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, SECRETARY OF STATE OF MISSOURI,

Applicant,

RICHARD VON GLAHN,

Respondent.

On Emergency Application for Stay of the Judgment of the Supreme Court of

Missouri

AMICUS BRIEF OF THE AMERICAN CENTER FOR LAW AND JUSTICE

IN SUPPORT OF APPLICANT’S EMERGENCY APPLICATION FOR STAY

JAY ALAN SEKULOW

Counsel of Record

JORDAN SEKULOW

STUART J. ROTH

ANDREW J. EKONOMOU

DONN PARSONS

GEOFFREY R. SURTEES

LINDSEY BACHMAN

NATHAN J. MOELKER

AMERICAN CENTER

FOR LAW & JUSTICE

201 Maryland Ave., NE

Washington, DC 20002

(202) 546-8890

sekulow@aclj.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES................................................................................................. ii

INTEREST OF AMICUS CURIAE..................................................................................... 1

SUMMARY OF ARGUMENT ............................................................................................... 1

ARGUMENT .............................................................................................................................. 3

This Court Should Issue a Stay to Prevent Post-Primary Judicial

Disruption of a Federal Election and Preserve the Electoral

Framework Under Which Missouri Voters Already Chose Their

Nominees. ....................................................................................................................... 3

This Court Should Enter a Purcell Stay to Prevent the Missouri

Supreme Court’s Last-Minute Disruption of the Missouri

Democratic Process. .......................................................................................... 4

The Missouri Supreme Court Deprived the Voters of the

Democratic Process. .......................................................................................... 9

The Missouri Supreme Court’s Injunction Violates the Elections

Clause. ................................................................................................................... 12

CONCLUSION ........................................................................................................................ 16

TABLE OF AUTHORITIES

Cases

Abbott v. LULAC,

146 S. Ct. 418 (2025) .................................................................................................. 9

Alliance for Retired Ams. v. Sec’y of State,

240 A.3d 45 (Me. 2020)............................................................................................... 6

Bush v. Gore,

531 U.S. 98 (2000) ................................................................................................ 1, 13

Crookston v. Johnson,

841 F.3d 396 (6th Cir. 2016) ...................................................................................... 7

Democratic Nat’l Comm. v. Wisconsin State Leg.,

592 U.S. 1039 (2020) ................................................................................................ 14

DeVisser v. Sec’y of State & Dir. of the Bureau of Elections,

981 N.W.2d 30 (Mich. 2022)....................................................................................... 7

Fay v. Merrill,

256 A.3d 622 (Conn. 2021) ......................................................................................... 6

Fischer v. United States,

603 U.S. 480 (2024) .................................................................................................... 1

Free Enterprise Fund v. Public Co. Accounting Oversight Bd.,

561 U.S. 477 (2010) .................................................................................................. 15

Hadley v. Junior College District of Metropolitan Kansas City,

460 S.W.2d 1 (Mo. 1970) ............................................................................................ 8

Hawke v. Smith,

253 U.S. 221 (1920) .................................................................................................. 12

Lamb’s Chapel v. Center Moriches Sch. Dist.,

508 U.S. 384 (1993) .................................................................................................... 1

League of United Latin Am. Citizens v. Pate,

950 N.W.2d 204 (Iowa 2020) ...................................................................................... 7

Malliotakis v. Williams,

146 S. Ct. 809 (2026) .................................................................................................. 5

iii

McConnell v. FEC,

540 U.S. 93 (2003) ...................................................................................................... 1

McDonnell v. United States,

579 U.S. 550 (2016) .................................................................................................... 1

Merrill v. Milligan,

142 S. Ct. 879 (2022) .................................................................................................. 5

Moore v. Harper,

600 U.S. 1 (2023) .......................................................................................... 12, 13, 14

Moore v. Lee,

644 S.W.3d 59 (Tenn. 2022) ................................................................................... 6, 7

Purcell v. Gonzalez,

549 U.S. 1 (2006) ........................................................................................................ 5

Republican Nat’l Comm. v. Democratic Nat’l Comm.,

589 U.S. 423 (2020) ............................................................................................ 5, 6, 7

Reynolds v. Sims,

377 U.S. 533 (1964) .................................................................................................... 8

Trump v. Anderson,

601 U.S. 100 (2024) .................................................................................................... 1

United States v. Classic,

313 U.S. 299 (1941) .................................................................................................. 11

United States v. Mosley,

238 U.S. 383 (1915) .................................................................................................. 11

