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Hoskins reply in support of the stay application
Office of the Missouri Attorney General · 2026-09-08
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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,
v.
RICHARD VON GLAHN,
Respondent.
REPLY IN SUPPORT OF 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 8, 2026 Counsel for Applicant
TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................................................................... iii
REPLY........................................................................................................................... 1
Respondent’s threshold procedural arguments fail and endorse giving state
courts a blank check to insulate their decisions from this Court’s review.............. 6
A. The Missouri Supreme Court’s manufactured AISGs do not obstruct this
Court’s review. ....................................................................................................... 6
B. Applicant only needs a stay to obtain relief. .............................................. 10
This Court is likely to grant review and reverse. .......................................... 12
A. The Elections Clause forbids discarding a duly-enacted congressional map
based on a referendum petition signed by just 3.3% of a State’s voters. .......... 12
B. The Missouri Supreme Court’s injunction—issued a month after the
Primary Election—violates the U.S. Constitution. ............................................ 19
The other stay favors overwhelmingly favor a stay. ..................................... 23
CONCLUSION ........................................................................................................... 30
ii
TABLE OF AUTHORITIES
Cases
Abbott v. LULAC,
146 S. Ct. 418 (2025) ......................................................................................... 25, 29
Alaska v. Allen,
625 P.2d 844 (Alaska 1981) ..................................................................................... 16
Am. Party of Tex. v. White,
415 U.S. 767 (1974).................................................................................................. 19
Arizona State Legislature v. Arizona Indep. Redistricting Comm'n,
576 U.S. 787 (2015)............................................................................................ 16, 17
ASARCO Inc. v. Kadish,
490 U.S. 605 (1989)............................................................................................ 13, 14
Barnes v. State ex rel. Pinkney,
204 A.2d 787 (Md. 1964) .......................................................................................... 16
Bd. of Ed. of Cent. Sch. Dist. No. 1 v. Allen,
392 U.S. 236 (1968).................................................................................................. 14
Busbee v. Smith,
549 F. Supp. 494 (D.D.C. 1982) ............................................................................... 26
Bush v. Gore,
531 U.S. 98 (2000).................................................................................................... 24
Cardinale v. Louisiana,
394 U.S. 437 (1969)................................................................................................ 6, 7
Cohens v. Virginia,
19 U.S. 264 (1821)...................................................................................................... 6
Davis v. Wechsler,
263 U.S. 22 (1923)...................................................................................................... 9
iii
Democratic National Committee v. Wisconsin State Legislature,
592 U.S. 1039 (2020)................................................................................................ 27
Does 1-3 v. Mills,
142 S. Ct. 17 (2021) ................................................................................................. 23
Donatelli v. Mitchell,
2 F.3d 508 (3d Cir. 1993) ......................................................................................... 20
Douglas v. Alabama,
380 U.S. 415 (1965).................................................................................................... 6
Dunn v. Blumstein,
405 U.S. 330 (1972).................................................................................................. 20
Ford v. Georgia,
498 U.S. 411 (1991).......................................................................................... 3, 8, 10
Free Enterprise Fund v. Public Co. Accounting Bd.,
561 U.S. 477 (2010).................................................................................................. 18
Gray v. Sanders,
372 U.S. 368 (1963)............................................................................................ 19, 20
Hadley v. Junior Coll. Dist. of Metro. Kan. City,
460 S.W.2d 1 (Mo. 1970) .................................................................................... 24, 28
Int’l Longshoremen’s Ass’n, AFL-CIO v. Davis,
476 U.S. 380 (1986).................................................................................................... 6
Lance v. Coffman,
549 U.S. 437 (2007)............................................................................................ 12, 13
Lee v. Kemna,
534 U.S. 362 (2002).................................................................................................... 6
Merrill v. Milligan,
142 S. Ct. 879 (2022) ......................................................................................... 25, 29
Minnesota v. National Tea Co.,
309 U.S. 551 (1940).................................................................................................. 14
iv
Missouri ex rel. McClellan v. Kirkpatrick,
504 S.W.2d 83 (Mo. 1974) ........................................................................................ 11
Missouri ex rel. Nixon v. Am. Tobacco Co.,
34 S.W.3d 122 (Mo. 2000) ........................................................................................ 15
Montano v. Lefkowitz,
575 F.2d 378 (2d Cir. 1978) ..................................................................................... 22
Moore v. Harper,
600 U.S. 1 (2023).................................................................................... 11, 17, 19, 24
NAACP v. Flowers,
377 U.S. 288 (1964).................................................................................................... 2
NAACP v. Patterson,
357 U.S. 449 (1958).................................................................................................... 8
Nevada v. Howard,
248 P. 44 (Nev. 1926) ............................................................................................... 16
Ohio ex rel. Davis v. Hildebrant,
241 U.S. 565 (1916).................................................................................. 4, 13, 15, 16
Osborne v. Ohio,
495 U.S. 103 (1990).................................................................................................... 6
Pollard v. Bd. of Police Comm’rs,
665 S.W.2d 333 (Mo. 1984) ...................................................................................... 11
Republican Party of Oregon v. Keisling,
959 F.2d 144 (9th Cir. 1992) ................................................................................... 20
Rodriguez v. Popular Democratic Party,
457 U.S. 1 (1982).................................................................................................. 4, 19
SEC v. Jarkesy,
603 U.S. 109 (2024).................................................................................................. 18
Shuttlesworth v. City of Birmingham,
376 U.S. 339 (1964).................................................................................................... 6
v
Smiley v. Holm,
285 U.S. 355 (1932)...................................................................................... 12, 13, 17
Smith v. Allwright,
321 U.S. 649 (1944).................................................................................................. 11
Staub v. City of Baxley,
355 U.S. 313 (1958).................................................................................................... 9
Tashjian v. Republican Party of Conn.,
479 U.S. 208 (1986).................................................................................................. 22
United States v. Classic,
313 U.S. 299 (1941)................................................................................ 11, 21, 22, 23
United States v. Mosley,
238 U.S. 383 (1915)............................................................................................ 19, 22
Vera v. Bush,
933 F. Supp. 1341 (S.D. Tex. 1996) ......................................................................... 26
Virginia House of Delegates v. Bethune-Hill,
587 U.S. 658 (2019)............................................................................................ 14, 15
Constitutional Provisions & Statutes
2 U.S.C. § 2a ................................................................................................................. 18
2 U.S.C. § 2c ................................................................................................................. 18
2 U.S.C. § 7................................................................................................................... 23
52 U.S.C. § 20302 ............................................................................................... 2, 23, 25
Mo. Const. art. III, § 29 ............................................................................................... 18
Mo. Const. art. III, § 52(a) ........................................................................................... 12
Mo. Const. art. III, § 52(b) ..................................................................................... 10, 12
Mo. Const. art. IV, § 14 ................................................................................................ 13
vi
Mo. Rev. Stat. § 115.307 .............................................................................................. 11
Mo. Rev. Stat. § 115.339 .............................................................................................. 11
Mo. Rev. Stat. § 115.379 .............................................................................................. 21
Mo. Rev. Stat. § 116.130 .............................................................................................. 28
Mo. Rev. Stat. § 116.150 ........................................................................................ 28, 29
Mo. Rev. Stat. § 27.060 ................................................................................................ 15
U.S. Const. amend. XIV ............................................................................................... 19
U.S. Const. art. I, § 2 ....................................................................................... 11, 22, 23
U.S. Const. art. I, § 4 ....................................................................... 4, 12, 15, 17, 18, 19
Other Authorities
Hart and Wechsler’s: The Federal Courts and the Federal System (Fallon et al., eds.,
7th ed., 2015) ............................................................................................................. 6
Jack Harvel, Court ruling raises questions about Missouri primary winners under a
different map, Kansas City Star (Sept. 4, 2026)................................................. 1, 22
Jacob Barker, A ‘crisis’ in Missouri elections? Supreme Court puts the blame on one
state official, St. Louis Post Dispatch (Sept. 6, 2026) ........................................ 2, 25
Kacen Bayless, ‘We will be ready.’ Jackson County says it will comply with Supreme
Court map ruling, The Kansas City Star (Sept. 4, 2026) ...................................... 25
vii
REPLY
Late last Thursday, the Missouri Supreme Court derailed an imminent federal
congressional election, ignored federal constitutional arguments against its order,
and deemed any consequences resulting from its decision “irrelevant.” See App., 5a
n.5, 11a–13a n.8. Since Secretary Hoskins sought emergency relief from this Court
on Friday night, the chaotic fallout from the Missouri Supreme Court’s irresponsible
decision has only multiplied. Multiple lawsuits have already been filed against the
State seeking a return to the old congressional map, see Complaint, Onder v.
