Amicus Curiae Brief — Denny Hoskins, Secretary of State of Missouri, Applicant v. Richard Von Glahn, et al.

Supreme Court briefSep 7, 2026

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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.

______________________________

BRIEF OF AMICI CURIAE CAMPAIGN LEGAL CENTER, AMERICAN

CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, AND AMERICAN

CIVIL LIBERTIES UNION FOUNDATION IN SUPPORT OF RESPONDENT

______________________________

Gillian R. Wilcox

Jason Orr

Jonathan D. Schmid

Kristin M. Mulvey

ACLU OF MISSOURI FOUNDATION

406 W. 34th Street, Suite 420

Kansas City, MO 64111

Ming Cheung

Cecillia D. Wang

Sophia Lin Lakin

Dayton Campbell-Harris

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

125 Broad Street

New York, NY 10004

Mark P. Gaber

Counsel of Record

Aseem Mulji

Simone Leeper

Benjamin Phillips

Isaac DeSanto

CAMPAIGN LEGAL CENTER

1101 14th Street NW, Suite 400

Washington, DC 20005

(202) 736-2000

mgaber@campaignlegalcenter.org

Annabelle E. Harless

CAMPAIGN LEGAL CENTER

55 W. Monroe Street, Suite 1925

Chicago, IL 60603

Counsel for Amici

TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE ................................................................................. 1

SUMMARY OF ARGUMENT ........................................................................................ 3

ARGUMENT ................................................................................................................... 4

I.

The Secretary asks this Court to bless, not prevent, an Elections Clause

violation. ............................................................................................................... 4

A. The Missouri Supreme Court did not violate the Elections Clause. .......... 6

B. The Secretary asks this Court to effectuate his own violation of the

Election Clause. .......................................................................................... 10

1.

A stay would allow an executive officer to displace “the

Legislature.” ......................................................................................... 11

2.

A stay would defy Congress’s mandate that Representatives be

elected “only” from districts “established by law.” ............................. 12

II. The Secretary has unclean hands and cannot seek equitable relief. .............. 14

III. To the extent Purcell considerations apply, they weigh heavily in favor of

denying the application. .................................................................................... 21

CONCLUSION ............................................................................................................. 25

i

TABLE OF AUTHORITIES

Cases

Abbott v. LULAC,

146 S. Ct. 418 (2025) ............................................................................................. 21

Allen v. Milligan,

146 S. Ct. 1377 (2026) ..................................................................................... 21, 22

Arizona State Legislature v. Arizona Independent Redistricting Commission,

576 U.S. 787 (2015) ........................................................................................... 8, 13

Branch v. Smith,

338 U.S. 254 (2003) .............................................................................................. 13

Glus v. Brooklyn Eastern District Terminal,

359 U.S. 231 (1959) .............................................................................................. 20

Growe v. Emison,

507 U.S. 25 (1993) ................................................................................................. 21

Hadley v. Junior College District of Metropolitan Kansas City,

460 S.W. 2d 1 (Mo. 1970) ....................................................................................... 23

Henderson v. United States,

575 U.S. 622 (2015) ............................................................................................... 15

Maggard v. State,

733 S.W.3d 411 (Mo. 2026) .................................................................................... 17

Malliotakis v. Williams,

146 S. Ct. 809 (2026) ............................................................................................. 23

Merrill v. Milligan,

142 S. Ct. 879 (2022) (Mem.) ................................................................................. 23

Missouri General Assembly v. Von Glahn,

No. 4:25-CV-1535-ZMB, 2025 WL 3514277 (E.D. Mo. Dec. 8, 2025) ............ 16, 17

Moore v. Harper,

600 U.S. 1 (2023) ....................................................................................... 5, 6, 8, 10

Moore v. Harper,

142 S. Ct. 1089 (2022) (Mem) ................................................................................ 22

Mullaney v. Wilbur,

421 U.S. 684 (1975) ............................................................................................... 10

ii

Niz-Chavez v. Garland,

593 U.S. 155 (2021) ............................................................................................... 15

No Bans on Choice v. Ashcroft,

638 S.W.3d 484 (Mo. 2022) .............................................................................. 11, 12

Ohio ex rel. Davis v. Hildebrant,

241 U.S. 565 (1916) ................................................................................. 7, 8, 10, 13

Olmstead v. United States,

277 U.S. 438 (1928) ................................................................................................ 15

Precision Instrument Manufacturing Co. v. Auto. Maintenance Machine Co.,

324 U.S. 806 (1945) ............................................................................. 14, 15, 19, 20

Purcell v. Gonzalez,

541 U.S. 1 (Mo. 1962) ............................................................................................ 22

Reed v. Allen,

286 U.S. 191 (1932) ......................................................................................... 15, 19

Rose v. Raffensperger,

143 S. Ct. 58 (2022) (Mem) .............................................................................. 15, 24

Smiley v. Holm,

285 U.S. 355 (1932) ................................................................................................. 8

State ex rel. Davis v. Hildebrant,

114 N.E. 55 (Ohio 1916) .......................................................................................... 8

State ex rel. Moore v. Toberman,

250 S.W.2d 701 (Mo. 1952) .................................................................................... 11

Constitutional Provisions

U.S. Const. art. I, § 4, cl. 1. ............................................................................................ 5

Mo. Const. art. III, § 49 .................................................................................................. 5

Mo. Const. art. III, § 52(a) .............................................................................................. 5

Mo. Const. art. III, § 52(b) .............................................................................. 5, 9, 13, 14

Mo. Const. art. IV, § 12 ................................................................................................ 11

Mo. Const. art. IV, § 14 ................................................................................................ 11

Statutes

2 U.S.C. § 2a(c) .............................................................................................................. 13

iii

2 U.S.C. § 2c .............................................................................................. 3, 6, 12, 13, 14

Mo. Rev. Stat. § 116.120.1 ............................................................................................ 12

Mo. Rev. Stat. § 116.130 ............................................................................................... 12

Mo. Rev. Stat. § 116.150 ............................................................................................... 12

