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Von Glahn opposition to the stay application
Counsel for Richard von Glahn · 2026-09-07
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No. 26A304
IN THE
Supreme Court of the United States
______________
DENNY HOSKINS, in his official capacity as Missouri Secretary of State,
Applicant,
and
NATIONAL REPUBLICAN COMMITTEE, NATIONAL REPUBLICAN CONGRESSIONAL
COMMITTEE, AND MISSOURI REPUBLICAN STATE COMMITTEE,
Intervenor-Applicants,
v.
RICHARD VON GLAHN,
Respondent.
______________
RESPONDENT’S OPPOSITION TO EMERGENCY APPLICATION FOR
STAY AND ADMINISTRATIVE STAY PENDING APPEAL
______________
ABHA KHANNA CHARLES W. HATFIELD
Counsel of Record ALEXANDER C. BARRETT
ELIAS LAW GROUP LLP ALIXANDRA S. COSSETTE
1700 Seventh Ave., Suite 2100 GRETA M. BAX
Seattle, WA 98101 STINSON LLP
(206) 656-0177 230 W. McCarty Street
AKhanna@elias.law Jefferson City, MO 65101
(573) 636-6263
KATIE CHAMBLEE-RYAN chuck.hatfield@stinson.com
LUCAS LALLINGER alexander.barrett@stinson.com
ELIAS LAW GROUP LLP alix.cossette@stinson.com
250 Massachusetts Ave. NW greta.bax@stinson.com
Suite 400
Washington, DC 20001
(202) 948-1135
KChambleeRyan@elias.law
LLallinger@elias.law
Counsel for Respondent Richard von Glahn
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................... iii
INTRODUCTION .......................................................................................................... 1
BACKGROUND ............................................................................................................. 3
I. Missouri law has long permitted voters to suspend legislation through
the referendum process, including congressional redistricting
legislation. ........................................................................................................... 3
II. Voters timely invoked the referendum process against HB 1. .......................... 5
III. The Missouri Supreme Court confirmed that HB 1’s effectiveness
would remain unresolved until the referendum review process was
complete. ............................................................................................................. 7
IV. The Secretary implemented HB 1 for the primary and delayed ruling
on the referendum until primary day. ............................................................... 8
V. The Missouri Supreme Court held the referendum sufficient and
concluded that HB 1 had never taken effect...................................................... 9
VI. The general election is on track to proceed using the 2022
congressional map............................................................................................. 12
ARGUMENT ................................................................................................................ 13
I. This Court lacks jurisdiction because Applicants’ federal claims are
barred on an adequate and independent state-law ground. ........................... 13
II. Applicants seek relief a stay cannot provide. .................................................. 18
III. Applicants have no fair prospect of success on any federal claim. ................. 20
A. Neither the Missouri Supreme Court decision nor the Missouri
Constitution’s referendum process violates the Elections
Clause. .................................................................................................... 21
1. Applicants lack standing to assert the alleged Elections
Clause violations.......................................................................... 21
2. Referendum petitions may properly be applied to
congressional redistricting legislation under the
Elections Clause. ......................................................................... 23
i
B. The Missouri Supreme Court’s judgment does not create an
equal protection violation....................................................................... 28
C. Article I, Section 2 does not create a right to vote in the same
constituency during successive stages of an election. ........................... 32
IV. The equities foreclose relief for Applicants’ self-inflicted harm. ..................... 35
A. The Secretary manufactured the timing he now invokes as a
basis for relief. ........................................................................................ 35
B. The general election can proceed as scheduled without a stay. ........... 38
CONCLUSION............................................................................................................. 41
ii
TABLE OF AUTHORITIES
Page(s)
CASES
Adams v. Robertson,
520 U.S. 83 (1997) ....................................................................................... 14, 16
Ala. State Fed’n of Lab. v. McAdory,
325 U.S. 450 (1945) ........................................................................................... 20
Allen v. Milligan,
608 U.S. 511 (2026) ........................................................................................... 37
Anderson v. Celebrezze,
460 U.S. 780 (1983) ........................................................................................... 34
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n,
576 U.S. 787 (2015) ......................................................................... 11, 21, 24, 25
Barthuli v. Bd. of Trs. of Jefferson Elementary Sch. Dist.,
434 U.S. 1337 (1977) ......................................................................................... 19
Bost v. Ill. State Board of Elections,
607 U.S. 71 (2026) ............................................................................................. 34
Burdick v. Takushi,
504 U.S. 428 (1992) ........................................................................................... 34
Busbee v. Smith,
549 F. Supp. 494, 459 U.S. 1166 (D.D.C. 1982) ............................................... 40
California v. Freeman,
48 U.S. 1311 (1989) ........................................................................................... 17
Coleman v. Thompson,
501 U.S. 722 (1991) ........................................................................................... 14
Covington v. North Carolina,
316 F.R.D. 117 (M.D.N.C. 2016) ....................................................................... 33
Crawford v. Marion Cnty. Election Bd.,
553 U.S. 181 (2008) ........................................................................................... 34
iii
Cruz v. Arizona,
598 U.S. 17 (2023) ............................................................................................. 16
Donatelli v. Mitchell,
2 F.3d 508 (3d Cir. 1993) .................................................................................. 30
Ferrell v. Okla. ex rel. Hall,
339 F. Supp. 73, 406 U.S. 939 (W.D. Okla. 1972) ............................................ 31
Foster v. Chatman,
578 U.S. 488 (2016) ........................................................................................... 17
Gomez v. U.S. Dist. Ct. for N. Dist. of Cal.,
503 U.S. 653 (1992) ........................................................................................... 36
Graddick v. Newman,
453 U.S. 928 (1981) ........................................................................................... 22
Gray v. Sanders,
372 U.S. 368 (1963) ........................................................................................... 28
Growe v. Emison,
507 U.S. 25 (1993) ............................................................................................. 37
Harris v. Reed,
489 U.S. 255 (1989) ........................................................................... 2, 14, 15, 16
Hawke v. Smith,
253 U.S. 221 (1920) ..................................................................................... 11, 24
Hill v. McDonough,
547 U.S. 573 (2006) ........................................................................................... 36
Hollingsworth v. Perry,
558 U.S. 183 (2010) ........................................................................................... 41
Int’l Longshoremen’s Ass’n v. Davis,
476 U.S. 380 (1986) ........................................................................................... 14
Lance v. Coffman,
549 U.S. 437 (2007) ........................................................................................... 21
Lux v. Rodrigues,
561 U.S. 1306 (2010) ......................................................................................... 20
iv
Maggard v. State,
733 S.W.3d 411 (Mo. banc 2026) ............................................................ 7, 19, 35
Merrill v. Milligan,
142 S. Ct. 879 (2022) ......................................................................................... 36
Missourians to Protect the Initiative Process v. Blunt,
799 S.W.2d 824 (Mo. banc 1990) ...................................................................... 28
Mo. Gen. Assembly, v. von Glahn & People Not Politicians,
No. 4:25-cv-1535-ZMB, 2025 WL 3514277
(E.D. Mo. Dec. 8, 2025) ............................................................... 5, 11, 12, 22, 35
Moore v. Harper,
600 U.S. 1 (2023) ......................................................................................... 24, 27
NAACP Mo. State Conf. v. Kehoe,
734 S.W.3d 338 (Mo. banc 2026) .................................................................. 8, 35
Nken v. Holder,
556 U.S. 418 (2009) ......................................................... 2, 13, 18, 19, 22, 35, 41
Ohio ex rel. Davis v. Hildebrant,
241 U.S. 565 (1916) ..................................................................................... 23, 25
Padberg v. Roos,
404 S.W.2d 161 (Mo. banc 1966) ........................................................................ 4
Page v. Va. State Bd. of Elections,
58 F. Supp. 3d 533, 575 U.S. 931 (E.D. Va. 2014) ........................................... 33
Preisler v. Hearnes,
362 S.W.2d 552 (Mo. banc 1962) ........................................................................ 3
Republican Party of Oregon v. Keisling,
959 F.2d 144 (9th Cir. 1992) ............................................................................. 30
Rodriguez v. Popular Democratic Party,
457 U.S. 1 (1982) ................................................................................... 29, 30, 33
Rose v. Raffensperger,
143 S. Ct. 58 (2022) ........................................................................................... 37
v
Smith v. Allwright,
321 U.S. 649 (1944) ........................................................................................... 33
State ex rel. Davis v. Hildebrant,
114 N.E. 57 (Ohio 1916) .............................................................................. 23, 25
State ex rel. Kemper v. Carter,
165 S.W. 773 (Mo. banc 1914)............................................................................. 4
State ex rel. Moore v. Toberman,
250 S.W.2d 701 (Mo. banc 1952) .................................................................... 3, 4
State ex rel. Schrader v. Polley,