Constitutional Provisions

Mo. Const. art. III, § 52(a) ........................................................................................... 14

U.S. Const. art. I, § 4, cl. 1....................................................................................... 4, 12

U.S. Const. art. II, § 1, cl. 2 ........................................................................................... 4

Other Authorities

The Federalist No. 59 (Hamilton)................................................................................ 12

INTEREST OF AMICUS CURIAE 1

The American Center for Law and Justice (“ACLJ”) is an organization

dedicated to the defense of constitutional liberties secured by law, including election

integrity and security in the electoral process. ACLJ attorneys have appeared often

before this Court as counsel for parties, e.g., Trump v. Anderson, 601 U.S. 100 (2024)

(unanimously holding that states have no power under the U.S. Constitution to

enforce Section Three of the Fourteenth Amendment with respect to federal offices);

McConnell v. FEC, 540 U.S. 93 (2003); Lamb’s Chapel v. Center Moriches Sch. Dist.,

508 U.S. 384 (1993) (unanimously holding that denying a church access to public

school premises to show a film series on parenting violated the First Amendment); or

as amici, e.g., Fischer v. United States, 603 U.S. 480 (2024); McDonnell v. United

States, 579 U.S. 550 (2016); and Bush v. Gore, 531 U.S. 98 (2000). The ACLJ has a

fundamental interest in preserving the constitutional allocation of authority over

federal elections and protecting the right of citizens to participate meaningfully in

each stage of the electoral process. This case presents an extraordinary disruption of

both interests.

SUMMARY OF ARGUMENT

This Court should stay the Missouri Supreme Court’s injunction because it

imposes precisely the kind of last-minute judicial disruption of election rules that

this Court has repeatedly warned against. Missouri enacted HB 1 through the

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states that no counsel for any party authored

this brief in whole or in part, and no entity or person, aside from amicus curiae, its members, and its

counsel, made any monetary contribution toward the preparation or submission of this brief.

ordinary legislative process, conducted its congressional primary under that map,

and approximately 1.2 million Missourians cast ballots in reliance on that electoral

framework. The decision below nevertheless requires Missouri to conduct the

corresponding general election under a different map, after nominees have been

selected, campaigns have proceeded, election officials have begun administering the

election, and federal ballot-transmission deadlines are imminent.

The Purcell principle is not a technical rule limited to federal courts. It

reflects a practical and institutional judgment that courts should not alter election

rules when voting is close at hand, because such orders create confusion for voters,

candidates, parties, and election officials. That concern applies with equal force

when the last-minute change comes from a state supreme court. Indeed, it applies

with greater force here, where the court’s injunction does not merely adjust a

deadline or ballot procedure, but severs the general election from the primary

election that already occurred under HB 1. Voters who selected nominees in one

district may now be required to vote in another, while election officials must attempt

to administer a congressional election under a map different from the one used to

nominate candidates.

The injunction also deprives Missouri voters of the democratic process. This

is not a case in which a court intervened before voters went to the polls. The primary

has already occurred. The trial court found that reverting to the prior map at this

stage would move hundreds of thousands of voters into different districts from those

in which they voted in the primary, materially diminish their voting power, and

make timely election administration impossible. Those findings were not disturbed

by the Missouri Supreme Court. By disregarding them, the decision below nullifies

the votes cast in the primary and threatens the electoral process.

Finally, the Missouri Supreme Court’s injunction conflicts with the Elections

Clause. The Constitution assigns primary responsibility for regulating federal

elections to state legislatures. Although state courts may enforce ordinary

constraints of state law, they may not exceed the bounds of ordinary judicial review

in a way that arrogates to themselves the power constitutionally vested in the

legislature. Here, the Missouri Supreme Court did more than interpret state

referendum law; it gave a referendum petition immediate operative effect over a

federal congressional election already underway, displacing the legislature’s

enacted map for the same election cycle after that map had governed the primary.

If permitted to stand, that rule would provide a ready-made mechanism for

destabilizing federal elections nationwide. A stay is therefore necessary to preserve

Missouri’s enacted election framework, protect voters who already participated

under it, and prevent the decision below from becoming a template for mid-cycle

judicial disruption of federal elections.

ARGUMENT

This Court Should Issue a Stay to Prevent Post-Primary Judicial

Disruption of a Federal Election and Preserve the Electoral

Framework Under Which Missouri Voters Already Chose Their

Nominees.