Mo. Rev. Stat. § 116.332 ............................................................................................... 12

Other Authorities

Alisa Nelson, When Does Missouri’s New Congressional Map Take Effect? That

Depends on Who You Ask, MissouriNet (Dec. 10, 2025), https://perma.cc/F8KU2DXV .......................................................................................................................................... 16

David A. Lieb & Hannah Schoenbaum, Opponents of Trump-backed redistricting in

Missouri submit a petition to force a public vote, PBS News (Dec. 9, 2025),

https://perma.cc/9SXV-CAS4 .............................................................................................. 16

Kacen Bayless, Trump attacks Missouri map ruling as ‘Dark Day,’ AG vows to fight

decision, Kansas City Star (Sep. 3, 2026), https://perma.cc/3DXZ-SVLH ............ 24

Kacen Bayless, ‘We will be ready.’ Jackson County says it will comply with Supreme

Court map ruling, Kansas City Star (Sep. 4, 2026), https://perma.cc/27P8-D9QQ

............................................................................................................................ 4, 25

Rudi Keller, Missouri voters reject income tax phaseout, initiative petition changes,

Mo.

Independent

(Aug.

4,

2026),

https://missouriindependent.com/2026/08/04/missouri-voters-reject-income-taxphaseout-initiative-petition-changes/ ..................................................................... 9

Rudi Keller, St. Charles County election leader warns redistricting delay could

threaten August primary, Missouri Independent (May 16, 2026),

https://missouriindependent.com/2026/05/16/st-charles-county-election-leaderwarns-redistricting-delay-could-threaten-august-primary/ ................................ 18

Senator Denny Hoskins Capitol Report Week of Jan. 24, 2022, EINPressWire (Jan.

27, 2022), https://perma.cc/U9T7-B4TX ............................................................... 11

iv

INTERESTS OF AMICI CURIAE1

Campaign Legal Center (“CLC”) is a nonpartisan, nonprofit organization

dedicated to securing free and fair elections for all voters. CLC regularly litigates

before this Court and state high courts on voting rights and redistricting matters,

including as counsel for parties or amici curiae in Watson v. Republican National

Committee, 146 S. Ct. 2165 (2026), Moore v. Harper, 600 U.S. 1 (2023), Rucho v.

Common Cause, 588 U.S. 684 (2019), Gill v. Whitford, 585 U.S. 48 (2018), and Arizona

State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787

(2015).

The American Civil Liberties Union (“ACLU”) is a nationwide, non-profit, nonpartisan organization with more than 1.7 million members, founded in 1920 and

dedicated to the principles of liberty and equality enshrined in the Constitution. In

support of those principles, the ACLU has appeared before this Court as counsel or

amicus curiae in numerous cases involving electoral democracy or redistricting,

including Smith v. Allright, 321 U.S. 649 (1944), Reynolds v. Sims, 377 U.S. 533

(1964), Thornburg v. Gingles, 478 U.S. 30 (1986), Citizens United v. Federal Election

Commission, 558 U.S. 310 (2010), Department of Commerce v. New York, 588 U.S.

752 (2019), Allen v. Milligan, 599 U.S. 1 (2023), and Moore v. Harper, 600 U.S. 1

(2023). The ACLU has an interest in promoting free and fair elections and fair

districting, including specifically in Missouri, having served as counsel in Wise v.

1 No counsel for any party has authored this brief in whole or in part, and no entity or person, aside

from amici curiae and their counsel, made any monetary contribution intended to fund the preparation

or submission of this brief.

1

Missouri, 732 S.W.3d 827 (Mo. 2026), and Missouri State Conf. of the Nat’l Ass’n for

the Advancement of Colored People v. Ferguson-Florissant Sch. Dist., 894 F.3d 924

(8th Cir. 2018); both cases sought to address the harmful impacts of the challenged

districts on minority voters in Missouri.

The American Civil Liberties Union of Missouri (“ACLU-MO”) is the statewide

affiliate of the ACLU, with over 20,000 members and a longstanding interest in and

history of protecting the constitutional rights of all Missourians. Through direct

representation or on behalf of amicus curiae, the ACLU-MO regularly engages in

litigation to protect rights related to voting, including the right to referendum. These

cases include, but are not limited to Maggard v. State, 733 S.W.3d 411 (Mo. 2026);

State v. League of Women Voters of Missouri, 730 S.W.3d 591 (Mo. 2026); Missouri

State Conf. of the Nat’l Ass’n for the Advancement of Colored People v. State, 730

S.W.3d 550 (Mo. 2026); Coleman v. Ashcroft, 696 S.W.3d 347 (Mo. 2024); State ex rel.

Fitz-James v. Bailey, 670 S.W.3d 1 (Mo. 2023); and No Bans on Choice v. Ashcroft,

638 S.W.3d 484 (Mo. 2022).

CLC, ACLU, and ACLU-MO participated as amici curiae in the proceedings

below and in Luther v. Hoskins, 730 S.W.3d 567 (Mo. 2026), and were counsel for the

plaintiffs in Wise v. State, 732 S.W.3d 827 (Mo. 2026). Each has an interest in

ensuring Missouri voters the opportunity to vote in lawful congressional districts and

in the sound interpretation of the federal Elections Clause.

2

SUMMARY OF ARGUMENT

The Secretary’s application should be denied. The only federal election crisis

would be if this Court grants the application and permits an illegal election to be held

using unlawful districts.

First, the Missouri Supreme Court did not offend the bounds of ordinary

judicial review in reading “any act” in the Missouri Constitution to include laws

enacting congressional maps. Its decision is consistent with over a century of

precedent from this Court holding that the Elections Clause permits redistricting

legislation to be subjected to referenda. Instead, it is the Secretary’s requested relief

that would violate the Elections Clause and federal law. The Elections Clause grants

initial power over congressional redistricting to the state lawmaking process—

including initiatives and referenda where applicable—and gives Congress

superseding power over the subject. Granting a stay would violate both elements. It

would displace the map arising from Missouri’s lawmaking process—the 2022 map—

with one the Missouri Supreme Court unanimously held “is not the law and has never

been the law.” App.12a n.8. And it would contravene 2 U.S.C. § 2c, an Elections

Clause statute requiring that Representatives be elected “only” from the districts

established “by law” of the states—words chosen specifically because some states, like

Missouri, subject congressional maps to initiatives and referenda.

