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Emergency application for stay, Hoskins v. Von Glahn
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No. 26A____
In the
Supreme Court of the United States
DENNY HOSKINS, in his official capacity as Missouri Secretary of State,
Applicant,
v.
RICHARD VON GLAHN,
Respondent.
EMERGENCY APPLICATION FOR STAY AND
ADMINISTRATIVE STAY PENDING APPEAL
CATHERINE L. HANAWAY Louis J. Capozzi III
MISSOURI ATTORNEY GENERAL Solicitor General
207 W. High St. Counsel of Record
Jefferson City, MO 65101 William J. Seidleck
Tel: (573) 645-9662 Principal Deputy Solicitor General
Fax: (573) 751-0774 J. Michael Patton
Deputy Solicitor General
Graham D. Miller
Deputy Solicitor General
Madeline S. Lansdell
Assistant Solicitor General
Louis.Capozzi@ago.mo.gov
September 4, 2026 Counsel for Applicant
PARTIES TO THE PROCEEDING AND RELATED PROCEEDINGS
Applicant Denny Hoskins, in his official capacity as Missouri Secretary of
State, was the Defendant in the Circuit Court of Cole County, Missouri and the
Respondent in the Missouri Supreme Court.
Republican National Committee, National Republican Congressional
Committee, and Missouri Republican State Committee were Intervenor-Defendants
in the Circuit Court of Cole County, Missouri and Intervenor-Respondents in the
Missouri Supreme Court.
Respondent Richard von Glahn was Plaintiff in the Circuit Court of Cole
County, Missouri and the Appellant in the Missouri Supreme Court.
ii
RELATED PROCEEDINGS
Circuit Court of Cole County, Missouri (Cole Cnty. Cir. Ct.):
Von Glahn v. Hoskins, No. 26AC-CC00440 (Aug. 19, 2026) (final judgment and
order denying injunction)
Missouri Supreme Court (Mo.):
Von Glahn v. Hoskins, No. SC101805 (Sept. 3, 2026) (order granting
injunction)
Von Glahn v. Hoskins, No. SC101805 (Sept. 4, 2026) (order denying motion for
stay pending appeal)
iii
RULE 29.6 STATEMENT
Pursuant to Supreme Court Rule 29.6, Applicant represents that he and his
office do not have any parent entities and do not issue stock.
/s/ Louis J. Capozzi, III
Louis J. Capozzi, III
iv
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................vi
DECISIONS BELOW .................................................................................................. 6
JURISDICTION .......................................................................................................... 7
STATEMENT ............................................................................................................... 7
REASONS FOR GRANTING A STAY .................................................................... 17
Missouri is likely to succeed on the merits. ................................................... 17
A. The Missouri Supreme Court’s decision violates the U.S. Constitution’s
Elections Clause. ................................................................................................. 17
B. The Missouri Supreme Court’s injunction disenfranchises hundreds of
thousands of Missouri voters in violation of the U.S. Constitution. ................. 23
C. This Court is likely to grant review and reverse. .......................................... 30
The remaining stay factors favor the Missouri Secretary of State’s
application................................................................................................................ 32
A. Missouri and the public will suffer profound irreparable harm. .................. 32
B. The balance of the equities overwhelmingly favors the Secretary’s
application. .......................................................................................................... 34
CONCLUSION ........................................................................................................... 38
v
TABLE OF AUTHORITIES
Cases
Abbott v. LULAC,
146 S. Ct. 418 (2025) ........................................................................................... 2, 35
Am. Party of Tex. v. White,
415 U.S. 767 (1974).................................................................................................. 28
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n,
576 U.S. 787 (2015).................................................................................. 3, 19, 21, 22
Bush v. Gore,
531 U.S. 98 (2000).................................................................................................... 37
Covington v. North Carolina,
316 F.R.D. 117 (M.D.N.C. 2016) ............................................................................. 24
Crawford v. Marion Cnty. Election Bd.,
553 U.S. 181 (2008) (plurality op.) ...................................................................... 4, 24
Democratic Nat’l Comm. v. Wisconsin State Leg.,
141 S. Ct. 28, (2020) ................................................................................................ 18
Doe v. Dynamic Physical Therapy, LLC,
607 U.S. 11 (2025).................................................................................................... 22
Does 1-3 v. Mills,
142 S. Ct. 17 (2021) ........................................................................................... 30, 31
Foster v. Love,
522 U.S. 67 (1997).................................................................................................... 32
Free Enterprise Fund v. Public Co. Accounting Bd.,
561 U.S. 477 (2010).................................................................................................. 19
Gray v. Sanders,
372 U.S. 368 (1963).................................................................................................. 28
Hadley v. Junior Coll. Dist. of Metro. Kansas City,
460 S.W.2d 1 (Mo. 1970) .............................................................................. 12, 13, 36
vi
Hawke v. Smith,
253 U.S. 221 (1920).................................................................................................. 18
Healey v. Missouri,
732 S.W.3d 827 (Mo. 2026) ...................................................................................... 11
Hollingsworth v. Perry,
558 U.S. 183 (2010)........................................................................................ 2, 17, 34
Labrador v. Poe,
144 S. Ct. 921 (2024) ............................................................................................... 32
Louisiana v. Callais,
146 S. Ct. 1131 (2026).............................................................................................. 22
Luther v. Hoskins,
730 S.W.3d 567 (Mo. 2026) ...................................................................................... 11
Maggard v. Missouri,
733 S.W.3d 411 (Mo. 2026) .......................................................................... 10, 11, 27
Malliotakis v. Williams,
146 S. Ct. 809 (2026) ................................................................................. 5, 7, 35, 36
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) ................................................................................... 29
Maryland v. King,
567 U.S. 1301 (2012)............................................................................................ 4, 32
Merrill v. Milligan,
142 S. Ct. 879 (2022) ................................................................................. 4, 5, 17, 34
Mo. Gen. Assembly v. von Glahn,
No. 4:25-CV-1535-ZMB, 2025 WL 3514277 (E.D. Mo. Dec. 8, 2025) ..................... 10
Moore v. Harper,
600 U.S. 1 (2023).............................................................................. 18, 19, 22, 31, 37
N.Y. State Rifle & Pistol Ass’n v. Bruen,
597 U.S. 1 (2022)...................................................................................................... 19
vii
NAACP v. Kehoe,
734 S.W.3d 338 (Mo. 2026) ...................................................................................... 11
Nken v. Holder,
556 U.S. 418 (2009).................................................................................................... 7
Ohio ex rel. Davis v. Hildebrandt,
241 U.S. 565 (1916).................................................................................................. 21
Page v. Va. State Bd. of Elections,
58 F. Supp. 3d 533 (E.D. Va. 2014) ......................................................................... 24
People Not Politicians v. Hoskins,
No. SC101801, slip op. (Mo. Sept. 3, 2026) ............................................................. 20
Pollard v. Bd. of Police Comm’rs,
665 S.W.2d 333 (Mo. 1984) ...................................................................................... 25
Purcell v. Gonzalez,
549 U.S. 1 (2006)..................................................................................................... 35
Reynolds v. Sims,
377 U.S. 533 (1964)............................................................................................ 28, 37
Smiley v. Holm,
285 U.S. 355 (1932).................................................................................................. 19
United States v. Classic,
313 U.S. 299 (1941)........................................................................................ 3, 25, 26
United States v. Mosley,
238 U.S. 383 (1915).................................................................................................. 24
Vera v. Richards,
861 F. Supp. 1304 (S.D. Tex. 1994) ......................................................................... 25
Statutes
2 U.S.C. § 7............................................................................................................. 16, 32
28 U.S.C. § 1257 ............................................................................................................. 7
viii
28 U.S.C. § 1651 ............................................................................................................. 7
52 U.S.C. § 20302 ........................................................................................... 2, 4, 16, 33
Mo. Const. art. III, § 52(a) ........................................................................... 3, 13, 15, 20
Mo. Rev. Stat. § 115.125 ................................................................................................ 6
Mo. Rev. Stat. § 115.339 .............................................................................................. 25
Mo. Rev. Stat. § 115.343 .............................................................................................. 25
Mo. Rev. Stat. § 116.120 ........................................................................................ 10, 11
Mo. Rev. Stat. § 116.130 ........................................................................................ 11, 26
Mo. Rev. Stat. § 116.150 .............................................................................................. 11
U.S. Const. art. I, § 2 ............................................................................. 3, 13, 23, 24, 26
U.S. Const. art. I, § 4 ......................................2, 3, 10, 13, 17, 18, 19, 20, 21, 22, 23, 37
U.S. Const. art. VI ................................................................................................. 22, 30
U.S. Const. amend. XIV ................................................................... 4, 13, 27, 28, 29, 30
Other Authorities
Dave Wasserman (@Redistrict), X (Sept. 4, 2026, 9:55 AM) ...................................... 30
Mo. Att’y Gen., Op. Letter 03-2026 (May 13, 2026) ................................................... 12
Nathaniel Rakich (@baseballot), X (Sept. 3, 2026, 6:39 PM) ..................................... 30
Nathaniel Rakich (@baseballot), X (Sept. 3, 2026, 6:43 PM) ............................... 32, 37
ix
TO THE HONORABLE BRETT M. KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME
COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE EIGHTH CIRCUIT:
A federal-election-administration disaster is unfolding in Missouri. In August
2025, the Missouri General Assembly adopted a new congressional map (the “HB 1
map”); that map was used about one year later in the August 2026 Primary Election,
in which about 1.2 million Missourians voted. But yesterday, the Missouri Supreme
Court ordered the State to use a dramatically different map—one adopted in 2022—
for the imminent 2026 General Election. The court gave no specific guidance on how
this is to be done—but it undoubtedly will require the winners of the Primary Election
to run in dramatically different districts for the General Election.
