Emergency Application — People Not Politicians, et al., Applicants v. Robert Onder, et al.

Supreme Court briefSep 22, 2026

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No. 26A___

IN THE

Supreme Court of the United States

______________

PEOPLE NOT POLITICIANS AND RICHARD VON GLAHN,

Applicants,

v.

CONGRESSMAN ROBERT “BOB” ONDER; RICHARD “RICK” BRATTIN; PATRICIA “PAT”

THOMAS; AND DEBRA HAVENS,

Respondents,

and

STATE OF MISSOURI AND DENNY HOSKINS, in his official capacity as Missouri

Secretary of State,

______________

Respondents.

EMERGENCY MOTION TO CLARIFY

THIS COURT’S SEPTEMBER 10, 2026 ORDER

AND ALTERNATIVE EMERGENCY APPLICATION FOR STAY AND

ADMINISTRATIVE STAY PENDING APPEAL

______________

ABHA KHANNA

Counsel of Record

ELIAS LAW GROUP LLP

1700 Seventh Ave., Suite 2100

Seattle, WA 98101

(206) 656-0177

AKhanna@elias.law

KATIE CHAMBLEE-RYAN

LUCAS LALLINGER

ELIAS LAW GROUP LLP

250 Massachusetts Ave. NW

Suite 400

Washington, DC 20001

(202) 948-1135

KChambleeRyan@elias.law

LLallinger@elias.law

CHARLES W. HATFIELD

ALEXANDER C. BARRETT

ALIXANDRA S. COSSETTE

GRETA M. BAX

STINSON LLP

230 W. McCarty Street

Jefferson City, MO 65101

(573) 636-6263

chuck.hatfield@stinson.com

alexander.barrett@stinson.com

alix.cossette@stinson.com

greta.bax@stinson.com

Counsel for Applicants People Not Politicians and Richard von Glahn

PARTIES TO THE PROCEEDING AND RELATED PROCEEDINGS

Applicants People Not Politicians and Richard von Glahn were Intervenors in

the United States District Court for the Eastern District of Missouri and AppellantIntervenors in the United States Court of Appeals for the Eighth Circuit.

Congressman Robert “Bob” Onder, Richard “Rick” Brattin, Patricia “Pat”

Thomas, and Debra Havens were Plaintiffs in the United States District Court for

the Eastern District of Missouri and Appellees in the United States Court of

Appeals for the Eighth Circuit.

The State of Missouri and Secretary of State Denny Hoskins were

Defendants in the United States District Court for the Eastern District of Missouri

and Defendants in the United States Court of Appeals for the Eighth Circuit.

i

RELATED PROCEEDINGS

Supreme Court of the State of Missouri:

Richard von Glahn v. Denny Hoskins, No. SC101805 (Sep. 3, 2026) (Opinion and

order enjoining use of HB 1)

Richard von Glahn v. Denny Hoskins, No. SC101805 (Sep. 10, 2026) (Judgment of

Civil Contempt)

United States Supreme Court:

Denny Hoskins v. Richard von Glahn, No. 26A304 (Sep. 8, 2026) (denying stay of

Supreme Court of Missouri Opinion and Order)

People Not Politicians v. Robert Onder, No. 26A326 (Sep. 10, 2026) (granting stay of

Eastern District of Missouri temporary restraining order)

ii

RULE 29.6 STATEMENT

Pursuant to Supreme Court Rule 29.6, Applicants represent that People Not

Politicians does not have any parent entities and does not have any publicly

controlled corporation that owns 10% or more of its stock.

/s/ Abha Khanna

Abha Khanna

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... v

INTRODUCTION .......................................................................................................... 1

BACKGROUND ............................................................................................................. 3

I.

The Missouri Supreme Court enjoins use of HB 1, and this Court

denies the Secretary’s application to stay that ruling. ..................................... 3

II.

A federal district grants the same relief this Court withheld, and this

Court grants an emergency stay of that order. ................................................. 5

III.

Missouri election officials rely on this Court’s stay of the TRO and

print ballots under the 2022 Map. ..................................................................... 8

IV.

The Eighth Circuit orders the district court to issue a permanent

injunction granting the same relief this Court stayed. ..................................... 9

ARGUMENT ................................................................................................................ 13

I.

The Eighth Circuit cannot nullify this Court’s stay by replacing the

stayed injunction with a new injunction granting identical relief. ................ 13

II.

The Eighth Circuit had jurisdiction only to correct the district court’s

failure to convene the three-judge court required by federal law. .................. 17

III.

Purcell bars a federal court from demanding impossible relief that

guarantees confusion in an election that is already underway. ..................... 23

IV.