Second, the Secretary’s unclean hands preclude relief. He and the state

Attorney General, who has represented him in this case, openly and loudly

proclaimed their strategy of maximum delay. “Delay works in our favor,” the Attorney

3

General said on talk radio in January. App.739a. Surprised to learn the Missouri

Supreme Court unanimously refused to be an instrument of that strategy, they now

ask this Court to put their ploy back on track. This Court, like the state court, should

play no part in that scheme.

Third, Purcell does not apply to the state court’s enforcement of its own state

constitution. In any event, the Missouri Supreme Court weighed the equities and

found the Secretary to blame for his purposeful delay strategy. This Court has no

power to disrupt that decision, and to do so would offend Purcell. Missouri election

officials are already taking steps to comply with the state court decision. The

bipartisan co-directors of the Jackson County Elections Board—the county most

affected by the map changes and the second-most populated in the state—have

publicly announced they can and will comply with the Missouri Supreme Court’s

order.2

This Court should decline the Secretary’s invitation to create a federal

constitutional violation and become the lynchpin of his plan to subject Missourians

to an unlawful general election.

ARGUMENT

I.

The Secretary asks this Court to bless, not prevent, an Elections

Clause violation.

The Secretary presents his application as necessary to prevent an Elections

Clause violation by the Missouri Supreme Court. Appl. at 17-23. But if anyone has

2 Kacen Bayless, ‘We will be ready.’ Jackson County says it will comply with Supreme Court map ruling,

Kansas City Star (Sep. 4, 2026), https://perma.cc/27P8-D9QQ.

4

violated the Elections Clause here, it is not the state supreme court. It is the

Secretary.

The Elections Clause provides that the times, places, and manner of

congressional elections “shall be prescribed in each State by the Legislature thereof,”

subject to Congress’s superseding authority to “at any time by Law make or alter such

Regulations.” U.S. Const. art. I, § 4, cl. 1. For over a century, this Court has held that

“the Legislature” does not mean the state’s representative assembly alone but its

lawmaking power exercised through whatever methods the state constitution

prescribes, including the executive veto and referendum. Moore v. Harper, 600 U.S.

1, 23-26 (2023).

The Missouri Supreme Court respected this allocation of authority. The

Missouri Constitution subjects “any act of the general assembly” to referendum. Mo.

Const. art. III, § 49. And an act referred to the people by collection of sufficient

signatures, id. § 52(a), takes effect once approved by voters at the next general

election (or special election if the General Assembly calls one), “and not otherwise,”

id. § 52(b). Reading this language by its plain terms, the court held that HB 1 is

subject to referendum, meaning it cannot take effect unless and until voter approval,

and it ordered the Secretary to act accordingly. App.7a-13a. This is the “ordinary

exercise of state judicial review” Moore safeguards to enforce “ordinary constraints

on lawmaking in the state constitution.” 600 U.S. at 22, 29-30.

The Secretary—an executive branch official in whom the Elections Clause

vests nothing—now asks this Court to stay the judgment so that he can keep using

5

his preferred congressional map, which, as a matter of Missouri law, “is not the law

and has never been the law.” App.12a n.8. Granting his request would offend both

parts of the Elections Clause. It would allow a state executive officer to unilaterally

halt part of the legislative process on HB 1 and administer elections under a map the

State’s legislative process, as constitutionally prescribed, did not produce. And it

would defy Congress’s exercise of its Elections Clause authority to mandate that

Representatives “be elected only from districts” “established by law,” 2 U.S.C. § 2c

(emphases added)—words Congress carefully chose for the very purpose of

accommodating states that subject congressional maps to referenda. The Court

should decline the Secretary’s invitation to take part in these violations.

A.

The Missouri Supreme Court did not violate the Elections

Clause.

The Missouri Supreme Court’s judgment raises no Elections Clause concern.

The Elections Clause “does not insulate state legislatures from the ordinary exercise

of state judicial review” for violations of state constitutional constraints on

lawmaking. Moore, 600 U.S. at 22. And state courts transgress the Clause only where

they exceed “the ordinary bounds of judicial review such that they arrogate to

themselves the power vested in state legislatures.” Id. at 36. Here, the Missouri

Supreme Court did nothing of the kind. As it expressly stated, “[t]he only issue” before

it was “whether the Missouri Constitution authorizes the referendum petition as a

matter of law.” App.1a. It answered that question with typical tools of constitutional

construction—by reading Article III, Section 49’s plain text applying the referendum

to “any act,” finding no enumerated exception applicable, comparing Section 49 with

6

other provisions that do exempt commission-drawn state legislative plans from

referenda, and applying its own precedents recognizing congressional redistricting as

a legislative act subject to referendum. App.8a-10a. A state court that has construed

its constitution according to its text, structure, and precedent has simply done what

courts do and arrogated nothing.

The Secretary complains that the Missouri Supreme Court did not accept his

theory that the Elections Clause preempts application of Missouri’s referendum

procedures to congressional redistricting. Appl. at 20-21. No wonder: it would have

required reading over a century of precedent to mean the opposite of what it says. In

Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916)—a case on all fours with this

one—this Court upheld a state referendum on a congressional redistricting against

an Elections Clause challenge. Ohioans had reserved legislative authority “to approve

or disapprove by popular vote any law enacted by the General Assembly,” and they

used it to reject a mid-decade congressional map. Id. at 566. A proponent of the map

argued that the referendum was not part of the state legislative power, and, if it was,

its application to congressional districting violated the Elections Clause. Id. at 56667. This Court rejected both contentions. First, it deemed “conclusive” the state

supreme court’s holding that the referendum was part of the state’s legislative power.