No court in American history has ever given such an extraordinary remedy,
which inflicts unprecedented chaos on Missouri. Looking backwards, the order
renders a completed federal Primary Election utterly pointless—disenfranchising
hundreds of thousands of voters who will now be moved into new districts and forced
to vote for candidates they had no role in selecting. Looking forwards, the State is
genuinely unsure whether it can switch its governing congressional map in time to
run a timely federal election. App., infra, at 1665a–1668a. Several weeks ago, the
trial court found that “changing the maps at this late juncture is not just ‘impractical,’
it is impossible” given the complexity of doing so. Id. at 52a. The Missouri Supreme
Court simply ignored that factual finding (and the substantial evidence underlying
it). Certainly, absent a stay, Missouri will be forced to violate the Uniformed and
Overseas Citizens Absentee Voting Act (UOCAVA), which sets a deadline of
September 19 to start sending absentee ballots to overseas and military voters. 52
1
U.S.C. § 20302(a)(8); App., infra, at 1667a–68a. Altogether, the chaos present here
easily dwarfs that in any case where this Court ever invoked Purcell-related concerns
to grant a stay. Cf., e.g., Abbott v. LULAC, 146 S. Ct. 418, 419 (2025) (per curiam)
(prohibiting changes to Texas’s congressional map for the 2026 elections ten months
ago).
Below, Missouri raised several federal constitutional defenses to avoid this
catastrophic scenario—but the Missouri Supreme Court simply ignored them. That
court deemed Missouri’s federal constitutional arguments, as well as warnings that
it would be forced to violate federal law, “irrelevant” in footnotes. App., infra, at 5a
n.5, 12a n.8. Instead, the court reasoned that the Missouri Constitution gives about
3.3% of registered voters an absolute right to void a duly enacted congressional map
before a statewide referendum vote—and after the Primary Election was completed
under a very different congressional map. App., infra, at 5a n.5, 11a–13a n.8.
The Missouri Supreme Court’s order to change Missouri’s congressional map
for the 2026 Election patently violates the U.S. Constitution and should be stayed by
this Court. There is a “reasonable probability” this Court will grant certiorari and
reverse on at least two bases. Hollingsworth v. Perry, 558 U.S. 183, 190 (2010).
First, the order below violates the U.S. Constitution’s Elections Clause. U.S.
Const. art. I, § 4. The Clause provides that “[t]he Times, Places and Manner of
holding Elections for Senators and Representatives, shall be prescribed in each State
by the Legislature thereof.” Id. (emphasis added). But yesterday, the Missouri
Supreme Court held that a referendum petition—signed by just “five percent of the
2
legal voters in each of two-thirds of the congressional districts in the state”
(approximately 3.3% of the State’s voters)—can suspend Missouri’s duly-enacted
congressional map. App., infra, at 5a, 11a–13a (quoting Mo. Const. art. III, § 52(a)).
And, the court made clear, this happens before any statewide referendum vote—
meaning the State must at least temporarily use a congressional map the General
Assembly repealed regardless of the ultimate statewide referendum vote. App.,
infra, at 13a. Although this Court has held that the Elections Clause permits
statewide referendum votes on congressional maps, see Ariz. State Legislature v. Ariz.
Indep. Redistricting Comm’n (“AIRC”), 576 U.S. 787, 808–09 (2015), the Court has
never held that just 3.3% of a State’s voters can unilaterally suspend a disfavored
congressional map by submitting a referendum petition. If that profoundly anti-
democratic arrangement is permissible, little is left of the Elections Clause.
Second, a judicial order dramatically altering a congressional map between a
Primary and a General Election violates several constitutional provisions. Article I,
Section 2 provides that “[t]he House of Representatives shall be composed of Members
chosen every second Year by the People of the several States.” U.S. Const. art. I, § 2
(emphasis added). This protects the right of Missourians to select their
representatives in both Primary and General Elections. See United States v.
Classic, 313 U.S. 299, 318 (1941). 1.2 million Missourians participated in the State’s
Primary under the HB 1 map, in August 2026. App., infra, at 19a–20a. Yet the
Missouri Supreme Court just threw those votes into the dustbin—requiring the
winners of the Primary election to run in very different congressional districts.
3
App., infra, at 11a–13a n.8. Thus, absent a stay, hundreds of thousands of voters
will be forcibly switched to new districts and forced to vote on General Election
candidates they had no role in choosing. App., infra, at 19a, 45a. This
unprecedented disenfranchisement violates Article I, Section 2, the constitutional
right to vote, and the Equal Protection Clause.
Merits aside, the other stay factors overwhelmingly favor a stay. Cf. Merrill
v. Milligan, 142 S. Ct. 879, 880 (2022) (Kavanaugh, J., concurring in grant of stay).
To start, absent a stay, Missouri will face several irreparable harms. The State will
be barred from using a duly enacted congressional map, a classic and weighty
irreparable harm, see Maryland v. King, 567 U.S. 1301, 1303–04 (2012) (Roberts, C.J.,
in chambers)—but one that is unusually acute here because Missouri used that map
for its Primary Election. Moreover, the order below will force Missouri to violate
federal law, including UOCAVA—which requires absentee mail ballots to be sent to
military and overseas voters in 15 days. 52 U.S.C. § 20302; App., infra, at 1667a–
1668a (doing math on why State will violate UOCAVA). The trial court’s factual
findings (which the Missouri Supreme Court simply ignored) make clear that
Missouri election officials cannot change the congressional map and meet this
deadline. App., infra, at 52a. And worst of all, hundreds of thousands of
Missourians will see their votes in the Primary election rendered pointless—
destroying public confidence in the integrity of Missouri’s elections. Id., at 1669a–
1670a; see Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 196–97 (2008)
(plurality op.).
4
Moreover, the balance of the equities is remarkably one-sided. Cf. Milligan,
142 S. Ct. at 880 (Kavanaugh, J., concurring in grant of stay). On the one hand,
Richard von Glahn—the referendum petition’s proponent—will get his referendum
vote on Missouri’s congressional map regardless of what this Court does. The only
question is whether he (joined by a small minority of the State’s voters) can void a
congressional map before he gets his vote.
On the other hand, Missouri cannot run a timely, lawful federal election absent
a stay. App., infra, at 42a–43a, 52a, 1665a–1668a. This Court has long recognized
that last-minute judicial alterations can upend and inflict chaos on federal elections.
See Milligan, 142 S. Ct. at 880–81 (Kavanaugh, J., concurring in grant of stay). This
is true even when a state court issues the order, see Malliotakis v. Williams, 146 S.