Missouri, No. 4:26-cv-1424 (E.D. Mo., Sept. 4, 2026); Complaint, Berry v. Hoskins, No.
4:26-cv-1419 (E.D. Mo., Sept. 4, 2026), and more are expected. Local election
officials in counties are now left to make individual decisions on whether to try to
change the congressional map, or stick with the map used to run the Primary and
hold out for a federal court order. Candidates are confused about what districts
they are running in. Jack Harvel, Court ruling raises questions about Missouri
primary winners under a different map, Kansas City Star (Sept. 4, 2026) (noting
confusion by candidates in both parties). 1 And Respondent’s own lawyer is openly
acknowledging that candidates who lost their Primary Elections can bring election
contests, though he is advising them not to do so. See Jacob Barker, A ‘crisis’ in
Missouri elections? Supreme Court puts the blame on one state official, St. Louis Post
1 https://www.kansascity.com/news/politics-government/article317133985.html.
1
Dispatch (Sept. 6, 2026). 2 All this occurs in the shadow of a federal deadline to start
mailing ballots in eleven days. 52 U.S.C. § 20302(a)(8). Without relief from this
Court, Applicant has no idea how to manage this chaos, which results from a blatantly
unconstitutional court order.
Respondent tries to distract from this extraordinary situation with two
threshold procedural arguments—both of which boil down to simply allowing state
courts to ignore federal constitutional arguments. First, Respondent asserts the
presence of an adequate and independent state-law ground (“AISG”). Opp., at 14–
17. In a footnote, the Missouri Supreme Court held that Secretary Hoskins waived
his federal constitutional arguments because his certificate of insufficiency on the
referendum could not incorporate an attached Attorney General opinion by reference.
App., at 5a n.5; see also id. at 599a (Secretary’s Certificate); id. at 600a–606a
(Attorney General’s Opinion). It is undisputed that the Missouri Supreme Court
first applied this “rule” in this case. Opp., at 16–17. This “rule”—which
Respondent expressly disclaimed at trial and did not argue below—appears in no
statute. This “waiver” ruling is, unfortunately, a transparent attempt by the
Missouri Supreme Court to insulate its decision from this Court’s review—something
this Court consistently disallows. See, e.g., NAACP v. Flowers, 377 U.S. 288, 297
(1964) (finding it “wholly unacceptable” for the respondent to assert AISG when state
“courts have not heretofore applied their rules respecting the preparation of briefs
2 https://www.stltoday.com/news/local/government-politics/article_e84fc694-888c-
493d-947b-db809e7e9781.html.
2
with the pointless severity shown here”). The Secretary’s answer made the federal
legal arguments; the trial court accepted them; and they were briefed and argued at
the Missouri Supreme Court. See App., at 39a–46a; 257a–58a, 311a–13a, 323a–29a,
599a, 604a–606a, 1391a–97a, 1490a–1501a, 1570a–82a. That is not waiver.
Additionally and bizarrely, the Missouri Supreme Court said that Secretary
Hoskins’s referendum certificate could not rely on federal law—leaving him with no
state-court avenue to raise federal constitutional defenses. Id., at 5a n.5. This
Court’s precedents require litigants to comply “only” with “firmly established and
regularly followed state practice.” Ford v. Georgia, 498 U.S. 411, 423–24 (1991)
(quotation omitted). But Respondent does not even bother to explain how Applicant
could have preserved his federal arguments here. That’s because there was no
alternative state-law procedure. Finding an AISG here would abrogate a host of
precedents and give state courts free rein to invent novel state-law procedural rules
on the fly to obstruct this Court’s review of federal constitutional questions.
Second, Respondent insists Applicant would not obtain any relief from a stay.
Not so. The State’s consistent position—in Secretary Hoskins’s certification
decision, before Missouri’s courts, and before this Court—is that federal law requires
it to use the same congressional map for the General Election that it used in the
Primary Election. App., at 257a–58a, 311a–13a, 323a–29a, 599a, 604a–606a,
1490a–1501a. Only the Missouri Supreme Court’s injunction is stopping that. If
this Court grants a stay, the State will use the HB 1 map for the 2026 General
Election. A stay thus provides full relief. It really is that simple.
3
On the merits, Respondent largely dodges Applicant’s arguments and relies on
misdirection. Start with the Elections Clause claim. Respondent suggests that he
is merely defending the same statewide referendum vote this Court allowed in Ohio
ex rel. Davis v. Hildebrant, 241 U.S. 565, 566 (1916). Opp., at 23–26. But neither
Hildebrant nor any prior judicial decision ever sanctioned what Respondent bundles
into the concept of “referendum.” There is a huge difference between a statewide
vote, which Hildebrant considered, 241 U.S. at 566—and a small minority of voters
voiding a congressional map before any statewide vote by submitting a signed
petition. It is telling that Respondent can cite no example in American history
where the latter, profoundly antidemocratic scenario occurred. See Opp., at 23–28.
