least, they should insert language into the For the People Act stating that, if the commissions are struck down, some alternative mechanism to restrict partisan gerrymandering will immediately spring into effect.

So what can Congress do?

Though independent commissions and race-conscious attempts to combat gerrymandering may be vulnerable to constitutional challenges, Congress’s power to “make or alter” the rules governing congressional elections is in the Constitution, and it is quite broad. That should permit Congress to order the states to draw maps using congressionally determined criteria.

Indeed, Congress has long exercised this power to dictate how states must draw their congressional districts. In 1842, for example, Congress required every state to elect members of the US using single-member districts. This law lapsed in 1929, but a similar law was put back into place in 1967. That law, which provides that no congressional district may “elect more than one Representative,” remains on the books today. 

Right now, this law prevents states from enacting many promising reforms, such as proportional representation, but the fact that this law has existed for so long suggests that Congress does, in fact, have broad power to dictate how states draw congressional districts.

Some of the Court’s older precedents, moreover, also suggest that Congress’s power over congressional elections is expansive.  Recall that the Constitution itself gives both state lawmakers and Congress authority to determine the “Times, Places and Manner” for holding these elections. States typically get the first crack at determining their own election laws, but Congress can “make or alter such Regulations.” In Smiley v. Holm (1932), the Court said that the power to determine the times, places, and manner for holding these elections includes the power “to provide a complete code for congressional elections.” 

So that suggests that Congress may lay out a “complete code” governing how congressional districts should be drawn — assuming, of course, that Congress does not violate some other provision of the Constitution, such as the rules against race discrimination.

An act of Congress governing redistricting could take many forms. Congress might, for example, repeal the ban on multi-member districts established by the 1967 law, and implement proportional representation. Such a system could be set up in different ways, but in the simplest version, voters would cast a ballot for the party they want to control Congress, rather than voting for an individual candidate. Seats would then be allocated to parties based on the percentage of votes that party received. So if the Republican Party received 40 percent of the vote in a state with 10 House members, the GOP would get to pick four of those members of Congress.

Alternatively, Congress could retain the one-member-per-district rule, but implement rules governing how those districts must be drawn. The For the People Act, for example, lays out several criteria that the Act’s independent commissions must use when drawing congressional maps. Among other things, districts must “respect communities of interest, neighborhoods, and political subdivisions to the extent practicable.” The act would also prohibit states from redrawing their maps outside of the 10-year cycle established by the US census.

The bill also proposes several mathematical methods, which have names such as the “efficiency gap,” or the “Seats-Votes Curve,” that may be used to evaluate whether a particular map gives an unfair advantage to one political party.

As I’ve already explained, it is unclear whether Congress could actually create independent redistricting commissions. But a law mandating that congressional districts must be drawn in a particular way could still be enforced by a different body — the federal judiciary. If a state drew a map that violated Congress’s new rules, voters or political candidates in that state could file a lawsuit, and a court could order the state to come into compliance with federal law.

That said, one problem with this solution is that litigation often takes a long time. Historically, states that drew illegal maps that were eventually struck down by the courts often got to run one or more elections under the deficient maps before a court could determine that they were unlawful and must be replaced. 

Another potential solution is that Congress could require states to “preclear” new maps with federal officials — borrowing from a method the original Voting Rights Act of 1965 used to prevent states from implementing racist maps before those maps could be challenged in litigation. Under that law, some states had to preclear new election rules with either the Justice Department or a DC-based federal court.

Though the Supreme Court effectively neutralized the VRA’s preclearance provision in Shelby County v. Holder (2013), much of the Shelby County decision criticized the VRA for applying preclearance only to some states and not others. So it is possible that this Court might uphold a new preclearance regime that applies to all 50 states. And even if it will not, Congress could adopt a belt-and-suspenders approach — requiring states to preclear their maps and permitting individual citizens to sue in order to challenge those maps. That way, if preclearance is struck down, lawsuits could still move forward.

There is no telling how this Supreme Court, which often makes up new legal rules that cannot be found in the Constitution’s text, would approach a federal law governing how states must draw their congressional maps. But existing precedents suggest that Congress would have broad discretion to design these rules how its members see fit. Outside of the racial context, the Court’s precedents largely limit which institutions may be placed in charge of redistricting or how members of those institutions are selected or removed. They place far fewer restrictions on the substance of federal election law.

Could judges be given the task of drawing maps?

Another way to potentially insulate the mapmaking process from partisan politics is for Congress to pass a law requiring maps to be drawn by judges, who are at least nominally nonpartisan. Virginia’s constitution, for example, provides that its districts shall be drawn by the state supreme court if the state legislature and a redistricting commission are unable to agree on legislative maps. 