Ct. 809, 811 (2026) (Alito, J., concurring in grant of stay), and Purcell’s equitable
concerns are squarely implicated here. Across the State, ahead of a September 8
state-law deadline to alter the ballot, Mo. Rev. Stat. § 115.125.2, county election
officials are scrambling to figure out how to comply with the order below—and
assessing whether it is even possible to do so. App., infra, at 1665a–1668a. Even
if the trial court is wrong—and it is possible to change the map before November 3,
but see id., at 52a—Missouri will be forced to violate UOCAVA and delay the start of
voting. Id., at 1667a–68a. Candidates—who have campaigned for over a year and
raised tens of millions of dollars based on the HB 1 districts—now face the prospect
of all that time and expense being wasted and being forced to campaign afresh before
very different electorates. Voters across the State are confused. Id., infra, at 1669a–
5
1670a. Altogether, the chaos inflicted by the order below exceeds that present in any
of this Court’s Purcell-related cases.
To ensure Missouri can run a timely and lawful federal election, this Court
should also enter an immediate administrative stay of the Missouri Supreme Court’s
injunction ordering the use of a new congressional map for the 2026 General Election.
Although this Court is not bound by it, Missouri has a state-law deadline of
September 8 to alter the ballot, Mo. Rev. Stat. § 115.125.2; an administrative stay by
that time would provide much needed clarity to confused election officials. More
importantly, UOCAVA requires Missouri to send out absentee ballots on
September 19. To enable Missouri to comply with that federal deadline, Secretary
Hoskins respectfully requests this Court issue a decision no later than September
14, 2026. The Secretary also proposes a briefing schedule in which Respondent’s
brief is due no later than 5:00 p.m. on September 7, 2026, and in which the
Secretary’s reply becomes due no later than 5:00 p.m. on September 8, 2026.
DECISIONS BELOW
The Missouri Supreme Court’s September 3, 2026 merits opinion is attached.
App., infra, at 1a–14a. The Missouri Supreme Court’s September 3, 2026 mandate
is attached. Id., at 15a.
Applicant’s September 3, 2026 motion to the Missouri Supreme Court seeking
a stay of the court’s injunction pending an emergency application for stay to this
Court is attached. Id., at 1639a–1663a. The Missouri Supreme Court’s September
4, 2026 denial of the Applicant’s motion for stay is attached. Id., at 16a.
6
The Cole County Circuit Court’s August 19, 2026 judgment, findings of fact,
and conclusions of law is attached. Id., at 17a–53a.
JURISDICTION
The Court has jurisdiction under 28 U.S.C. §§ 1257(a), 1651(a). “Title 28
U.S.C. § 1257(a) gives [this Court] jurisdiction to review ‘[f]inal judgments or decrees’
that are rendered by a State’s highest court and adjudicate federal constitutional
claims.” Malliotakis, 146 S. Ct. at 810 (Alito, J., concurring in grant of stay) (second
alteration original) (quoting 28 U.S.C. § 1257(a)). That includes review of a state
supreme court’s refusal to stay a “state-court order” that violates the U.S.
Constitution. Id. at 810–11.
Likewise, Title 28 U.S.C. § 1651(a) “preserve[s]” the “‘inherent’” authority of
this Court to grant a stay, which is “‘necessary or appropriate in aid of [its]
jurisdiction[].’” Nken v. Holder, 556 U.S. 418, 426–27 (2009) (quoting 28 U.S.C.
§ 1651(a)) (citing In re McKenzie, 180 U.S. 536, 551 (1901)).
Under these rules, the Missouri Supreme Court’s September 3, 2026 opinion
and mandate, and the court’s September 4, 2026 denial of the Secretary’s motion for
stay, are final judgments and decrees of the Missouri Supreme Court subject to
appellate review in this Court to the extent that the Missouri Supreme Court’s
injunction violates the U.S. Constitution. This Court’s exercise of its inherent
authority to grant a stay is also necessary and appropriate in aid of its jurisdiction.
STATEMENT
On September 12, 2025, the Missouri General Assembly passed House Bill 1
(“HB 1”), which redistricted the boundaries of Missouri’s eight congressional districts.
7
HB 1 abrogated Missouri’s previous congressional map enacted in 2022. A copy of
the two maps is reproduced below:
Missouri’s 2025 Congressional Map
Missouri’s 2022 Congressional Map
8
HB 1 passed overwhelmingly in the Missouri General Assembly. App., infra,
at 17a. The margin was 21 to 11 in the Missouri Senate and 90 to 65 in the Missouri
House of Representatives. Id. Governor Michael L. Kehoe signed HB 1 into law on
September 28, 2025. Id.
In response, Respondent and his organization, People Not Politicians (PNP)
initiated the referendum petition at issue in this case. Respondent’s public
statements have long emphasized that he merely wants a statewide vote on the HB 1
map. See, e.g., App., infra, 1244a. But Respondent has also acknowledged a less
democratic goal: exploiting the Missouri Constitution’s referendum provisions to
suspend the State’s congressional map merely by submitting a referendum petition
signed by “five percent of the legal voters in each of two-thirds of the congressional
districts in the state” (approximately 3.3% of Missouri’s voters). Mo. Const. art. III,
§§ 52(a), 52(b); see also Jason Rosenbaum, Missouri’s stack of redistricting lawsuits
expected to grow over whether new map is in effect, St. Louis Public Radio (Dec. 16,
2025) (Von Glahn claimed, “[Secretary Hoskins] has to issue a certificate of
sufficiency or insufficiency, and until that point, the law is suspended.’”).1 To be
clear, Respondent’s theory is that state law entitles him to suspend a duly-enacted
congressional map for an entire election cycle without a referendum vote—even
though this has never been attempted before in Missouri history. Also, as far as
Missouri is aware, this tactic has never been tried in any other State.
1 https://www.stlpr.org/government-politics-issues/2025-12-16/missouris-redistricting-
lawsuits-whether-new-map-effect.
9
Keenly aware of Respondent’s objective, the Missouri Secretary of State
(alongside the Missouri General Assembly and the State of Missouri) sued PNP and
von Glahn in federal district court last October—seeking an injunction and
declaratory relief preventing displacement of the HB 1 map. See App., infra, at
608a–35a. The Secretary relied on the Elections Clause—among other arguments.
App., infra, at 627a–28a. The district court, however, dismissed the Secretary’s
complaint on ripeness grounds. This was so, the district court explained, because
the Secretary possesses authority under Missouri law to reject von Glahn’s
referendum petition as unconstitutional—thereby “prevent[ing] displacement of the
new map.” Mo. Gen. Assembly v. von Glahn, No. 4:25-CV-1535-ZMB, 2025 WL
3514277, at *1, *4 n.4 (E.D. Mo. Dec. 8, 2025) (citing Mo. Rev. Stat. § 116.120).
On December 9, 2025, the day after the federal district court’s decision,
Respondent submitted his referendum petition to the Secretary of State’s office.
App., infra, at 18a. The Attorney General and Secretary promptly declared that the
HB 1 map had gone into effect and would remain in effect—at least until the
Secretary certified the referendum as legal. See Maggard v. Missouri, 733 S.W.3d
411, 412–13, 419 (Mo. 2026). The Missouri Supreme Court subsequently rejected a
challenge to that public declaration in Maggard—holding that the mere submission
of a referendum petition does not freeze a duly enacted congressional map. Id. at
421. The Maggard decision also expressly reserved the question whether referenda
can proceed against federal congressional maps. Id. at 414 n.7.
10
The Missouri Supreme Court also rejected four other legal challenges to the
HB 1 map—including as recently as May 2026. See Luther v. Hoskins, 730 S.W.3d
567 (Mo. 2026); Healey v. Missouri, 732 S.W.3d 827 (Mo. 2026); Maggard v. Missouri,
733 S.W.3d 411 (Mo. 2026); NAACP v. Kehoe, 734 S.W.3d 338 (Mo. 2026). Because
of those decisions, even Democracy Docket—the publication founded by Marc Elias,
the Democratic Party’s leading election lawyer—admitted the HB 1 map would likely
need to govern Missouri’s elections in 2026. App., infra, at 1246a.
While all this litigation was unfolding, the Secretary strictly complied with his
state-law duties in processing Respondent’s referendum petition. See Mo. Rev. Stat.
§§ 116.120–116.150. Within two weeks of the petition’s submission, the Secretary
forwarded Respondent’s referendum petition to Missouri’s 116 local election
authorities so that they could begin reviewing the signatures on Respondent’s
petition to verify validity. See id. § 116.130.1. Review of the petition’s signatures
was necessary before any ruling on the constitutionality of the referendum petition
because Missouri law establishes that any defect not raised in a Secretary’s certificate
is waived. See id. § 116.150; App., infra, at 5a. Additionally, Missouri law
explicitly granted the Secretary until August 4, 2026—the same day as Missouri’s
Primary Election day—to issue his certificate of sufficiency or insufficiency as to
Respondent’s referendum petition. App., infra, at 3a; Mo. Rev. Stat. § 116.150.3.