Respondent also barely tries to defend the constitutionality of a court
dramatically altering a congressional map between a completed primary election and
a general election—disenfranchising hundreds of thousands of primary votes in the
process. He relies heavily on this Court’s decision in Rodriguez v. Popular
Democratic Party, 457 U.S. 1 (1982), which held that state parties can replace
candidates who die or are found ineligible after a primary election. Id. at 14. As
Rodriguez itself acknowledges, that is nothing like a judicial order rendering a
primary election utterly pointless and, by judicial fiat, forcing a blatantly unequal
“general election.” Id. at 10. The trial court found that such an injunction would
“materially” disadvantage hundreds of thousands of Missourians in the upcoming
election. App., at 45a. That finding has never been contested—not by Respondent,
4
and not by the Missouri Supreme Court. Instead, the Missouri Supreme Court
treated that finding and the U.S. Constitution as “irrelevant.” Id. at 5a n.5, 12a n.8.
Finally, Respondent fails to meaningfully contest the other stay factors.
Respondent does not dispute this case is cert-worthy. On irreparable harm,
Respondent does not challenge the Secretary’s careful, math-backed explanation for
why, absent relief, Missouri will be forced to violate UOCAVA.
Nor does Respondent rebut the Secretary’s explanation of the equities.
Respondent does not dispute that the chaos present here dwarfs that in any of this
Court’s Purcell-related cases. Stay Appl., at 2. Respondent just thinks—despite
this Court’s order in Malliotakis v. Williams, 146 S. Ct. 809 (2026)—that state courts
have free rein to void primary elections and derail imminent general elections. Opp.,
at 36. And while Respondent acknowledges that the trial court, a 25-year veteran
election official, and the Secretary all question whether it is even possible to comply
with the Missouri Supreme Court’s order, Opp., at 38–39, Respondent insists that
does not matter because Secretary Hoskins should have rejected his referendum
petition faster, id. at 35–37. Respondent’s account of the Secretary’s actions is
slanted and implausible. But even if it is entirely correct, Respondent does not
explain how that could justify disenfranchising hundreds of thousands of innocent
Missourians, derailing political campaigns, burdening election officials, and
jeopardizing Missouri’s ability to hold a timely federal election. It cannot. If
Purcell-related concerns ever justified a stay, this is the case.
The Court should grant an administrative stay and a full stay pending appeal.
5
Respondent’s threshold procedural arguments fail and endorse giving
state courts a blank check to insulate their decisions from this Court’s
review.
A. The Missouri Supreme Court’s manufactured AISGs do not obstruct
this Court’s review.
This Court plays an essential role in reviewing federal constitutional questions
arising from state courts. See Cohens v. Virginia, 19 U.S. 264, 309 (1821). Yes, when
state-court decisions rest on independent and adequate state-law grounds, this Court
lacks jurisdiction. Cardinale v. Louisiana, 394 U.S. 437, 438 (1969). But this Court
has rejected—many times—assertion of an AISG when state procedural rules are
“unacceptably burdensome.” R. Fallon et al., Hart and Wechsler’s: The Federal
Courts and the Federal System, at 538–39 (7th ed., 2015) (collecting cases, including
Lee v. Kemna, 534 U.S. 362 (2002); Osborne v. Ohio, 495 U.S. 103, 123–25 (1990);
Douglas v. Alabama, 380 U.S. 415 (1965); Shuttlesworth v. City of Birmingham, 376
U.S. 339 (1964); Int’l Longshoremen’s Ass’n, AFL-CIO v. Davis, 476 U.S. 380 (1986)).
That is easily true here because it would have been impossible for Applicant to
comply with the Missouri Supreme Court’s newly invented procedural rules.
Indeed, the court’s two attempts to manufacturer AISGs contradict each other and
cut off all review of Applicant’s federal constitutional defenses.
Start with the first AISG—the so-called “waiver.” In a footnote, the Missouri
Supreme Court asserted that the Secretary “waived” his federal arguments. App., 5a
n.5. The reason? For the time ever—a point Respondent does not and cannot
dispute, Opp., at 16–17—the court held that the Secretary’s referendum certificate
must preserve all potential federal constitutional defenses that he may raise in future
6
litigation. Id. And even though the Secretary’s certificate incorporated by
reference attached an Attorney General opinion that raised the federal constitutional
defenses he now raises in this case, id. at 599a–605a, the Missouri Supreme Court
deemed that insufficient to preserve the federal defenses, id. at 5a n.5. Because the
federal constitutional arguments were not pasted into the certificate itself, the
Missouri Supreme Court deemed them waived in this subsequently-filed case. Id.
Respondent now argues that this is an AISG. Opp., at 15.
Even in isolation, this novel “rule” is hard to take seriously. It would be one
thing if Missouri never raised any of the arguments that it now makes before this
Court. See, e.g., Cardinale, 394 U.S. at 438. But Missouri raised these arguments
as defenses in its answer, in its trial brief, in its briefing and argument before the
Missouri Supreme Court, and in the Missouri Attorney General’s opinion letter
expressly incorporated into the Secretary’s certificate of insufficiency. See App., at
257a–58a, 311a–13a, 323a–29a, 599a, 604a–606a, 1391a–97a, 1409a–14a, 1490a–
1501a, 1570a–82a. The trial court also agreed with and adopted all of Missouri’s
federal constitutional defenses in its judgment. Id., at 39a–46a.
Moreover the Missouri Supreme Court’s new rule makes no sense. It requires
the Secretary to anticipate future legal challenges before they are filed and
preemptively address future defenses in his certificate. App., 5a n.5. Unsurprisingly,
before last Thursday, the Missouri Supreme Court had never suggested the
Secretary’s certificate (or any legal document) could not incorporate by reference, or
that the Secretary had to include all future federal legal defenses in the certificate.
7
That is why Respondent never argued this point in any lower court. Remarkably,
Respondent explicitly disclaimed this argument at trial:
[T]he Secretary’s certificate of insufficiency included in a letter, styled as an
opinion of the Attorney General. That’s something that I have not seen
before. I don’t know that there’s anything particularly wrong with it, but
there’s an opinion there.
App., at 1273a–1274a (emphasis added). Nevertheless, the Missouri Supreme Court
relied on an argument Respondent expressly waived to invent a new waiver rule.
When the court suggested it would invent this procedural rule during oral argument,
the Secretary’s counsel promptly noted: “[M]y friend clearly and expressly waived this
argument in trial court.” Oral Argument, at 19:02–20:51. 3 Yet, without addressing
the obvious waiver, the Missouri Supreme Court created a new rule anyways—that
the Secretary cannot incorporate an attached Attorney General opinions by reference.
