The fate of Missouri’s new congressional map may come down to the answer to one question: Do lawmakers have the right to draw new lines in the middle of the decade?
That question is at the center of at least two lawsuits filed against the proposal, which seeks to oust Democratic Congressman Emanuel Cleaver by converting his Kansas City-based district into a GOP-leaning seat.
“We want a straight-up decision out of the courts that they can't do it at all,” said attorney Chuck Hatfield, whose lawsuit filed in Cole County focuses only on the legislature’s authority to redistrict in the middle of the decade.
“There is no prohibition in federal statutory law that prohibits mid-decade redistricting,” said Washington University School of Law professor Travis Crum. “A lot of this comes down to an interpretation of the Missouri state constitution. And we don't have an on-point Missouri Supreme Court decision one way or another on that.”
Does silence equal a prohibition?
President Donald Trump pressured Republican-leaning states including Missouri to redo their congressional maps before the 2026 midterms. The president’s party usually does poorly in those elections, and a number of Missouri Republicans said they were pursuing redistricting in the middle of the decade to help prevent the Democrats from winning a House majority next year.
From the start, redistricting opponents said the Missouri Constitution does not authoritatively allow lawmakers to draw congressional lines except immediately after a census.
The constitutional provision in question states: “When the number of representatives to which the state is entitled in the House of the Congress of the United States under the census of 1950 and each census thereafter is certified to the governor, the general assembly shall by law divide the state into districts corresponding with the number of representatives to which it is entitled, which districts shall be composed of contiguous territory as compact and as nearly equal in population as may be.”
“Many people read that as to say, it does not explicitly say that you can redistrict more than once, and therefore our constitution does not allow for this,” said House Minority Leader Ashley Aune, D-Kansas City.
Mark Gaber of the Campaign Legal Center, which opposes the redistricting, said the lack of clarity in that constitutional clause is effectively a prohibition.
“The vast majority of the state supreme courts have held that when the legislature is permitted to do something at a very specific time in the text of the state constitution, what that means is that is the only time they're permitted to do it,” said Gaber, who is part of a lawsuit with the ACLU and the ACLU of Missouri against the map. “The implication of stating the specific time is that you are saying you cannot do it at any other time. This is the only opportunity to do it.”
Denise Lieberman of the Missouri Voter Protection Coalition said in a Senate committee hearing last week that the constitutional provision in question “states very clearly” that when “the census data comes, then you do redistricting.”
“It does not allow for a redo,” Lieberman said. “In this case, when the census data was provided was in 2021 and then the legislature shall redistrict. And you did in 2022. And indeed, this very body rejected the very kind of … map that is being proposed to you today. The constitution does not allow for do-overs.”
The 'Air Bud' rule
Defenders of the new redistricting plan are effectively banking on a construction similar to the 1990s movie "Air Bud" to prevent the map from being struck down in court.
In that movie, an opposing team objects to Buddy, a basketball-playing golden retriever, subbing into a game. Buddy’s coach points out that while there is no rule explicitly stating that a dog can play basketball, there is no rule saying that a dog cannot play basketball. The referee then allows Buddy to play.
In similar fashion, defenders of the new map have argued that the lack of a specific prohibition on mid-decade redistricting in the Missouri Constitution is effectively an authorization for the legislature to redraw congressional lines when they want to.
“I guess it could be an example of a real-world example of the 'Air Bud' rule, and maybe that's what they should call this congressional redistricting the 'Air Bud' clause,” said Republican Secretary of State Denny Hoskins.
When reminded of the scene from the film earlier this month, state Rep. Bill Hardwick, R-Pulaski County, said the "Air Bud" premise is based on a concept known as exclusio unius – a Latin phrase that “if you omit the mention of one thing, it means that you're not authorized to that thing.”
“If I say the legislature has the power to legislate about desks and couches and chairs and doors, then that would imply the legislature doesn't have the authority to legislate about windows,” said Hardwick.
Hardwick said the exclusio unius doesn’t apply to the constitutional provision on redistricting. He also said if legislators weren’t allowed to pursue mid-decade redistricting, it could lead to absurd results such as legislators not being able to pass a new map that gets struck down two or three years after it's enacted.
“Let's say the court stepped in and said: ‘I think that your map is unconstitutional. Let's return it to the legislature to redraw.’ That provision of the constitution doesn't have an exception for when the courts remand it,” Hardwick said. “Let's say that we actually have different data. We go: ‘Whoa. We messed this up. We have a clerical error. We want to come back and adopt a new statute.’ That provision doesn't have an exception for that, either.”
When asked about Hardwick’s contention, Gaber said court precedent shows “if a court rules that the map that the legislature came up with is invalid, then the legislature has not discharged its responsibility to enact a valid map that decade.”
Rep. Mark Boyko, D-Kirkwood, who cited the "Air Bud" rule on the House floor, said redistricting proponents are stretching credulity.
“It's like if my children ask me: ‘Can we have ice cream tonight?’ And I say, we're going for ice cream tomorrow,’” Boyko said. “And they say: ‘Well, you haven't said we're not having ice cream tonight, so we're having ice cream tonight too.’ No. If the rule expressly says what we're allowed to do, and something very close to it … isn't mentioned, we don't have the right to it.”
Besides fighting the map in court, redistricting opponents are trying to gather signatures to put the plan up for a statewide vote. If they collect a little more than 100,000 signatures in a 90-day period, the new congressional lines can’t go into effect until a statewide vote is held.