Id. at 567-68. Second, it dismissed as “plainly without substance” any suggestion that

including the referendum within the legislative power for redistricting purposes “is

7

repugnant to [the Elections Clause].” Id. at 568-69.3

Hildebrant has been repeatedly reaffirmed. Smiley v. Holm extended its

reasoning to the executive veto. 285 U.S. 355, 367 (1932). Arizona State Legislature

v. Arizona Independent Redistricting Commission (“AIRC”) crystallized the rule:

congressional redistricting is “a legislative function, to be performed in accordance

with the State’s prescriptions for lawmaking, which may include the referendum and

the Governor’s veto.” 576 U.S. 787, 808-09 (2015). And Moore reaffirmed the entire

line. 600 U.S. at 25-26.

The Secretary’s central theme, and his sole effort to distinguish Hildebrant, is

that a petition signed by roughly 3.3% of Missouri voters will prevent HB 1 from

taking effect before the statewide vote. Appl. at 3, 21. But the Ohio referendum

sustained in Hildebrant worked exactly the same way. After the Ohio General

Assembly enacted its mid-decade map in May 1915, voters gathered the

constitutionally required signatures—6% of electors—thereby suspending the act

pending referendum, and in the next general election they rejected it. See State ex rel.

Davis v. Hildebrant, 114 N.E. 55, 57 (Ohio 1916). For six months, in other words, a

congressional map was suspended by petition, before any statewide vote, on the

signatures of a fraction of Ohio’s electorate. This is the standard referendum design

Congress rewrote its redistricting statute in 1911 specifically to accommodate. See

id.; AIRC, 576 U.S. at 809; infra Part I.B.

3 Intervenor-Respondents claim Hildebrant only evaluated compliance with the Guarantee Clause.

RNC Br. at 25-26. Incorrect. Hildebrant expressly evaluated—and dismissed—the claim that the

referendum was “repugnant to § 4 of article 1 of the Constitution.” 241 U.S. at 569.

8

The Secretary also claims that the referendum petition’s interim effect is “antidemocratic” and promotes minority rule. Appl. at 2-3, 22. But the petition itself

decides nothing; it just sends HB 1 to all Missouri voters to decide at the next

available election whether it becomes law. That is the antithesis of minority rule.

Compare the executive veto, which lets one person prevent a congressional map from

becoming law. If a veto by a single official is consistent with the Elections Clause—

as no party disputes—so is a veto by the electorate at large, and so is a petition that

merely defers a map’s effective date until that electorate has spoken. Nor does the

petition “impose” a map the petitioners “prefer[].” Appl. at 15, 23. It leaves in place

the map the General Assembly itself enacted in 2022 under the current census, which

was used in the last two congressional elections and contains the only districts that

are Missouri law. App.12a n.8.

If the Secretary believes the referendum should have been held before the

midterms, he has only his own delay to blame, infra Part II, along with the General

Assembly’s decision not to order a special election, see Mo. Const. art. III, § 52(b). And

if the Secretary believes the referendum is just too accessible or slow, the remedy is

to persuade his fellow Missourians to amend their constitution.4 The Elections

Clause, for its part, vests authority in the state constitution’s lawmaking procedure

as presently prescribed, including the referendum petition. Moore, 600 U.S. at 25-26.

4 One month ago—on the same day the Secretary issued his certificate of insufficiency—roughly 80%

of Missouri voters, and a majority in all eight congressional districts, rejected Amendment 4, a General

Assembly-referred measure that would have required citizen-initiated constitutional amendments to

win a majority in every congressional district. See Rudi Keller, Missouri voters reject income tax

phaseout,

initiative

petition

changes,

Mo.

Independent

(Aug.

4,

2026),

https://missouriindependent.com/2026/08/04/missouri-voters-reject-income-tax-phaseout-initiativepetition-changes/.

9

Finally,

Intervenor-Respondents

claim

the

Missouri

Supreme

Court

contravened the Elections Clause by not applying a “clear statement” rule. They

contend that because the Elections Clause names “the Legislature,” a State may not

“displace” a representative assembly’s redistricting authority without a clear

statement, and Missouri’s application of referenda to “any act” is not clear enough.

RNC Br. at 18-28. But no such rule exists. Neither Hildebrant nor Smiley required

redistricting-specific authorization; the general referendum and veto powers sufficed.

The “rule” also rests on a false premise. Every clear-statement doctrine IntervenorRespondents invoke, see RNC Br. at 19-23, protects one branch of government from

intrusion by another. Here, the referendum and General Assembly are both “part of

the legislative power” in which the Elections Clause vests authority, so the rule would

lack operation here. Hildebrant, 241 U.S. at 569; Moore, 600 U.S. at 25-26. In any

event, the Missouri Supreme Court held that Section 49’s “any act” language plainly

subjects congressional redistricting to referendum, App.7a, 10a, and it is “the

ultimate expositor[] of state law,” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975).

Whatever clarity Intervenor-Respondents’ rule would require, the Missouri

Constitution supplies it.

In short, the Missouri Supreme Court did what courts do in reaching the result

a century of this Court’s precedent requires. It committed no Elections Clause

violation for this Court to correct.

B.

The Secretary asks this Court to effectuate his own violation of

the Election Clause.

The actual Elections Clause problem here is the Secretary’s. A stay would

10

authorize his intrusion on both Missouri’s lawmaking power and Congress’s

superseding authority under the Elections Clause.

1.

A stay would allow an executive officer to displace “the

Legislature.”

The Elections Clause, as discussed, vests initial authority over congressional

elections in the State’s legislative power, including referenda. The Secretary is an

executive branch official with no part in the legislative process. Mo. Const. art. IV,

§§ 12, 14. He has no vote on a bill, no veto over it, and no say on which congressional

map Missouri’s lawmakers adopt. See id. § 14. In Missouri, the Governor “is a factor

in legislation.” State ex rel. Moore v. Toberman, 250 S.W.2d 701, 704 (Mo. 1952). And

the People are “constitutionally reserved a share of the legislative power” via

initiative and referendum. No Bans on Choice v. Ashcroft, 638 S.W.3d 484, 489 (Mo.