App., at 5a.
Altogether, the novelty of the Missouri Supreme Court’s waiver dooms
Respondent’s AISG argument because “only a ‘firmly established and regularly
followed state practice’ may be interposed by a State to prevent subsequent review
by this Court of a federal constitutional claim.” Ford, 498 U.S. at 423–24 (citation
omitted); see NAACP v. Patterson, 357 U.S. 449, 457–58 (1958) (procedural rule not
AISG where “petitioner could not fairly be deemed to have been apprised of [a
procedural rule’s] existence”). Of course, if the Secretary had any notice that the
Missouri Supreme Court would disregard his federal defenses due to incorporation
3 https://www.courts.mo.gov/contentitem.jsp?id=120533&case=SC101805.
8
by reference, he could have easily copied-and-pasted the Attorney General’s attached
opinion into his certificate of insufficiency. Federal constitutional rights do not
depend on somehow divining the need for a couple additional keystrokes. See Staub
v. City of Baxley, 355 U.S. 313, 320 (1958).
Even more remarkably, at the same time the Missouri Supreme Court
fabricated its new “waiver” rule, it contradicted that rule with another new rule.
App., 5a n.5. That court’s opinion simultaneously holds that the Secretary’s
certificate cannot consider federal constitutional arguments and that only state-law
arguments may be invoked to reject a referendum. Id. So even if Secretary
Hoskins had copied-and-pasted the federal arguments he incorporated by reference
into the certificate, the Missouri Supreme Court would have held he erred in
considering those arguments. See id. Indeed, neither the Missouri Supreme Court
nor Respondent have explained how Secretary Hoskins could have preserved his
federal constitutional arguments. That’s because there was no other way. The
Missouri Supreme Court’s catch-22 does not merely put Applicant between a rock and
a hard place; it asks him to walk through a solid rock.
Under the circumstances present here, the Missouri Supreme Court’s newly
invented procedural rules cannot obstruct this Court’s review of federal questions
using the AISG doctrine. “Whatever springes the State may set for those who are
endeavoring to assert rights that the State confers, the assertion of Federal rights,
when plainly and reasonably made, is not to be defeated under the name of local
practice.” Davis v. Wechsler, 263 U.S. 22, 24 (1923). Sure, state courts may require
9
litigants asserting federal rights to comply with established, reasonable, and
available state-law rules. Ford, 498 U.S. at 423–24. But they cannot invent
burdensome new rules on the fly, cut off any path to assert federal constitutional
arguments, and expect this Court to abdicate its duty to ensure compliance with
federal law.
B. Applicant only needs a stay to obtain relief.
Respondent claims that Applicant’s injuries would not be redressed by a stay—
but only an injunction. Opp., at 18–20. This is so, Respondent reasons, because
Article III, Section 52(b) of the Missouri Constitution retroactively voided the HB 1
map (effectively making it disappear) when the Missouri Supreme Court certified
Respondent’s referendum petition on Thursday. See id. This strange state-law
disappearing act does not obstruct this Court’s review.
To start, the Secretary’s merits arguments target the disappearing act itself.
The substance of the Secretary’s defense is that the Missouri Supreme Court’s
injunction, issued under Article III, Section 52(b) of the Missouri Constitution, is
unconstitutional as applied to federal congressional maps. Stay Appl., at 15, 17–18;
App., at 257a–58a, 311a–13a, 599a, 604a, 1490a–1501a. If this Court agrees and
stays the Missouri Supreme Court’s injunction, it would make no sense to say the HB
1 map no longer exists—because Article III, Section 52(b) would itself be invalid as
applied here. That has been the Secretary’s position throughout this litigation, id.,
and that is why he will enforce the HB 1 map if this Court stays the Missouri Supreme
Court’s injunction.
10
In any event, state-law legal fictions cannot blind this Court to the reality that
the Missouri Supreme Court’s injunction violates the U.S. Constitution by
disenfranchising voters in the Primary Election. The Primary Election occurred—
as it must—under state law. Mo. Rev. Stat. §§ 115.307, 115.339. It is an “integral”
part of Missouri’s process for choosing federal congressional candidates. Missouri ex
rel. McClellan v. Kirkpatrick, 504 S.W.2d 83, 86 (Mo. 1974) (citing Mo. Const. art.
VIII, § 3); Pollard v. Bd. of Police Comm’rs, 665 S.W.2d 333, 340 (Mo. 1984) (“The
primary, moreover, is an integral part of the electoral process.” (citing United States
v. Classic, 313 U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649 (1944))). Missouri’s
Primary is therefore a fundamental part of the manner by which federal
representatives are “chosen … by the People” of Missouri—which implicates Article
I, Section 2 of the U.S. Constitution. Classic, 313 U.S. at 318–19. State law cannot
force this Court to pretend that election did not occur—which would only allow the
Missouri Supreme Court to plainly circumvent federal rights. See Moore v. Harper,
600 U.S. 1, 34–35 (2023) (“As in other areas where the exercise of federal authority
or the vindication of federal rights implicates questions of state law, we have an
obligation to ensure that state court interpretations of that law do not evade federal
law.”).
* * *
In short, both of Respondent’s threshold state-law procedural arguments boil
down to the same point: This Court should ignore federal constitutional defenses and
11
give state courts unchecked power to insulate their own rulings from review. That is
not, and has never been, the law.
This Court is likely to grant review and reverse.
A. The Elections Clause forbids discarding a duly-enacted congressional
map based on a referendum petition signed by just 3.3% of a State’s
voters.
Respondent does not dispute that the Secretary faced a circumstance that no
other State’s chief election officer has faced before in American history: A campaign
to suspend Missouri’s congressional map—not through a referendum vote—but
through a referendum petition, which only needs signatures from just 3.3% of
Missouri’s registered voters. Mo. Const. art. III, § 52(a). Respondent’s exploitation
of the Missouri Constitution’s suspension of legislation pending a referendum vote,
Mo. Const. art. III, § 52(b), is profoundly anti-democratic and patently
unconstitutional under the Elections Clause. If this Court permits Respondent’s
tactic here, and permits state courts to suspend federal congressional maps even a
month after the Primary Election, that will sound the death knell of the Elections
Clause.
Respondent makes a few contrary arguments, but all fail.
1. For the first time in this litigation, Respondent challenges the
Secretary’s standing to raise federal defenses under the Elections Clause. Opp., at
21–22. This is clearly wrong. To start, this Court has recognized that “a relator
[suing] on behalf of the State” can invoke this Court’s appellate jurisdiction over
state-court decisions implicating the Elections Clause. Lance v. Coffman, 549 U.S.
437, 442 (2007) (citing Smiley v. Holm, 285 U.S. 355 (1932); Hildebrant, 241 U.S.
