Supreme Court Just Made Huge Decision for Midterms…

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2:24Ben Meiselas:Addion, fintech built for your next move. The Supreme Court has done it again. The third time the Supreme Court is rejecting the MAGA Republican unlawful gerrymandering in the state of Missouri. And of course, this follows the state of Missouri's Supreme Court finding that the MAGA Republican leadership of the state did an unlawful gerrymander. The Missouri state Supreme Court said that there needs to be a referendum if you're going to do a gerrymander of the Missouri map and said, go ahead and do it in the November election, but you can't do it without a referendum. You will recall that the MAGA Republican leadership in Missouri rushed to the Supreme Court to try to block the state Supreme Court ruling.

3:16Ben Meiselas:That was rejected by the Supreme Court. They then filed a lawsuit before the district court. And when the district court ruled in favor of the MAGA Republican leadership in Missouri, that was appealed on an emergency basis to the United States Supreme Court. And the Supreme Court blocked what the district court did. Then out of nowhere recently, basically, it seemed the Eighth Circuit Court of Appeal then took up what that MAGA district court judge ruled, which was previously rejected by the Supreme Court. And the Eighth Circuit, despite having heard the Supreme Court or seen the Supreme Court made a ruling twice upholding what the Missouri State Supreme Court did, the Eighth Circuit was like, yeah, we're going to allow the new unlawful gerrymandered map that the Missouri State Supreme Court rejected.

4:07Ben Meiselas:So once again, this had to go to the United States Supreme Court to look at this gerrymandered map. And the Supreme Court, and it was a pretty scathing per curiam order with no dissents at all. The Supreme Court's like, we've done this twice already. This is the third time. We really don't know why the Eighth Circuit didn't look at what we've done twice and just what, freelanced and just basically went on its own and said that they were going to reject what the Missouri State Supreme Court decided after we decided what the State Supreme Court decided was right twice. And so we're going to do this the third time, Eighth Circuit Court of Appeal.

4:47Ben Meiselas:We're going to go back to the 2022 maps, which were six Republican congressional seats, two Democratic seats in Missouri. It's not going to be the seven to one map that the MAGA Republican and leadership in Missouri is pushing forward. If you want that map, then go put it to the voters in the referendum. Enough is enough. As I said, there's no notable dissents and the language used by the Supreme Court is pretty dang strong right here. Let me just read from you from page two, what the United States Supreme Court ruled. They said in two orders in the last few weeks, This court, meaning the Supreme Court, has denied such relief, the relief being to go to the unlawful gerrymandered map that the Missouri State Supreme Court rejected.

5:35Ben Meiselas:In the first, the Missouri Secretary of State asked this court, the Supreme Court, to stay the September 3rd decision of the Missouri Supreme Court that had prohibited use of the 2025 map in the general election. On September 8th, Justice Kavanaugh, in his capacity as circuit justice for the Eighth Circuit, denied that request, thereby leaving the 2022 map in effect for the 2026 general election. But that same evening, a federal district court in Missouri issued a temporary restraining order in practical effect, an injunction in effect requiring Missouri to use the 2025 map instead of the 2022 map, essentially ordering relief that the circuit justice had just denied, that Justice Kavanaugh denied.

6:24Ben Meiselas:And what they're saying here, what the Supreme Court's saying in this decision I'm reading for you now is they don't use these words, but they're like, the hell does this district court judge think he is? Yes, we know he was a Trump-appointed district court judge, but did you not see the order that Justice Kavanaugh just made from the United States Supreme Court rejecting the 2025 map and saying the 2022 map? poll. Did you not, who are you as a district court judge to do that? They didn't say those exact words, but that's clearly what's being said. The district court September 8th injunction was promptly stayed by this court on September 10th in an order issued by the full court without any noted dissent.

7:03Ben Meiselas:That stay remains in effect. This court September 10th stay order meant that the 2022 map would be used in the 2026 congressional election in Missouri, absent further order of this court. And the election has now begun under the 2022 map. But on September 21st, 11 days after this court's most recent order, the U.S. Court of Appeals for the Eighth Circuit ordered the district court to enter a permanent injunction, in effect requiring use of the 2025 map instead of the 2022 map in the 2026 election. Given this court's two prior orders in this litigation, our conclusion that this was error should come as no surprise.