127 N.W. 848 (1910) .......................................................................................... 27
State ex rel. Stewart v. King,
562 S.W.2d 704 (Mo. banc 1978) ...................................................................... 15
Terrazas v. Slagle,
821 F. Supp. 1154 (W.D. Tex. 1992) ................................................................. 32
Texas v. Interstate Com. Comm’n,
258 U.S. 158 (1922) ........................................................................................... 19
Uhler v. AFL-CIO,
468 U.S. 1310 (1984) ......................................................................................... 17
United States v. Classic,
313 U.S. 299 (1941) ........................................................................................... 32
Va. House of Delegates v. Bethune-Hill,
587 U.S, 658, 663–68 (2019) ............................................................................. 22
Vera v. Bush,
933 F. Supp. 1341 (S.D. Tex. 1996) .................................................................. 40
Vera v. Richards,
861 F. Supp. 1304, 517 U.S. 952 (S.D. Tex. 1994) ........................................... 33
Walker v. Martin,
562 U.S. 307 (2011) ........................................................................................... 17
vi
CONSTITUTIONAL PROVISIONS AND STATUTES
U.S. Const. art. I, § II .............................................................................................. 3, 32
U.S. Const. art. III ................................................................................................ 18, 19
Mo. Const. art. III, § 49 .................................................................................... 3, 24, 27
Mo. Const. art. III, § 29 ........................................................................................... 5, 26
Mo. Const. art. III, § 52 ................................................................................... 4, 5, 8, 25
2 U.S.C. § 2 ................................................................................................................... 34
28 U.S.C. § 1257 ........................................................................................................... 14
Mo. Rev. Stat. § 1.185 .................................................................................................. 22
Mo. Rev. Stat. § 115.361 .............................................................................................. 40
Mo. Rev. Stat. § 115.363 .............................................................................................. 40
Mo. Rev. Stat. § 115.369 .............................................................................................. 40
Mo. Rev. Stat. § 115.527 ........................................................................................ 12, 39
Mo. Rev. Stat. § 115.531 ........................................................................................ 12, 39
Mo. Rev. Stat. § 116.120 ........................................................................................ 4, 7, 9
Mo. Rev. Stat. § 116.150 ...................................................................................... 4, 7, 15
Mo. Rev. Stat. § 116.200 .................................................................................... 4, 10, 19
Mo. Rev. Stat. § 128.348 ................................................................................................ 5
REGULATIONS
Mo. Code Regs. Ann. tit. 15 sec. 30-15.030 ................................................................... 9
vii
OTHER AUTHORITIES
Kacen Bayless, ‘We will be ready.’ Jackson County says it will comply with
Supreme Court map ruling, The Kan. City Star (Sept. 4, 2026),
https://perma.cc/9CN3-3KP4 ............................................................ 2, 13, 38, 40
viii
INTRODUCTION
The Emergency Application for Stay does not present a real emergency, and it
does not actually request a stay. Applicants, by their own admission, waited as long
as possible to manufacture the present dispute over Missouri’s congressional
districting map. See App. 739a (Missouri’s Attorney General publicly proclaiming
that “delay works in our favor”). After the General Assembly passed HB 1, a mid-
decade redistricting bill, voters timely submitted a valid referendum petition,
which—by operation of Missouri law—prevented HB 1 from taking effect. As the
Missouri Supreme Court explained, “HB 1 is not the law and has never been the
law.” App. 12a n.8. “[T]he congressional districts the General Assembly established
in 2022 remain in full force and effect for the November 2026 election.” App. 13a.
Yet Missouri’s Secretary of State waited until the last possible day—and only
after he had implemented HB 1 in the congressional primary—to object to the
referendum, in the hopes of running out the clock on the judiciary’s tolerance for a
last-minute reversion to the 2022 districts. Now that the Missouri Supreme Court
has rejected his gambit, he asks this Court to deliver him the political victory to which
he was never entitled under the Missouri Constitution. This Court cannot and should
not reward the Secretary’s scheme to outsmart Missouri voters, Missouri law, and
the Missouri Supreme Court by granting Applicants the extraordinary relief they
seek.
Even considering Applicants’ request would require this Court to disregard the
ordinary limits on its review of state-court judgments. The Missouri Supreme Court
1
expressly held that the Secretary “waived and abandoned” his federal objections by
failing to preserve them in the manner Missouri law requires. App. 5a n.5. Under this
Court’s settled adequate-and-independent-state-ground doctrine, that state
procedural ruling ends the matter: this Court does not review federal claims barred
on an adequate and independent state-law ground. See Harris v. Reed, 489 U.S. 255,
260–61 (1989).
If Applicants clear that hurdle, the next problem is the request itself: a stay
will not provide the relief Applicants seek. What Applicants really seek is a green
light from this Court to allow the Secretary to violate the Missouri Constitution by
implementing HB 1, notwithstanding the Missouri Supreme Court’s ruling that HB
1 is not and never has been the status quo under Missouri law. But that extraordinary
request would require an injunction—not a stay—relief Applicants have not sought,
and which requires an exceptionally demanding showing Applicants cannot make.
See Nken v. Holder, 556 U.S. 418, 428–29 (2009).
Nor do the merits provide any grounds for relief. Applicants’ Elections Clause
theory runs headlong into more than a century of precedent recognizing that state
constitutional referendum procedures may constrain congressional-redistricting
legislation. And their theories under the Equal Protection Clause and Article I,
Section 2 ask this Court to recognize a right no precedent confers: a guarantee to
preserve every consequence of a primary vote through November.
Equity does not support a stay where, as here, the applicants both created the
alleged problem and cannot show that a stay is necessary to solve it. This Court need
2
not rescue the Secretary from a timing problem of his own making—much less by
authorizing use of a map Missouri’s highest court has held has never been law. The
application should be denied.
BACKGROUND
I. Missouri law has long permitted voters to suspend legislation through
the referendum process, including congressional redistricting
legislation.
The Missouri Constitution grants its citizens the “power to approve or reject
by referendum any act of the general assembly,” subject to enumerated exceptions.
Mo. Const. art. III, § 49 (emphasis added). That power extends to congressional
redistricting legislation. As the Missouri Supreme Court recognized more than 60
years ago, Missouri voters retain “a remedy for even valid [congressional]
redistricting[] which they do not like, through [Missouri’s] initiative and referendum
provisions.” Preisler v. Hearnes, 362 S.W.2d 552, 557 (Mo. banc 1962).
Under Missouri law, a referendum on an act of the General Assembly may be
ordered either by the General Assembly itself or “by petitions signed by five percent
of the legal voters in each of two-thirds of the congressional districts in the state.”
Mo. Const. art. III, § 52(a). Such petitions must be filed with the Secretary of State
before a bill takes effect and becomes law. Id.; see State ex rel. Moore v. Toberman,
250 S.W.2d 701, 706 (Mo. banc 1952). The petition is then subject to a statutory
certification process, where the Secretary must “examine the petition to determine
whether it complies with the Constitution of Missouri” and state law. Mo. Rev.
Stat. § 116.120(1). The Secretary completes the process by issuing a certificate of
3
sufficiency or insufficiency by the statutory deadline. Id. § 116.150(3). Any citizen
may then challenge the Secretary’s determination in state court within ten days.
Id. § 116.200.1.
Missouri law also defines the effect of a referendum on the challenged
legislation while the referendum process remains underway. Under Article III,
Section 52(b), once legislation has been “referred to the people,” it “shall take effect
when approved by a majority of the votes cast thereon, and not otherwise.” Mo. Const.
art. III, § 52(b) (emphasis added). In short, under the Missouri Constitution, a “legal,
sufficient, and timely” referendum petition suspends the challenged legislation
unless and until the voters approve it. State ex rel. Kemper v. Carter, 165 S.W. 773,
779 (Mo. banc 1914); Toberman, 250 S.W.2d at 706 (explaining that the “‘[p]urpose of
[a] referendum is to suspend or annul a law which has not gone into effect” and
“require [voters’] approval before it become operative” (citations omitted)).
While the people retain the power to override legislation by referendum,
Missouri law provides the General Assembly a corresponding check: the General
Assembly may attach an “emergency clause” to the legislation. App. 8a. Such
“emergency” legislation is exempted from referendum challenges when a court
determines that the act is “necessary for the immediate preservation of the public
peace, health or safety.” App. 9a (quoting Inter-City Fire Prot. Dist. v. Gambrell, 231
S.W.2d 193, 199–200 (Mo. banc 1950)). The General Assembly may thus insulate its
redistricting legislation when it can show “a manifest necessity for immediate
legislative change.” Padberg v. Roos, 404 S.W.2d 161, 168 (Mo. banc 1966).
4
II. Voters timely invoked the referendum process against HB 1.
On September 12, 2025, the Missouri General Assembly enacted House Bill 1,
a congressional redistricting law replacing Missouri’s 2022 congressional map. App.
17a. The General Assembly did not include an emergency provision in the bill, see
Mo. Const. art. III, § 29, leaving it ineligible for the “immediate preservation”
referendum exemption, id. art. III, § 52(a). By operation of law, the bill was scheduled
to take effect on December 11, 2025. See Mo. Rev. Stat. § 128.348 (effective Dec. 11,
2025); Mo. Const. art. III, § 29.