Similarly, the For the People Act would require a panel of three federal judges to draw a state’s maps if that state either fails to set up a redistricting commission, or the state’s commission does not come up with maps on its own.

Unfortunately, the For the People Act’s proposed process for creating these judge-drawn maps may be unconstitutional. That’s because the Constitution only permits federal courts to decide matters arising out of “cases” or “controversies” — meaning that the matter is presented to the court in a proper lawsuit where a plaintiff, who was actually injured in some way by a defendant, sues that defendant.

The For the People Act seems to contemplate a kind of public hearing, presided over by three judges, where any “interested members of the public may appear and be heard and present testimony” on what a state’s maps should look like. This process, in other words, does not really resemble a lawsuit, where a plaintiff and a defendant both make adversarial arguments and a judge determines which one of them is correct.

Although the bill does indicate that an individual plaintiff may trigger a hearing by filing a formal request with an appropriate court, this individual doesn’t really resemble a party to a lawsuit, in part because they do not appear to have any greater ability to present evidence to the three-judge panel than any other member of the public.

That said, these deficiencies in the For the People Act could probably be fixed with fairly minor tweaks. Instead of allowing any random member of the public to call for a hearing, the bill should identify specific classes of individuals — be they voters within a state, candidates, or political parties — who have standing to sue the state. The ensuing hearing should be conducted like a lawsuit, with both the plaintiff and the state presenting their own arguments for how to design the state’s maps. If Congress also wants the court to consider arguments from the public at large, those arguments could be submitted in amicus briefs.

And, of course, the bill should also lay out a legal criteria that judges can use to determine if a particular map is legal.

The biggest challenge for lawmakers probably won’t be the Constitution. It will be coming up with a solution that actually prevents partisans from drawing biased maps.

At least under current law, Congress has broad discretion to lay out nationwide rules governing congressional mapmaking. A federal law mandating proportional representation, or requiring states to draw compact districts, or mandating that states must use a particular mathematical model to construct maps that are free from partisan bias, or potentially even a law allowing  judges to draw maps, would all likely be constitutional — even according to this Supreme Court.

But the fact that a particular law is constitutional does not mean that it will be effective in increasing the number of competitive districts and reducing the role that partisans play in the mapdrawing process.

The most challenging task facing Congress — or, at least, a future Congress that actually wants to do something about gerrymandering — is coming up with rules that actually force states to draw fair maps. It would be a tragedy if Congress enacts a law requiring states to use a particular method to design its districts, only to discover that this method does not actually prevent states from drawing partisan gerrymanders.

In a 2016 speech, for example, former Attorney General Eric Holder mocked states that draw districts that are “only contiguous at low tide” or that are “shaped like a contorted snake.” And he suggested that states should be required to draw maps which ensure that “people who live near each other, and who have similar interests” vote in the same district. Holder, in other words, seemed to suggest that compact districts are superior to ones that spread out throughout much of a state.

But this proposal could actually make some states’ maps more biased. That’s because Democrats tend to cluster together in cities, while Republicans tend to spread out more in rural and suburban areas of a state. So, if a state’s mapmaking process fetishizes drawing nearby voters together into the same district, Democrats may all be packed into urban districts that are so overwhelmingly Democratic that many of the votes cast in these districts will be wasted. Republicans, meanwhile, could be spread out across multiple districts to ensure that their votes are counted more efficiently.

These challenges don’t mean that federal lawmakers should abandon the project of halting partisan gerrymandering. But it does mean that they should proceed with some caution. The worst outcome would be if Congress required states to use a particular method when they draw their maps, and then that method did not achieve what Congress intended it to achieve. 

Avoiding this outcome, moreover, will be more difficult because Congress may need to choose second-best solutions to reduce the likelihood that the Supreme Court strikes the entire law down. 

It would be better if Congress could address partisan redistricting without an increasingly partisan Court breathing down its members’ necks. But Democrats cannot choose which justices sit on the Supreme Court at the moment they gain a congressional majority large enough to actually legislate. Absent extraordinary events, they will need to do their best to draft a law that this Court will not sabotage.

This story was produced in partnership with Protect Democracy and Journalism Funding Partners.

This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access. Sign up for their free weekly newsletter to get the latest.

Since being released early from prison in June, former Colorado election clerk Tina Peters has been granted extraordinary access to the halls of power in Washington.

Peters said she has traveled to Washington seven times, visited the White House at least twice, and met with senior officials at the Justice and Commerce departments — remarkable access for someone on parole after a 2024 felony conviction for tampering with voting machines in an attempt to show that the 2020 election was rigged against President Donald Trump.