On May 13, 2026—following the Missouri Supreme Court’s rejection of
multiple challenges to the HB 1 map—the Attorney General issued an opinion
making clear that the HB 1 map must be used during the 2026 Primary Election.
11
App., infra, at 19a; Mo. Att’y Gen., Op. Letter 03-2026 (May 13, 2026). No court ever
stated that this opinion letter was unlawful or wrong.
Consistent with the Attorney General’s Opinion, Missouri conducted its 2026
Primary Election under the HB 1 map. About 1.2 million Missourians voted in the
elections. App., infra, at 19a–20a.
On the same day, the Secretary met his statutory deadline and issued a
certificate of insufficiency rejecting the referendum on a host of legal grounds. Id. at
599a. As part of that certificate, the Secretary attached and incorporated an Attorney
General opinion—which he noted “more fully articulated” the “grounds for
insufficiency.” Id. In particular, the certificate concluded “the Missouri Constitution
does not authorize a referendum on congressional redistricting plans passed by the
General Assembly.” Id. at 600a. Among other things, the certificate noted exceptions
in the Missouri Constitution to the referendum right. Id. at 603a–04a. The certificate
also concluded that—even if the Missouri Constitution did authorize a statewide vote
on a congressional redistricting plan—it would violate the U.S. Constitution to allow
a small minority of voters to unilaterally void a redistricting plan in the interim. Id.
at 600a. And even if all that were wrong, the Secretary’s certificate concluded that
it would violate federal law and Missouri’s equivalent of the Purcell principle—the
Hadley doctrine—to change congressional maps after the Primary Election. Id. at
605a–06a; Hadley v. Junior Coll. Dist. of Metro. Kansas City, 460 S.W.2d 1, 2–3 (Mo.
1970).
12
Respondent Richard von Glahn promptly sued. App., infra, at 54a., 56a. His
complaint sought an injunction “reversing Defendant Hoskins’ certification decision,”
and an injunction “[r]estraining” the Secretary “and those acting in concert with him
from taking any further steps to implement or mandate the use of HB 1.” Id. at 61a.
Respondent’s complaint provided zero explanation regarding how the latter
injunction could even be implemented—given that Missouri completed its Primary
Election on August 4, 2026.
The trial court rejected Respondent’s challenge on every conceivable ground.
It agreed with the Secretary that the Missouri Constitution does not authorize
referenda on congressional maps. Id. at 22a–30a. It also held that the U.S.
Constitution’s Elections Clause forbids changing Missouri’s congressional map based
on a referendum petition signed by just “five percent of the legal voters in each of two-
thirds of the congressional districts in the state.” Id. at 27a (quoting Mo. Const. art.
III, § 52(a)). The trial court further held that changing Missouri’s congressional map
between a Primary and General Election would violate Article I, Section 2 of the U.S.
Constitution and the Equal Protection Clause of the Fourteenth Amendment. Id. at
39a–42a. Finally, the trial court held that even if it were wrong on the first three
bases for its judgment, it would still decline to change the HB 1 map before the 2026
election in light of the Hadley principle—the Missouri equivalent to the Purcell
principle. Id. at 49a–50a (citing Hadley, 460 S.W.2d 1).
The trial court’s holdings were also buttressed by several factual findings—
none of which were contested (or even mentioned) by the Missouri Supreme Court.
13
The trial court found that “changing the maps at this late juncture is not just
‘impractical,’ it is impossible.” Id. at 52a. The trial court also found that,
“Candidate filing closed months ago. Over 1.2 million Missourians voted in the
August 4 Primary. Nominees have been selected. Campaigns for the general
election are underway.” Id. at 50a. Also, the trial court found that “revert[ing]
Missouri to the plan the General Assembly repealed in HB 1 . . . would move
hundreds of thousands of voters into different districts for the imminent 2026 general
election compared to the districts in which they cast their ballots in the August
primary elections.” Id. at 20a. The court also found that “[t]hose voters would
possess materially less voting power than voters whose districts remained the same.”
Id. at 45a.
The court further emphasized that “Plaintiff has not demonstrated how State
officials could reverse course and implement some entirely new map, how nominees
selected by voters in one set of districts would campaign in different ones, or how
voters would make sense of a last-minute overhaul of the districts they just voted in.”
Id. at 50a. In light of these findings, the trial court “decline[d] to order an
unprecedented remedy that is impossible to implement.” Id. at 52a.
Shockingly, the Missouri Supreme Court reversed and directly issued an
injunction prohibiting the Secretary—“and all those acting in concert with him”—
“from implementing, using, or mandating the use of the congressional redistricting
in HB 1.” Id. at 13a–14a. Although the court provided no detail on how Missouri
is to comply with its order, a footnote in the court’s opinion stated that Missouri must
14
use “the congressional redistricting [plan] the General Assembly established in 2022.”
Id. at 12a.
Why this extraordinary injunction? Despite the trial court and Missouri’s
statewide officials disagreeing, the Missouri Supreme Court concluded that, under
the Missouri Constitution, just 3.3% of the State’s voters can unilaterally override
the state legislature and impose their preferred congressional map for an entire
election cycle. See id. at 5a, 11a–13a (citing Mo. Const. art. III, §§ 52(a), 52(b)).
Remarkably, the Missouri Supreme Court explicitly eschewed any consideration of
the “confusion, expense, and practical difficulties” that “may result” from its
injunction. Id. at 12a. And the Missouri Supreme Court did so while never
questioning or discussing the trial court’s finding that “changing the maps at this late
juncture is not just ‘impractical,’ it is impossible.” Id. at 52a.
What of the Secretary’s federal defenses? The Missouri Supreme Court
blatantly ignored them. The court hinted in a footnote that it ignored these federal
constitutional arguments because the Secretary did not raise these points in his
certificate of insufficiency, id. at 5a—even though the certificate expressly
incorporated by reference an Attorney General opinion that did address these
arguments, id. at 599a. Never mind that the Secretary explicitly raised these
federal defenses in his answer and affirmative defenses. Id. at 257a–58a. Never
mind that the Secretary raised these defenses in his trial brief. Id. at 311a–13a,
323a–29a. Never mind that the trial court explicitly accepted all of these federal
constitutional defenses in its judgment. Id. at 39a–46a. Never mind that all
15
parties explicitly discussed these defenses in their briefing before the Missouri
Supreme Court. Id. at 1391a–97a, 1409a–14a, 1490a–1501a, 1570a–82a. And
never mind that the Missouri Supreme Court did not cite a single case suggesting the
Secretary could not incorporate by reference other documents justifying his decision.
Id. at 5a.
After ignoring the U.S. Constitution, the Missouri Supreme Court is now the
first court—ever—to enjoin an entire congressional map four weeks after a completed
Primary Election. Moreover, federal law requires voting to start in just 15 days.
52 U.S.C. § 20302(a)(8). Understandably, voters are confused and concerned about
being disenfranchised in the Primary Election. App., infra, at 1669a–1670a. And
Missouri election officials are scrambling to pick up the pieces. There is a public
disagreement between election officials on whether it is even possible to switch the
congressional map. Id. at 904a–07a, 1023a–28a, 1665a–68a; see also Kacen Bayless,
‘We will be ready.’ Jackson County says it will comply with Supreme Court map ruling,
Kansas City Star (Sept. 4, 2026).2 In light of the trial court’s finding that it will be
“impossible” for Missouri election officials to change the congressional map, App.,
infra, at 52a, the Secretary is gravely concerned that Missouri will be unable to
conduct lawful congressional elections by November 3, id. at 1665a–68a; see also U.S.
Const. art. I, § 2 (requiring a congressional election “every second Year”); 2 U.S.C.
§ 7; 52 U.S.C § 20302(a)(8). After consulting with his staff, the Secretary has
concluded that—at a minimum—attempting to comply with the Missouri Supreme
2 https://www.kansascity.com/news/politics-government/article317128194.html.
16
Court’s order will force the State to violate UOCAVA’s requirements on sending out
absentee ballots to military and overseas voters. App., infra, at 1665a–68a.