The remaining equitable factors demand relief. .............................................. 30

V.

Plaintiffs have no likelihood of success on the merits of their federal

claims, which this Court has already twice considered. ................................. 33

CONCLUSION............................................................................................................. 39

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Allen v. Milligan,

608 U.S. 511 (2026) .................................................................................................. 27

Am. Fed’n of State, Cnty. & Mun. Emps. v. Soc. Sec. Admin.,

172 F.4th 361 (4th Cir. 2026)................................................................................... 16

Armour v. Ohio,

925 F.2d 987 (6th Cir. 1991) .................................................................................... 21

Borden Co. v. Liddy,

309 F.2d 871 (8th Cir. 1962) .................................................................................... 18

Bost v. Ill. State Board of Elections,

607 U.S. 71 (2026) .................................................................................................... 29

Bush v. Gore,

531 U.S. 1046 (2000) ................................................................................................ 29

Carson v. Am. Brands, Inc.,

450 U.S. 79 (1981) .................................................................................................... 22

Corp. Synergies Grp., LLC v. Andrews,

775 F. App’x 54 (3d Cir. 2019) ................................................................................. 29

D.C. Ct. of Appeals v. Feldman,

460 U.S. 462 (1983) .................................................................................................. 28

Democratic Nat’l Comm. v. Wis. State Legislature,

592 U.S. 1039 (2020) ................................................................................................ 26

DHS v. D.V.D.,

145 S. Ct. 2627, 2629–30 (2025) ................................................................... 1, 13, 15

Donatelli v. Mitchell,

2 F.3d 508 (3d Cir. 1993).......................................................................................... 37

Edudata Corp. v. Sci. Computs., Inc.,

746 F.2d 429 (8th Cir. 1984) .................................................................................... 23

Eggers v. Evnen,

48 F.4th 561 (8th Cir. 2022)..................................................................................... 30

v

Ferrell v. Oklahoma ex rel. Hall,

339 F. Supp. 73 (W.D. Okla. 1972) .......................................................................... 38

Gen. Atomic Co. v. Felter,

436 U.S. 493 (1978) .................................................................................................. 17

Hill v. McDonough,

547 U.S. 573 (2006) .................................................................................................. 32

Hollingsworth v. Perry,

570 U.S. 693 (2013) .................................................................................................. 31

Holloway v. Byrne,

874 A.2d 504 (N.J. 2005) .......................................................................................... 27

Kalson v. Paterson,

542 F.3d 281 (2d Cir. 2008)...................................................................................... 21

Kennedy v. N. Carolina State Bd. of Elections,

905 S.E.2d 55 (N.C. 2024) ........................................................................................ 27

Klein v. United States,

176 F.2d 184 (8th Cir. 1949) .................................................................................... 34

La Belle Dairy v. Sharpe Holdings, Inc.,

183 F.4th 606 (8th Cir. 2026)................................................................................... 22

LULAC of Tex. v. Texas,

318 F. App’x 261 (5th Cir. 2009) .............................................................................. 21

Maggard v. State,

733 S.W.3d 411 (Mo. 2026) ...................................................................... 4, 32, 35, 36

Merrill v. Milligan,

142 S. Ct. 879 (2022) .......................................................................................... 25, 28

Mo. Gen. Assembly v. von Glahn,

No. 4:25-cv-1535-ZMB, 2025 WL 3514277 (E.D. Mo. Dec. 8, 2025) ................... 4, 36

NAACP Mo. State Conf. v. Kehoe,

734 S.W.3d 338 (Mo. 2026) .................................................................................. 4, 36

New York v. U.S. Dep’t of Homeland Sec.,

969 F.3d 42 (2d Cir. 2020)........................................................................................ 17

Nken v. Holder,

556 U.S. 418 (2009) .................................................................................................. 13

vi

No. 3:26-cv-00603, 2026 WL 1433312 (M.D. Tenn. May 21, 2026) ............................ 19

Page v. Bartels,

248 F.3d 175 (3d Cir. 2001)................................................................................ 18, 19

Pierce v. N.C. State Bd. of Elections,

97 F.4th 194 (4th Cir. 2024)..................................................................................... 25

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

589 U.S. 423 (2020) .................................................................................................. 30

Republican Party of Oregon v. Keisling,

959 F.2d 144 (9th Cir. 1992) .................................................................................... 37

Rodriguez v. Popular Democratic Party,

457 U.S. 1 (1982) .......................................................................................... 33, 36, 37

Sampson v. Murray,

415 U.S. 61 (1974) .................................................................................................... 22

Shapiro v. McManus,

577 U.S. 39 (2015) .............................................................................................. 21, 23

Sibbald v. United States,

37 U.S. 488 (1838) .................................................................................................... 13