She’s a high-profile example of a group of Trump supporters and conservative activists trying to lay out a roadmap for the president to follow. They are urging him to take more extreme steps to try and influence the outcome of an election that many polls suggest could end Republican control of Congress. But as the election closes in, the activists are now voicing increasing concerns that the president and his administration aren’t going to act on their ideas.

This book excerpt is part of Cafe, TPM’s home for opinion and news analysis.

On June 25, 2013, the Roberts Court handed down their decision in Shelby County v. Holder. The 5-4 decision gutted the Voting Rights Act of 1965’s “preclearance” condition, which required states and localities with a history of racial discrimination in voting practices to get permission from the federal government before they could change any policy related to their elections. The country had changed dramatically, Chief Justice Roberts wrote for the majority; the “strong medicine” of the Voting Rights Act, he argued, was no longer needed, let alone justified. But Michael G. Miller and I show throughout our new book, An American Problem: How the Country Built – and the Supreme Court Broke — The Voting Rights Act just how misguided that reasoning was. In the parts of the country freed from preclearance by Shelby County, our electoral institutions have grown demonstrably less open to Americans of color.

When Mike and I started working on what would become An American Problem, a promise made by Justice Roberts in Shelby County still held. “Section 2” of the 1965 Voting Rights Act, he wrote — the section containing the tools allowing litigators to attack election laws and policies that disproportionately harmed voters of color ± “is permanent and applies nationwide.” Although the Shelby County majority was happy to invalidate the preclearance regime that June morning, they told the country that tools remained still for removing discriminatory laws from the statute books.

But this is no longer the case.

Hello, and Welcome Back to the Franchise

Just over a week since the Supreme Court rejected the Trump administration’s effort to take over and/or break mail-in voting, I still don’t think the magnitude of the president’s loss has been recognized.

This story appeared in Today, Explained, a daily newsletter that helps you understand the most compelling news and stories of the day. Subscribe here.

The recent history of mail voting in the United States has more twists and turns than an Emmy-winning drama. But for the cause of democracy, at least, yesterday’s ending is a happy one.

On Monday, the Supreme Court definitively blocked President Donald Trump’s many attempts to sabotage voting by mail — opining, in a three-sentence brief, that Trump can’t implement his new rules for the 2026 midterms. Or for any election, probably. 

Those last-minute rules, you may recall, would have required states to adopt new ballot envelopes and upload absentee voters’ names and envelope barcodes to a still-nonexistent online platform. Many officials argued they couldn’t possibly adopt the new measures before midterm voting starts, which would essentially cancel mail-in voting in their jurisdictions. 

The Supreme Court, of course, has been broadly sympathetic to Trump’s legal antics, even when they appear to clearly flout law or precedent. But shutting down voting just before the midterms? That’s one bridge too far for them.

Go a little deeper

Hobbling vote-by-mail was just one of Trump’s plots to meddle in the midterms, however — and several of the others are still underway. Here’s where some of the president’s most significant election maneuvers stand today: 

How worried should you be going into the midterms? That, my friend, is a question to answer in your own little heart. But I’m taking my cues from Vox’s politics editorial director, Benjy Sarlin, who recently reminded listeners of our America, Actually podcast that there are many, many institutional and logistical barriers to many of Trump’s more concerning legal machinations. 

“We’re taking it very seriously here…and nothing’s guaranteed,” he said. “But it is still a very difficult path [where] so far he has had zero success.”

One link for later

➨ Skip the shrimp. A new analysis by researchers at the University of Bath and Faunalytics, an animal welfare group, attempts to quantify the amount of animal suffering required to produce different factory-farmed foods. They concluded that eating smaller animals = causing greater suffering, simply because you have to eat — and, by extension, farm and kill — so many more of them.

Before you go…

• Did you know…that American founding father Thomas Jefferson was obsessed with mastodons? It’s actually one of the reasons that he sent Lewis and Clark on their famous expedition.
• Today’s trivia: Which English-language remake of an older French film won the Academy Award for Best Picture in 2022? (You can find this and other brain puzzles in Vox’s daily crossword. Look for the answer in tomorrow’s edition.)
• Yesterday’s trivia: Yesterday we asked you for the former pro hockey player who founded a major Canadian restaurant chain. That would be Tim Horton, whose eponymous cafes have occasionally gotten snarled in the trade spat between Canada and the United States.

For several minutes on Tuesday evening, Democrats thought they’d actually scored an important legal victory — and in an election case to boot! But then a single Trump-appointed judge cast a cloud of doubt over that victory, and potentially threw Missouri’s upcoming congressional elections into chaos.