2022). Neither is true of the Secretary. His role is to administer laws, not participate

in making them.5

The Secretary has certain limited responsibilities in administering referenda

following the General Assembly’s and Governor’s work in the lawmaking process—

e.g., receiving the petition, verifying signatures, and certifying whether it complies

with the state constitution and law. See Mo. Rev. Stat. §§ 116.120.1, 116.130, 116.150,

116.332. But he cannot impede referenda under the state constitution, which

5 The Secretary may find this distinction hard to keep in view. Not long ago, Secretary Hoskins was

State Senator Hoskins. And in 2022, he fervently lobbied his colleagues to adopt a 7-1 congressional

map he called “vitally important given the close partisan margins in Congress.” Senator Denny

Hoskins Capitol Report Week of Jan. 24, 2022, EINPressWire (Jan. 27, 2022), https://perma.cc/U9T7B4TX. The General Assembly enacted the 2022 map instead. Having failed to secure a 7-1 map as a

legislator, the Secretary cannot secure it now as an executive officer over the objection of the people

whose vote the state constitution requires.

11

identifies the referendum right as fundamental. See No Bans on Choice, 638 S.W.3d

at 492. Nor does the Elections Clause allow the Secretary to arrogate to himself the

power to decide whether a bill subject to referendum becomes law or takes effect

without voters’ say-so.

But that authority is precisely what the Secretary has claimed for himself here.

He held the referendum petition in limbo for eight months, administered HB 1 in the

interim as though it were law, declared the petition insufficient on a legal theory he

purported to believe from day one and that the Missouri Supreme Court has now

unanimously rejected, and now asks this Court to freeze the effect of his efforts in

place for the midterm election. App.12a n.8. A stay would ratify this intrusion and

allow the Secretary to administer congressional elections under a map other than the

one Missouri’s constitutionally prescribed legislative process has produced. That

violates the Elections Clause.

2.

A

stay

would

defy

Congress’s

Representatives be elected “only”

“established by law.”

mandate

that

from districts

Congress has exercised its superseding Elections Clause authority to affirm

the power of citizens to reject congressional redistricting maps by referendum. It did

so by requiring that Representatives be elected “only” from districts “established by

law.” 2 U.S.C. § 2c. A stay would permit the Secretary to administer a map that

violates this authority.

As this Court explained in AIRC, from 1862 through 1901, the apportionment

acts required redistricting by “the legislature” of each State. 576 U.S. at 809. In 1911,

“focus[ing] on the fact that several States had supplemented the representative

12

legislature mode of lawmaking with a direct lawmaking role for the people” through

initiative and referendum, Congress struck that language and instead used the

phrase “redistricted in the manner provided by the laws thereof.” Id. (emphasis in

original). In Hildebrant, this Court relied on this history (recent memory at the time)

to dismiss the Elections Clause challenge to Ohio’s referendum:

[W]e think it is clear that Congress . . . insert[ed] a clause plainly

intended to provide that where, by the state Constitution and laws, the

referendum was treated as part of the legislative power, the power as

thus constituted should be held and treated to be the state legislative

power for the purpose of creating congressional districts by law.

241 U.S. at 568.

The phrase “by the laws thereof” survives in the current version of 2 U.S.C.

§ 2a(c), and in 1967 Congress went further in enacting 2 U.S.C. § 2c: “[i]n each State

. . . there shall be established by law a number of districts equal to the number of

Representatives to which such State is so entitled, and Representatives shall be

elected only from districts so established.” 2 U.S.C. § 2c (emphasis added). In Branch

v. Smith, this Court rejected as “implausib[le]” the notion that “by law” refers solely

to acts of the state legislature when it affirmed the ability of state and federal courts

to impose congressional maps. 538 U.S. 254, 271-72 (2003).

Section 2c prohibits what the Secretary asks this Court to compel. Under

Missouri law, HB 1 is not the “law.” It will “take effect when approved by a majority

of the votes cast [in the general election], and not otherwise.” Mo. Const. art. III,

§ 52(b) (emphasis added). The only districts “established by law” in Missouri are the

2022 districts. Id. Congress created no exceptions disapproving of certain referendum

13

frameworks when it enacted Section 2c.6 Instead, it provided that whatever the

lawmaking process of a state, “only” a congressional map compliant with it can be

used to elect Representatives. A stay permitting the November election to proceed

under HB 1 would therefore require Missouri to elect Representatives from districts

not established by law contrary to Section 2c. This Court should not join the

Secretary’s effort to violate the Elections Clause and federal law.

II.

The Secretary has unclean hands and cannot seek equitable relief.

The Secretary had a plan: delay. Missouri’s Attorney General, who filed the

“emergency” application on the Secretary’s behalf, said as much on talk radio in

January of this year: “[a]s long as the status quo is the new map, delay works in our

favor.” App.739a. Despite knowing the inevitable consequences, the Secretary

plunged ahead, committed to subverting Missouri’s constitutional order and counting

on the courts to uphold his scheme. But the Missouri Supreme Court unanimously

rejected the Secretary’s efforts, and now he asks to invoke this Court’s equitable

jurisdiction to put his plan back on track.

A stay is a remedy subject to the “equitable maxim” that “he who comes into

equity must come with clean hands.” Precision Instrument Mfg. Co. v. Auto. Maint.

Mach. Co., 324 U.S. 806, 814 (1945); see also Rose v. Raffensperger, 143 S. Ct. 58, 59

(2022) (Mem). This long-standing principle “closes the doors of a court of equity to one

6 The Secretary entirely ignores Section 2c in his application. Even if there were something to his

argument that Missouri’s referendum process runs afoul of “the Legislature” portion of the Elections

Clause (there is not), Congress has stepped in to not only bless but require that congressional maps be

adopted in accordance with the laws of the states. That includes Missouri’s referendum law, even if

the Secretary dislikes its particulars. He asks this Court to override Congress’s Elections Clause

power—to use federal judicial authority to violate federal law. That it cannot do.

14

tainted with inequitableness or bad faith.” Precision Instrument Mfg. Co., 324 U.S. at

814. The doctrine “proscribes equitable relief” when an applicant has acted in bad

faith in “immediate and necessary relation to the equity that he seeks.” Henderson v.