Respondent Richard von Glahn and People Not Politicians then launched a
referendum campaign for a popular vote on HB 1. By September 29, 2025, the
campaign had submitted a referendum petition to the Secretary to obtain the
approval required to circulate the petition for signatures. App. 17a; App. 409a. The
Secretary approved the petition for circulation on October 14, 2025. App. 475a.
The following day, the Secretary and the Missouri General Assembly jointly
filed a federal action seeking to enjoin the referendum on both state and federal
constitutional grounds. App. 608a–631a. Specifically, the Secretary alleged that the
referendum provision does not apply to congressional redistricting legislation under
the state constitution and could not restrict the General Assembly’s redistricting
authority under the Elections Clause of the federal Constitution. App. 627a–630a. On
December 8, the district court dismissed the case as unripe. See Mo. Gen. Assembly
v. von Glahn & People Not Politicians, No. 4:25-cv-1535-ZMB, 2025 WL 3514277 (E.D.
Mo. Dec. 8, 2025); App. 637a. The court reasoned that the Secretary had the authority
5
to assess the petition’s legal sufficiency, giving him “a tool at his disposal that almost
no other litigant could boast—the power to declare the petition unconstitutional
himself.” Mo. Gen. Assembly, at *4; App. 643a. Nor would conducting this assessment
“impose any measurable burden,” since the State had already “completed an
exhaustive analysis” of the issue “in briefing this case.” Mo. Gen. Assembly, at *4;
App. 643a. The court also recognized that, if the petition proved sufficient, “the new
map w[ould] be frozen until after the referendum.” Mo. Gen. Assembly, at *2;
App. 639a.
On December 9, 2025, von Glahn and People Not Politicians submitted 691
boxes of referendum petitions to the Secretary containing more than 300,000
signatures—more than twice the required number. App. 738a; App. 18a. That
submission triggered the Secretary’s statutory duty to determine whether the
petition complied with Missouri law. See Mo. Rev. Stat. §§ 116.120–.140. The
statutory deadline for completing that review was “5:00 p.m. on the thirteenth
Tuesday prior to the general election.” Id. § 116.150(3). Here, that deadline fell on
August 4, 2026—the same day as Missouri’s primary election.
6
III. The Missouri Supreme Court confirmed that HB 1’s
effectiveness would remain unresolved until the referendum
review process was complete.
With both the statutory deadline and the primary still months away, the
Missouri Supreme Court confirmed that HB 1’s legal status would remain unresolved
until the Secretary acted and judicial review was complete. After the petition and
signatures were submitted, two qualified Missouri voters who signed the referendum
petition sought clarity as to whether HB 1 was in effect while the petition remained
pending. Maggard v. State, 733 S.W.3d 411, 413 (Mo. banc 2026). In a decision on
May 12, 2026, the Missouri Supreme Court reaffirmed that a “legal, sufficient, and
timely” referendum petition pauses the effective date of the legislation at issue until
a majority of voters approve it. Id. at 420.
The Maggard court explained, however, that whether the December 9 petition
had that effect could be determined “[o]nly” after the Secretary “has issued a
certificate of sufficiency or insufficiency . . . and the judicial review of that
certificate . . . is complete.” Id. at 419 (emphasis added). If the petition “[wa]s
ultimately determined to be insufficient, HB 1 became the law on December 11,” its
scheduled effective date. Id. at 419–20. If the petition was “ultimately determined to
be sufficient,” however, “HB 1 did not take effect on December 11.” Id. at 420. It
instead “was ‘referred to the people’ as of December 9,” and “shall take effect when
approved by a majority of the votes cast thereon, and not otherwise.” Id. (emphasis
added) (quoting Mo. Const. art. III § 52(b)). That ultimate sufficiency determination—
7
not the Secretary’s interim view of HB 1’s legal status—would “decide whether HB 1
did (or did not) go into effect on December 11.” Id. at 419.
IV. The Secretary implemented HB 1 for the primary and delayed
ruling on the referendum until primary day.
The day after Maggard was decided, the Missouri Attorney General issued an
opinion directing the Secretary and local election officials to use HB 1 for the 2026
primary. Mo. Att’y Gen., Op. Letter 03-2026 (May 13, 2026); see also App. 19a. The
Secretary followed suit, instructing election officials that HB 1 “remain[ed] in full
force and effect until a determination and certification of sufficiency or insufficiency
has been issued under the referendum process.” App. 1355a.
Less than two weeks later, in an opinion addressing whether HB 1 was
constitutional under Missouri law, the Missouri Supreme Court reiterated the
consequence if the petition were found sufficient: “If the December 9, 2025
referendum petition is sufficient after any judicial review—HB 1 never went into
effect and will not go into effect unless and until approved by the voters.” NAACP Mo.
State Conf. v. Kehoe, 734 S.W.3d 338, 341 n.4 (Mo. banc 2026). Nevertheless,
pursuant to the Secretary’s instructions, local election officials implemented HB 1 in
Missouri’s Centralized Voter Registration system, creating new districts matching
those described in HB 1. App. 19a. 1
When the Missouri Supreme Court made those pronouncements, the petition
had been pending for nearly six months, and more than two months remained before
1 The Missouri Centralized Voter System is under the control of, and managed by,
the Secretary of State. Mo. Code Regs. Ann. tit. 15 sec. 30-15.030.
8
the primary. Still, the Secretary issued no certification decision on sufficiency.
Instead, he undertook individual review of hundreds of thousands of signatures, even
though Missouri law permitted him to verify them through random sampling or by
relying on the circulator affidavits accompanying the petition. See Mo. Rev. Stat.
§ 116.120(1); App. 12a n.8. In January 2026, as the signature review process began,
the Missouri Attorney General publicly acknowledged the strategic value of the delay:
“As long as the status quo is the new maps, delay works in our favor.” App. 739a.
At approximately 4:00 p.m. on August 4, 2026—one hour before the statutory
deadline and while Missouri’s primary was underway—the Secretary issued a
certificate declaring the referendum petition insufficient. App. 4a, 599a. To explain
the decision, the certificate offered a single sentence expressing just one rationale: “I
find the referendum petition insufficient under the Missouri Constitution because the
Missouri Constitution does not authorize a referendum on congressional redistricting
plans passed by the General Assembly.” Id. The certificate also purported to
incorporate by reference the Attorney General’s May opinion directing officials to use
HB 1 for the primary. App. 599a–606a.
V. The Missouri Supreme Court held the referendum sufficient and
concluded that HB 1 had never taken effect.
On August 4, 2026, within hours after the Secretary issued his certificate of
insufficiency, von Glahn filed a state-court action challenging the Secretary’s
certification decision, as authorized by statute. See Mo. Rev. Stat. § 116.200.1. The
trial court affirmed the Secretary’s decision, and Mr. von Glahn appealed to the
Missouri Supreme Court, which reviewed the case de novo. App. 4a. On September 3,
9
2026, the Missouri Supreme Court unanimously reversed, ordered the Secretary to
place the referendum on the November ballot, and enjoined implementation of HB 1
until the voters approved it. App. 2a.
The Court explained that the case presented a question of state law: whether
the Missouri Constitution permits a referendum on congressional redistricting
legislation enacted by the General Assembly. App. 1a. As a matter of “plain
language,” the Court held that it does. App. 2a. The consequence was that HB 1 never
took effect: “Because the referendum petition was legal, sufficient, and timely, HB 1
never took effect and was referred to the voters as of December 9, 2025. The
congressional districts the General Assembly established in 2022 remain in full force
and effect for the November 2026 general election, and HB 1 will not take effect unless
and until approved by the voters.” App. 13a. The Court made it clear that, under
Missouri law, “HB 1 is not the law and has never been the law. There is only one valid
congressional redistricting in effect—the congressional redistricting the General
Assembly established in 2022.” App. 12a n.8.
Although the Secretary raised federal-law objections in his briefing, the
Missouri Supreme Court held that, as a matter of state law, the Secretary’s review—
and therefore judicial review of his decision—was limited to compliance with the
Missouri Constitution and governing state statutes. App. 5a. The Court also held
that, as a matter of state law, the Secretary had waived any federal-law objections
not stated in his certificate of insufficiency and could not cure that omission by
purporting to incorporate the Attorney General’s opinion by reference. App. 5a n.5.
10
The Court also noted that, “the United States Supreme Court has held on multiple
occasions the United States Constitution permits a state to authorize a referendum
as to legislation drawing new congressional districts.” App. 6a (citing Ohio ex rel.
Davis v. Hildebrant, 241 U.S. 565, 569 (1916); Hawke v. Smith, 253 U.S. 221, 230–31
(1920); Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n (“AIRC”), 576 U.S.
787, 805 (2015)).
As he does here, the Secretary argued that “confusion, expense, and practical
difficulties . . . may result” if HB 1 were not used in November 2026. App. 12a n.8.