The Constitution vests the primary authority to set election regulations in

state legislatures, not the courts; that authority has been threatened by the Missouri

Supreme Court’s ruling that overrides the will of the people of Missouri. The Elections

Clause, U.S. Const. art. I, § 4, cl. 1, assigns to the “Legislature” of each State the

power to direct the “Times, Places and Manner” whereby elections will be conducted.

The Electors Clause, U.S. Const. art. II, § 1, cl. 2, likewise assigns to the “Legislature”

of each State the power to direct the “Manner” of choosing presidential electors in

federal elections. That authority to govern elections is threatened when a state court

rejects the clear dictates of an election code in favor of its own view of how elections

should proceed. The decision below implicates that federal boundary in its most

concrete form: Missouri’s legislature enacted a congressional map, the State

completed its primary election under that map, and the Missouri Supreme Court then

ordered a different districting plan for the corresponding general election. This Court

should issue a stay to restore the legislature’s authority.

This Court Should Enter a Purcell Stay to Prevent the Missouri

Supreme Court’s Last-Minute Disruption of the Missouri

Democratic Process.

The Purcell principle should lead this Court to immediately enter a stay of the

Missouri Supreme Court’s attempt to rewrite state election law. The Purcell principle

is a recent name for what is really a commonsense doctrine: election laws should

remain fixed and not be changed shortly before elections occur. Such changes

threaten both the integrity of the electoral system and the nation’s trust in it. This

Court has warned repeatedly of the dangers of last-minute changes to election

procedures: “Court orders affecting elections, especially conflicting orders, can

themselves result in voter confusion and consequent incentive to remain away from

the polls. As an election draws closer, that risk will increase.” Purcell v. Gonzalez, 549

U.S. 1, 4–5 (2006). While the doctrine has been applied with rigor to federal courts

that have interfered with state election procedures, that risk remains whether state

or federal courts do the tampering. As Justice Kavanaugh has highlighted, “[l]ate

judicial tinkering with election laws can lead to disruption and to unanticipated and

unfair consequences for candidates, political parties, and voters, among others.”

Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring in grant of

applications for stays).

Those concerns apply with equal, if not greater, force when the last-minute

alteration comes from a state court rather than a federal one; a voter confused about

which district she lives in, or a county clerk unsure which map to program into the

state’s voter-registration system, faces the same disruption regardless of which

judiciary issued the order. See Malliotakis v. Williams, 146 S. Ct. 809, 810–11 (2026)

(Alito, J., concurring in grant of stay) (staying a state-court order that altered a

congressional map before an upcoming election). Nothing could be more confusing or

disruptive than a state changing its map at the last minute, after the primary already

occurred. This Court’s warning against such last-minute changes applies with

particular force here, where the change “fundamentally alters the nature of the

election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 589 U.S. 423, 424

(2020) (per curiam). Courts, whether federal or state, should seek “to avoid this kind

of judicially created confusion.” Id. at 425.

State courts have regularly relied on the Purcell principle. For example, the

Maine Supreme Judicial Court affirmed a lower court’s decision to deny an injunction

request made by an organization and group of voters who sought to have the Maine

Secretary of State count absentee ballots received ten days after the statutory

deadline. Alliance for Retired Ams. v. Sec’y of State, 240 A.3d 45, 52 (Me. 2020). The

Maine Supreme Judicial Court cited and relied on Purcell for its decision,

emphasizing the need for caution in interfering with state election laws. The court’s

opinion discussed Purcell at length, “find[ing] it instructive” that the Supreme Court

stayed a Wisconsin federal court’s injunction with the admonition that it “has

repeatedly emphasized that lower federal courts should not ordinarily alter the

election rules on the eve of an election.” Id. (quoting Republican Nat’l Comm. v.

Democratic Nat’l Comm., 589 U.S. at 424). Although the cited language from this

Court’s decision emphasizes the need for lower federal courts to follow Purcell, the

Maine Supreme Court showed no hesitancy in acknowledging that Purcell’s warning

applied as it adjudicated similar challenges.

The Connecticut Supreme Court, likewise, has acknowledged the Purcell

principle as applicable in state proceedings and relied on this Court’s precedent as

authoritative guidance in addressing the timing of election questions. Fay v. Merrill,

256 A.3d 622, 638 n.21 (Conn. 2021). That court highlighted that the Purcell principle

would be implicated by a state court declaratory judgment in the plaintiff’s favor in

an election matter and emphasized that “[t]he Purcell principle remains applicable”

to the proceedings before it. Id.