Simon v. DeWine,

98 F.4th 661 (6th Cir. 2024)..................................................................................... 23

Stratton v. St. Louis Sw. Ry. Co.,

282 U.S. 10 (1930) .................................................................................................... 18

Trump v. Boyle,

145 S. Ct. 2653 (2025) .............................................................................................. 15

U.S. Postal Serv. v. California,

No. 26A305, 2026 WL 2687160 (U.S. Sep. 14, 2026) ........................................ 25, 26

United States v. Classic,

313 U.S. 299 (1941) .................................................................................................. 34

Univ. of Texas v. Camenisch,

451 U.S. 390 (1981) .................................................................................................. 29

Walen v. Burgum,

No. 1:22-cv-31, 2022 WL 1688746 (D.N.D. 2022).................................................... 27

vii

Wesberry v. Sanders,

376 U.S. 1 (1964) ...................................................................................................... 38

U.S. Const. art. I, § 2 ............................................................................................. 33, 37

Mo. Const. art. III, § 52(b) ............................................................................... 30, 31, 35

Statutes

2 U.S.C. § 2a(c) ......................................................................................................... 2, 29

28 U.S.C. § 2284 ............................................................. 6, 11, 18, 19, 20, 21, 22, 23, 24

52 U.S.C. § 20302 ........................................................................................................... 9

Mo. Rev. Stat. § 115.277 .............................................................................................. 24

Mo. Rev. Stat. § 115.281 .................................................................................... 9, 10, 24

Mo. Rev. Stat. § 115.297 .............................................................................................. 31

Mo. Rev. Stat. § 115.339 .............................................................................................. 34

Mo. Rev. Stat. § 115.343 .............................................................................................. 34

Mo. Rev. Stat. § 115.363 .............................................................................................. 35

Mo. Rev. Stat. § 115.527 .............................................................................................. 35

Mo. Rev. Stat. § 115.914 ................................................................................................ 9

Other Authorities

Jason Rosenbaum, “Appeals Court Rules for GOP-Leaning Map in Missouri,

Pending Supreme Court Review,” KSMU (Sep. 22, 2026),

https://www.ksmu.org/news/2026-09-22/appeals-court-rules-for-gop-leaning-mapin-missouri-pending-supreme-court-review?_amp=true& ....................................... 2

Mark Maxwell, Missouri’s First Ballots Are in the Mail as Federal Court Weighs

Congressional Map; 3 Have Already Come Back in St. Louis County, KSDK (Sep.

20, 2026), https://tinyurl.com/y33b4dun ................................................................. 24

Rudi Keller, Missouri Election Officials Begin Mailing Ballots as They Await Ruling

on Congressional Map, Mo. Indep. (Sep. 19, 2026) (“Missouri election officials”),

https://tinyurl.com/3brft9au..................................................................................... 24

S. Rep. No. 94-204 (1976) ............................................................................................ 19

viii

Statement from Missouri Secretary of State Denny Hoskins, Mo. Sec’y of State (Sep.

10, 2026), https://www.sos.mo.gov/default.aspx?PageId=10670 .............................. 8

Steve Smith, Decision Made: 2022 Missouri Congressional Map to be Used for

November Elections, KZRG News (Sep. 10, 2026), https://perma.cc/JYA6-U2KW.. 8

ix

TO THE HONORABLE BRETT KAVANAUGH, ASSOCIATE JUSTICE OF THE

SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE

EIGHTH CIRCUIT.

INTRODUCTION

This case is back before this Court for a familiar reason: a lower court has once

again granted relief this Court foreclosed—this time by ordering the district court to

issue a new injunction after this Court stayed the first. The district court’s new

injunction, now mandated by the Eighth Circuit, imposes the same command—

almost to a word—as the injunction it replaces: Secretary Hoskins may not

implement “any congressional district map other than the HB 1 map for the

November 3, 2026 general election.” Compare App. 70a, with App. 41a. The only

difference is that the replacement injunction is permanent—and it comes while voting

is already underway.

A lower court cannot demand the same relief this Court has stayed by cloaking

it in a new order. DHS v. D.V.D., 145 S. Ct. 2627, 2629–30 (2025). This Court’s

September 10 Order stayed the district court’s first injunction requiring Missouri to

use HB 1 through appellate and certiorari review. The Court should clarify that its

stay means what it says: the Eighth Circuit cannot evade it by directing entry of a

permanent injunction requiring exactly the same thing.