The Court rejected that argument, finding that “the [S]ecretary’s delay created the
confusion, expense, and practical difficulties of which he complains.” Id. And the
Secretary was always on notice that this would be the result if the Missouri Supreme
Court ultimately found the referendum petition sufficient. A federal court stated it
plainly in December 2025, and the Missouri Supreme Court twice explained it in May
2026: a sufficient referendum petition would suspend HB 1 as of the date the petition
and signatures were filed, December 9, 2025. Id. (first citing Mo. Gen. Assembly, 2025
WL 3514277, at *2; then citing Maggard, 733 S.W.3d at 419–20; and then citing
11
NAACP, 734 S.W. 3d at 341 n.4). “[D]espite this clear guidance,” the Secretary chose
to delay certification “until the last possible day.” Id. 2
“Given these undisputed facts,” the Missouri Supreme Court found the
Secretary’s arguments about electoral confusion “wholly unpersuasive.” Id. And
whatever the Secretary had “incorrect[ly] assum[ed]” about the petition’s sufficiency,
using HB 1 in November would “not comport with the Missouri Constitution because
the 2022 map is the only map in effect.” Id. As the Missouri Supreme Court made
clear, “HB 1 is not the law and has never been the law.” Id.
VI. The general election is on track to proceed using the 2022
congressional map.
The general election is currently on track to take place under the 2022 map.
The Secretary certified the candidates based on the primary results on August 25,
2026, supplying nominees for each of the districts in the 2022 map. No one challenged
those nominees, as Missouri law permits, within the statutory timeframe, which has
now passed. Mo. Rev. Stat. §§ 115.527, 115.531.
On the day after the Missouri Supreme Court’s ruling in this case, the Election
Board of Directors for Jackson County—where the map’s most dramatic changes are
concentrated—issued a public statement reporting that it was prepared to implement
2 The Court noted that the Secretary also chose to incur “the time and expense of
signature verification,” even though, as the federal court had observed, there was “no
apparent reason why [the Secretary] would incur the significant cost of signature
verification given his stated belief that the petition is constitutionally deficient,”
App. 12a n.8 (alteration in original) (quoting Mo. Gen. Assembly, 2025 WL 3514277,
at *2 n.2). And indeed, once the deadline arrived, the Secretary denied the petition
on the constitutional grounds he had articulated nine months earlier, with no
mention of signature verification at all. Id.
12
the 2022 map in November. See Bayless, supra note 1. “We are equipped to make the
necessary changes,” the directors reported. “It will take some work on our end, but
we will be ready.” Id.
ARGUMENT
“A stay is an ‘intrusion into the ordinary processes of administration and
judicial review.’” Nken v. Holder, 556 U.S. 418, 427 (2009) (quoting Va. Petrol. Jobbers
Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958) (per curiam)).
Applicants therefore “bear[] the burden of showing that the circumstances justify”
one. Id. at 433–34. To decide whether to grant a stay, the Court considers (1) whether
“the stay applicant has made a strong showing that he is likely to succeed on the
merits,” (2) “whether the applicant will be irreparably injured absent a stay,” (3)
whether a stay “will substantially injure the other parties,” and (4) the public
interest. Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
Applicants have not carried their burden here. Their federal defenses are
waived on state procedural grounds, which supplies an adequate and independent
basis for their disposition; a stay would not provide Applicants the relief they seek;
and their claims are plainly without merit. The equities independently foreclose
relief: the Secretary knowingly created the urgency and disruption he now invokes,
and a stay would compound rather than alleviate uncertainty surrounding the
November election.
13
I. This Court lacks jurisdiction because Applicants’ federal claims
are barred on an adequate and independent state-law ground.
Applicants’ stay request cannot succeed because this Court lacks jurisdiction
over the federal-law questions they seek to raise. As the Missouri Supreme Court
stated in express terms, Applicants’ asserted federal-law violations were “waived and
abandoned” under state procedural law. App. 5a n.5.
This Court lacks jurisdiction to review a state court’s decision on a question of
state law. See 28 U.S.C. § 1257(a). Consequently, this Court will not consider a federal
issue on review from a state-court judgment when it rests on a state-law ground that
is both “independent” of the merits of the federal claim and “adequate” to support the
court’s decision. Harris v. Reed, 489 U.S. 255, 260–61 (1989). “This rule applies
whether the state law ground is substantive or procedural.” Coleman v. Thompson,
501 U.S. 722, 729 (1991). A federal claim is thus properly before this Court only if it
was raised “at the time and in the manner required by state law.” Adams v.
Robertson, 520 U.S. 83, 87 (1997) (per curiam). Where a state procedural rule
independently bars consideration of a federal claim, this Court’s “review is at an end.”
Int’l Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 387 (1986).
The Missouri Supreme Court left no room for doubt about the basis for its
disposition of the federal claims: the Secretary had “waived and abandoned” the
federal-law theories Applicants now ask this Court to decide. App. 5a n.5. Missouri
law required the Secretary to “issue a certificate stating the reason for the
insufficiency.’” Id. (quoting Mo. Rev. Stat. § 116.150.2). The Secretary “stated a single
reason: ‘the Missouri Constitution does not authorize a referendum on congressional
14
redistricting plans passed by the general assembly.’” Id. And although he purported
to “incorporate[] by reference” an Attorney General opinion addressing additional
theories, the Missouri Supreme Court held that Missouri law “does not authorize” the
Secretary “to delegate his statutory duty by attaching and incorporating by reference
a document prepared and signed by another person or entity.” Id. 3 Accordingly, “to
the extent the [S]ecretary, by attaching the attorney general’s ‘opinion’ or through
subsequent briefing, has attempted to raise other arguments beyond those set out in
his certificate, those arguments have been waived and abandoned,” including
“claimed federal law violations and whether the congressional redistricting in HB 1
should or must remain in place through the 2026 election cycle.” Id. That “plain
statement” by the Missouri Supreme Court is dispositive of this Court’s jurisdiction
here. Harris, 489 U.S. at 261–62 (citing Michigan v. Long, 463 U.S. 1032, 1042
(1983)).
Applicants attempt to evade that holding by pretending the Missouri Supreme
Court simply declined to engage with their federal arguments. The Secretary
repeatedly claims the court “simply ignored” his federal constitutional defenses.
Appl., 2; see also id. at 15 (“What of the Secretary’s federal defenses? The Missouri
Supreme Court blatantly ignored them.”). Intervenors offer the same account. In
their telling, the Court “simply ignored federal law when crafting its remedy because
3 There is no role for the Attorney General in the final sufficiency certification. Mo.
Rev. Stat. § 116.150. In Missouri, the opinion of the attorney general is entitled to “no
more weight ‘than that given the opinion of any other competent attorney.’” State ex
rel. Stewart v. King, 562 S.W.2d 704, 709 (Mo. banc 1978) (quoting Gershman Inv.
Corp. v. Danforth, 517 S.W.2d 33, 36 (Mo. banc 1974)).
15
it concluded that state law limits review of a referendum petition to compliance with
the Missouri Constitution.” Intervenors’ Br. 3.
That erases the procedural grounds for the Missouri Supreme Court’s holding.
True, the Court also concluded that the federal defenses fell outside the scope of the
Secretary’s statutory review of the referendum petition. App. 2a, 5a n.5. But that was
not the Court’s sole basis for declining to address Applicants’ federal theories. The
court’s separate finding that those theories had been “waived and abandoned”
independently barred consideration of the federal claims. Harris, 489 U.S. at 260–61;
see Adams, 520 U.S. at 87 (finding that this Court lacked jurisdiction because
petitioners had not shown they had presented the federal claim in accordance with
state procedural rules). Even when a state court articulates another basis for
rejecting a federal issue, a state procedural bar is independently dispositive “as long
as the state court explicitly invokes” it “as a separate basis for decision.” Harris, 489
U.S. at 264 n.10.
Applicants can seek no recourse in the narrow exception this Court has
recognized where a state court adopts a “novel and unforeseeable” approach to a state
procedural bar that lacks “fair or substantial support in prior state law.” Cruz v.
Arizona, 598 U.S. 17, 30–31 (2023) (quoting Walker v. Martin, 562 U.S. 307, 320
(2011)). There is nothing “novel” about the Missouri Supreme Court’s reading of
Missouri law’s express command that the Secretary’s certificate “stat[e] the reason
for the insufficiency.” Mo. Rev. Stat. § 116.150(2). Indeed, in a separate case decided
on the same day, the Missouri Supreme Court independently applied the same
16
construction of section 116.150.2, holding that, “because the [S]ecretary failed to state
any reason for his insufficiency determination, he failed to comply with section
116.150.2 and preserved nothing for this Court’s review.” Harris v. Hoskins, No.
SC101806, slip. op. at 6 (Mo. banc. Sept. 3, 2026). Applicants do not even argue that
anything about section 116.150.2 was uncertain—which would still not be enough to
render it inadequate, Walker, 562 U.S. at 320 (quoting Prihoda v. McCaughtry, 910
F.2d 1379, 1385 (7th Cir. 1990))—much less that this was the sort of “freakish[]”
application of state law that displaces the ordinary rule, id. (quoting Prihoda, 910
F.2d at 1383).
Because the Missouri Supreme Court expressly invoked an independent state
procedural bar as a separate basis for refusing to consider Applicants’ federal
theories, this Court lacks jurisdiction to review those theories. That alone forecloses
relief. See Uhler v. AFL-CIO, 468 U.S. 1310, 1311–12 (1984) (Rehnquist, C.J.)