The Tennessee Supreme Court relied on this principle in Moore v. Lee, 644

S.W.3d 59 (Tenn. 2022), a case in which a group of voters challenged a state Senate

redistricting plan as violating the Tennessee Constitution. That court relied on

Purcell to prohibit any last-minute interference with state voting laws. Id. at 65. It

emphasized that its own precedent was not in tension with Purcell but “similarly has

shown restraint when asked to enjoin the effectiveness of constitutionally suspect

reapportionment plans.” Id. at 66.

Many state courts have regularly acknowledged this same principle and

refused to condone last-minute attacks on election legislation. See League of United

Latin Am. Citizens v. Pate, 950 N.W.2d 204, 215–16 (Iowa 2020) (declining, “on the

eve of this election[,] to invalidate the legislature’s statute providing additional

election safeguards,” particularly given that “[t]he United States Supreme Court has

repeatedly warned that courts ‘should ordinarily not alter the election rules on the

eve of an election’”) (quoting Republican Nat’l Comm. v. Democratic Nat’l Comm., 589

U.S. at 424).

The principles underlying the Purcell doctrine are not limited to federalism;

they reflect the basic interest of the American people in ensuring that elections are

free and fair and not disrupted by last-minute threats to the electoral process. Purcell

is no esoteric doctrine: “[c]all it what you will—laches, the Purcell principle, or

common sense—the idea is that courts will not disrupt imminent elections absent a

powerful reason for doing so.” DeVisser v. Sec’y of State & Dir. of the Bureau of

Elections, 981 N.W.2d 30, 35 (Mich. 2022) (Welch, J., concurring) (quoting Crookston

v. Johnson, 841 F.3d 396, 398 (6th Cir. 2016)).

Missouri’s own courts are no exception — which makes the decision below all the

more egregious. In Hadley v. Junior College District of Metropolitan Kansas City, the

Missouri Supreme Court held that, “[i]n awarding or withholding immediate relief”

after invalidating a redistricting scheme, “a court is entitled to and should consider

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

election laws, and should act and rely upon general equitable principles.” 460 S.W.2d

1, 2 (Mo. 1970) (quoting Reynolds v. Sims, 377 U.S. 533, 585 (1964)). Applying that

principle, the Hadley court declined to order implementation of new districts just days

before the close of the relevant candidate-filing period. Id. at 2–3. Here, the relevant

candidate-filing period closed more than five months before the Missouri Supreme

Court’s order, and Missouri had already completed its primary election approximately

a month earlier — an equitable case for restraint dramatically stronger than the one

Hadley itself found sufficient. Yet the Missouri Supreme Court’s opinion below does

not cite Hadley at all. It does not distinguish it, limit it, or explain why the equitable

principle Hadley announced should not apply with even greater force to a postprimary map change. It simply declared any consideration of “the confusion, expense,

and practical difficulties that may result” from its injunction to be “irrelevant.” App.

12a–13a. A state supreme court’s silent departure from its own settled equitable

doctrine, in a case presenting a far more extreme version of the very problem that

doctrine was designed to address, strongly signals that something has gone wrong

below.

This case presents those harms in a uniquely severe form. Voters are not merely

being told that a deadline or ballot-return procedure has changed. Some are being

transferred into a different congressional district after selecting nominees in another.

Election officials are not merely revising instructions; they must reassign precincts,

alter ballots, reconcile candidate eligibility and district residence, and meet federal

ballot-transmission obligations. The record-supported trial-court finding was that

changing the map at this stage is “impossible.” App. 52a.

For those reasons, this is not a close case for equitable restraint. The Missouri

Supreme Court’s injunction does exactly what Purcell forbids: it unsettles election

rules at the most sensitive point in the electoral process, after voters have already

selected nominees and while election officials face imminent federal deadlines. A stay

would not decide the ultimate validity of Missouri’s referendum process. It would

simply preserve the only coherent electoral framework remaining for the 2026

congressional election — the framework under which Missouri voters already

selected their nominees.

The Missouri Supreme Court Deprived the Voters of the

Democratic Process.

The order under review presents a more extreme case than any in which this

Court has previously invoked Purcell-related equities to grant a stay. In Abbott v.

LULAC, 146 S. Ct. 418, 419 (2025) (per curiam), and in Malliotakis, this Court acted

to prevent a congressional map from changing before a primary election — in

Malliotakis, approximately four months before the primary was scheduled to begin.

