Missouri is currently holding a general election using its 2022 congressional map. It’s going to continue holding its general election using its 2022 congressional map. But the Supreme Court is going to have to clean up a little mess on aisle 8th Circuit in the meantime.

So as Derek mentioned, the Eighth Circuit just directed Judge Clark to issue a permanent injunction, ostensibly restoring Missouri’s mid-decade gerrymander for the elections currently underway. That order, to be clear, has no effect on its own. It affirms Judge Clark’s TRO, which the Supreme Court stayed 11 days ago, until both the Eight Circuit issued its decision and until the disposition of a petition for cert. That disposition of a petition for cert hasn’t happened yet (and won’t before the elections, when the case — based solely on using a different map for the general election than for the primary — becomes moot), so as Steve Vladeck has explained, the Eighth Circuit’s opinion doesn’t directly change anything on the ground.

But Judge Clark has now apparently issued the permanent injunction the Eighth Circuit demanded. (And stayed the order for a week.) That injunction is a new order, not subject to the Supreme Court’s stay. And so, in a week, it would purport to change the lines in Missouri.

Except that there’s 0% chance that Judge Clark’s newest order lasts anywhere near a week. First (again, as Steve has explained), whatever the (unexplained) reasons for the Supreme Court’s stay on September 10, literally all of the same reasons why the stay was issued then apply now. Which means the vote count at SCOTUS should be (at least) the same.

And there are a few reasons why a stay now is even MORE warranted than it was before.

• There’s the passage of time, and the fact that mail ballots are already out the door. The trial court’s order was already “last-minute” 11 days ago; it’s well past its due date now.
• There’s the radically underexplained nature of the 8th Circuit’s decision, which is predicated on an ostensible constitutional violation when voters in the general election didn’t get the chance to choose those candidates in the primary. Granted, that sort of circumstance is weird (though not unprecedented). But there are lots and lots and lots of other circumstances where this happens (e.g., a candidate dies or withdraws after the primary, or a voter isn’t a member of a political party with a vote in the primary, or a voter moves into a district from another district or from out ot state after a primary), and the 8th Circuit didn’t bother to explain whether any of those circumstances also violates a constitutional provision that doesn’t ever mention primary elections.
• There’s the fact that a federal statute forecloses Judge Clark from issuing the order he issued. A three-judge court “shall” be convened for any constitutional challenge to congressional districts, and a single judge “shall not” “hear and determine any application for a . . . permanent injunction . . ., or enter judgment on the merits.” Judge Clark’s TRO was iffy under the statute given its timing (and its effective purported finality based on that timing), but a permanent injunction seems well beyond iffy.
• And then there’s the fact that the 8th Circuit and Judge Clark seem to be defying SCOTUS. Mind you, they’re not directly defying SCOTUS: this new order is new, and not subject to the SCOTUS stay, and I’ve said before that I think unexplained shadow docket orders – exercises of power, not law – should rightly be confined to their text. But SCOTUS seems to feel differently, expecting lower courts to divine principles that SCOTUS does not articulate. And it’s hard to divine any principle from the September 10 order clearer than “we do not agree with federal relief on these constitutional claims at this point in the calendar.”

All of which adds up to another stay coming from the Supreme Court, perhaps accompanied by a reprimand more explicit than just the speed of its order. Once the election is held (under the 2022 map), the people of Missouri will decide on the future map by actually voting on the referendum. And then the fight about a different map for the primary and the general will be moot, and subject to Munsingwear vacatur. The last week’s worth of frenzy will have amounted, effectively, to a performative waste of time.