(denying election-related stay where “a majority of this Court would conclude that
there [wa]s an adequate and independent state ground” for the decision below); see
also California v. Freeman, 48 U.S. 1311, 1313–15 (1989) (O’Connor, J.) (denying stay
application because the challenged state-court judgment rested on an adequate and
independent state law ground); Foster v. Chatman, 578 U.S. 488, 521 (2016) (Alito,
J., concurring) (explaining that “[t]o the extent that [a state court] decision” is “based
on a state [procedural] rule . . . the decision has a state-law component, and we have
no jurisdiction to review a state court’s decision on a question of state law”).
17
II. Applicants seek relief a stay cannot provide.
Applicants face a second serious obstacle under Article III: a stay would not
grant Applicants the relief they seek. The judgment below did not replace one legally
operative map with another. App. 2a. The Missouri Supreme Court held that, under
Missouri law, HB 1 never became effective because a timely and sufficient referendum
petition suspended it. App. 13a (“HB 1 did not go into effect and will not go into effect
unless and until approved by the voters. The congressional redistricting the General
Assembly established in 2022 remains in full force and effect for the November 2026
election.”). On that basis, the court ordered the Secretary to put the redistricting
referendum on the ballot in November. Id. The Secretary does not contest that
mandatory injunction. See Appl. 34 (“Regardless of this Court’s decision, Respondent
will get a statewide vote on the HB 1 congressional map.”). The Court further
“restrained and enjoined” the Secretary and those acting in concert with him from
“implementing, using, or mandating the use of” HB 1 until the voters approve it. App.
2a. That prohibitory injunction against using HB 1 in November is the sole target of
Applicants’ stay.
A stay from this Court can only be used to “suspend[] judicial alteration of the
status quo,” Nken, 556 U.S. at 429—but HB 1 was not the legal status quo before the
judgment. Months earlier, the Missouri Supreme Court had held that, “[o]nly when
the chapter 116 certification process is final”—meaning only after the Secretary
issues a certificate “and the judicial review the General Assembly authorized . . . is
complete”—can it be determined whether the referendum petition was sufficient and
18
thus whether HB 1 took effect. Maggard, 733 S.W.3d at 419 (emphasis added).
Section 116.200 itself confirms that judicial review includes an appeal to the Missouri
Supreme Court. See Mo. Rev. Stat. § 116.200(1)–(3). In conducting that review, the
Missouri Supreme Court not only found the referendum petition sufficient, it made
clear that, as a result, “HB 1 is not the law and has never been the law.” App.
12a n.8 (emphasis added). Instead, “[t]here is only one valid congressional
redistricting in effect—the congressional redistricting the General Assembly
established in 2022.” Id. In short, under Missouri law, the 2022 Plan is the legal
status quo, not HB 1.
A stay of the Missouri Supreme Court’s judgment therefore would not supply
an affirmative determination that HB 1 became effective, nor would it direct election
officials to administer the November election under HB 1. See Nken, 556 U.S. at 428
(noting that a stay “temporarily suspend[s] the source of authority to act” but does
not “direct[] an actor’s conduct”). At most, a stay could relieve Applicants of the
Missouri Supreme Court’s affirmative bar on implementing a map that the Secretary
never had authority to use in the first place. It could not make HB 1 legally effective
or authorize the Secretary or anyone else to implement a legally defunct map. Merely
lifting the injunction on HB 1 would thus “affect no [party’s] present right[]” to
implement HB 1 in November. Barthuli v. Bd. of Trs. of Jefferson Elementary Sch.
Dist., 434 U.S. 1337, 1338 (1977) (Rehnquist, J., in chambers). Article III does not
authorize federal courts to issue such abstract relief. See Texas v. Interstate Com.
Comm’n, 258 U.S. 158, 162 (1922) (stating that judicial power extends only where
19
legally cognizable rights “are being, or [are] about to be, affected prejudicially”); see
also Ala. State Fed’n of Lab. v. McAdory, 325 U.S. 450, 461 (1945) (courts do not decide
“abstract, hypothetical or contingent questions”).
Ultimately, if what Applicants seek is this Court’s blessing to implement HB 1
in contravention of Missouri law, they must secure an order affirmatively
establishing the Secretary’s authority to use it. That requires an injunction, not a
stay. See Nken, 556 U.S. at 429 (distinguishing a stay, which “suspend[s] judicial
alteration of the status quo,” from an injunction, which “grants judicial intervention
that has been withheld by lower courts” (alteration in original) (citation omitted)).
Applicants have not sought that relief. And to do so, Applicants would be required to
show “legal rights at issue” are “indisputably clear” in their favor. Lux v. Rodrigues,
561 U.S. 1306, 1307 (2010) (Roberts, C.J., in chambers) (citation omitted). Applicants
have not even attempted to make that showing. The petition should be denied.
III. Applicants have no fair prospect of success on any federal claim.
Applicants are unlikely to secure this Court’s review and even less likely to
prevail if review is granted. Their Elections Clause claims fail twice over: neither
Applicant has standing to assert the General Assembly’s alleged institutional injury,
and their legal theory is squarely foreclosed by this Court’s precedent. Applicants’
purported voting rights claims fare no better; this Court has rejected any asserted
entitlement to vote for the same candidates within the same constituency at
successive stages of an election.
20
A. Neither the Missouri Supreme Court decision nor the Missouri
Constitution’s referendum process violates the Elections
Clause.
1. Applicants lack standing to assert the alleged Elections
Clause violations.
Applicants’ Elections Clause theories fail at the outset because neither the
Secretary nor the Republican Intervenors have standing to assert them. Their core
contention is that the Missouri Supreme Court unlawfully displaced authority the
Elections Clause assigns to the state legislature. Appl. 17–23; Intervenors’ Br. 18–29.
But while a state legislature undoubtedly has standing to vindicate such an injury to
its institutional authority, see, e.g., AIRC, 576 U.S. at 802–03, this Court has rejected
an Elections Clause claim brought by private citizens, see Lance v. Coffman, 549 U.S.
437, 441–42 (2007) (per curiam). The Court in Lance held that the plaintiffs’ alleged
injury that “the Elections Clause[] has not been followed” is “precisely the kind of
undifferentiated, generalized grievance about the conduct of government that we
have refused to countenance in the past.” Id. at 442.
This is at bottom the same argument that Applicants—a political party
(Intervenors) and a state executive official (the Secretary)—make here. Neither is the
General Assembly, nor has any power or authority to assert an institutional injury
on that entity’s behalf. And Applicants provide no reason to find otherwise. Any
Elections Clause claim that Intervenors purport to bring on behalf of their voters is
squarely foreclosed by Lance, see App. 244a (stating that the Missouri Republican
State Committee represents “its voters”), while the Secretary’s claim to standing fails
on multiple levels. Whether one state governmental entity is authorized to represent
21
another’s interests in federal court turns on state law. See Va. House of Delegates v.
Bethune-Hill, 587 U.S, 658, 663–68 (2019). Missouri law affirmatively prescribes who
may litigate on its legislature’s behalf: the Speaker may intervene “on behalf of the
house of representatives,” the President Pro Tem “on behalf of the senate,” and the
two acting jointly may intervene “on behalf of the general assembly.” Mo. Rev. Stat.
§ 1.185(6)–(8). No statute designates the Secretary as the General Assembly’s
representative in court.
The State’s own litigation conduct concerning this petition confirms the
distinction. When Missouri pressed the same Elections Clause theory in a federal
lawsuit challenging the referendum last year, it did not rely on the Secretary to raise
those concerns: the Missouri General Assembly itself appeared as a plaintiff. See
generally Mo. Gen. Assembly, 2025 WL 3514277. The reason is obvious: an alleged
usurpation of the General Assembly’s constitutionally assigned authority is the
General Assembly’s injury to assert.
Since neither Applicant has established standing to press the General
Assembly’s alleged Elections Clause injury, they can show neither a reasonable
probability of certiorari nor a fair prospect of reversal on those claims. See Graddick
v. Newman, 453 U.S. 928, 934 (1981) (Powell, J., in chambers) (denying stay
application where state attorney general “had made no showing that he was the
proper official to assert that claim”).
22
2. Referendum petitions may properly be applied to
congressional redistricting legislation under the Elections
Clause.
Applicants’ Elections Clause theory fares no better on the merits. More than a
century ago, this Court rejected the contention that applying a state constitutional
referendum provision to congressional redistricting legislation violates the Elections
Clause, finding that argument “plainly without substance.” Hildebrant, 241 U.S. at
569. That precedent—reaffirmed multiple times since—forecloses Applicants’
Elections Clause challenge to Missouri’s referendum process.
