When the Missouri Supreme Court considers Wednesday whether voters can force a referendum on congressional redistricting, the judges will confront a constitutional question the court has never squarely answered.
But decades of Missouri Supreme Court decisions offer clues about how the judges may approach it.
A recent analysis of 37 state Supreme Court cases since the start of 2000 found the court looked to precedent as the major or controlling factor in 15, the meaning of the text of the constitution in 10 and a mixture of methods in another 12.
If the court maintains that record, it would be reasonable for it to find that the referendum power applies to congressional redistricting, said Michael Smith, associate professor of law at the University of Oklahoma and author of “Missouri’s Law of Constitutional Interpretation.”
“If the Supreme Court reads the referendum provision in context, they will see that there are these other provisions emphasizing the inherent power of the people,” Smith said. “That provides strong textual support to a liberal and broad referendum power by the people.”
Smith analyzed 105 cases from the earliest years of the Missouri Supreme Court to the present in his paper, published last year by the University of Missouri-Kansas City Law Review. Cole County Circuit Judge Daniel Green’s ruling that kept the referendum off the Nov. 3 ballot used a method of constitutional interpretation called structuralism that has not played a dominant role in recent decisions, Smith said.
“There’s an absence of common law reasoning” in Green’s decision, Smith said in an interview Monday with The Independent. “That absence is a little bit glaring, given the Missouri Supreme Court’s pretty consistent treatment of cases that implicate direct democratic power. This case really comes down to the scope of the referendum provision, which implicates how much power the people directly have over the legislature.”
On Wednesday, Chuck Hatfield, attorney for a political action committee called People Not Politicians, will argue that the text of the referendum provision, which says “any act” of the General Assembly is subject to a petition-initiated vote, includes redistricting. It will be one of three cases Hatfield will argue that day that will finalize the statewide November ballot.
Two cases are about the referendum. Along with the question of whether it will be on the ballot, the court will also hear a case over when it is legal to begin collecting signatures to qualify a referendum.
The third case is about whether an unrelated constitutional amendment proposed by initiative will be on the ballot. Like the referendum, Secretary of State Denny Hoskins’ determined the proposal was unconstitutional.
Questions settled
The two redistricting cases will complete the high court’s reinterpretation of the referendum power and the legislature’s authority to revise congressional maps at any time. So far, Republicans pushing for the gerrymandered map designed to win the 5th District for their party have prevailed in every case.
The Supreme Court has upheld Gov. Mike Kehoe’s power to call the legislature into special session; ruled the Constitution allowed redistricting absent a new census report; and decided that Hoskins was correct to allow the redistricting law to take effect while signatures were being verified.
In those cases, the court relied on the meaning it found in the text of the Constitution. The governor decides when “extraordinary occasions” require the legislature to be convened and because there is no language prohibiting a new redistricting plan, it is allowed, the court ruled earlier this year.
Signature verification is necessary to determine if a referendum petition is “legal, sufficient and timely,” the court found in a May decision allowing the map to take effect.
Questions remaining
In filings ahead of oral arguments, attorneys seeking to overturn Hoskins’ decision that the two measures were “insufficient” contend he far exceeded his authority and considered issues that are not within the scope of his review.
Hoskins made his decision, Hatfield wrote, because he knows Republicans would lose a vote on the redistricting plan.
“Stripped of paper-thin legal dressing, the secretary and intervenors’ contention is simply that they do not like the consequences of applying the referendum to redistricting bills, so it must be illegal,” Hatfield wrote.
In the state’s filing, Lou Capozzi, state solicitor general, argues that requiring a referendum would invalidate the results of the Aug. 4 primary election. If a referendum is placed on the ballot, the law it puts before voters is not in effect until approved. That would mean the congressional map used in the primary would not be used in November.
That would create chaos for the political parties and candidates, Capozzi wrote, and force many voters to choose from candidates they did not have a role in selecting. Doing so would violate the U.S. Constitution and federal law, he wrote.
The case before the court does not challenge the validity of the primary or require the candidates to be disqualified, Hatfield wrote. If implementing the text of the referendum provision creates problems, he said, it is because Hoskins waited until the last possible date to deny the referendum a spot on the ballot.
“But those hypothetical problems are not a reason to ignore the law and are extremely overblown,” Hatfield wrote.