12
565). And here, the Secretary is the stand-in for the entire State because he is
Missouri’s chief elections officer. See Mo. Const. art. IV, § 14. An order against him
binds the entire State, which is why Respondent sued only the Secretary and why the
Missouri Supreme Court’s injunction against him changes Missouri’s congressional
map. App., at 13a–14a, 61a.
Independently, the Secretary has standing because he is injured by a state-
court order to violate the U.S. Constitution. See ASARCO Inc. v. Kadish, 490 U.S.
605, 617–24 (1989). To be clear, the Secretary did not initiate this action; he is a
defendant—sued in his official capacity because he represents the entire State in this
context. See App., at 13a–14a, 61a; Mo. Const. art. IV, § 14. Now that the Missouri
Supreme Court has ignored his federal constitutional defenses and ordered him to
violate the U.S. Constitution, the Secretary has standing to appeal to this Court.
“[A]s a result of the state-court judgment, th[is] case has taken on such definite shape
that [the Secretary is] under a defined and specific legal obligation”—namely holding
a congressional election under Missouri’s 2022 map instead of the HB 1 map.
ASARCO, 490 U.S. at 618. Even if the Secretary somehow lacked standing to bring
his defenses as claims in the first instance, but see Lance, 549 U.S. at 442 (citing
Smiley, 285 U.S. 355; Hildebrant, 241 U.S. 565), ASARCO establishes that the
Secretary may appeal the state-court injunction “sought and secured by respondent[],
along with the relief that may flow from that ruling, [a]s invalid under federal law.”
490 U.S. at 618.
13
This rule is essential to guarding the Supremacy Clause. Respondent’s
contrary position—that the Secretary lacks standing to appeal an adverse state
injunction issued in violation of federal law—would blast a hole through the
Supremacy Clause. States could easily bypass virtually any provision of the U.S.
Constitution, without this Court’s review, simply by resorting to “government by
injunction” against state officials tasked with enforcing the court’s order. But “this
Court is responsible for assuring ‘that state courts will not be the final arbiters of
important issues under the federal constitution.’” Id. at 621 (quoting Minnesota v.
Nat’l Tea Co., 309 U.S. 551, 557 (1940)). This Court should reject Respondent’s
remarkable contention that—under Article III—this Court somehow lacks
jurisdiction to review an injunction ordering a state official to take action that
violates the U.S. Constitution and federal law. See Bd. of Ed. of Cent. Sch. Dist.
No. 1 v. Allen, 392 U.S. 236, 241 n.5 (1968) (State officials had standing because “they
are in the position of having to choose between violating their oath [to support the
U.S. Constitution] and taking a step—refusal to comply with [state law]—that would
be likely to bring their expulsion from office.”).
Respondent’s invocation of Bethune-Hill is thus multiply inapt. Opp., at 22.
That case involved an attempt by one house of the state legislature to speak for the
entire legislature. Virginia House of Delegates v. Bethune-Hill, 587 U.S. 658, 663–
64 (2019). That is not the case here. The Secretary is speaking on behalf of the
State. And so is the Attorney General, who possesses authority to litigate on the
State’s behalf “in any proceeding or tribunal in which the state’s interests are
14
involved.” Mo. Rev. Stat. § 27.060; see also Missouri ex rel. Nixon v. Am. Tobacco
Co., 34 S.W.3d 122, 135–36 (Mo. 2000) (holding that the Attorney General has broad
authority to represent the General Assembly as she sees fit). “In this regard,
[Missouri] has adopted an approach resembling that of the Federal Government,
which centralizes the decision whether to seek certiorari by reserving litigation in
this Court to the Attorney General and the Solicitor General.” Bethune-Hill, 587
U.S. at 664 (cleaned up). Bethune-Hill made clear that Virginia’s Attorney General
had authority to seek certiorari in defense of the State’s Elections Clause interests
(even if the Virginia House of Delegates could not). Id. So Bethune-Hill confirms—
rather than undermines—Applicant’s standing to invoke the Elections Clause here.
2. Respondent’s Elections Clause merits defense boils down to two
propositions, both of which are wrong.
First, Respondent insists this Court already blessed what the Missouri
Supreme Court did in Hildebrant, 241 U.S. 565. Opp., at 23–26. That is mistaken.
Neither Hildebrant nor any other case in U.S. history until now addressed or
sanctioned what Respondent wants—3.3% of voters voiding a map in an election year
before a statewide vote. Yes, as Respondent notes, the Ohio Constitution’s
referendum provision also has a suspension provision (though Applicant is unaware
of anyone ever attempting to wield it like Respondent did here). But that suspension
provision was not at issue in Hildebrant. Hildebrant arose in a non-election year
and no one contended that a small minority of citizens could force the use of their
preferred map for two years. 241 U.S. at 566–67. As Chief Justice Roberts
15
explained, “[t]he result of the [referendum vote] was to send” the redistricting
question back to “the Ohio Legislature.” Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm'n (“AIRC”), 576 U.S. 787, 840 (2015) (Roberts, C.J., dissenting)
(emphasis in original). Even if this Court grants this application, Respondent will
have that same opportunity.
Unable to point to any historical precedent, Respondent mostly relies on a
sleight-of-hand. Because this Court blessed a particular type of referendum process
in Hildebrant, Respondent claims it must bless any referendum arrangement—even
one that is applied in a dramatically different way than the one it considered before.
Opp., at 23–26. But just because this Court has sanctioned A (a statewide
referendum vote) does not mean it must sanction C where C=A+B, and B is a
profoundly antidemocratic freezing mechanism this Court never endorsed. And to
be clear, many States have referenda where laws are not frozen before statewide
popular votes. See Alaska v. Allen, 625 P.2d 844, 846 (Alaska 1981) (“[T]he filing of
a referendum petition does not suspend the effect or operation of the act referred.”
(cleaned up)); Barnes v. Maryland ex rel. Pinkney, 204 A.2d 787, 793 (Md. 1964);
Nevada v. Howard, 248 P. 44, 45–46 (Nev. 1926). Thus, Respondent is wrong to
suggest that pre-statewide vote freezing mechanisms are inherently intertwined with
an endorsement of statewide referendum votes. Opp., at 23–26. And again, no one
in Hildebrant contended that a small minority of citizens could void a map before a
statewide vote. See 241 U.S. at 566 (case played out in non-election year).
16
Second, Respondents point to Moore, AIRC, and Hildebrant for a remarkably
broad proposition—that state constitutions can delegate the state legislature’s
redistricting authority in any manner whatsoever. Opp., at 23–24. This Court,
however, has never so “abdicat[ed]” its duty to review Elections Clause claims.