Here, by contrast, Missouri’s primary is over: 1.2 million Missourians already voted

in the August 2026 primary under the map the Missouri Supreme Court has now

enjoined. No case cited in the application, and no case of which amicus is aware, has

ever required a State to substitute an entirely new congressional map for the general

election after the primary has already occurred under the old one. If a four-month

runway before a primary was enough to warrant a stay in Malliotakis, then a case in

which the primary has already been completed — and the votes of 1.2 million

Missourians are on the line — presents an a fortiori claim for relief.

The specific harms that flow from the injunction’s timing are not speculative;

they are the direct, undisputed findings of the trial court, which the Missouri

Supreme Court never disturbed. The trial court found that “changing the maps at

this late juncture is not just ‘impractical,’ it is impossible,” App. 52a, and that

“[c]andidate filing closed months ago,” nominees “have been selected,” and

“[c]ampaigns for the general election are underway.” Id. at 50a. Reverting to the 2022

map, the trial court found, “would move hundreds of thousands of voters into different

districts for the imminent 2026 general election compared to the districts in which

they cast their ballots in the August primary elections,” leaving those voters with

“materially less voting power than voters whose districts remained the same.” Id. at

20a, 45a. The Missouri Supreme Court ignored these findings.

The constitutional defect is not merely that Missouri changed an election rule

late. It is that the court below severed two legally connected stages of the same federal

election. This Court has recognized that “[w]here the state law has made the primary

an integral part of the procedure of choice, or where in fact the primary effectively

controls the choice, the right of the elector to have his ballot counted at the primary

is likewise included in the right protected by Article I, § 2.” United States v. Classic,

313 U.S. 299, 318 (1941). The Constitution’s protection of the people’s choice of

Representatives therefore does not begin only when general-election ballots are cast.

It applies to a state-created primary that determines the nominees presented to the

electorate.

Missouri’s primary performed precisely that function. Voters within each HB

1 district selected nominees to compete for that district’s congressional seat. The

injunction leaves those nominations nominally intact while replacing the

constituencies for which the nominations occurred. Thus, some voters who

participated in selecting the nominees for one district will be assigned to another

district in the general election, while general-election voters will be asked to choose

among candidates selected by a materially different primary electorate. That breaks

the connection between nomination and election on which Missouri’s electoral process

depends.

The right to vote also includes “the right to have one’s vote counted.” United

States v. Mosley, 238 U.S. 383, 386 (1915). A vote may be deprived of its intended

effect not only when an official refuses to tabulate it, but also when the government

retroactively changes the electoral contest in which the vote operated. The primary

votes here were cast to select nominees for congressional districts established by HB

1. Reassigning voters after those selections leaves their ballots recorded but deprives

them of their intended role in determining the candidates among whom those voters

will choose in November. Such a deprivation is inconsistent with the Constitution.

The Missouri Supreme Court’s Injunction Violates the Elections

Clause.

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 alteration by Congress. U.S. Const. art. I, § 4, cl. 1. Under Moore v. Harper,

state courts may enforce ordinary constraints of state law, but they may not exceed

the ordinary bounds of judicial review in a way that arrogates to themselves the

legislature’s constitutionally assigned authority over federal elections. 600 U.S. 1, 36

(2023). That is what happened here: Missouri’s legislature enacted HB 1, the State

conducted its congressional primary under that map, and the Missouri Supreme

Court then ordered a different map for the corresponding general election. In so

doing, it substituted its own judgment for that of the legislature.

The Constitution’s allocation of authority over federal elections reflects a

deliberate judgment by the Framers that election regulations should be established

through prospective lawmaking rather than ad hoc judicial revision. As Alexander

Hamilton explained, “[e]very government ought to contain in itself the means of its

own preservation.” The Federalist No. 59 (Hamilton). The Framers therefore vested

authority over federal election regulations primarily in legislatures rather than

leaving the rules governing federal elections subject to uncertainty.

The term “Legislature” was “not . . . of uncertain meaning when incorporated into

the Constitution”: it referred to “the representative body which made the laws of the

people.” Hawke v. Smith, 253 U.S. 221, 227 (1920). “[T]he Elections Clause expressly

vests power to carry out its provisions in ‘the Legislature’ of each State, a deliberate

choice that this Court must respect.” Moore, 600 U.S. at 34. Thus, this Court reviews

claims where state actors invoke state law to change federal election rules to ensure

they “do not evade federal law.” Id.