To the extent this Court’s stay does not resolve the matter, Purcell does. The

first injunction intruded on the eve of the election. Its replacement demands a new

map after votes have already been cast. Ballots using the 2022 map have been printed

and mailed, and absentee voting, both by mail and in-person, began today. Those

1

ballots cannot be reassigned to new districts now. As one election official put it, an

imperative to change maps now that voting has begun is “the stuff of nightmares for

election administrators.” 1 Election officials from all 116 local Missouri jurisdictions

are therefore unequivocal: “[a]t this point, it is . . . impossible to revert to the HB 1

map.” Missouri Clerks’ Amicus Br. 12.

And impossibility is only half the problem. The injunction requires Missouri to

conduct the election under a map its own Supreme Court has held “is not the law and

never has been the law.” App. 53a n.8. State officials are thus left subject to conflicting

judicial commands—and ordered to conduct a congressional election using districts

that Missouri law does not authorize, contrary to the federal requirement that those

districts be “prescribed by the law” of the State. 2 U.S.C. § 2a(c). The result is chaos

on both sides of Election Day: confusion over how to conduct the election now, and

uncertainty over the rules governing its results. That is Purcell at its core.

None of that deterred the Eighth Circuit. Nor did any other constraints on its

authority. To justify its extraordinary intervention, the panel adopted a novel

interpretation of federal law granting itself the authority to decide the merits of an

apportionment challenge Congress reserved to a three-judge court, with review by

this Court, not the Eighth Circuit. And its merits decision identifies from whole cloth

a right under Article I, Section II that no federal court has recognized: a right to vote

Jason Rosenbaum, “Appeals Court Rules for GOP-Leaning Map in Missouri,

Pending

Supreme

Court

Review,”

KSMU

(Sep.

22,

2026),

https://www.ksmu.org/news/2026-09-22/appeals-court-rules-for-gop-leaning-map-inmissouri-pending-supreme-court-review?_amp=true&.

1

2

for the same candidates within the same constituency at successive stages of an

election, even when state law prohibits that result. All to assume an extraordinary

role: displacing this Court’s authority to review the Missouri Supreme Court’s order,

purporting to “correct” the Missouri Supreme Court's “erroneous” decision, App. 29a,

and reinstating relief this Court had stayed.

Applicants therefore return to this Court for emergency relief. Applicants first

move the Court to clarify that its September 10 Order precludes enforcement of the

replacement injunction—or any other lower court order granting the relief this Court

has stayed. Alternatively, if this Court concludes that its September 10 Order does

not already reach the new injunction, Applicants seek a stay of the district court’s

new injunction and the Eighth Circuit’s order requiring its entry, together with a

recall and stay of the mandate to the extent necessary to preserve the status quo.

This Court's stays are not invitations for a lower court to repackage the same

relief and try again. Nor does the law permit the unprecedented disruption the Eighth

Circuit injects here—particularly not on such a faulty basis. With voting already

underway, the Court should grant this application before that becomes irreversible.

BACKGROUND

I.

The Missouri Supreme Court enjoins use of HB 1, and this Court

denies the Secretary’s application to stay that ruling.

On September 12, 2025, the Missouri General Assembly passed House Bill 1

(“HB 1”), to replace Missouri’s prior congressional district map enacted in 2022 (the

“2022 Map”). People Not Politicians and its executive director, Richard von Glahn,

circulated a referendum petition seeking to suspend HB 1 until it passed a statewide

3

vote. After the petition and more than 300,000 signatures in support were submitted

on December 9, 2025, the Secretary waited until the statutory deadline of August 4,

2026—when the primary was already underway—to issue a certification denying the

petition.

Multiple courts weighed in on the referendum and certification process in the

interim. Both a federal court and the Missouri Supreme Court cautioned that, if valid,

the referendum petition would suspend the operation of HB 1, and that its validity

could not be confirmed until the certification process—including judicial review—was

complete. See Mo. Gen. Assembly v. von Glahn, No. 4:25-cv-1535-ZMB, 2025 WL

3514277 (E.D. Mo. Dec. 8, 2025); NAACP Mo. State Conf. v. Kehoe, 734 S.W.3d 338,

341 n.4 (Mo. 2026) (en banc); Maggard v. State, 733 S.W.3d 411, 420 (Mo. 2026) (en

banc). Knowing full well that HB 1’s legal status remained indeterminate while he

waited to make a certification decision, the Secretary chose to conduct the primary

under HB 1 anyway. The Attorney General publicly acknowledged the strategic

benefit of delay: “As long as the status quo is the new maps, delay works in our favor.”

App. 739a, Hoskins v. von Glahn, No. 26A304 (U.S. Sep. 4, 2026).