The arguments
Hatfield will lean heavily on the text of the Missouri Constitution, pre-argument filings show. There is nothing prohibiting a referendum on redistricting, the filings state, so it is allowed.
Missouri held a referendum on redistricting in 1922, 14 years after the referendum power was added to the Constitution. That shows the intent of the drafters to allow such votes, Hatfield wrote, because no prohibition was added when the Constitution was revised in 1945.
“Because the referendum had been successfully used on a congressional redistricting bill in 1922, the framers were aware it might happen again — yet they did not address that possibility,” Hatfield wrote. “It is not for the courts to second-guess that choice.”
Capozzi wrote that because the map was used for the primary election, it is too late to change now.
And, he wrote, the federal constitution’s provisions directing state legislatures to set the boundaries of congressional districts puts the plan beyond the reach of a referendum.
The most important question this week, constitutional law attorneys told The Independent, is whether the people are a branch of government or whether they are the government.
In Green’s decision, Smith said, the judge adopted the argument pressed by Republican Party attorneys that the federal Constitution, by directing legislatures to set district lines, shields those plans from review by other branches of the government.
“There’s a fair amount of analysis that really applies the logic of separation of powers, treating the people as though they were another branch of government, which I think is just generally not how separation of powers doctrine works,” Smith said.
Allen Rostron, associate dean of law at UMKC, said Republican arguments echo the case where the U.S. Supreme Court rejected what is called the “independent legislature theory” that redistricting plans are not subject to court review.
“And the Supreme Court’s like, ‘no, that’s not true. Courts can rule. Legislators can legislate. Voters can vote. Judges can judge,’” Rostron said. “Everybody will do their part.”
In his filing to the court, Capozzi wrote that Missouri could only have a referendum if the Constitution included language explicitly allowing it.
“Just as all other parts of American government are protected by clear statement rules before courts find their power stripped, state legislatures are treated no differently under the elections clause,” Capozzi wrote.
In addition to the 1922 redistricting referendum, voters nearly got the chance to vote on a congressional map referendum in 1952. In 1962, the Missouri Supreme Court upheld a redistricting plan but noted that “the people of this state have a remedy for even valid redistricting, which they do not like, through our initiative and referendum provisions.”
The resistance to a referendum on the map drawn in 2025 is the first time anyone has denied that a referendum is possible, Hatfield wrote.
“That understanding remained undisturbed until now,” he wrote.
One argument Capozzi has emphasized is that a redistricting plan is essentially a political choice that should not be second-guessed or placed on a ballot.
“If a referendum were permitted, virtually any group could use the initiative process to propose congressional maps,” he wrote.
In one sense, Rostron said, Capozzi is right. The case in front of the court because of partisan politics.
“And in this instance, I think the same thing is really true of the legal issues,” Rostron said. “In other words, these are not things that have a clear right or wrong legal answer. They are very debatable.”
Final appeal
The Missouri Supreme Court must rule by next Tuesday if the referendum is going to be on the ballot. That is the last day in state law for the courts to add items to the ballot.
The way Republican arguments are structured, Smith and Rostron said, leaves a narrow path for a final appeal to the U.S. Supreme Court if Green is overturned. Whether the nation’s highest court would intervene is doubtful, they both agreed.
The path is through the arguments that the U.S. Constitution’s elections clause bars a referendum. The court already rejected the theory that courts cannot second-guess redistricting plans in a 2023 case out of North Carolina.
And if the Missouri Supreme Court rules only on questions of state law and constitution, intervention is unlikely, Smith said.
“If something is a matter of state constitutional law, there’s a doctrine called adequate and independent state grounds,” he said. “If the decision below is based on the state constitution, the United States Supreme Court does not weigh in.”
If the Missouri Supreme Court includes an extensive discussion of the federal constitutional questions in its opinion, that would open the door for the last-chance appeal, Smith said.
“An appeal would be possible, but, I would hope, be unlikely to succeed,” Smith said.
Rostron agreed that an appeal to the U.S. Supreme Court would be unlikely to succeed.
“I would guess,” he said, “that the [U.S.] Supreme Court would probably just stay the heck out of it and let the people of Missouri do what they’re going to do.”
This story was originally published by the Missouri Independent.