In Hildebrant, this Court considered an Elections Clause challenge to Ohio’s
Constitution, which—like Missouri’s—reserved to the people “the power to adopt or
reject any law . . . passed by the General Assembly” by referendum, absent certain
exceptions. State ex rel. Davis v. Hildebrant, 114 N.E. 55, 56 (Ohio 1916) (quoting
Ohio Const. art. II, § 1c (1912)), aff’d, 241 U.S. 565 (1916). After the Ohio legislature
enacted a congressional redistricting plan, voters invoked that process and referred
the plan for referendum, Hildebrant, 241 U.S. at 566. This Court unanimously upheld
the referendum against an Elections Clause challenge, holding that the Elections
Clause does not prohibit states from “treating the referendum as a part of the
legislative power for the purpose of apportionment where so ordained by the state
constitutions and laws.” Id. at 569.
This Court has repeatedly reaffirmed that holding. In Arizona State
Legislature v. Arizona Independent Redistricting Commission, this Court held that a
“referendum authorized by” a state’s “Constitution ‘was a part of the legislative power
23
of the State,’ and ‘nothing in [federal statutory law] or in [the Elections Clause]
operated to the contrary.’” 576 U.S. at 805 (alteration in original) (quoting Hildebrant,
241 U.S. at 567). And just three years ago in Moore v. Harper, this Court again
confirmed that “whatever authority [i]s responsible for redistricting, that entity
remain[s] subject to constraints set forth in the State Constitution,” which
“may include [a] referendum” process. 600 U.S. 1, 25–26 (2023); see also Hawke, 253
U.S. at 230–231 (1920) (A “referendum provision of [a] state Constitution, when
applied to a law redistricting the state with a view to representation in Congress, [i]s
not unconstitutional.”).
This Court’s precedent thus forecloses Applicants’ claims. Just like the Ohio
Constitution reviewed in Hildebrant, the Missouri Constitution reserves to the people
the power to approve or reject “any act of the general assembly” by referendum,
subject to enumerated exceptions. Mo. Const. art. III, § 49. Like the voters in
Hildebrant, von Glahn and People Not Politicians invoked that process to submit
redistricting legislation to the people for a vote. And as this Court concluded in
Hildebrant, nothing about that process violated the Elections Clause. See 241 U.S. at
566–69; App. 5a–8a.
Applicants attempt to distinguish Hildebrant but cannot avoid its application
here. They first attempt to style their claim as a narrow defense against overreach,
arguing that, though the Elections Clause may generally permit referenda on state
redistricting legislation, it “forbids permitting a small fraction of a State’s voters from
suspending a congressional map . . . before a statewide vote.” Appl. 18. To that end,
24
they emphasize that Missouri requires approximately 3.3 percent of qualified voters
to approve a referendum, Appl. 17–18, 4 compared to six percent required in Ohio,
Hildebrant, 241 U.S. at 566. But nothing in Hildebrant or its progeny suggests that
its constitutional holding depended on the referendum threshold. The relevant
constitutional question is whether the referendum forms part of the state’s
lawmaking process, not how many signatures are required to invoke it. See AIRC,
576 U.S. at 808 (explaining that redistricting is “a legislative function, to be
performed in accordance with the State’s prescriptions for lawmaking, which may
include the referendum”).
Applicants next attempt to distinguish this case on the grounds that Missouri’s
referendum procedure suspends legislation upon the filing of a valid petition. See
Appl. 17–18. But once again Hildebrant is on all fours. Ohio’s Constitution, like
Missouri’s, provided that when a petition is filed within 90 days of a bill’s enactment,
“the secretary of state shall submit” that legislation “to the electors of the state, for
their approval or rejection of such law” “at the next succeeding regular or general
election,”—“and no such law . . . shall go into effect until and unless approved by a
majority of those voting upon the same.” State ex rel. Davis v. Hildebrant, 114 N.E. at
57 (quoting Ohio Const. art. II, § 1c (1912)) (emphasis added); see also Hildebrant,
241 U.S. at 566 (“[I]f approved, the law should be operative, and if not approved, it
should have no effect whatever.”). Applicants can point to no meaningful difference
4 The requirement is 5% of the legal voters in two-thirds of Missouri’s congressional
districts. Mo. Const. Art. III. Sec. 52(a).
25
between Ohio’s referendum provision approved in Hildebrant and Missouri’s
referendum provision challenged here.
And Applicants’ speculation about how such suspensions might operate in
practice find no purchase in the record. The Secretary contends that authorizing a
referendum over congressional redistricting legislation might imperil the State’s
ability to redistrict when new district lines are mandated by federal law, after the
decennial census. Appl. 20. But the Missouri Constitution allows the General
Assembly to shield redistricting legislation from referendum where it can establish
that a new map is “necessary for immediate preservation of the public peace.” App.
8a–9a. It was the General Assembly that took that exemption off the table here by
not attaching an emergency clause to HB 1, see Mo. Const. art. III, § 29. For good
reason: HB 1’s “optional, mid-decade redistricting” is “in no way necessary for ‘the
immediate preservation of the public peace’ because the 2022 congressional districts
established by the General Assembly”—and used in the 2022 and 2024 congressional
elections—“remain in place.” App. 9a.
After running into the wall of contrary authority from this Court, Intervenors
try another tack, contending that a “clear statement” is necessary before any entity
other than the General Assembly may participate in redistricting. Intervenors’ Br.
18. That argument rests on a false premise: that the Elections Clause vests
congressional redistricting authority exclusively in the General Assembly.
Intervenors’ Br. 27 (asserting that a clear statement is required to “displac[e] the
General Assembly’s authority over congressional redistricting”). But this Court has
26
rejected “the contention that the Elections Clause vests state legislatures with
exclusive and independent authority when setting the rules governing federal
elections.” Moore, 600 U.S. at 26. Rather, the Elections Clause assigns redistricting
authority to “the lawmaking body or power of the state, as established by the state
Constitution.” State ex rel. Schrader v. Polley, 127 N.W. 848, 850–851 (1910)
(emphasis added). As the Missouri Supreme Court confirmed, the Missouri
Constitution subjects redistricting legislation to the referendum process. 2a–6a.
There is no additional hurdle that must be cleared to allow Missouri’s lawmaking
process to operate as the Missouri Constitution designed.
In any event, the Missouri Constitution does include a clear statement
applying the referendum power to redistricting legislation. Article III, Section 49
states that “[t]he people . . . reserve power to approve or reject by referendum any act
of the general assembly, except as hereinafter provided.” Mo. Const. art. III, § 49
(emphasis added). As the Missouri Supreme Court concluded, redistricting legislation
is plainly an act of the General Assembly. App. 2a. No Elections Clause principle
permits this Court to disregard the Missouri Constitution’s clear statement
subjecting all such legislation to the referendum process.
Ultimately, what Applicants present as efforts to distinguish Hildebrant
amount to nothing more than policy disagreements with Missouri law. They argue
that failure to stay the decision below may incentivize other groups to initiate
additional petitions on subsequent redistricting measures, and that Missouri’s
referendum procedures are “anti-democratic.” Appl. 19–20. That is an odd accusation
27
to level at a process that gives the people the ultimate say over matters that concern
their political representation. In any event, questioning the wisdom of state
constitutional and statutory provisions does not transform Applicants’ policy
preferences into constitutional issues. Should Applicants wish to change those
processes, they must do so through the democratic process, not by repackaging their
state policy disputes as violations of federal law.
Applicants have no cognizable claim about intrusion into the General
Assembly’s power. The only Elections Clause problem this case presents is what the
Secretary is attempting now: to usurp the lawmaking process for congressional
redistricting as clearly set forth under Missouri law—a process that reserves a
referendum power to the people by design. See Missourians to Protect the Initiative
Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990) (admonishing courts “called
upon to intervene in the initiative process” to “act with restraint, trepidation and a
healthy suspicion of the partisan who would use the judiciary to prevent the initiative
process from taking its course”).
B. The Missouri Supreme Court’s judgment does not create an equal
protection violation.
Applicants wrongly contend that the Missouri Supreme Court’s judgment
violates the Equal Protection Clause “by transferring hundreds of thousands of voters
to new districts, but leaving other voters in the same district.” Appl. 27. They rely
principally on Gray v. Sanders, which invalidated an electoral system that weighted
votes in rural counties more heavily than votes in urban centers. 372 U.S. 368, 379
(1963). Nothing comparable is alleged here. Instead, Applicants complain that the
28
judgment requires some Missourians “to vote in a district different from the one in
which they cast their primary ballots.” Appl. 29. 5 Applicants identify no authority
holding that equal protection guarantees every voter the same electoral consequence
from a primary ballot.
To the contrary, this Court’s precedent confirms that equal protection does not
guarantee voters an uninterrupted opportunity to determine who ultimately
represents them, let alone who is nominated to represent them. In Rodriguez v.
Popular Democratic Party, this Court considered a statute permitting a political party
to fill a legislative vacancy by appointment rather than by election. 457 U.S. 1, 10–
12 (1982). The challengers argued that the scheme discriminated between voters
whose elected representatives completed their terms and voters in districts with
vacancies, because only the latter were “denied the opportunity to be represented by
an elected legislator.” Id. at 10 n.10. The Court found “nothing invidious or arbitrary”
about this distinction that would rise to the level of an equal protection violation. Id.
at 11. The appointment procedure did “not restrict access to the electoral process or
afford unequal treatment to different classes of voters or political parties.” Id. at 10.