On September 3, 2026, the Missouri Supreme Court issued its opinion in von

Glahn v. Hoskins, App. 42a–55a, unanimously holding that the Missouri Constitution

authorizes referenda on the General Assembly’s adoption of congressional district

maps. As the Missouri Supreme Court made clear, under Missouri law, HB 1 “is not

the law and has never been the law.” App. 53a n.8. The court accordingly ordered the

Secretary to “issue a certificate of sufficiency as to the referendum petition” and to

4

“take any and all additional steps necessary to place the referendum petition” on the

November 2026 general election ballot “before September 8, 2026.” App. 54a. The

Court further “restrained and enjoined” the Secretary of State “and all of those acting

in concert with him” from using the HB 1 map for the November general election. Id.

The Secretary appealed to this Court, and on September 4, 2026, filed an

Emergency Application for Stay. Emergency Appl. for Stay, Hoskins v. von Glahn,

No. 26A304 (U.S. Sep. 4, 2026). Joined by Republican Party intervenors, the

Secretary raised claims challenging the Missouri Supreme Court’s order under the

Elections Clause, Article I, Section 2, and the Equal Protection Clause. Id. at 17–31.

The Secretary represented to this Court that, “[t]o enable Missouri to comply with

th[e] federal [UOCAVA] deadline,” the Court must “issue a decision no later than

September 14, 2026.” Id. at 6.

On September 8, this Court denied the Secretary’s application for a stay. See

Hoskins v. von Glahn, No. 26A304 (U.S. Sep. 8, 2026). After the denial, the Secretary’s

office directed local election officials to implement the Missouri Supreme Court’s

order and finalize ballots using the 2022 map. App. 56a.

II.

A federal district grants the same relief this Court withheld, and this

Court grants an emergency stay of that order.

On September 4, the same day the Secretary sought emergency relief in this

Court, Plaintiffs Congressman Robert “Bob” Onder, Richard “Rick” Brattin, Patricia

“Pat” Thomas, and Debra Havens filed a complaint and motion for temporary

restraining order (“TRO”) in federal district court raising the exact same federal

5

claims. Compl., D. Ct. Doc. 1; Mot. for TRO, D. Ct. Doc. 2. 2 The next day, the Secretary

consented to the TRO. Statement in Supp. Pls.’ Request for TRO & PI, D. Ct. Doc. 11.

Applicants filed a motion to intervene and proposed motion to dismiss on September

6. Mot. to Intervene, D. Ct. Doc. 12; Proposed Mot. to Dismiss, D. Ct. Doc. 12-4. The

motion to dismiss argued, among other things, that Plaintiffs’ claim required the

convening of a three-judge court under 28 U.S.C. § 2284. Proposed Mot. to Dismiss at

15, D. Ct. Doc. 12-4. The district court granted Applicants’ intervention motion on

September 8. Order, D. Ct. Doc. 32.

On September 8, after this Court entered its ruling denying the Secretary’s

application to stay the Missouri Supreme Court order, Plaintiffs notified the district

court of the stay denial. Notice of Denial of Stay, D. Ct. Doc. 34. Less than 15 minutes

later, the district court granted Plaintiffs’ motion for a TRO, enjoining the

Secretary—“as well as his officers, agents, employees, and attorneys—from

implementing, using, publishing, distributing, or mandating the use of any

congressional district map other than the HB 1 map for the November 3, 2026 general

election.” App. 70a.

The TRO was remarkable for several reasons. On the merits, the district court

rejected Plaintiffs’ Elections Clause claim, App. 64a, but found that Plaintiffs are

likely to succeed on the merits of their claims under the Equal Protection Clause and

Article I, Section 2, App. 66a–68a, citing no authority (from this Court or any other)

2 Plaintiffs in the federal case are represented by the same counsel who represented

the Republican National Committee as a party to both the Missouri Supreme Court

proceedings and the September 4 emergency stay proceedings before this Court.

6

granting a similar claim on either of these grounds. On the equities, the district court

“[a]dmitted[]” that “courts normally invoke the Purcell principle to caution against

federal-court intervention in the election decisions of state legislatures,” but

nevertheless found that the “public interest concerns that the Purcell principle

invokes” “support issuing a TRO.” App. 69a. At no point in its discussion of either the

merits or the equities did the district court mention—let alone explain its conflict

with—the Missouri Supreme Court’s September 3 ruling and injunction. Nor did the

district court attempt to reconcile its decision with this Court’s denial of a stay

application making identical arguments minutes before the TRO was issued.