Confronted with an unprecedented election-administration emergency, the
Secretary asked the Missouri Supreme Court to stay its decision the same day it was
issued. Id. at 1639a–1663a. This morning, that court denied the request for a stay.
Id. at 16a.
REASONS FOR GRANTING A STAY
To obtain a stay, Missouri “must show (1) a reasonable probability that four
Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair
prospect that a majority of the Court will vote to reverse the judgment below; and
(3) a likelihood that irreparable harm will result from the denial of a stay.”
Hollingsworth, 558 U.S. at 190. In cases involving federal elections, this Court has
issued stays based on the equities alone when an order under review threatens chaos
in an upcoming federal election. See, e.g., Merrill, 142 S. Ct. at 880–81 (Kavanaugh,
J., concurring in grant of stay). Under either approach, the Court should grant a
stay.
Missouri is likely to succeed on the merits.
A. The Missouri Supreme Court’s decision violates the U.S.
Constitution’s Elections Clause.
The People’s elected representatives passed the HB 1 map by strong margins—
21 to 11 in the Senate and 90 to 65 in the House of Representatives. See App., infra,
at 17a. Nevertheless, the Missouri Supreme Court concluded that approximately
3.3% of registered voters unilaterally suspended the HB 1 map by submitting a
17
referendum petition. See App., infra, at 11a–13a (citing Mo. Const. art. III, § 52(b));
see also Mo. Const. art. III, § 52(a). This Court has never sanctioned such a
profoundly anti-democratic arrangement, and the Elections Clause forbids
permitting a small fraction of a State’s voters from suspending a congressional map—
and imposing a new map—before a statewide vote. Cf. Democratic Nat’l Comm. v.
Wisconsin State Leg., 141 S. Ct. 28, 29 (2020) (Gorsuch, J., concurring in denial of
application to vacate stay) (“The Constitution provides that state legislatures—not
federal judges, not state judges, not state governors, not other state officials—bear
primary responsibility for setting election rules.”).
The Elections Clause provides that “[t]he Times, Places and Manner of holding
Elections for Senators and Representatives, shall be prescribed in each State by the
Legislature thereof.” U.S. Const. art. I, § 4 (emphasis added). The term
“Legislature” was “not . . . of uncertain meaning when incorporated into the
Constitution”: It referred to “the representative body which made the laws of the
people.” Hawke v. Smith, 253 U.S. 221, 227 (1920).
“[T]he Elections Clause expressly vests power to carry out its provisions in ‘the
Legislature’ of each State, a deliberate choice that this Court must respect.” Moore
v. Harper, 600 U.S. 1, 34 (2023). Thus, this Court reviews claims where state actors
invoke state law to change federal election rules to ensure they “do not evade federal
law.” Id.
Of course, this Court has held that the Elections Clause does not mean that
only a state legislature can set rules for federal elections. See id. The Court has
18
primarily employed a history-and-tradition-based approach in this context, cf. N.Y.
State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 79 (2022) (Kavanaugh, J., concurring),
observing that gubernatorial vetoes and ordinary judicial review have coexisted with
state legislative authority since the founding, see Moore, 600 U.S. at 24–25; Smiley v.
Holm, 285 U.S. 355, 368 (1932). More controversially, this Court has also rejected
challenges to using state-legislative redistricting commissions and statewide popular
votes to set aside redistricting plans. See AIRC, 576 U.S. at 824.
But this Court has never sanctioned the Missouri Supreme Court’s bizarre and
profoundly anti-democratic holding. According to that court, a tiny minority of the
State’s registered voters can unilaterally void a redistricting map passed by the state
legislature and signed by the governor merely by submitting a referendum petition.
App., infra, at 11a–13a. No statewide vote. Just a petition signed by about 3.3% of
the voters. As far as Missouri is aware, no State has ever been forced to use a
different congressional map for an election cycle merely because a small minority of
voters submitted a petition. And it certainly has never been done after a completed
primary election. Here, as in other contexts, “[p]erhaps the most telling indication of
the severe constitutional problem” present here is that Respondent has not “located
any historical analogues for this novel” arrangement. Free Enterprise Fund v. Public
Co. Accounting Bd., 561 U.S. 477, 505–06 (2010) (quoting 537 F.3d. 667, 669 (D.C.
Cir. 2008) (opinion of Kavanaugh, J.)).
Moreover, the Missouri Supreme Court’s holding would annihilate the
Missouri General Assembly’s authority over redistricting. Contra Moore, 600 U.S. at
19
34 (reaffirming importance of Elections Clause’s delegation of authority to state
legislature). Just consider how redistricting will play out going forward in Missouri.
Every time Missouri redistricts in a way that favors the majority political party, the
minority political party will obviously be incentivized to submit a referendum petition
freezing the new map. Such a step is easy; a campaign merely needs to gather around
106,000 signatures in Missouri. See Mo. Const. art. III, § 52(a). Here, Respondent
gathered those signatures in about a month. See People Not Politicians v. Hoskins,
No. SC101801, slip op. at 2–3 (Mo. Sept. 3, 2026) (per curiam). Even groups with far
less funding than Respondent routinely put measures on Missouri’s statewide ballot.
See, e.g., Kurt Erickson, Unions move to block 'right to work' law in Missouri, ST.
LOUIS POST-DISPATCH (Aug. 18, 2017).3 Thus, political parties (and many other
entities) have the resources and incentive to use von Glahn’s maneuver—especially
as that could give them one or more congressional seats for at least two years (as
would be true here). And imagine if this happens after a decennial Census, in which
Missouri gains or loses a congressional seat. Under the Missouri Supreme Court’s
approach, state law would seemingly require Missouri to use an old congressional
map with the wrong number of seats. In all events, the General Assembly’s authority
over redistricting would be destroyed.
The Missouri Supreme Court offered zero contrary reasoning and completely
ignored this defense under the Elections Clause. See App., infra, at 11a–13a. It did
so even though the Secretary raised this defense at trial, App., infra, at 311a–16a,
3 https://www.stltoday.com/news/local/government-politics/article_d7fb08a4-2417-508c-a81d-
ab3f0e361971.html.
20
the trial court agreed with this federal defense in its judgment, App., infra, at 30a–
42a, and all parties briefed this issue and discussed it during oral argument in front
of the Missouri Supreme Court, App., infra, at 1391a–1403a, 1490a–93a, 1570a–77a.
The Secretary’s motion for stay in the Missouri Supreme Court also raised this
Elections-Clause defense. App., infra, at 1652a–56a. Instead of addressing a clearly-
preserved federal legal defense, the court simply insisted state law requires its
absurd result—even though nothing like this has ever happened before in Missouri
(or anywhere else).
Respondent will likely invoke this Court’s decision in Ohio ex rel. Davis v.
Hildebrandt, 241 U.S. 565 (1916), but that argument fails. Although this Court
seemingly sanctioned statewide votes disapproving congressional maps as consistent
with the Elections Clause, but see AIRC, 576 U.S. at 824–50 (Roberts, C.J.,
dissenting), it certainly did not sanction the Missouri Supreme Court’s
unprecedented approach. Hildebrandt merely recognized the ability to veto
redistricting legislation via a statewide referendum vote. AIRC, 576 U.S. at 840
(discussing Hildebrandt). “The result of the decision was to send the Ohio Legislature
back to the drawing board to do the redistricting.” Id. (emphasis in original).
Hildebrandt never suggested that just 3.3% of registered voters could force a State to
use their preferred map for an entire election cycle even before a statewide vote. If
that is permissible, little will be left of the Elections Clause.
Nor does this Court’s closely divided decision in AIRC, 576 U.S. 787, help
Respondent. In rejecting an Elections Clause challenge to independent redistricting
21
commissions, the majority relied in substantial part on its belief that independent
redistricting commissions could enhance democracy. See AIRC, 576 U.S. at 797–98;
id. at 816–17; id. at 822–24. Those considerations cannot support the Missouri
Supreme Court’s ruling, which undermines democracy by giving small political
minorities uncheckable political power over the majority. App., infra, at 11a–13a.
Inherent in a healthy approach to stare decisis is respecting the logical limits of
decisions. See, e.g., Louisiana v. Callais, 146 S. Ct. 1131, 1163 (2026) (“Respect for
precedent cannot be a one-way street.”). That wisdom counsels against extending
AIRC—contrary to its own reasoning—to this markedly new context.
