'Indefensible': Appeals court's 'procedurally bananas' election move leaves expert aghast

The Eighth Circuit Court of Appeals handed down an opinion impacting the 2026 midterm elections that one legal expert described as "indefensible."

On Monday, the court ordered Missouri lawmakers to use the gerrymandered 2025 midterm map that eliminated Democratic representation, even though ballots have already been sent to voters pursuant to the previous election map that a lower court ordered to be used. The move is likely to create chaos in the state as votes are counted.

Steve Vladek, a law professor at Georgetown University, argued in a new Substack essay that the order is "indefensible" on procedural grounds. Vladek also described it as another "powerful illustration of the mischief the Supreme Court creates when it intervenes on the emergency docket (as it already has in the Missouri litigation) without telling anyone why."

"The wild part here is what the Eighth Circuit ordered as a remedy: instead of just affirming the [temporary restraining order] and letting the appeals process play it, the court of appeals remanded the case with instructions to the district court to enter a permanent injunction requiring the use of HB 1," Vladek wrote, referring to legislation that created the gerrymandered map.

"Time is too short to get into all the ways in which this move is procedurally bananas, but let’s just say that I’m unfamiliar with any prior case in which a court of appeals, on a TRO appeal, ordered the district court to enter permanent injunctive relief. (One might say the Eighth Circuit is “Fifth Circuit-ing,” but I can’t remember even the Fifth Circuit pulling this move.)" he added.

Vladek also argued that the order is "not likely to be long for this world" because the Supreme Court is likely to hear an appeal.

"I have no doubt that the intervenor-defendants will quickly appeal the Eighth Circuit’s ruling to the Supreme Court and seek emergency relief (probably in the form of a vacatur). And I have very little doubt that the Supreme Court—yes, even this Supreme Court—will grant it," Vladek wrote.

"If there had been any appetite in the Supreme Court for these kinds of shenanigans, we would’ve seen it in the Court’s ruling on September 10, when the justices were first asked to stay the district court’s TRO, and when anyone who wanted to see Missouri use HB 1 this cycle could have conjured some reason to sit on their hands," he added. "It’s also telling that, when the issue first came to the Court on Missouri’s application to stay the Missouri Supreme Court’s ruling, Justice Kavanaugh was so confident that none of his colleagues wanted to do so that he denied the stay by himself."