Immediately following the district court’s issuance of the TRO, the Secretary

countermanded his prior directive to local election officials to use the 2022 map,

advising them that “the federal court’s ruling, based on federal law, takes precedence

over the Missouri Supreme Court’s order, which is based on state law,” App. 71a, and

instructing them to use HB 1 for the November elections. That same day, Applicants

sought an emergency stay before the Eighth Circuit, and the Missouri Supreme Court

issued an Order directing the Secretary to “show cause, if any, why he should not be

held in contempt for violating this Court’s injunction dated September 3, 2026.” App.

80a.

The next day, on September 9, the Eighth Circuit denied Applicants’

emergency application for a stay pending appeal, concluding that the court “either

lack[ed] jurisdiction over the appeal” or “the stay factors ha[d] not been met.” App.

81a. Minutes after the Eighth Circuit’s denial, Applicants filed an emergency

7

application to stay the district court’s TRO in this Court. This Court stayed the TRO

on September 10, with no noted dissents. See People Not Politicians v. Onder, No.

26A326 (U.S. Sep. 10, 2026).

Later that day, the Missouri Supreme Court held a contempt hearing and

thereafter unanimously found Secretary Hoskins in contempt of its September 3

order and injunction. It held, however, that Secretary Hoskins purged his contempt

shortly after the hearing by posting a public statement declaring that “[f]ollowing the

United States Supreme Court’s stay, the only governing court order in effect is from

the Missouri Supreme Court. In accordance with that order, my Office is directing

local election authorities to use the 2022 congressional map,” 3 and sending an email

to local election officials instructing them to do so. App; 85a, 88a.

III.

Missouri election officials rely on this Court’s stay of the TRO and

print ballots under the 2022 Map.

On September 10, in response to Secretary Hoskins’ email, App. 88a, local

election officials “immediately began the process of creating and printing ballots”

using the 2022 Map. Mo. Ass’n of Cnty. Clerks & Election Auths. (“Missouri Clerks”)

Amicus at 8–9; 4 see also, e.g., Steve Smith, Decision Made: 2022 Missouri

Congressional Map to be Used for November Elections, KZRG News (Sep. 10, 2026),

https://perma.cc/JYA6-U2KW (Jasper County Clerk Charlie Davis stating “we now

3 Statement from Missouri Secretary of State Denny Hoskins, Mo. Sec’y of State (Sep.

10, 2026), https://www.sos.mo.gov/default.aspx?PageId=10670.

Members of the MACCEA are elected county clerks and appointed directors of

boards of elections from each of the 116 local election jurisdictions in Missouri.

Missouri Clerks’ Amicus Br. at 5.

4

8

have clarity statewide” and “the decision is final and ballots in the state may now be

printed”). The Secretary’s asserted deadline of September 14 came and went, and as

of September 15, “most jurisdictions’ ballots are already in production, either by inhouse ballot printers or vendors.” Missouri Clerks’ Amicus at 9. Under federal law,

Missouri was required to send UOCAVA ballots to overseas voters by September 19,

see 52 U.S.C. § 20302(a)(8); under Missouri state law, because September 19 was a

Saturday, UOCAVA ballots were sent on Friday, September 18, see Mo. Rev. Stat.

§ 115.914.1.

Missouri law also dictates that September 22, 2026—today—is the date when

voting commences. Specifically, today is the date by which election authorities must

print and make available absentee ballots. Mo. Rev. Stat. § 115.281.1. It is also the

date on which in-person absentee voting commences for voters with a qualifying

excuse under Mo. Rev. Stat. § 115.277.3. Id. Pursuant to that provision, Applicant

Richard von Glahn cast his ballot for the November general election earlier today,

using a ballot issued under the 2022 map. App. 91a.

IV.

The Eighth Circuit orders the district court to issue a permanent

injunction granting the same relief this Court stayed.

On September 10—after this Court stayed the district court’s TRO, after the

Missouri Supreme Court issued its contempt order, and after the Secretary instructed

local election officials to use the 2022 Map in preparing ballots—the Eighth Circuit

panel that had previously denied Applicants’ stay application issued an emergency

briefing and hearing schedule on the matter. See Order (Sep. 10, 2026). The panel

ordered simultaneous briefing from the parties due on September 15 and oral

9

argument on September 17. Id. The Secretary told the panel that the “U.S. Supreme

Court granted a stay in this case, suggesting it believes the 2022 congressional map

should govern Missouri’s 2026 General Election” and that he “is complying with that

ruling.” Hoskins C.A. Br. at 30.

On September 21, 2026, the Eighth Circuit panel issued an order “affirming

the district court[’s TRO] and remand[ing] for entry of a permanent injunction.” App.