* * *
To be clear, this case is not about the Missouri Supreme Court’s interpretation
of the Missouri Constitution. What is at stake is the Supremacy Clause, which
prohibits state courts from ignoring federal legal arguments that would bar their
actions. See U.S. Const. art. VI (“This Constitution, and the Laws of the United
States . . . shall be the supreme Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.”); cf. Doe v. Dynamic Physical Therapy, LLC, 607 U.S. 11, 11 (2025)
(per curiam) (“Defining the scope of liability under state law is the State’s prerogative.
But a State has no power to confer immunity from federal causes of action.” (emphasis
original)). Although the Missouri Supreme Court unquestionably has a right to
judicial review of Missouri redistricting legislation, it “do[es] not have free rein” to
trample the Elections Clause. Moore, 600 U.S. at 34. And this Court has a “duty to
22
safeguard limits imposed by the Federal Constitution,” including the Elections
Clause. Id. at 35. That duty requires this Court’s intervention when, as here, a
State’s supreme court openly ignores federal constitutional arguments. Only this
Court can correct the Missouri Supreme Court’s egregious error in holding that
approximately 3.3% of Missouri’s voters can force the use of their preferred
congressional map for the 2026 congressional elections before any statewide vote.
B. The Missouri Supreme Court’s injunction disenfranchises
hundreds of thousands of Missouri voters in violation of the U.S.
Constitution.
1. Even setting the Elections Clause aside, the Missouri Supreme Court’s
injunction is unconstitutional under Article I, Section 2 and violates the right to vote
because it disenfranchises hundreds of thousands of Missourians who voted in the
August Primary Election.
The Missouri Supreme Court’s injunction requires the Secretary to change the
State’s congressional map between the Primary and the General Election. See App.,
infra, at 13a–14a. Yet the trial court found that an injunction requiring
implementation of Missouri’s 2022 map would force hundreds of thousands of
Missourians to vote for candidates in the General Election that they had no role in
nominating in the Primary Election. Id. at 20a, 45a. For example, voters in Osage
County, Missouri nominated Rick Brattin and Emanuel Cleaver as the candidates for
Missouri’s General Election CD-05. App., infra, 1669a–1670a. But the Missouri
Supreme Court is now forcing every voter in Osage County to choose between Bob
Onder and Bethany Mann—who were nominated by entirely different voters in CD-
03. Id. Other voters across the State now confront the same reality—being forced to
23
vote on General Election candidates they had no role in selecting in the Primary.
Understandably, those voters are now confused and upset over being disenfranchised
in the Primary Election. Id., at 1669a–1670a.
The Missouri Supreme Court’s injunction defies Article I, Section 2 of the U.S.
Constitution, which provides, “The House of Representatives shall be composed of
Members chosen every second Year by the People of the several States.” U.S. Const.
art. I, § 2, cl. 1 (emphasis added). This language protects the right to vote and
prohibits States from nullifying votes cast in federal congressional elections. See id.
Additionally, this Court has recognized that the Constitution protects a fundamental
right to vote. See, e.g., Crawford, 553 U.S. at 189–91 (2008) (plurality op.). If that
right protects anything, surely it prohibits nullifying a Primary Election and forcing
voters to choose between candidates in a General Election that they had no role in
nominating. See United States v. Mosley, 238 U.S. 383, 386 (1915) (recognizing that
the constitutional right to vote includes “right to have one’s vote counted”). That is
why a host of federal judges have recognized that “[p]rimary elections for offices
chosen by the electorate in separate geographical districts obviously make no sense
unless the districts are the same for the ensuing general election as for the primary.”
Terrazas v. Slagle, 821 F. Supp. 1154, 1159 (W.D. Tex. 1992) (per curiam three-judge
panel); see, e.g., Covington v. North Carolina, 316 F.R.D. 117, 176–77 (M.D.N.C. 2016)
(Op. of Wynn, Circuit Judge) (allowing General Election “to proceed as scheduled
under the challenged plans” despite being determined unconstitutional after the
Primary); Page v. Va. State Bd. of Elections, 58 F. Supp. 3d 533, 554 (E.D. Va. 2014)
24
(Op. of Duncan, Circuit Judge) (“[G]eneral principles of equity dictate that Virginia’s
2014 elections should proceed as scheduled under the challenged districting plans”
after plan found invalid one month before General Election.), vacated on other
grounds sub nom., Cantor v. Personhuballah, 135 S. Ct. 1699 (2015); Vera v.
Richards, 861 F. Supp. 1304, 1310, 1351 (S.D. Tex. 1994) (Op. of Jones, Circuit Judge)
(ordering election held on unconstitutional map after Primary had already been held),
aff’d sub nom., Bush v. Vera, 517 U.S. 952 (1996). Nevertheless, the Missouri
Supreme Court’s order would render hundreds of thousands of votes in the Primary
Election effectively null and void. See App., infra, at 20a, 45a.
Nor does the fact that the Missouri Supreme Court’s injunction nullifies a
Primary Election—as opposed to a General Election—change anything. This Court’s
precedent establishes that “[w]here the state law has made the Primary an integral
part of the procedure of choice . . . the right of the elector to have his ballot counted
at the Primary, is likewise included in the right protected by” the Constitution’s right
to vote. United States v. Classic, 313 U.S. 299, 318 (1941). And that is obviously true
in Missouri, which has long recognized that congressional primaries are “an integral
part of the electoral process” in the State. Pollard v. Bd. of Police Comm’rs, 665
S.W.2d 333, 340 (Mo. 1984) (citing Classic, 313 U.S. 299; Smith v. Allwright, 321 U.S.
649 (1944)). And sure enough, Missouri law specifically provides that “all candidates
for elective office shall be nominated at a primary election.” Mo. Rev. Stat.
§§ 115.339, 115.343. And the Primary “exclud[es] from the ballot on the general
election the names of candidates rejected at the primary” such that it “impose[s]
25
restrictions upon the choice of candidates by the voters save by voting at the primary
election.” Classic, 313 U.S. at 313; see Mo. Rev. Stat. § 115.343. Thus, the Missouri
Supreme Court’s injunction violates Article I, Section 2 of the U.S. Constitution and
the Constitution’s right to vote by disenfranchising hundreds of thousands of
Missourians who voted in the August Primary Election and are now forced to vote in
different districts for the General Election. App., infra, at 20a, 1669a–70a.
What did the Missouri Supreme Court have to say about all this? Nothing.
Once again, the Secretary made this argument at trial; the trial court agreed with
this argument; and this argument was prominently briefed and orally argued before
the Missouri Supreme Court. See, e.g., App., infra, at 20a, 323a–28a, 1501a–02a,
1579a–80a. The Missouri Supreme Court apparently deemed this consideration
“irrelevant”—and insisted that state constitutional requirements must apply
regardless of any disenfranchisement. Id. at 12a–13a.
Reading between the lines, what seems to have driven the Missouri Supreme
Court’s disinterest in federal law was its displeasure with the Secretary’s processing
of Respondent’s referendum petition. See id. at 12a. In particular, the court faulted
the Secretary for waiting until the statutory deadline—which was the same day as
the primary decision—to reject the referendum petition on state constitutional
grounds. Id. (“[T]he secretary chose to delay his certification until the last possible
day—August 4—and, in the meantime, utilized the congressional redistricting in
HB 1 while [verifying signatures].”). But to be clear, all agree that the Secretary
complied with the state-law deadline for processing referendum petitions. See Mo.
26
Rev. Stat. § 116.130.2. Although Respondent never presented any facts or evidence
that the Secretary intentionally delayed a decision—and the trial court made no such
finding—it bears mentioning that the Secretary and local election officials around the
State needed to review the hundreds of thousands of signatures submitted in support
of the referendum petition. See id. § 116.130.1; Maggard, 733 S.W.3d at 416. And
the Missouri Supreme Court acknowledged in May 2026 that not all signatures had
been processed. See id. at 420. Thus, at most, the Missouri Supreme Court seemingly
faults the Secretary for not making a certification decision (before the deadline) in
the summer—with an imminent Primary Election approaching. That decision would
have inflicted chaos on the Primary Election and no statute or precedent suggests the
Secretary was obliged to act before a state-law deadline in a manner that would
jeopardize the Primary Election.