Last Thursday, the Missouri Supreme Court effectively halted a 2025 state law that would have redrawn the state’s congressional maps to give Republicans an extra seat in the US House. Republicans, along with Missouri’s Republican Secretary of State Denny Hoskins, immediately ran to the US Supreme Court, hoping that the Court’s 6-3 Republican majority would order the state to use the new, more GOP friendly maps.

But the Court didn’t just reject the GOP’s request, it did so in the most dismissive way possible. The Court’s order was exactly six words long — “Application (26A304) denied by Justice Kavanaugh” — and it notably was only attributed to one justice, Brett Kavanaugh. The Court’s procedures sometimes allow a single justice to dispose of a case, but the justices rarely invoke this process unless they view the matter as so one-sided that there’s no need to formally involve their colleagues.

This case is known as Hoskins v. von Glahn.

But then, just minutes after the ruling, Judge Stephen Clark, a federal district judge in Missouri, ordered the state to use the GOP-friendly maps after all. Though Clark’s case involves different parties — the lead plaintiff in Clark’s case is a Republican member of Congress, not Hoskins — the legal issues in both cases are virtually identical. And Clark’s opinion even acknowledges that, shortly before he ruled, Kavanaugh denied Republicans the very same victory that Clark wants to give them.

Clark’s case, which is currently on appeal to the US Court of Appeals for the Eighth Circuit, is known as Onder v. Missouri.

It’s the latest round of chaos to emerge from what is likely to be an unusually chaotic round of preelection litigation. Both Missouri cases arise out of the Republican Party’s decision to launch a gerrymandering war in advance of those midterms, a war that Democrats have fought back against with limited success. Meanwhile, President Donald Trump and his administration have also implemented several new policies that appear designed to skew the election toward the GOP, including Trump’s attempt to sabotage voting by mail, which is currently pending before the Supreme Court.

It’s a terrible time, in other words, to be an election official. State election administrators should expect to spend the next two months buffeted by competing court orders, uncertain rules, and new policies that cannot possibly be legal. They should expect both Trump administration officials and state and federal judges to bombard them with commands that a ballot must be altered, or voters must be denied their right to vote — only to have those commands contradicted by new court orders that may themselves be tossed out on appeal.

For now, for example, it’s unclear which maps Missouri is supposed to use in the upcoming midterms. And the final result in this case will likely turn on why Kavanaugh issued such a dismissive order in the Hoskins case.

Kavanaugh may have ruled against Hoskins because Hoskins created the problem he wants the Court to solve

In both Hoskins and Onder, Republicans raise three separate constitutional arguments that, they claim, require Missouri to use the new maps in this year’s midterms. The Hoskins case, however, is unique in that Denny Hoskins, the Republican elected official who formally sought the Supreme Court’s review in that case, may be the worst possible person to make such a request.

Hoskins opens his brief to the Supreme Court with an alarming statement: “A federal-election-administration disaster is unfolding in Missouri.” But as the state supreme court determined, this problem is entirely Hoskins’s fault. The man literally asked the US Supreme Court to save Missouri from a “disaster” that he created.

Missouri’s Republican legislature enacted the new maps on September 12, 2025. However, under the state constitution, Missouri voters could trigger a ballot referendum on these new maps, provided that they submit “petitions signed by five percent of the legal voters in each of two-thirds of the congressional districts in the state” by a certain deadline. Opponents of the new maps met this deadline, submitting their petitions on December 9, 2025. 

Significantly, the Missouri Constitution also provides that once a referendum is triggered, the law that is subject to the referendum does not take effect, and will not take effect unless it is approved by a majority of the state’s voters. So, under the state constitution, the new maps are not law, and they will not become law unless voters approve them in the upcoming general election.

Thus, as the state supreme court noted in its unanimous opinion in Hoskins, “this case involves a straightforward question of law.” The state constitution prevents laws subject to referendums from taking effect (with limited exceptions that don’t apply here), the state law creating the new maps are subject to a referendum, therefore that law is not in effect. QED.

But why did it take so long for the state supreme court to reach this straightforward result? The short answer is that opponents of the new maps asked the state court to rule sooner, but in a May 12, 2026 opinion, the Missouri Supreme Court determined that it could not rule on whether the new maps are in effect until after Hoskins issued his own ruling on whether a referendum was properly triggered — pointing to a state law that permits lawsuits to be filed in the 10 days after the secretary of state rules on the referendum.