7:46Ben Meiselas:Consistent with this court's September 10 stay order, we therefore must now stay the district court's new September 21 and September 22 injunction and the Eighth Circuit September 21 mandate and September 22nd order. Even putting this court's prior orders aside, the traditional stay factors also dictate that this court stay those district court and court of appeal orders just as this court stayed the district court's previous September 8 injunction. Then it goes on how on the merits, the court's precedents have not previously stated that Article 1, Section 2 requires a state to use the primary election map in a general election.

8:29Ben Meiselas:And given that the equities heavily favor staying this late-breaking intervention, it suffices that the merits are not entirely clear-cut. I want to bring in Harry Littman from the Talking Feds YouTube channel, Substack, and the Talking Feds podcast. Yes, Harry, you and I predicted that this is what the ruling was going to be. We talked about how the Supreme Court made the ruling first after the Missouri State Supreme Court made its ruling. They made the ruling again after the district court judge tried to almost like overturn what the Missouri State Supreme Court did. And we were like, OK, that's enough.

9:03Ben Meiselas:Then the Eighth Circuit came out of nowhere. And they were like, actually, we're going to do a merits analysis now. And it's like, did you not just hear what the United States Supreme Court said? said and what the state Supreme Court said. And so you have this pretty powerful decision that was just issued. And the practical effect is we go back to the six to two gerrymandered map from 2022, not the seven to one gerrymandered map that was being pushed through without the referendum. Break this down for us, Harry, also, and make some sense of it. Okay. So first, you're exactly right. But to put what the A circuit did into some context.

9:42It was a new lawsuit. There's all kinds of backstory here about the Missouri Republicans trying to maneuver, manipulate the process and the like. But yes, my Lord, you have the Supreme Court twice saying a seven to two per curiam, the very first thing, Kavanaugh just did it on his own. It is about as clear as can be that the Supreme Court has said this is the map that's going forward this time, the one that was used before the 6-2 map. Now, we talked about this at the time in the 8th Circuit panel. They did a percurium, by the way. Very unusual. No judge wanted to step up and take responsibility for it.

10:29It was a pretty heavy Federalist Society panel, David Strass especially among them. But the decision was so irresponsible. So first, a whole new theory that the provision, Article 1, Section 2, which is what conservatives often reach for to get the fed some foothold in the election had never said whether the the actual holding was like the reference to the people in uh how thing how elections work mean that there must be the same people who vote in the primary as in the general and of course that could never happen uh but they were saying well some people voted in 22 on the old map can't do it on this one a very, very, very tenuous opinion.

11:27But the other points about, and this is an opinion from the Supreme Court, actually uses the word Purcell a lot, the principle that you can't meddle at the end. The election is already going on. So I think, I take your point, there's a little bit of force there and you read the number one pushback from the Supreme Court. Given this court's two prior orders in this litigation, our conclusion that this was error should come as no surprise. But I don't know, Ben, that's like slightly tart, whereas they could have just come on. And I've seen opinions that just come down on courts of appeals with a hammer.

12:12This is a court of appeals that it's less even a matter of law than of common sense. You had no business. And we pointed this out at the time, but what made it a really irresponsible opinion, as you say, the state Supreme Court had ruled you've got to use the old map, the six to two map that will now go forward. Why was that? Because under state law, as you point out, said the state Supreme Court, you may not use a new map unless it's gone through the people. And the Republican legislature tried to skip that step. So right now, after the Eighth Circuit issued its opinion, you had the highest court of a state based on state law saying, we may not, cannot use this more recent opinion.

13:07And now comes in the Eighth Circuit saying, we must, you must, Missouri, use that opinion and doesn't even try to reconcile the two. They were in this impossible tug of war. State says, no way, no way, based on state law, which they're expert at, the state law. And then the Eighth Circuit tried to impose this. The Supreme Court easily enough squared the circle by saying, we are way too late here, irreparable harm, etc. But the mere fact that the A Circuit created this impossible situation without even addressing it, to me, made it not just a little bit pushy opinion, but a really completely unworkable one.