More fundamentally, Missouri’s squabble over whether Secretary Hoskins
appropriately handled the referendum petition is irrelevant here. Even assuming the
Missouri Supreme Court’s impugning of the Secretary is fair, it is hard to see how
that could justify disenfranchising hundreds of thousands of voters in violation of
federal law. Indeed, the Missouri Supreme Court did not actually claim otherwise—
but merely ignored the federal constitutional argument altogether.
2. The Missouri Supreme Court’s injunction also violates the Equal
Protection Clause by transferring hundreds of thousands of voters to new districts,
but leaving other voters in the same district. App., infra, at 20a, 45a. This strange
and unprecedented order thus disadvantages voters based solely on where they live—
27
unlawfully diluting the influence of the moved voters compared to the non-moved
voters, in violation of the Equal Protection Clause. Id. at 45a–46a
The Equal Protection Clause forbids weighting the votes of some Missourians
“more heavily” than others. Gray v. Sanders, 372 U.S. 368, 379 (1963). “Once the
geographical unit for which a representative is to be chosen is designated, all who
participate in the election are to have an equal vote—whatever their race, whatever
their sex, whatever their occupation, whatever their income, and wherever their home
may be in that geographical unit.” Id. (emphasis added). “This is required by the
Equal Protection Clause of the Fourteenth Amendment. The concept of ‘we the
people’ under the Constitution visualizes no preferred class of voters but equality
among those who meet the basic qualifications.” Id. at 379–80.
Indeed, the Equal Protection Clause protects the rights of all Missourians to
have their “vote weighted equally with those of all other citizens.” Reynolds v. Sims,
377 U.S. 533, 576 (1964). “And the right of suffrage can be denied by a debasement
or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting
the free exercise of the franchise.” Id. at 555. This Court’s precedents are also clear
that if a State grants some voters a privilege and “den[ies] the privilege to other
classes of otherwise qualified voters in similar circumstances, without affording a
comparable alternative means to vote,” the State engages in “arbitrary discrimination
violative of the Equal Protection Clause.” Am. Party of Tex. v. White, 415 U.S. 767,
795 (1974).
28
For obvious reasons, the trial court found that changing the congressional map
between the Primary and General Elections would violate these standards. App.,
infra, at 45a–46a. The trial court found that “[i]f the congressional map changes
between the Primary and General Elections, it would force hundreds of thousands of
Missourians to vote in a district different from the one in which they cast their
primary ballots.” Id. at 45a. Also, the trial court found that “[t]hose voters would
possess materially less voting power than voters whose district remained the same
because the former group would have to select from candidates they never had the
opportunity to” “support” or “oppose” through voting “in the primary.” Id. Instead,
hundreds of thousands of Missourians would be forced to consider candidates that
they had no role in nominating. Id. at 20a, 45a–46a, 1669a–70a. This places these
voters at a clear disadvantage relative to Missourians who enjoyed the right to select
nominees for the General Election in their district. Id. at 45a.
Once again, the Missouri Supreme Court simply ignored this federal
constitutional argument. The Secretary made this argument at trial; the trial court
accepted it and made related factual findings; the argument was briefed to the
Missouri Supreme Court. E.g., id. at 20a, 325a–28a, 355a, 1497a–1501a, 1581a–82a.
Yet that court’s opinion proceeds as if this argument did not exist. Such cavalier
treatment of federal law is shocking and, frankly, unacceptable in a legal system
where federal law is the supreme law of the land. U.S. Const. art. VI, cl. 2; Testa v.
Katt, 330 U.S. 386, 391 (1947) (“[T]he Constitution and the laws passed pursuant to
29
it are the supreme laws of the land, binding alike upon states, courts, and the
people.”).
This Court, of course, will not ignore federal law. See Marbury v. Madison,
5 U.S. (1 Cranch) 137, 178 (1803). To protect the right to vote, safeguard the Equal
Protection Clause, and enforce the Supremacy Clause, this Court should grant a stay.
C. This Court is likely to grant review and reverse.
Whether Missouri can hold a timely and lawful federal congressional election
is worthy of this Court’s attention. See Does 1-3 v. Mills, 142 S. Ct. 17, 17–18 (2021)
(Barrett, J., concurring in the denial). Missouri’s election is in chaos. App., infra,
at 1667a–68a. As the trial court found, “[c]hanging the map at this late juncture is
not just ‘impractical,’ it is impossible.” Id. at 52a. Missouri election officials have
also testified that the entire congressional election is at risk under the Missouri
Supreme Court’s injunction. Id. at 1025a–26a. Election analysts with prominent
national media outlets are openly questioning how Missouri can possibly comply with
the Missouri Supreme Court’s order. See, e.g., Dave Wasserman (@Redistrict), X
(Sept. 4, 2026, 9:55 AM) (“Before Dems get carried away celebrating the Missouri
redistricting ruling, important to keep in mind that SCOTUS/state courts would
likely need to greenlight an entirely new election calendar w/ 60 days left before 11/3.
No guarantees here.”);4 Nathaniel Rakich (@baseballot), X (Sept. 3, 2026, 6:39 PM)
(“Not done yet in Missouri. SCOTUS could very well say it’s too close to the election
4 https://x.com/Redistrict/status/2095888400200999059
30
and keep Missouri’s 7-1 map in place for 2026.”).5 Only this Court can intervene to
fix this problem.
The Missouri Supreme Court’s injunction departs far from the usual course of
judicial proceedings—disenfranchising hundreds of thousands of Missourians in
violation of the U.S. Constitution. Respondent will undoubtedly argue that there is
no split of authority on the legal questions framed above. But that is only because
no other court has ever issued an order like the Missouri Supreme Court’s injunction.
No other court has invalidated an entire congressional map one month after a
completed Primary Election. Nor is Missouri aware of any precedent allowing a small
fraction of the State’s voters to force the use of their preferred map for an election
cycle. In other words, there is no split on the merits questions in this case because
no court has ever issued an order this destabilizing to an imminent federal election
before. That reality strengthens, rather than weakens, the case for certiorari. See
Does 1–3, 142 S. Ct. at 17–18 (Barrett, J., concurring in the denial).
In Moore v. Harper, this Court held that it “ha[s] an obligation to ensure that
state court[s] . . . do not evade federal law.” 600 U.S. at 34 (emphasis added). This
Court also recognized its “duty to safeguard limits imposed by the Federal
Constitution.” Id. at 35. If there were ever a case that called for this Court’s
exercise of its duty, this is it.
5 https://x.com/baseballot/status/2095658021259026651
31
The remaining stay factors favor the Missouri Secretary of State’s
application.
A. Missouri and the public will suffer profound irreparable harm.
Without this Court’s intervention, Missouri and its citizens will suffer
profound irreparable harm. Of course, “any time a State is enjoined by a court from
effectuating statutes enacted by representatives of its people, it suffers a form of
irreparable injury.” Labrador v. Poe, 144 S. Ct. 921, 923 (2024) (Gorsuch, J.,
concurring) (quoting Maryland v. King, 567 U.S. at 1303 (Roberts, C.J., in
chambers)). Allowing a tiny fraction of the State’s voters to unilaterally void a
congressional map after a Primary Election is an especially extreme instantiation of
that harm.
But Missouri’s injury runs far deeper than that. Federal law requires
Missouri to hold its General Election on November 3, 2026. 2 U.S.C. § 7; see Foster
v. Love, 522 U.S. 67, 73–74 (1997) (holding that State may not run federal election in
conflict with federal timing of 2 U.S.C. § 7, which requires an election this year on
November 3, 2026). But the trial court in this case found that holding the General
Election under a different congressional map would be “impossible.” App., infra, at
52a. The Missouri Supreme Court never disagreed with this point. Instead, it
explicitly held that any “practical difficulties” caused by its injunction were
“irrelevant” to its analysis. Id. at 12a. That might help explain why one prominent
election analyst is openly suggesting that Missouri should violate the federal election
calendar to comply with the Missouri Supreme Court’s order. See Nathaniel Rakich
(@baseballot), X (Sept. 3, 2026, 6:43 PM) (“If Missouri does have to use the 6-2 map,
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that’s fundamentally incompatible with the primaries, which were conducted under
the 7-1 map. Easiest solution would probably be to hold jungle primaries on Nov. 3,
with runoffs at a later date.”).6
Even if Missouri election officials can undertake heroic efforts to disprove the
trial court’s factual finding, the Missouri Supreme Court’s order will certainly require
Missouri to violate UOCAVA, 52 U.S.C. § 20302. UOCAVA requires Missouri to send
mail ballots to overseas and military voters by September 19—15 days from now.