Moore, 600 U.S. at 39 (Kavanaugh, J., concurring). Here, as in many contexts, this
Court consults history, and this Court has upheld state judicial review and
gubernatorial vetoes on that basis. See Moore, 600 U.S. at 19–22; Smiley, 285 U.S.
at 368–69. It has also upheld statewide referenda votes and independent
redistricting commissions—because those at least plausibly promote democratic
values. See AIRC, 576 U.S. at 797–98; id. at 816–17; id. at 822–24. None of those
cases remotely resemble this one. And the fact that Respondent cites zero historical
analogues for his radical approach is a “telling indication of [a] severe constitutional
problem.” 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.)).
Under Respondent’s ahistorical approach, however, anything goes. A State
could permanently empower the Chair of the Republican Party to draw congressional
maps. Or perhaps a State could empower just one person to unilaterally void a
congressional map (at any time) by submitting a piece of paper. The implausibility
of those hypotheticals confirms that Respondent’s absolutist approach is wrong.
And notably, Respondent does not dispute that—if his legal theory is
accepted—the Missouri General Assembly’s authority over redistricting will be
effectively destroyed. He does not dispute that it is easy for political groups to obtain
17
signatures to submit referendum petitions. Stay Appl., at 20. Nor does he contest
that political groups will be incentivized to suspend the State’s congressional map
every time Missouri redistricts. See id. And he acknowledges this could happen after
the decennial Census, when the old map has the wrong number of seats. Opp., at 26.
The only reassurance he offers is that the General Assembly could enact an
emergency clause, id., but that requires two thirds of both legislative houses and
searching judicial review, Mo. Const. art. III, § 29. That unrealistic escape-hatch is
cold comfort for the General Assembly. 4
* * *
In opposing the Secretary’s Elections Clause claim, Respondent chants
federalism “like a mantra.” SEC v. Jarkesy, 603 U.S. 109, 138 (2024). But
federalism is not advanced by allowing 3.3% of a State’s voters to unilaterally override
a state legislature. And on the federal side of the balance, federalism is undermined
when state courts can disrupt imminent federal elections. This Court should not
4 Unable to defend Respondent’s reading of this Court’s precedent, an amicus resorts
to 2 U.S.C. § 2a(c) and 2c. Campaign Legal Center Br., at 12–14. Respondent never raised
this argument below. Amicus is also wrong. AIRC held that § 2a(c) “permits” use of
redistricting commissions in addition to referenda. 576 U.S. at 809. But that is no
different than what this Court has already approved under the Elections Clause. And no
Court has read the Elections Clause or § 2a(c) to permit just 3.3% of voters to suspend a
State’s duly-enacted congressional map one month after a primary election. To do so would
put § 2a(c) at war with the U.S. Constitution for the reasons Missouri has argued.
Amicus’s reading of § 2c fairs no better, and has never been endorsed by any court.
Amicus cites no judicial precedent—at any level—that has ever read § 2c to require courts to
enforce state redistricting laws. Section 2c was enacted as part of the Uniform
Congressional District Act of 1967 to abolish the use of at-large congressional districts in
certain circumstances. That is plainly what its text accomplishes. See 2 U.S.C. § 2c.
Amicus twists the text beyond recognition by insisting that § 2c somehow gives States a blank
check to redistrict however they want and whenever they want.
18
leave a fundamental pillar of the federal government vulnerable to such cavalier
treatment. See Moore, 600 U.S. at 39 (Kavanaugh, J., concurring) (reaffirming
federal courts will not “abdicat[e]” review under the Elections Clause).
B. The Missouri Supreme Court’s injunction—issued a month after the
Primary Election—violates the U.S. Constitution.
Respondent does not dispute that the Missouri Supreme Court’s order renders
the Primary Election pointless—disenfranchising hundreds of thousands of voters.
He also does not dispute the trial court’s finding that hundreds of thousands of
Missourians will “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.” App., at 20a, 45a–46a. From either of those undisputed premises, it
follows that the order under review violates the Equal Protection Clause. See United
States v. Mosley, 238 U.S. 383, 386 (1915); Am. Party of Tex. v. White, 415 U.S. 767,
795 (1974); Gray v. Sanders, 372 U.S. 368, 379 (1963).
Attempting to rebut this point, Respondent leans almost completely on this
Court’s decision in Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982). Opp.,
at 28–32. But Rodriguez helps—rather than harms—the Secretary’s position.
There, an incumbent in the Puerto Rico legislature passed away while in office. 457
U.S. at 3. Puerto Rico had a procedure for “filling interim vacancies.” Id. at 5.
Specifically, the late incumbent’s party would appoint a replacement “without the
necessity of a full-scale special election.” Id. This Court rejected a claim that the
State’s failure to host a special election resulted in an equal protection violation
19
because it advantaged the late incumbent’s political party. Id. at 12. However, this
Court carefully noted that nothing in its opinion should be understood to apply to
elections:
To be sure, when a state … has provided that its representatives be elected, ‘a
citizen has a constitutionally protected right to participate in elections on an
equal basis with other citizens in the jurisdiction.’ However, the Puerto Rico
statute at issue here does not restrict access to the electoral process or afford
unequal treatment to different classes of voters or political parties. All
qualified voters have an equal opportunity to select a district representative in
the general election.
Id. at 10 (emphasis added) (quoting Dunn v. Blumstein, 405 U.S. 330, 336 (1972);
citing Gray v. Sanders, 372 U.S. at 379–380). Thus, Rodriguez explicitly affirms
that the Equal Protection Clause squarely applies here—where all “qualified voters”
in Missouri will not “have an equal opportunity to select a district representative in
the general election”—because voters moved by the court’s order are disadvantaged
compared to those not moved. Id.
Respondent’s invocation of circuit precedent fairs no better. Donatelli v.
Mitchell recognizes the exact distinction that Rodriguez itself recognizes: “The Court
in Rodriguez found no equal protection violation [because] … ‘[a]ll qualified voters
ha[d] an equal opportunity to select a district representative in the general election.’”
2 F.3d 508, 517 (3d Cir. 1993) (quoting Rodriguez, 457 U.S. at 10). That will not be
true in Missouri if voters are forced to vote under a different map on Election Day
(assuming that a timely election will occur at all). Republican Party of Oregon v.
Keisling is also inapposite. 959 F.2d 144 (9th Cir. 1992). That case concerned a
20
voting claim under the First Amendment, not the Fourteenth Amendment—as the
court made clear in its opinion. Id. at 145.