United States, 575 U.S. 622, 625 n.1 (2015). Where a government actor seeks

equitable relief with unclean hands, “the reasons for applying [the maxim] are even

more persuasive.” Olmstead v. United States, 277 U.S. 438, 483 (1928) (Brandeis, J.,

dissenting). “If men must turn square corners when they deal with the government,

it cannot be too much to expect the government to turn square corners when it deals

with them.” Niz-Chavez v. Garland, 593 U.S. 155, 172 (2021).

Here, the Secretary, a government actor, asks this Court for relief from a

situation he created by his months-long campaign—openly admitted—of intentional

delay. He claims there is a “federal-election-administration disaster unfolding in

Missouri,” Appl. at 1, because the Missouri Supreme Court refused to be part of his

scheme. This Court should similarly refuse to aid a litigant with a “predicament” that

is “of his own making.” Reed v. Allen, 286 U.S. 191, 198 (1932).

This stay application is the final step of a plan the Secretary set in motion last

December. Following the General Assembly’s passage of a new mid-decade

redistricting bill in the September 2025 special session, the people invoked the

fundamental referendum right and began gathering signatures. The Secretary

understood that if sufficient signatures were gathered, the new map would not go into

effect. A federal court told him so on December 8, 2025, observing that if the

referendum petition is sufficient, “the new map will be frozen until after the

15

referendum.” Missouri Gen. Assembly v. Von Glahn, No. 4:25-CV-1535-ZMB, 2025

WL 3514277, at *2 (E.D. Mo. Dec. 8, 2025).

The next day, on December 9, 2025, organizers submitted to the Secretary

more than 300,000 signatures in support of the referendum petition. App.2a-3a. This

triggered a legal obligation for the Secretary to evaluate the petition and signatures

and issue a certificate of sufficiency or insufficiency. App.3a. Faced with this duty,

the Secretary announced his intention: “I’m going to do everything I can to protect

Gov. (Mike) Kehoe’s Missouri First Map,” also known as HB 1.7 The Secretary also

revealed that the state Attorney General had provided a roadmap of how to achieve

his goal, telling the media the day after the signatures were submitted that, “[t]he

Attorney General’s Office just came out with an opinion that says that the

referendum does not go into effect until the signatures have been certified by the

Secretary of State’s office.”8 The way forward for the Secretary was clear: delay

certification. And he announced this strategy too, proclaiming that his review of the

submitted signatures would be “slow and steady.”9

While the Secretary delayed confirmation of the sufficiency of the submitted

signatures, he revealed that issuance of a certificate of insufficiency was

predetermined on entirely unrelated grounds: his misguided belief that the

referendum was unconstitutional. See Missouri Gen. Assembly, 2025 WL 3514277, at

7 David A. Lieb & Hannah Schoenbaum, Opponents of Trump-backed redistricting in Missouri submit

a petition to force a public vote, PBS News (Dec. 9, 2025), https://perma.cc/9SXV-CAS4.

8 Alisa Nelson, When Does Missouri’s New Congressional Map Take Effect? That Depends on Who You

Ask, MissouriNet (Dec. 10, 2025), https://perma.cc/F8KU-2DXV.

9 Lieb, supra note 7.

16

*2 n.2 (noting the Secretary’s “stated belief that the petition is constitutionally

deficient” and his “expectation” to issue a certificate of insufficiency on that basis).10

But rather than issue the certificate and face timely judicial review, the Secretary

continued to wait. As the Attorney General explained in a talk radio interview, “[a]s

long as the status quo is the new maps, delay works in our favor.” App.739a.

Pleased with the status quo, the Secretary continued to delay. But the Missouri

Supreme Court made clear in May of this year what the ultimate consequences would

be: if the “December 9 referendum petition filing is ultimately determined to be

sufficient,” as a matter of law, the new map “did not take effect” and was instead

“referred to the people as of December 9,” taking effect only if approved by a majority

of voters in the next election. Maggard v. State, 733 S.W.3d 411, 420 (Mo. 2026). Such

a pronouncement might have made the Secretary speed up his sufficiency

determination to avoid problems later, but instead he continued to run out the clock.

There is “no dispute the secretary could have issued his certificate any time

after the December 9 filing.” App.3a. The Secretary did not have to count all the

signatures, and as the federal court observed, “there is no apparent reason why he

would incur the significant cost of signature verification given his stated belief that

the petition is constitutionally deficient.” Missouri Gen. Assembly, 2025 WL 3514277,

at *2 n.2. But of course, there was a reason, the same one the Secretary had

announced from the beginning: to protect the Governor’s map by delaying review

10 The Secretary knew—or should have known—that his legal theory was wrong, as Missouri Courts

have noted the applicability of referenda to redistricting multiple times. App.8a (citing cases).

17

until it would cause maximum disruption so that he could then claim it was too late

to use a lawful map. So instead of issuing the certificate, he pursued his strategy and

waited. In fact, while he had discretion under the law to verify the signatures using

random sampling, he chose instead to verify every signature individually, further

extending the process. App.12a n.8.

The Secretary’s slow-walk in advance of the August 4, 2026 primary continued

amid pleas from local election officials to provide guidance about which map would

be used. Local election officials recognized that whatever decision Hoskins made

would be challenged in court, and they begged for clarity as soon as possible. “We

need the secretary of state to make a decision so the courts would give us a decision

on which map is in effect,” St. Charles County Elections Director Kurt Bahr told the

press.11 Mr. Bahr is a Republican who supported the new map, but his overriding goal

was a desire for clarity and to avoid the confusion and late-breaking litigation that

delay could cause. Id. He even signed onto an amicus brief in April 2026 raising these

concerns. App.1051a. But unlike Mr. Bahr, the Secretary was not interested in

avoiding chaos. He was committed to locking in place the new map, even if it was

unlawful. And he once again told the press that his strategy to do so was delay, by

“us[ing] the entire time that I have possible in order to review those signatures.”12

On the last day possible, one hour before the statutory deadline—and on the

day of Missouri’s primary election—the Secretary did what he could have done eight

11 Rudi Keller, St. Charles County election leader warns redistricting delay could threaten August

primary, Missouri Independent (May 16, 2026), https://missouriindependent.com/2026/05/16/stcharles-county-election-leader-warns-redistricting-delay-could-threaten-august-primary/.