Even assuming Missouri election officials immediately start working—over Labor
Day weekend—to comply with the Missouri Supreme Court’s order, they will not be
able to meet UOCAVA’s deadline. App., infra, at 1667a–68a.
A longtime Jackson County election official explained this in an affidavit
credited by the trial court, and the Secretary of State’s office fully agrees with her
assessment. Id. at 1667a–68a. To switch congressional maps, Missouri election
officials in counties that are transposed into new districts will have to manually
reassign hundreds of thousands of voters to new districts in the MCVR election
system. Id. at 1024a–25a. This is a painstaking, labor-intensive process that would
ordinarily take two-to-three weeks. Id. at 1667a. The Jackson County election
official estimated that—if election staff work emergency hours on nights and
weekends—that the process could be shortened to 7–10 days. Id. at 1024a–25a.
Then, after the map is changed in MCVR, ballots must be designed and tested, which
takes about 14 days. Id. at 1026a. And after that, local election officials need an
6 https://x.com/baseballot/status/2095659079708344747
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additional 7 days (one week) for printing ballots. Id. That is a combined 28 days—
at best. Obviously, 28 days is more than the 15 days Missouri election officials have
before they start violating UOCAVA.
Rarely will this Court receive a stay application presenting more urgent and
profound irreparable harms. The Court should grant a stay.
B. The balance of the equities overwhelmingly favors the Secretary’s
application.
It is hard to imagine a case with more lopsided equities. Hollingsworth, 558
U.S. at 190. On the one hand, Respondent would suffer no meaningful prejudice from
a stay. Regardless of this Court’s decision, Respondent will get a statewide vote on
the HB 1 congressional map. That is what his public statements have insisted his
referendum campaign is all about. App., infra, at 1244a. At most, a stay would
merely prevent him and a small minority of Missourians from forcing the State to use
a congressional map rejected by the People’s elected representatives—who at least
presumptively reflected the majority’s wishes in enacting the HB 1 map.
On the other hand, this Court’s Purcell precedents demonstrate that Missouri’s
harms are overwhelming and warrant equitable relief. As this Court has recognized
many times, “[w]hen an election is close at hand, the rules of the road must be clear
and settled.” Milligan, 142 S. Ct. at 880–81 (Kavanaugh, J., concurring in grant of
stay). And this Court has recognized that changing a federal congressional map is
one of the most disruptive changes a court can make. Id. at 879–80. That is why, for
example, this Court applied the Purcell principle to foreclose challenges to Texas’s
congressional map for the 2026 elections ten months ago—during Texas’s candidate
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filing period. See Abbott v. LULAC, 146 S. Ct. at 419. If a federal court had entered
the order under review here, this Court would deem it frivolous under Purcell.
Admittedly, this Court has not addressed whether the Purcell principle can
ever independently justify a state court’s last-minute alteration to federal election
rules. However, the primary rationale underlying Purcell v. Gonalez—preventing
chaos in a federal election, 549 U.S. 1, 4–5 (2006)—squarely fits this case. The
Missouri Supreme Court’s order dramatically changes the congressional map after a
Primary Election—an unprecedented act this Court has probably never reviewed
before. Missouri election officials are confident that—absent relief—they will be
forced to violate the federal election calendar. App., infra, at 1668a. Indeed, they are
unsure whether they can hold a timely election on November 3 at all. Id. at 1027a,
1667–68a. If the Missouri Supreme Court’s order is somehow immune from being
stayed under Purcell, no federal election is safe from last-minute state court-ordered
disruptions.
In any event, this Court need not decide whether Purcell independently
requires staying the order here. At a minimum, this Court already recognized in
Malliotakis v. Williams that Purcell-related equitable concerns can support staying a
state court order that disrupts congressional maps before an upcoming election. 146
S. Ct. at 810–11 (Alito, J., concurring in grant of stay). There, this Court stayed a
state court order that altered New York’s congressional map despite New York’s
insistence that the Purcell principle actually shielded its actions. Id. As Justice Alito
explained, the Court’s “stay, far from causing disruption or upsetting legitimate
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expectations, eliminates much of the uncertainty and confusion that would exist if
the [New York] Independent Redistricting Commission proceeded to draw a new
district that this Court would likely strike down if the cases reached us in time.” Id.
at 811.
This case is far easier than Malliotakis. There, New York’s Primary Election
was scheduled to begin four months after the Court granted the stay. See id. at 816
(Sotomayor, J., dissenting from grant of stay). This Court has recognized that a state
court changing a congressional map before a Primary—as occurred in Malliotakis—
is disruptive. Id. at 810–11 (Alito, J., concurring in grant of stay). Certainly changing
a map after the Primary is far worse. And here, voting for the 2026 General Election
begins in just 15 days—three-and-a-half months less time than existed before the
Primary Election in New York. Under the unique and extraordinary circumstances
present in this case, the equities overwhelmingly favor a stay.
One final point bears mention. Recognizing that Purcell-related concerns
support a stay is hardly unfair to Respondent or the Missouri Supreme Court. The
Missouri Supreme Court itself has adopted this Court’s Purcell principle as a matter
of state law. See Hadley v. Junior Coll. Dist. of Metro. Kan. City, 460 S.W.2d 1, 2–3
(Mo. 1970). In Hadley, the Missouri Supreme Court relied on this Court’s Reynolds
opinion and held that “[i]n awarding or withholding immediate relief [after
invalidation of a redistricting map], a court is entitled to and should consider the
proximity of a forthcoming election and the mechanics and complexities of state
election laws, and should act and rely upon general equitable principles.” Id. at 2
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(emphasis added) (quoting Reynolds, 377 U.S. at 585). In light of this principle,
Hadley held that it was too late to change the unconstitutional districts in that case
a few days before the close of the relevant candidate-filing period. Id. at 2–3. Here,
the relevant candidate-filing period closed over five months ago. Missouri also
completed its Primary Election over a month ago. Yet, without even mentioning
Hadley, the Missouri Supreme Court held that any consideration of “the confusion,
expense, and practical difficulties that may result” from enjoining the congressional
map was irrelevant. App., infra, at 12a–13a. The Missouri Supreme Court’s refusal
to engage with its own precedent “impermissibly distort[s]” state law—yet another
violation of the Elections Clause. Bush v. Gore, 531 U.S. 98, 115 (2000) (Rehnquist,
C.J., concurring); accord Moore, 600 U.S. at 39 (Kavanaugh, J., concurring)
(endorsing Chief Justice Rehnquist’s approach in Bush v. Gore).
* * *
The balance of the equities is more lopsided in this case than any case in which
this Court has ever granted a Purcell-related stay. Missouri has completed a Primary
Election, yet it now faces the unprecedented scenario of being forced to apply a starkly
different congressional map in the 2026 General Election. Voting starts in Missouri’s
General Election in 15 days. Election officials and public commentators are unsure
whether it is even possible to comply with the Missouri Supreme Court’s order. App.,
infra, at 1027a, 1667a–68a; see also Nathaniel Rakich (@baseballot), X (Sept. 3, 2026,
6:43 PM) (“If Missouri does have to use the 6-2 map, that’s fundamentally
incompatible with the primaries, which were conducted under the 7-1 map. Easiest
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solution would probably be to hold jungle primaries on Nov. 3, with runoffs at a later
date.”).7 Only this Court can prevent Missouri from being forced to disenfranchise
hundreds of thousands of voters; and only this Court can ensure that Missouri hosts
a timely and lawful federal congressional election. The Court should do so and grant
a stay.
CONCLUSION
This Court should grant the application for stay pending appeal and an
immediate administrative stay while it considers the application.
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September 4, 2026 Respectfully submitted,
CATHERINE L. HANAWAY
MISSOURI ATTORNEY GENERAL
/s/ Louis J. Capozzi, III
Louis J. Capozzi, III
Solicitor General
Counsel of Record
William J. Seidleck
Principal Deputy Solicitor General
J. Michael Patton
Deputy Solicitor General
Graham D. Miller
Deputy Solicitor General
Madeline S. Lansdell
Assistant Solicitor General
OFFICE OF THE MISSOURI
ATTORNEY GENERAL
Supreme Court Building
207 West High Street
P.O. Box 899
Jefferson City, MO 65102
(573) 645-9662
Louis.Capozzi@ago.mo.gov
Counsel for Applicant
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