Later, in a footnote, Respondent asserts that the Secretary “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”—such as through statutes providing for party
nomination of alternative candidates. Opp., at 40 n.9 (Mo. Rev. Stat. § 115.363). It
is astonishing that Respondent believes that—in order to avoid an equal protection
violation—Missouri should simply ignore the Primary results and have parties decide
which candidates to nominate instead. That would flagrantly violate Article I,
Section 2 (even under Respondent’s incorrect telling). See Classic, 313 U.S. at 318–
19. But in any event, permitting parties to nominate replacement candidates will
be impossible as of today at 5:00 p.m. Mo. Rev. Stat. § 115.379.1–.2. Under
Missouri Law, “[w]henever a candidate for nomination or election to an office is
disqualified after 5:00 p.m. on the eighth Tuesday prior to a … general election … ,
his or her name shall be printed on the … ballot, as the case may be.” Id.
§ 115.379.2. “The election and canvass shall proceed, and, if a sufficient number of
votes are cast for the disqualified candidate to entitle him or her to nomination or
election had the candidate not become disqualified, a vacancy shall exist on the
general election ballot.” Id. Applicant is aware of no party that, in the midst of the
State’s ongoing chaos, has nominated a replacement congressional candidate to run
under the new districts. Instead, both Democrat and Republican nominees are still
21
wondering whether they are, in fact, running in the General Election—where
absentee ballots will be transmitted in just 12 days. See Jack Harvel, Court ruling
raises questions about Missouri primary winners under a different map, Kansas City
Star (Sept. 4, 2026). 5
Respondent also offers no persuasive rebuttal to Article I, Section 2—even
while suggesting that Missouri should discard all 1.2 million primary votes to avoid
an Equal Protection violation. Opp., at 40 n.9. Article I, Section 2 “applies to the
entire process by which federal legislators are chosen.” Tashjian v. Republican Party
of Conn., 479 U.S. 208, 227 (1986). This process includes the Primary and General
Elections. See Classic, 313 U.S. at 318–19. Yet Respondent suggests that so long as
Missourians had a right to vote in a Primary, that is good enough to satisfy their right
to have their ballots counted. Opp., at 32–33.
But Missourians are deprived of their right to “cho[o]se” their representative
when they are cut off from an integral aspect of Missouri’s process for selecting
representatives. U.S. Const. art. I, § 2; see Mosley, 238 U.S. at 386. “It is simply
inconsistent with the concept of election of Representatives by districts that a
candidate should be chosen in part by persons outside the district elected to these
posts as such.” Montano v. Lefkowitz, 575 F.2d 378, 385 (2d Cir. 1978) (Friendly, J.).
As Judge Friendly aptly put it, “[i]f the state provides a primary election to select
party candidates for the House of Representatives, the voters in each district are
entitled to participate in it on the same basis both of equality and of independence
5 https://www.kansascity.com/news/politics-government/article317133985.html.
22
from other districts having possibly divergent interests that they enjoy in the election
itself.” Id. at 385–86. There is “no constitutional justification” for using candidates
selected from districts “which have no relationship to the congressional district where
the [general] election is to be held.” Id. at 386. Respondent asks this Court to
simply “close [its] eyes to [this] fact.” See Classic, 313 U.S. at 319.
The Missouri Supreme Court’s injunction violates Article I, Section 2 by forcing
hundreds of thousands of Missouri’s voters to consider nominees in the General
Election that they had no opportunity to select in the Primary. App., at 20a, 45a.
Indeed, as one voter attested, “I did not vote—nor could have—for either of [my
general-election candidates] in the primary election.” App., at 1670a. The
Missouri Supreme Court’s injunction thus plainly cuts off voters from the right to
choose their representative. Contra U.S. Const. art. I, § 2.
The other stay favors overwhelmingly favor a stay.
Much on the remaining stay factors is undisputed. To start, Respondent does
not dispute that this case is cert-worthy. See Does 1-3 v. Mills, 142 S. Ct. 17, 17–18
(2021) (Barrett, J., concurring in denial of stay). It obviously is—as Missouri’s ability
to hold a timely federal election is jeopardized.
Respondent also does not contest the Secretary’s irreparable harm analysis.
Stay Appl., at 32–38. The Secretary’s declaration spells out the math of why the
Missouri Supreme Court’s order will force Missouri to violate the federal election
calendar. App., at 1665a–1668a (citing 2 U.S.C. § 7; 52 U.S.C. § 20302). Respondent
provides no response. Respondent instead confusingly states that the Secretary’s
request for relief in advance of UOCAVA disproves his claim. Opp., at 39 n.8.
23
Obviously not. The HB 1 districts were just in place. Voters are assigned to those
congressional districts; ballots have been tested and printed; if this Court grants a
stay, voting will start on time. If the Court denies a stay, it will not. The impending
violation of UOCAVA alone justifies a stay.
Turning to the equities, Respondent also does not really disagree with
Applicant’s account of how he would be affected by a stay. Stay Appl., at 5. Even
if this Court grants this application, Respondent will get his statewide vote on the
HB 1 map. That is what he has publicly insisted his referendum campaign is
primarily about. See, e.g., at 1244a. And Respondent does not dispute that
Missouri has its own Purcell principle (a fact he knew about from the beginning of his
campaign), nor does he dispute that the Missouri Supreme Court inexplicably just
ignored that principle. Stay Appl. at 36–37 (citing Hadley v. Junior Coll. Dist. of
Metro. Kan. City, 460 S.W.2d 1, 2–3 (Mo. 1970)). The fact that the Missouri Supreme
Court “impermissibly distort[ed]” state law by ignoring Hadley is yet another
violation of the Elections Clause justifying a stay. 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).
At the same time, Respondent only barely contests the State’s claim that it is
facing a “federal election-administration disaster.” Stay Appl., at 1. Respondent
cites a newspaper article where two election officials suggest that they can switch
maps, though they acknowledge “[i]t will take some work.” Kacen Bayless, ‘We will
be ready.’ Jackson County says it will comply with Supreme Court map ruling, The
24
Kansas City Star (Sept. 4, 2026). 6 Against that, Respondent ignores the trial court’s
finding that it would be “impossible” to switch maps, App., at 52a; the affidavit of an
election official with 25-years’ experience of running Missouri elections, id., at 1024a–
27a; and the Secretary of State’s declaration, id., at 1665a–1668a. Respondent also
ignores his own counsel’s acknowledgment to the press that the losers of the Primary
Election could try to challenge their losses in the Primary Election. See Jacob
Barker, A ‘crisis’ in Missouri elections? Supreme Court puts the blame on one state
official, St. Louis Post Dispatch (Sept. 6, 2026). 7
Regardless, this Court knows how chaotic the fallout in Missouri is. This
Court has repeatedly recognized that court orders to change congressional maps are
extraordinarily disruptive. That is why this Court has repeatedly stayed court
orders that have changed congressional maps even months before upcoming elections.
See Abbott v. LULAC, 146 S. Ct. 418, 419 (2025) (per curiam); Malliotakis, 146 S. Ct.
809 (staying New York court order several months before primary election).
