The U.S. Supreme Court rejected the State of Missouri’s energetic attempts to dictate the use of a 2025 gerrymandered map for this fall’s election. The Missouri Supreme Court had held unanimously that the map was subject to a ballot referendum this fall and, by law, was not yet in effect. District lines drawn in 2022 would control. The Secretary of State took the same case to a federal district court and won a somewhat contrary ruling, leaving open whether the State had any map, old or new, in place. The U.S. Supreme Court declined to stay the state Supreme Court decision but stayed instead the conflicting ruling in federal court. The 2022 map now determines the shape of districts in which congressional elections this November will be held.

There are various potential explanations for the U.S. Supreme Court’s quick decision issued without opinions. One legal development of central significance was the Missouri Supreme Court’s ruling that, as a matter of state law, there is no lawful 2025 map in effect and available for use this fall. The Court decided the issue unanimously: the majority of the Court, five of seven, were appointed by Republican governors. The federal district court intervention may also have influenced the SCOTUS order, inasmuch as the Court has warned the lower courts against rule-altering interventions shortly before elections. 

But another feature was the action of the state official, the Republican Secretary of State Denny Hoskins, who was engaged in maneuvering on behalf of the newly gerrymandered 2025 map. This feature underscores a major problem for the administration of elections in the United States: the entrusting of election administration to political party-affiliated officials who run for and are elected to their positions. As it happens, the map Hoskins was striving to secure would add one more Republican to the congressional delegation.

In the Missouri case, Hoskins waited for roughly eight months to complete a review for “sufficiency” of the petition for the referendum, which if it passed review, would block the 2025 map from use until the voters had rendered judgment. In the meantime, that map was used for the primary election. Then, one hour from the August 4 statutory deadline for this sufficiency determination, Hoskins announced that the 2025 map was not subject to referendum approval and could be used for the general election.

Hoskins’ move ensured that the predictable litigation to follow would be jammed into the final months of the election and the middle of the final preparations for the election.  In that litigation, he also claimed that the use of the 2025 map in the primary precluded the use of the 2022 one in the general. In other words, he wanted the uncertainty about the referendum, for which he was responsible, to support his case for the use of the 2025 map in the general. Supporters of the 2025 map then turned to federal court, and Hoskins’ support for this new front in the battle for the gerrymandered lines landed him in contempt proceedings in the state court. The Court found him in contempt, finding that he had been “disingenuous” in his explanations of his actions. In particular, Hoskins failed to acknowledge that he had actively supported federal court intervention but instead professed to the state court that he attempted to comply with its order to use the 2022 map.

Candidates and parties agitate for favorable rules all the time and their interests are clear: they mean to win elections. Hence it is not uncommon for each side to profess outrage over legal strategies it gladly adopts when it comes to serving their political interests. When election officials engage in this conduct, the problem of partisanship in the shaping of election law jumps to a whole new level. Sometimes these officials have a choice of reasonable legal options and will choose the one compatible with their political preferences and interests of their co-partisans. And sometimes they prioritize political preferences and interests over legal and policy considerations. 

After the contested 2000 presidential election in Florida, Congress acted in bipartisan fashion to put election administration on a more professional, nonpartisan footing. It funded the replacement of the notorious “hanging chad” punch card machines and established an agency, the Election Assistance Commission, to provide other financial and advisory support to the states to support the goal of professional election administration. In 2014, President Obama’s bipartisan Presidential Commission on Election Administration (which I co-chaired) acknowledged that “one of the distinguishing features of the American electoral system is the choosing of election officials and administrators through a partisan process.” But it affirmed that “election administration is public administration” and stressed that “the responsible department or agency in every state should have on staff individuals who are chosen and serve solely on the basis of their experience and expertise.”  

This professional administration still thrives around the country in thousands of the more than 10,000 voting jurisdictions in this country. But the intrusion of raw political considerations, always a risk, remains a live concern at the senior levels of administration where officials elected to supervise the process are found. Those officials are both administrators and politicians. Some can manage the conflicts those dual responsibilities raise for them. Others will struggle. Polarization and the onset of election denialism espoused by the President of the United States have injected fresh pressures into this system. 

Two key points remain to be stressed. The focus here is election administration and not policy: Republicans and Democrats will still disagree about whether voting security or voting access should drive the development of election rules. They will campaign for their offices on different policy commitments, and there is nothing in that that implicates them in untoward, unethical or illegal conduct. And, in the past, both parties have complained about election officials allegedly playing politics with election administration. In that sense, the dangers of partisan election administration are a bipartisan concern, even if Trump’s election denialism and attempt to exercise presidential power and pressure has vastly magnified the issue from his side of the aisle.

The Missouri case suggests, though it can never be certain, that the courts will be alert to the most egregious forms of politicized administration. Maybe that is all that can be hoped for: that the worst instances of this conduct will affect how the courts resolve election law controversies. This checking function could prove crucial in the months before and even after the election.