14:01And I actually think if I'm David Strass and his two colleagues today, I'm pretty happy to get by with it should come as no surprise as opposed to a complete Supreme Court, you know, hammer coming down on the head of the panel because the panel opinion, the court had to step in, although that makes you wonder, had to? What if they decided to let it go? But it really was a forced move. I'll bet as they were writing this procurium, they were like, why the hell do we have to do this? How did the 8th Circuit put us in this position? It forced their hand completely inappropriately. It was 100 % clear where this was going.

14:42And the 8th Circuit, their legal analysis was really flimsy. They disregard the most authoritative statement by a state Supreme Court, and they just ignore the equities, which all on their own and as the Supreme Court ruled, decided this case and decide in favor of you cannot do this so close to the election. the rules are clear that federal courts may not. And really, what the hell do you think you're doing would have been appropriate extra sentence in that opinion. You know, that mild criticism, I think the Eighth Circuit deserved worse. Right. The Eighth Circuit, if that was actually the law,

15:29Ben Meiselas:it would tell any bad faith state leadership, you know what? Just ignore your state constitution. just push forward a primary unlawfully. And then as soon as you, it's like entrapment, as soon as you entrap the voters and forcing them to vote on an unlawful slate that you created, then according to the eighth circuit, the constitution then says you're stuck because you broke the law and you forced your voters to vote for an unlawful state that you would be violating the constitutional rights of your citizens in your state because you gave them a fake slate because now you have to have the fake slate.

16:12Ben Meiselas:I mean, you know, we're in territory, though, Harry, that is so criminal and so outrageous and so bad faith that it's one of these areas also that there wasn't constitutional amendments or laws built around because you would seem to be kind of common sense. if the state Supreme Court, right, states' rights people, if the state Supreme Court makes a declarative ruling and says you're violating the state law that requires a referendum, the very idea that the state's rights crowd, which is this Eighth Circuit, they pretended to be the state's rights crowd, the small government, say, you know what, actually, the federal, we're going to apply federal constitutional law to override the state Supreme Court and allow unlawful state maps that violate state law.

17:06Ben Meiselas:And that's, it's like a racketeering enterprise between the federal government and unlawful state actors to violate state constitutions, crazy stuff. I'll give you the final word. Yeah. And so just two quick points. First, as you say, we said how this was going to come out sometimes were brilliant. This time, I think it was pretty clear to, you know, sophisticated observers of the law. And so we assumed it would happen. But I tried to give some thought. What the hell? Let's say the Supreme Court never, you know, they decided not to take up the case. It would be a literally impossible situation.

17:45The kind of lockdown that always serves the administration's efforts well, they may not do the 2025 map, state law forbids it. They must do the 2025 map, federal law requires it. I mean, I think at this point, it would have been very plausible that the whole election just gets frozen out and doesn't happen. That's point one. And point two that I want to make is, you know, we're generally thinking as as we survey the landscape of the federal courts, the district courts have really hung pretty tough and applied the law. Supreme Court has been awfully disappointing, if not all the time, but that's always a wild card.

18:30These courts of appeals, right? I mean, by and large, they have, well, they've really, it's been a mixed bag. And this is one, the Eighth Circuit, and the particular decision of it that is way, I think, beyond the pale. We've seen some panels in the D.C. Circuit where important cases come up that have done some Looney Tunes stuff. We know that the Fifth Circuit can be really cuckoo. It's just by way of saying, as we look over the landscape and the scorecard lineups going forward, there's this additional we've been thinking about Supreme Court like oh god don't let the Supreme Court get this case we've been thinking about district courts pretty sanguine about them but you know there's a real uh other variable depending I hate to say it very much on personnel

19:25Ben Meiselas:uh at the court of appeals level Harry Lipman runs the Talking Feds YouTube channel everybody Make sure you subscribe Talking Feds on YouTube as soon as this video ends. An important ruling. Glad to cover it with you, Harry. Make sure you subscribe to Talking Feds. Thanks, everybody. Thanks, Ben. Breaking news right now. My brothers and I wrote a book. It's called WTF America. And well, doesn't that just say it all? It comes out officially this October, but you can pre-order your copy today. Just scan the QR code or click the link in the description below.

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