3a. The panel first determined it had jurisdiction to review the TRO because it had

the “practical effect” of a preliminary injunction. App. 11a–12a. It next rejected

Applicants’ jurisdictional argument that a three-judge court was required, explaining

that (a) Applicants had not filed a “stand-alone request” for a three-judge court or

otherwise “affirmatively requested such a court,” App. 13a, and (b) “federal law allows

the district court to ‘grant a temporary restraining order’ without referring the matter

for convening of a three-judge court,” id. (quoting 28 U.S.C. § 2284(b)(3)).

After rejecting several other jurisdictional arguments advanced below by

Applicants, App. 13a–17a, the panel asserted its belief that neither this Court’s stay

of the TRO nor the Secretary’s subsequent implementation of the 2022 map rendered

its review moot. App. 17a–21a. The panel noted that this Court’s stay order “merely

stayed” the TRO, App. 17a–18a (“[T]he Supreme Court did not vacate or modify the

temporary restraining order or rule on its validity . . . .”), but did not otherwise

address the duration of this Court’s stay order. The panel further determined that its

issuance of a final judgment on the merits “wholly removes the temporary restraining

order’s expiration as a basis for mootness.” App. 18a. It then concluded that the

10

“availability” of UOCAVA waivers—regardless of “whether Missouri would receive

such a waiver”—“demonstrates that UOCAVA ballot transmission on September 18,

2026, is not itself a jurisdictional point of no return and effectual relief remains

available.” App. 19a. The panel recognized that, “[f]or all Missouri voters not covered

by UOCAVA, absentee ballots may be requested and cast beginning on September

22, 2026,” App. 21a—today—but satisfied itself that since that deadline “ha[d] not

yet arrived, and thus general absentee voting ha[d] not yet begun” as of the date it

issued

its

order—yesterday—“the

September

22,

2026,

absentee

ballot

commencement date does not moot this case.” Id.

On the merits, the Eighth Circuit panel held that, “because Missouri used the

2025 map in the August 2026 primary election, using the 2022 map in the November

2026 general election violates Article I, Section 2.” App. 27a. It reasoned that

“[c]hanging district lines between the primary and general election prevents an

affected voter from participating in either district’s complete procedure of choice,”

App. 26a, and denying “the ability to vote for the nominees that will appear on their

November 2026 general election ballot deprives [affected] voters of their

constitutional right of choice under Article I, Section 2,” App. 25a. In light of this

holding, the panel found it “unnecessary” to reach Plaintiffs’ Equal Protection Clause

and Elections Clause claims. App. 28a.

Finally, the panel rejected Applicants’ argument that the Purcell principle bars

federal court interference in Missouri’s election machinery at this late date. App. 28a–

32a. Although the panel previously stated that it was “not review[ing] the decision of

11

the Missouri Supreme Court,” which may be appealed to this Court, App. 22a, it

ultimately concluded that “[r]efusing to correct an erroneous, ‘late-breaking’ state

court decision based on the Purcell principle would ‘turn Purcell on its head.’” App.

29a (citation omitted); see also App. 30a (holding that the Missouri Supreme Court

“upset” the status quo and it is the panel’s “duty, consistent with Purcell, to at least

preserve the possibility of restoring it” (citation omitted)). According to the panel,

“[a]llowing state courts to issue, without any federal-court review, last-minute

decisions affecting the conduct of federal elections” would “potentially allow a handful

of state judges to render decisions” that affect the outcome of federal elections. App.

29a (emphasis added).

The Eighth Circuit panel accordingly affirmed the district court’s TRO and

remanded to the district court “for entry of a permanent injunction prohibiting” state

election officials from using “any congressional district map other than the 2025 map

for the November 3, 2026 general election.” App. 34a–35a. “To allow for appellate

review,” however, the panel instructed the district court to “administratively stay its

permanent injunction until September 28, 2026, at 5 p.m. Central Daylight Time.”

App. 35a. According to the panel, “[i]f the Supreme Court has not stayed or otherwise

altered the permanent injunction by that time, Secretary Hoskins and all others

bound by this judgment must fully implement the 2025 map for the November 2026

general election.” App. 34a.

Less than an hour later, the district court issued the permanent injunction, as

instructed by the Eighth Circuit panel. App. 41a. Later that evening, Applicants filed

12

a motion to stay and recall the mandate in the Eighth Circuit, informing the panel

that they “intend to seek emergency relief from the United States Supreme Court

following disposition of this Motion or upon close of business on September 22, 2026,

whichever arrives first.” Emergency Mot. to Recall the Mandate & Stay the Court’s

Order. Shortly before the filing of this Application, the Eighth Circuit issued a onesentence order denying Applicants’ motion. App. 89a–90a.