Whereas this Court stayed an order changing Alabama’s congressional map seven
weeks before the start of mail-in voting, Merrill v. Milligan, 142 S. Ct. 879, 880 (2022)
(Kavanaugh, J., concurring in grant of stay), mail-in voting starts in Missouri in just
eleven days, 52 U.S.C. § 20302(a)(8). Of course, if a federal court had enjoined
Missouri’s congressional map last Thursday, this Court would deem it frivolous under
6 https://perma.cc/9CN3-3KP4.
7https://www.stltoday.com/news/local/government-politics/article_e84fc694-888c-
493d-947b-db809e7e9781.html.
25
Purcell and summarily stay the injunction. Notably, Respondent does not dispute
that the chaos present here dwarfs that in any of this Court’s Purcell-related cases.
Respondent instead offers three other responses. First, Respondent tries to
minimize the Missouri Supreme Court’s unprecedented order by citing two cases,
Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982), and Vera v. Bush, 933 F. Supp. 1341
(S.D. Tex. 1996), where—according to Respondent—courts invalidated an “existing
map after the primary had taken place” and even though “no new map had been
drawn.” Opp., at 40. But Respondent severely misinterprets these decisions.
Busbee was a pre-clearance action—“commenced by the State of Georgia”—
under Section 5 of the Voting Rights Act. 549 F. Supp. at 497. The court’s decision
affected only two of Georgia’s districts, not the entire congressional map. Id. at 518–
19. The court “retain[ed] jurisdiction” over the action to promptly establish a new
redistricting “plan” with Georgia’s input. Id. at 518. It also established a detailed
scheduled for hosting a primary and a general election in the two affected districts—
preventing a mismatch between the primary and general electorates. Id. at 519–20.
That is nothing like what the Missouri Supreme Court did here.
Respondent also misunderstands Vera. Respondent claims that Vera
enjoined Texas’s “map” after a primary and “without a remedial map.” Opp., at 40.
But that court did not invalidate the entire Texas congressional map; it made modest
changes that “affected” a small number of districts relative to the State’s size. 933
F. Supp. at 1342. Further, to avoid the violations of Article I, Section 2 and the
Equal Protection Clause present here, that court held that voters in the “affected
26
congressional districts will participate in an open primary conducted along with the
1996 presidential elections,” and with “runoff elections [to] be held [on] December 10,
1996” “if necessary.” Id. No such order exists here; and Missouri does not see how
it could ignore the federal election calendar without a federal court order. Cf. id. The
chaos here thus dwarfs even Vera—the most chaotic judicial election order
Respondent could find.
Second, Respondent suggests that Purcell is irrelevant when a state court
destabilizes a federal election. Opp., at 36–37. But this Court already suggested
otherwise in Malliotakis, when this Court stayed a disruptive state court order three
months before the June 2026 Primary Election New York. See 146 S. Ct. 809; id. at
811 (Alito, J., concurring in grant of stay) (recognizing that stay restored lawful status
quo that existed before state court decision).
And once again, the implications of Respondent’s extreme theory prove too
much. Under his approach, a state court could change the congressional map in the
middle of mail voting—or two days before Election Day—and this Court would be
powerless to act. The Purcell principle’s primary rationale—preventing disruption
to federal elections “in the thick of election season,” Democratic National Committee
v. Wisconsin State Legislature, 592 U.S. 1039, 1041 (2020) (Roberts, C.J.,
concurring)—fits better here than in any other Purcell-related case. No reasonable
equitable principle suggests this Court should categorically blind itself to state courts
destabilizing federal elections.
27
Third, Respondent mimics the Missouri Supreme Court and insists that this
Court should ignore severe consequences to punish Secretary Hoskins’s handling of
the referendum petition. Opp., at 35–37. This inequitable argument fails.
To start, Respondent’s account of the Secretary’s actions is incomplete and
implausible. It is undisputed that the Secretary confronted a scenario never
encountered before in Missouri or any other State—an effort to exploit state law by a
tiny minority of voters to freeze a duly enacted congressional map before any
statewide vote. Faced with this unprecedented effort, Secretary Hoskins handled
Respondent’s referendum petition exactly as Missouri law instructs him to do. He
promptly sent the hundreds of thousands of signatures Respondent gathered to all
the county election officials for signature verification. See Mo. Rev. Stat. § 116.130.
That takes a long time. That is why state law gives everyone until August 4—the
day of the Primary Election—to finish the job. Mo. Rev. Stat. § 116.150.3. By the
time all of Missouri’s county election officials completed review in the summer of
2026, Missouri already faced an imminent primary election. Rejecting the
referendum petition then would have placed that election in chaos. Contra Hadley,
460 S.W.2d at 2–3.
But assume that Respondent is correct and Secretary Hoskins acted
improperly in deferring his rejection of the referendum petition until the state-law
deadline. So what? Respondent seems to think that punishing Secretary Hoskins
personally somehow justifies inflicting catastrophic harms on all of Missouri,
unrelated political campaigns, election officials, and voters across the State. But this
28
Court has invoked Purcell to grant stays even when state governments are alleged to
have engaged in illegal behavior—like racial discrimination. See Merrill, 142 S. Ct.
879–80. By contrast, no one here alleges Secretary Hoskins broke the law. At most,
taking everything Respondent says as true, Secretary Hoskins took advantage of a
state-law deadline to improve his chances of defending a law enacted by the state
legislature. 8 See Mo. Rev. Stat. § 116.150. Applying equity, any potential
transgression cannot justify punishing an entire State, election officials, campaigns,
and millions of voters—who likely will not be able to participate in a timely federal
election absent a stay. See App., at 52a.
* * *
In applying equity, the Court should not lose sight of the bigger picture. This
Court has recognized that orders to alter congressional maps are disruptive even
several months before an upcoming primary election. Abbott, 146 S. Ct. at 419;
Malliotakis, 146 S. Ct. 809; Merrill, 142 S. Ct. at 880 (Kavanaugh, J., concurring in
grant of stay). Here, the order under review voids a primary. It leaves election
officials, candidates, and voters scrambling and unsure what to do with voting
starting in just eleven days. The equities are more lopsided here than in any other
8 Respondent also heavily emphasizes the Attorney General’s mundane observation that
challenged election rules are more likely to stay in effect as an election approaches. Opp., at
35–36. Any election lawyer knows that, which is why Democracy Docket (founded by Marc
Elias, founder of the firm representing Respondent) observed back in March that basic equity
would likely require Missouri to use the HB 1 map for the 2026 General Election. App., at
1244a–1245a.
29
case where this Court has granted a stay in an election-related case. The Court can
and should end this chaos.
CONCLUSION
The Court should grant an immediate administrative stay and a stay pending
appeal as soon as possible.
30
September 8, 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
31