12 Keller, supra note 11.

18

months prior, and issued a certificate of insufficiency claiming the referendum

petition was unconstitutional. App.12a n.8. By waiting until the last moment to issue

the certificate, he evaded judicial review before the primary election. His plan of delay

seemed to be working. Then, on September 3, 2026, the Missouri Supreme Court

issued the decision below, unanimously holding that the Secretary’s certificate of

insufficiency was legally incorrect and that as a matter of law, the 2022 map, not the

HB 1 map, was legally in force. App.13a. In short, the Court did exactly what it said

it would do back in May when it issued the Maggard decision. The Secretary now

comes to this Court on its emergency docket to execute the final step in his plan.

The Secretary’s delay saga is the epitome of unclean hands. As the Missouri

Supreme Court noted, the undisputed facts about the Secretary’s cynical

gamesmanship make his equitable arguments “wholly unpersuasive.” App.12a n.8.

“[T]he secretary’s delay created the confusion, expense, and practical difficulties of

which he complains,” id, and this Court should apply the unclean hands principle and

reject his requests for equitable relief now, Reed, 286 U.S. at 198; Precision

Instrument Mfg. Co., 324 U.S. at 814.

The Secretary claims that there was nothing untoward in waiting until 4:00

p.m. on August 4 to issue his certificate of insufficiency because he was within the

statutory window by an hour. But the unclean hands principle does not require the

offending action to be illegal. Rather, “any willful act” related to the issue before the

Court that “transgress[es] equitable standards of conduct” is sufficient to deny relief.

Precision Instrument Mfg. Co., 324 U.S. at 815. The Secretary did not need to wait

19

until the literal final hour to formally declare what he intended to do all along and

knew what would happen if he did, but he chose to run out the clock. Nor did the

August 4 statutory deadline relieve the Secretary of his duty to respect the people’s

exercise of their rights under the Missouri Constitution. See App.11a.

Having willfully neglected every path that could have resulted in clarity and

resolution sooner, the Secretary is suddenly very concerned about chaos. He uses the

word eight times in his application. But the Secretary’s newfound concern for election

officials “scrambling to figure out how to comply,” voters who are “confused,” and

candidates who have “campaigned for over a year and raised tens of millions of

dollars” based on unlawful districts the Secretary contrived to lock in place, Appl. at

5, all rings hollow since he caused the very chaos he now threatens will follow. In the

face of all this, this Court’s course is clear: “To decide the case [this Court] need look

no further than the maxim that no man may take advantage of his own wrong.” Glus

v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 232, (1959).

The Secretary does not claim his hands are clean. He all but concedes the state

court’s damning chronicle of his scheme. Appl. at 27. Instead, he asks this Court to

look past his machinations and join him, asserting that if this Court denies a stay,

Missouri “will be barred from using a duly enacted congressional map.” Appl. at 4.

But the Missouri Supreme Court just held emphatically that the 2025 map is not duly

enacted. App.12a n.8. Any election under HB 1 is not a “lawful federal election.”

Contra Appl. at 5. The matter of the Secretary’s fidelity to his own State’s constitution

20

is not an “irrelevant” “squabble,” Appl. at 27, and no principle of equity counsels in

favor of this Court granting relief.

III.

To the extent Purcell considerations apply, they weigh heavily in

favor of denying the application.

The Secretary half-heartedly invokes Purcell in support of his application, but

his arguments are misguided and insufficient. First, Purcell is animated by

federalism concerns that do not apply to state court rulings, and the Secretary’s

attempts to invoke state court pseudo-equivalents are unpersuasive. Second, a review

of this Court’s precedent makes abundantly clear that it would be this Court’s

granting of the Secretary’s application that would run afoul of Purcell. Third, the

Secretary’s complaints of crunched timelines and logistical challenges are

inconsistent, contradictory, and self-inflicted.

As this Court has repeatedly emphasized, Purcell is an equitable principle

rooted in federalism, warning that “lower federal courts should ordinarily not alter

the election rules on the eve of an election.” Abbott v. LULAC, 146 S. Ct. 418, 419

(2025) (quoting Republican Nat’l Comm. v. Democratic Nat’l Comm., 589 U.S. 423,

424 (2020) (per curiam)) (emphasis added). Purcell has no bearing on electoral

changes made by state actors, including state courts. See Allen v. Milligan, 146 S. Ct.

1377, 1381 (2026) (“While 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.”) (emphasis added, internal citation omitted); see

also Growe v. Emison, 507 U.S. 25, 34 (1993) (“[T]he Constitution leaves with the

States primary responsibility for apportionment of their federal congressional . . .

21

districts,”

and

federal

courts

must

“neither

affirmatively

obstruct

state

reapportionment nor permit federal litigation to be used to impede it.”).

Despite this case involving a state court deciding an issue of state election law,

the Secretary initially contends that “this Court’s Purcell precedents demonstrate

that Missouri’s harms are overwhelming and warrant equitable relief.” Appl. at 34.

Yet the Secretary himself seems to sense the baselessness of his argument, noting in

the next breath that this would only be true “[i]f a federal court had entered the order

under review here.” Id. at 35 (emphasis added). The Secretary’s counterfactuals

aside, the Missouri Supreme Court’s ruling clearly falls outside the bounds of the

equitable concerns of Purcell as defined by this Court.