As the Court observed, “[a]ll qualified voters have an equal opportunity to select a
district representative in the general election,” and any changes in representation
due to the interim appointment provision “applies uniformly to all legislative
vacancies.” Id.
5 That circumstance is not the result of the Missouri Supreme Court’s decision, but
the Secretary’s decision to conduct a primary election using districts he had been told
might not be lawful depending on the outcome of the sufficiency review.
29
Applying Rodriguez, federal courts have likewise rejected equal protection
challenges to the temporary representational discontinuities that can accompany
redistricting transitions. In Donatelli v. Mitchell, reapportionment placed voters in a
newly-created state-senate district, represented for the remainder of the pending
term by a senator whom those voters had not elected. 2 F.3d 508, 514–15 (3d Cir.
1993). Citing Rodriguez, the Third Circuit found no equal protection violation and
upheld the arrangement under rational basis review. Id. at 514–18; see also id. at 516
(finding “no constitutional basis” for claim that voters’ “right to vote for a state
senator” was “infringed because they [were] ‘assigned’ a senator who was not elected
by their district, or any significant portion of it”). In Republican Party of Oregon v.
Keisling, the Ninth Circuit rejected a challenge arising from the combined
consequences of reapportionment and staggered senate terms, which caused some
voters to wait six years between opportunities to vote for a state senator. 959 F.2d
144, 144–46 (9th Cir. 1992) (per curiam) (“Appellants’ challenge to the methods
chosen by appellee for regulating elections, in this case after reapportionment, has
been roundly rejected by the Supreme Court.”).
The alleged injury here is substantially less severe. All qualified Missouri
voters had an equal opportunity to participate in the August 4 primary, and “[a]ll
qualified voters [will] have an equal opportunity to select a district representative in
the general election,” Rodriguez, 457 U.S. at 10. If HB 1 is not implemented in
November, no voter will lose the right to vote or be deprived of the opportunity to vote
for their representative in the general election; some voters will have simply
30
participated in a primary under different district lines. Even that harm is
hypothetical. While Intervenors purportedly represent the interests of certain
Missouri voters, App. 244a, nothing in the record shows how many such voters exist,
how they might have voted differently, or how those votes could have altered the
primary results. If, as Rodriguez holds, equal protection permits some voters to be
represented by a legislator they had no opportunity to elect at all, it cannot be read
to forbid the narrower and far more speculative injury alleged here.
Rodriguez and the cases applying it thus expose the flaw in Applicants’
premise. Equal protection guarantees voters equal access to the electoral process and
equal weight for their votes. It does not guarantee that every voter will have had a
chance to participate in every electoral event that produced the candidates or
officeholders later presented to that voter. As one three-judge court observed, “[i]t is
impossible, where Senate district boundaries are changed, to avoid having some
voters represented by a Senator for whom they had no opportunity to support or
oppose.” Ferrell v. Okla. ex rel. Hall, 339 F. Supp. 73, 82 (W.D. Okla. 1972), aff'd sub
nom. Ferrell v. Hall, 406 U.S. 939 (1972).
Indeed, Applicants’ theory would bar the ordinary consequences of
redistricting, vacancies, and candidate substitution that federal courts, including this
Court, have consistently treated as permissible features of election administration.
Intervenors’ own argument illustrates the point. They acknowledge that Missouri law
permits a party nominee to be replaced if the nominee “dies, is disqualified, or
voluntarily withdraws.” Intervenors’ Br. 14 (citing Mo. Rev. Stat. § 115.363(3)(1)–(3)).
31
A voter’s primary ballot therefore does not carry an absolute constitutional
entitlement to vote for that same nominee in November, even if other voters in the
state will not see any change in the candidates available to them. Applicants thus fail
to show that the harm they allege poses a constitutional problem.
C. Article I, Section 2 does not create a right to vote in the same
constituency during successive stages of an election.
Applicants’ separate reliance on Article I, Section 2 is even less grounded in
law. That provision protects the right of qualified voters to choose their
representatives in Congress. See U.S. Const. art. I, § 2. And where a state “has made
the primary an integral part” of the election process, Article I, Section 2 protects the
voter’s right to cast a primary ballot and “to have his ballot counted.” United States
v. Classic, 313 U.S. 299, 318 (1941). Those principles were not violated here. All
qualified voters had the opportunity to vote in the primary, and the primary votes
were counted and used to select nominees, all of whom are currently slated to appear
on the general election ballot. Conducting the general election under different district
lines does not render those ballots “null and void.” Appl. 25.
Applicants seek to extract a different right from Article I, Section 2:
entitlement to vote in the same constituency at both the primary and general election.
No authority they cite recognizes such a rule. Terrazas v. Slagle did not involve
Article I, Section II; there, a three-judge court barred Texas from changing districts
after the primary because it had not been precleared under section 5 of the Voting
Rights Act. 821 F. Supp. 1154, 1159 (W.D. Tex. 1992). And Covington, Vera, and Page
concerned an entirely different remedial question: whether to permit imminent
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elections to proceed under the existing districts after finding them unlawful, where
no remedial maps had yet been drawn. See Covington v. North Carolina, 316 F.R.D.
117, 176–77 (M.D.N.C. 2016); Page v. Va. State Bd. of Elections, 58 F. Supp. 3d 533,
554 (E.D. Va. 2014), vacated sub nom. Cantor v. Personhuballah, 575 U.S. 931 (2016);
Vera v. Richards, 861 F. Supp. 1304, 1310, 1351 (S.D. Tex. 1994), aff’d, Bush v. Vera,
517 U.S. 952 (1996). Here, by contrast, there is already a “valid congressional
redistricting in effect—the congressional redistricting the General Assembly
established in 2022.” App. 12a n.8. None of the cases on which Applicants rely
suggests a substantive right to the same district lines across each stage of the election
process.
Nor does Classic convert the right to participate in a primary into a
constitutional guarantee that every downstream circumstance of that primary
remain fixed until Election Day. Smith v. Allwright likewise affirms the right to vote
in a primary, not the right to a particular electoral consequence. 321 U.S. 649, 661–
62 (1944). And this Court has rejected the premise that the Constitution guarantees
every voter an opportunity to participate personally in every electoral step that
ultimately determines who represents that voter. See Rodriguez, 457 U.S. at 8–12. 6
6 Even if Applicants could identify a cognizable burden on the right to vote here, that
does not automatically entitle them to relief. Applicants argue that changing district
boundaries between the primary and general election burdens voters’ opportunity to
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* * *
Ultimately, Applicants’ strained efforts to uncover a constitutional voting
rights harm from the Missouri Supreme Court’s judgment as to the meaning and
consequences of Missouri law are unavailing. The U.S. Constitution’s protections for
political participation do not freeze every consequence of the primary through the
general election.
Indeed, rather than alleviate any imagined federal law violation, a stay here would
only introduce new conflicts with federal law. By Applicants’ own account, a stay
would facilitate an election under a map that is not and never has been the law under
the Missouri Constitution, contrary to the federal statutory requirement that
congressional elections proceed from districts established “in the manner provided by
the law” of the State, 2 U.S.C. §2(c). That uncertainty itself weighs strongly against
emergency relief. See Bost v. Ill. State Board of Elections, 607 U.S. 71, 80 (2026)
(“Count first, and rule upon legality afterwards, is not a recipe for producing election
results that have the public acceptance democratic stability requires.” (quoting Bush
v. Gore, 531 U.S. 1046, 1047 (2000) (Scalia, J., concurring in grant of stay)).
participate in both stages of the same district’s electoral process. This Court
ordinarily evaluates alleged burdens on electoral participation under the balancing
framework set forth in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v.
Takushi, 504 U.S. 428 (1992). See Crawford v. Marion Cnty. Election Bd., 553 U.S.
181, 190–91 (2008). Applicants provide no reason the particular burden they assert
merits unique treatment as a per se constitutional violation.
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IV. The equities foreclose relief for Applicants’ self-inflicted harm.
Applicants cannot meet their burden to show that they will be “irreparably
injured absent a stay,” that the stay will not “substantially injure the other parties,”
or that a stay serves the public interest. Nken, 556 U.S. at 434 (quoting Hilton, 481
U.S. at 776). The Secretary’s asserted harm is both largely hypothetical and entirely
self-inflicted. And granting relief would impose concrete injuries on the other side of
the ledger: voters would be required to elect their congressional representatives in
districts that never lawfully took effect, while being denied the referendum rights
that Missouri’s Constitution guarantees them.
A. The Secretary manufactured the timing he now invokes as a
basis for relief.
Applicants’ equitable argument centers on the assertion that implementing the
2022 districts in November would produce electoral chaos because the Secretary
conducted the primary under HB 1. Appl. 32–36. But the Secretary engineered the
timing he now presents as an insurmountable burden. The Secretary chose to conduct
the primary under HB 1 even though both a federal court and the Missouri Supreme
Court had expressly warned that HB 1’s legal status could not be determined until
the referendum-certification process—including judicial review—was complete. See
Mo. Gen. Assembly, 2025 WL 3514277, at *2; Maggard, 733 S.W.3d at 419–20;
NAACP, 734 S.W. 3d at 341 n.4; see also App. 12a n.8. The Secretary then waited
until the statutory deadline—the day the primary was already underway—to issue a
certification resting on a one-sentence rationale the State had already been
advancing for months. App. 599a. The Attorney General publicly acknowledged the
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strategic benefit of delay: “As long as the status quo is the new maps, delay works in
our favor.” App. 739a.