This Court has recently emphasized the primacy of state legislatures in

enacting election laws. In Moore, 600 U.S. at 10, this Court confirmed that it is state

legislatures that have the primary, mandatory responsibility to determine the

election laws for their states. This Court made emphatically clear “that state courts

may not transgress the ordinary bounds of judicial review such that they arrogate to

themselves the power vested in state legislatures to regulate federal elections.” Id. at

36. The Elections Clause does not “exempt state legislatures from the ordinary

constraints” of state law, id. at 34, but this Court was careful to remind the parties

of its “obligation to ensure that state court interpretations of that law do not evade

federal law.” Id. It is the state legislature’s authority that is preserved and given

primacy. As Justice Kavanaugh emphasized, “[f]ederal court review of a state court’s

interpretation of state law in a federal election case ‘does not imply a disrespect for

state courts but rather a respect for the constitutionally prescribed role of state

legislatures.’” Id. at 38 (Kavanaugh, J., concurring) (quoting Bush v. Gore, 531 U.S.

98, 115 (2000) (Rehnquist, C.J., concurring)).

Moore ultimately left unaddressed the full scope of the Elections Clause

standard. But it did make the outer bounds of that inquiry very clear. This Court left

no doubt that “state courts may not so exceed the bounds of ordinary judicial review

as to unconstitutionally intrude upon the role specifically reserved to state

legislatures by Article I, Section 4, of the Federal Constitution.” Id. at 37. The

Elections Clause may mean other things as well, but at a minimum it prohibits state

courts from going beyond ordinary judicial review to intrude on the decisions of state

legislatures.

That is precisely what the Missouri Supreme Court has done here. The scale of

what the Missouri Supreme Court sanctioned bears emphasis. HB 1 passed the

Missouri Senate 21 to 11 and the Missouri House of Representatives 90 to 65 —

substantial majorities in both chambers, followed by the Governor’s signature. App.

17a. The referendum petition that displaced it, by contrast, required signatures from

only “five percent of the legal voters in each of two-thirds of the congressional districts

in the state,” Mo. Const. art. III, § 52(a) — roughly 3.3% of Missouri’s registered

voters, and roughly 106,000 signatures in absolute terms, gathered by Respondent’s

organization in about one month. Under the Missouri Supreme Court’s decision, that

petition alone — with no statewide vote yet held — was enough to displace the

General Assembly’s map for the 2026 election cycle.

“[S]tate legislatures—not federal judges, not state judges, not state governors,

not other state officials—bear primary responsibility for setting election rules.”

Democratic Nat’l Comm. v. Wisconsin State Leg., 592 U.S. 1039, 1041 (2020)

(Gorsuch, J., concurring in denial of application to vacate stay). If a small, selfselected fraction of the electorate can unilaterally suspend that authority merely by

submitting a petition — before the very statewide vote the Missouri Constitution’s

referendum provisions contemplate ever takes place — little is left of the Elections

Clause’s assignment of that authority to “the Legislature.” The novelty of the

Missouri Supreme Court’s approach reinforces the point: as the application explains,

no court in Missouri or any other State has ever, so far as the parties are aware, held

that a congressional map must be displaced for an entire election cycle based on a

referendum petition, much less ordered that displacement after voters had already

selected their nominees under that map. “Perhaps the most telling indication of the

severe constitutional problem” with a novel exercise of asserted authority is that the

party defending it has not “located any historical analogues” for it. Free Enterprise

Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 505–06 (2010) (citation

omitted).

The violation, then, is not simply that the Missouri Supreme Court interpreted

state referendum law. It is that the court used that interpretation to give a

referendum petition immediate operative effect over a federal congressional election

already underway, thereby displacing the legislature’s enacted map for the same

election cycle after that map had already governed the primary. That is not ordinary

judicial review of legislative action. It is judicial substitution of a new federal-election

rule for the legislature’s rule at the very point when Article I requires the legislature’s

prescription to control unless Congress alters it.

Forcing voters into different districts, with different nominees, for the general

election after they participated in a completed primary is squarely the kind of

practical disenfranchisement the Constitution forbids — depriving the August

primary votes of their intended effect in the electoral process for which they were

cast. The Elections Clause does not require this Court to resolve every question of

Missouri referendum law on an emergency application. But it does require this Court

to prevent a state court from using state law to displace the legislature’s federalelection rules in a manner that exceeds ordinary judicial review and destabilizes an

election already underway. Because the injunction substitutes judicial revision for

legislative prescription, and does so after Missouri’s primary has already been held,

the Missouri Supreme Court’s order should not be permitted to govern the 2026

congressional election pending this Court’s review.

CONCLUSION

For the foregoing reasons, the application should be granted.

Respectfully submitted,