The Secretary, however, insists that “the primary rationale underlying Purcell

v. Gonzalez—preventing chaos in a federal election, 549 U.S. 1, 4-5 (2006)—squarely

fits this case.” Id. On the contrary, it would be this Court’s granting of his stay

application that would run counter to Purcell. HB 1 is not the law, and the 2022 map

is the only valid redistricting plan in effect. App.12a-13a n.8. Thus, while the

Secretary seeks to frame a grant of his stay application as a restoration of the status

quo, such a ruling would in truth upend the status quo. Granting the Secretary’s stay

application would result in exactly the type of last-minute meddling by the federal

judiciary into state election rules that Purcell counsels against, and that this Court

has avoided. See Milligan, 146 S. Ct. at 1381; Moore v. Harper, 142 S. Ct. 1089, 1089

(2022) (Mem) (Kavanaugh, J., concurring).

22

The Secretary’s reliance on Malliotakis v. Williams, 146 S. Ct. 809 (2026), is

misguided. There, this Court granted the stay because of the “unacceptably strong

possibility that the applicants’ appeal in the state court system will not conclude until

it is too late for us to review the ultimate decision.” 146 S. Ct. at 811 (Alito, J.,

concurring). Here, no such concern exists: an ultimate decision on the merits has

already been issued by the Missouri Supreme Court. What’s more, Justice Alito

explained that such a delay was problematic because “[b]y then, the principle of

restraint we recognized in [Purcell] may counsel against the issuance of an

injunction.” Id. That is, with only four months until the election, this Court needed

to act sooner rather than later in order to avoid running afoul of Purcell. Missouri’s

election officials are currently working to comply with the Missouri Supreme Court’s

injunction for a general election less than two months away. And the Secretary comes

to this Court with unclean hands seeking equitable relief that would itself violate the

Constitution and federal law. Purcell does not preclude every late-breaking action by

a federal court, see Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (Mem.) (Kavanaugh,

J., concurring), but it surely precludes the relief the Secretary seeks here.

The Secretary also relies on Hadley v. Junior College District of Metropolitan

Kansas City, 460 S.W.2d 1 (Mo. 1970), where the Missouri Supreme Court held that,

in deciding election-related cases, “a court is entitled to and should consider the

proximity of a forthcoming election and the mechanics and complexities of state

election laws.” Appl. at 36 (quoting Hadley, 460 S.W.2d at 2). That is exactly what

the court did. As the Secretary himself notes, “the Missouri Supreme Court held that

23

any consideration of ‘the confusion, expense, and practical difficulties that may result’

from enjoining the congressional map was irrelevant.” Appl. at 37 (citing App.12a13a). Such an application of state law is well within the state high court’s discretion.

Finally, the Secretary attempts to buttress his argument by highlighting the

logistical challenges of implementing the Missouri Supreme Court’s order, repeatedly

citing the trial court’s order declaring the task “impossible,” and pronouncing that

“Missouri cannot run a timely, lawful election absent a stay,” Appl. at 5. But the

Secretary has previously unequivocally stated that Missouri is able to comply with

any ruling made by this Court by the September 8 deadline noted by the Missouri

Supreme Court. In response to a question from the press on September 3, the day of

the order at issue, about a potential appeal to this Court, the Secretary stated, “[w]e

will abide by whatever court decision is made by the [U.S.] Supreme Court . . . So if

the [U.S.] Supreme Court makes a decision by the Sept. 8 deadline, we will meet

whatever requirements that they set forth in that decision.”13 If the Secretary is able

to comply with “whatever requirements” set out by this Court by September 8, there

is no reason he cannot do the same for the Missouri Supreme Court’s order which

came five days earlier. As this Court has held, the Secretary cannot offer Purcell-type

arguments that run counter to “previous representations . . . that the schedule on

which” the court is proceeding is “sufficient to enable effectual relief.” Rose, 143 S. Ct.

at 59.

13 Kacen Bayless, Trump attacks Missouri map ruling as ‘Dark Day,’ AG vows to fight decision, Kansas

City Star (Sep. 3, 2026), https://perma.cc/3DXZ-SVLH.

24

The contradictions do not end there. In his application, the Secretary states

that, if required to comply with the Missouri Supreme Court’s order, “Missouri will

be forced to violate UOCAVA and delay the start of voting.” Appl. at 5. The Secretary

follows this up by matter-of-factly stating, in the very next paragraph, that “[t]o

enable Missouri to comply with [the UOCAVA] deadline, Secretary Hoskins

respectfully requests this Court issue a decision not later than September 14, 2026.”

His ability to comply with the UOCAVA deadline plainly has not passed.

Further, the Secretary’s argument regarding the “impossibility” of utilizing the

only lawful congressional map in the November election relies heavily on the

testimony of Tammy Brown, a former member of the Jackson County Election Board

(JCEB). Ms. Brown previously testified that “it would not be feasible for Jackson

County’s election officials to comply with a court order to change the congressional

map in advance of the 2026 general election.” App.1666a. But Ms. Brown’s testimony

is undercut by the two current directors of the JCEB, Republican Tyler Spencer and

Democrat Sara Zorich, who, in a joint statement to the press on September 4

regarding the Missouri Supreme Court’s order, stated that “[w]e are equipped to

make the necessary changes.”14

As such, to the extent the equitable considerations of Purcell apply here, they

weigh heavily in favor of denying the Secretary’s application for stay.

CONCLUSION

For the foregoing reasons, the application should be denied.

14 Bayless, supra note 2.

25

September 7, 2026

Gillian R. Wilcox

Jason Orr

Jonathan D. Schmid

Kristin M. Mulvey

ACLU OF MISSOURI FOUNDATION

406 W. 34th Street, Suite 420

Kansas City, MO 64111

Ming Cheung

Cecillia D. Wang

Sophia Lin Lakin

Dayton Campbell-Harris

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

125 Broad Street

New York, NY 10004

/s/ Mark P. Gaber

Mark P. Gaber

Counsel of Record

Aseem Mulji

Simone Leeper

Benjamin Phillips

Isaac DeSanto

CAMPAIGN LEGAL CENTER

1101 14th Street NW, Suite 400

Washington, DC 20005

(202) 736-2000

mgaber@campaignlegalcenter.org

Annabelle E. Harless

CAMPAIGN LEGAL CENTER

55 W. Monroe Street, Suite 1925

Chicago, IL 60603

Counsel for Amici

26

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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