Equity does not reward that sort of manufactured emergency. This Court
applies “a strong equitable presumption against the grant of a stay” when the need
for emergency relief results from a litigant’s own delay, including through “piecemeal
litigation.” Hill v. McDonough, 547 U.S. 573, 584–85 (2006) (quoting Nelson v.
Campbell, 541 U.S. 637 (2004)). Equitable relief likewise may be denied where a
party’s timing reflects an “attempt at manipulation” of the judicial process. Gomez v.
U.S. Dist. Ct. for N. Dist. of Cal., 503 U.S. 653, 654 (1992) (per curiam). Here, the
Secretary’s manipulation of the calendar is apparent not just from the sequence of
events but also from the boastful pronouncements of the Missouri Attorney General
laying bare that strategy.
Applicants nevertheless invoke Purcell—while conceding that this Court has
never extended that principle to a state supreme court’s interpretation of state
election law. Appl. 35 (“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.”) (citing Purcell v. Gonzales, 549 U.S. 1, 4–5 (2006)). Applicants’
equitable argument turns Purcell on its head. This Court’s Purcell principle cautions
federal courts to avoid interfering in state elections rules on the eve of an election.
Merrill v. Milligan, 142 S. Ct. 879, 880 (2022) (Kavanaugh, J., concurring) (explaining
that Purcell reflects rule that “federal courts ordinarily should not enjoin a state's
36
election laws in the period close to an election”). Applicants here invite the very
interference Purcell guards against.
Even if Purcell did apply, that doctrine provides no refuge against timing
problems the Missouri Supreme Court has already deemed “wholly unpersuasive” to
derail application of Missouri law. App. 12a n.8. As this Court recently explained,
“[w]hile federal courts should not impose changes close to an election, States are free
to decide for themselves whether last-minute changes to an election are in their best
interests.” Allen v. Milligan, 608 U.S. 511, 514 (2026) (per curiam) (citation omitted).
Here, the Missouri Supreme Court has rendered a ruling on the plain meaning of the
Missouri Constitution and determined that, notwithstanding any alleged “confusion,
expense, and practical difficulties,” HB 1 shall not take effect unless and until it is
approved by a majority of the voters in the November 2026 election. App. 12a n.8; cf.
Growe v. Emison, 507 U.S. 25, 33 (1993) (“[T]he Court has required federal judges to
defer consideration of disputes involving redistricting where the State, through its
legislative or judicial branch, has begun to address that highly political task itself.”).
Purcell offers no basis for this Court to impinge upon the Missouri Supreme Court’s
authority to decide whether last-minute election changes are in the best interests of
the State. See Rose v. Raffensperger, 143 S. Ct. 58, 59 (2022) (mem.) (unanimously
vacating a Purcell stay where the State agreed to the schedule on which the district
court proceeded).
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B. The general election can proceed as scheduled without a stay.
As a practical matter, Applicants’ predictions of disaster have no basis in the
record—and if there were a genuine problem, Missouri law provides multiple ways of
solving it without this Court’s intervention.
Start with Applicants’ purported evidence that the Missouri Supreme Court’s
judgment is impossible to implement. The application repeatedly invokes purported
testimony from “Missouri election officials” that the judgment below puts “the entire
congressional election . . . at risk.” Appl. 30, 33. But the cited evidence consists of a
single affidavit from one former Jackson County election official. See id. (citing App.
1025a–26a); 1025a. 7
By contrast, the current directors of the Jackson County Election Board—
which oversees the locus of the map’s most substantial changes—have publicly stated
that they are prepared to implement the 2022 map in November. See Bayless, supra
note 1. “We are equipped to make the necessary changes,” they explained. “It will
take some work on our end, but we will be ready.” Id. That contemporaneous
assessment from the current officials actually charged with administering elections
in the most affected area belies Applicants’ assertion that compliance is impossible.
7 The trial court’s statement that using the 2022 maps would be “impossible” likewise
relied only on that former official’s affidavit. App. 52a. The Secretary emphasizes that
the Missouri Supreme Court did not expressly reject that finding. But because the
relevant facts were stipulated, the Missouri Supreme Court owed no deference to the
trial court’s conclusions. App. 4a. And on the same record, the Missouri Supreme
Court concluded that the Secretary’s “arguments about confusion, expense, and
practical difficulties [we]re wholly unpersuasive.” App. 12a n.8.
38
The Secretary’s only other evidence is equally insubstantial. He asserts that
“[e]lection analysts with prominent national media outlets” are questioning “how
Missouri can possibly comply with the Missouri Supreme Court’s order,” citing two
tweets, neither of which actually says that (instead both note that the Secretary
would likely challenge the decision in this Court). Appl. 30–31. And although the
Secretary insists that Missouri would “certainly” be forced to violate the Uniformed
and Overseas Citizens Absentee Voting Act (UOCAVA), which sets a September 19
deadline for sending absentee ballots to overseas and military voters, the only
evidence he cites for that proposition is the declaration he wrote and signed himself.
Appl. 1–2 (citing App. 1667a–68a). 8
Meanwhile, the district lines for the general election are clear. They come from
a map whose validity is certain, and which has been in place since 2022. The
candidates are clear: the Secretary certified them pursuant to Missouri law on August
25, 2026, with nominees for each of the districts in the 2022 map. No one challenged
the certification within the prescribed statutory period. See Mo. Rev. Stat. §§ 115.527,
115.531. And county election officials confirm that they are “equipped to make the
necessary changes” for the election in November. See Bayless, supra note 1. In short,
8 The UOCAVA argument also presupposes that Missouri needs to conduct a new
primary, which no court has ordered and no one has requested. The Secretary has
never alleged that there would be a UOCAVA issue with the general election. Indeed,
he has advised this court there is time to comply. Application at 6 (“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.”).
39
the record here makes clear that, far from “impossible,” implementing the 2022
districts in the 2026 election is entirely feasible.
Moreover, to the extent the Secretary is dissatisfied with this state of affairs—
whether based on legal or practical objections—he is well-equipped to choose an
alternative means of complying with the Missouri Supreme Court’s order. Missouri
law, for instance, provides an avenue for official “disqualification” of existing
candidates, allowing for party appointments of candidates to fill vacancies. See Mo.
Rev. Stat. §§ 115.361(2), 115.363(3)(2), 115.369. 9
Other states’ experiences confirm that these circumstances are neither
unprecedented nor insurmountable. Georgia held a general election in new districts
after a three-judge court struck down its existing map after the primary had taken
place—even though unlike here, no new map had been drawn. See Busbee v. Smith,
549 F. Supp. 494, 518–19 (D.D.C. 1982), aff’d, 459 U.S. 1166 (1983). Texas also
conducted a general election using a new congressional map after the map used
during the primary was invalidated, again without a remedial map available. Vera v.
Bush, 933 F. Supp. 1341, 1351–52 (S.D. Tex. 1996). In short, if the Secretary believes
that the nominations cannot lawfully carry over to the 2022 districts, there are other
lawful means of addressing it without staying the judgment below.
9 To the extent Applicants dispute whether nominees selected under HB 1 would be
“disqualified” within the meaning of Section 115.363.3(2), that only confirms that the
asserted federal injury turns on an unresolved question of Missouri election law.
Applicants cannot show that staying the judgment below is necessary to prevent an
equal protection violation without first establishing that Missouri law leaves no other
lawful means of addressing the alleged mismatch.
40
A stay applicant must establish that irreparable harm is likely absent the
requested relief, not merely identify a possible injury that could arise under one
assumed course of election administration—particularly one controlled by the
applicant himself. See Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam);
Nken, 556 U.S. at 434–35. Applicants are not entitled to a stay to address a purported
problem that the Secretary created, and that the Secretary could resolve by other
means.
CONCLUSION
The Application should be denied.
41
Respectfully submitted,
ABHA KHANNA
Counsel of Record
ELIAS LAW GROUP LLP
1700 Seventh Ave., Suite 2100
Seattle, WA 98101
(206) 656-0177
AKhanna@elias.law
KATIE CHAMBLEE-RYAN
LUCAS LALLINGER
ELIAS LAW GROUP LLP
250 Massachusetts Ave. NW
Suite 400
Washington, DC 20001
(202) 948-1135
KChambleeRyan@elias.law
LLallinger@elias.law
CHARLES W. HATFIELD
ALEXANDER C. BARRETT
ALIXANDRA S. COSSETTE
GRETA M. BAX
STINSON LLP
230 W. McCarty Stret
Jefferson City, MO 65101
(573) 636-6263
chuck.hatfield@stinson.com
alexander.barrett@stinson.com
alix.cossette@stinson.com
greta.bax@stinson.com
Counsel for Richard von Glahn
42