That May decision, however, also warned Hoskins that if the “petition filing is ultimately determined to be sufficient,” then that would mean that the new maps cannot be used in the 2026 election because the law authorizing those maps is not in effect.

Nevertheless, Hoskins waited until August 4, the last possible date that he could rule on the petitions seeking a referendum — and also the date of the state’s primary election — to issue a ruling against the referendum. The state supreme court’s opinion from last Thursday holds that Hoskins was wrong to reject the petitions, and thus the new maps never took effect.

We are now just two months from the November election, yet the state supreme court abruptly required Missouri to use different maps than the ones it used during the recent primary election. This situation is genuinely very bad, because it will be difficult for the state’s election officials to reshuffle voters into their correct congressional districts before the election takes place. 

It also means that, assuming that the Missouri Supreme Court’s decision stands, some voters will vote in a different district than the one they voted in in the recent 2026 primary election.

Incredibly, Hoskins actually argued in the state supreme court that it could not suspend the new maps so late in the game. As Judge Ginger Gooch wrote in response, this argument is “particularly misplaced given the secretary’s delay created the confusion, expense, and practical difficulties of which he complains.”

So one possible explanation for Kavanaugh’s unexplained order ruling against Hoskins is that Kavanaugh did not believe that Hoskins had any business asking the Court to fix a problem that he created. Courts often rule against litigants who have “unclean hands,” meaning that they contributed to the problem they want the court to fix.

But, if that’s the case, then it’s still possible that Republicans could prevail in Onder, because the plaintiffs in that case did not personally create the problems that the GOP now complains about.

Alternatively, Kavanaugh may have ruled against the GOP because he thought their legal arguments are garbage

The other possible explanation for Kavanaugh’s decision in Hoskins is that the justice believed that the GOP’s legal arguments were weak.

Republicans make three arguments in favor of their preferred maps, two of which overlap considerably.

Their first argument rests on a discredited legal theory known as the “independent state legislature doctrine” (“ISLD”). In its strongest form, this doctrine claims that state legislatures have virtually unchecked power to set the rules governing federal elections, and that this power cannot be limited by a state governor’s veto, by a ballot referendum, by a state constitution, or by a state court.

But the Supreme Court first rejected this theory in 1916, and it has done so many times since then — most recently in its 2023 decision in Moore v. Harper (though Moore did open the door to a weaker version of the ISLD that does not apply to either of the Missouri cases). Notably, even Clark rejected the GOP’s ISLD argument in his Onder opinion. So that is, hopefully, a sign that this particularly radical argument is unlikely to prevail in any court.

Clark, however, accepted the GOP’s other arguments, both of which claim that it is unconstitutional for Missouri to sort voters into different districts during a general election than the districts they voted in during the primary election. Clark’s opinion points to US v. Classic (1941), which held that “[w]here the state law has made the primary an integral part of the procedure of choice, … the right of the elector to have his ballot counted at the primary” is protected by the Constitution. 

He also claims that switching voters from one district to another is unconstitutional discrimination because it “creates two classes of voters: those who happen to stay in their HB 1 congressional districts, and those who do not.”

Neither of these arguments is particularly persuasive. Classic held that voters cannot be denied their right to vote in the primary, but no one claims that any of the votes that were lawfully cast during that primary were not counted. And Clark cites no legal authority that supports the proposition that the Constitution forbids discrimination on the basis of which district someone voted in during a primary election.

All laws engage in discrimination of some sort. Criminal legal codes discriminate against criminals and in favor of law-abiding individuals. Welfare laws discriminate against rich people and in favor of poor people to determine who receives benefits. Government employers may discriminate against unqualified applicants and in favor of job seekers who are well-suited for the job they seek. The mere fact that Missouri’s unusual situation sorts voters into “two classes” does not mean that this situation violates the Constitution.

Indeed, it’s not even all that unusual for the winner of a primary election to not appear on the ballot during the following general election — just ask Graham Platner. Like many states, Missouri law permits parties to replace the winner of a primary election on the ballot if their nominee “dies, is disqualified, or voluntarily withdraws.” But, if Clark is correct that the Constitution guarantees every voter a right to vote for the winner of the primary election in their same district, that means that this law is also unconstitutional.

Kavanaugh, in other words, may have looked at the GOP’s three substantive arguments in the Hoskins case and concluded that they were all so weak that he could simply dispose of the case without formally asking his colleagues to weigh in. If that’s true, Republicans should expect to lose again if the Onder case reaches the Supreme Court.

In the meantime, however, we can only guess why Kavanaugh ruled the way that he did. And Missouri election officials are stuck in limbo, unable to actually prepare for the upcoming election until they know which maps to use.