ARGUMENT

This Court’s September 10 Order already stays the district court’s new

injunction granting relief identical to that issued in its earlier TRO. This Court

should confirm as much. If the Court concludes otherwise, it should stay both the

Eighth Circuit’s order and the district court’s permanent injunction issued pursuant

to that order and recall the mandate. See Nken v. Holder, 556 U.S. 418, 427 (2009).

The Eighth Circuit cannot disrupt an imminent election after ballots have been cast

by issuing relief that this Court has already foreclosed and that it lacked jurisdiction

to grant, all based on a merits theory of the panel’s own invention.

I.

The Eighth Circuit cannot nullify this Court’s stay by replacing the

stayed injunction with a new injunction granting identical relief.

Once this Court has “executed [its] power in a cause,” a lower court may not

“give any other or further relief” inconsistent with this Court’s disposition. Sibbald v.

United States, 37 U.S. 488, 492 (1838). And when a lower court violates that rule, this

Court is the proper forum for correcting that error. See D.V.D., 145 S. Ct. at 2630

(“[A] claim that a lower court has failed to give effect to an order of this Court is

properly addressed here.”).

13

That is what happened here. This Court stayed the district court’s earlier

injunction barring Missouri from conducting the November election under any map

other than HB 1 “pending the disposition of the appeal in the United States Court of

Appeals for the Eighth Circuit and disposition of a petition for a writ of certiorari in

this Court, if such a writ is timely sought.” People Not Politicians v. Onder, No.

26A326 (U.S. Sep. 10, 2026) (emphasis added). That stay remains in effect because,

while the Eighth Circuit has dispensed with the appeal, this Court has not

adjudicated a petition for certiorari and the time for seeking certiorari has not yet

expired. Yet at the Eighth Circuit’s direction, the district court entered a replacement

injunction granting the precise relief this Court stayed—this time in the form of a

permanent injunction. Compare App. 70a (September 8 order enjoining Secretary

Hoskins from implementing “any congressional district map other than the HB

1 map for the November 3, 2026 general election”), with App. 35a (September

21 order enjoining Secretary Hoskins from implementing “any congressional

district map other than the 2025 map for the November 3, 2026, general

election”). Applicants therefore respectfully move this Court to clarify that its

September 10 order applies equally to the permanent injunction with identical

terms. 5

5 If this Court grants the motion, Applicants assume the Eighth Circuit and district

court would “conform [their] order[s] to [this Court’s] previous stay” by withdrawing

the mandate and the new injunction, in which case no further relief would be

required. D.V.D., 145 S. Ct. at 2630. If additional relief is nevertheless required even

after this Court clarifies its Order, Applicants will seek it through mandamus. See id.

14

This Court’s decision in D.V.D. confirms that a lower court cannot evade a stay

by granting the same relief through a different order. 145 S. Ct. at 2629. There, after

this Court stayed a preliminary injunction, the district court declared that a separate

remedial order enforcing that injunction remained “in full force and effect,”

notwithstanding the stay. Id. at 2629. This Court granted the Government’s motion

to clarify and rejected the attempted workaround: the remedial order “cannot now be

used to enforce an injunction that our stay rendered unenforceable.” Id. at 2629–30;

see also id. at 2630 (Kagan, J., concurring) (stating that she “continue[d] to believe”

the earlier stay should not have been issued, but “d[id] not see how a district court

can compel compliance with an order that this Court has stayed”).

This Court has enforced its stay even when a different court granted

incompatible relief. In Trump v. Boyle, this Court held a request for injunctive relief

was “squarely controlled” by an earlier stay order of materially indistinguishable

relief in another case. 145 S. Ct. 2653, 2654 (2025). As the Court explained, although

its “interim orders are not conclusive as to the merits, they inform how a court should

exercise its equitable discretion in like cases.” Id.

The circumstances here are far more extreme. The Eighth Circuit’s order does

not merely undermine this Court’s stay order; it requires the district court to issue a

permanent injunction granting the exact same relief this Court stayed in the exact

same case. See App. 35a (prohibiting Secretary Hoskins or his agents “from

implementing, using, publishing, distributing, or mandating the use of any

congressional district map other than the 2025 map for the November 3, 2026, general

15

election”); see also App. 70a. That action appears unprecedented. Applicants are

aware of no case in which a federal court of appeals has ordered a district court to reissue the same relief this Court had stayed through appellate and certiorari review.

To the contrary, courts of appeals confronting such stays have instead

recognized that this Court—not the court of appeals—controls the interim posture.

For example, when this Court stayed a preliminary injunction “pending the

disposition of the appeal . . . and disposition of a petition for a writ of certiorari,” the

en banc Fourth Circuit made clear that “no decision [it] issue[d] . . . ha[d] the power

to change th[e] fact” that the injunction was not in effect. Am. Fed’n of State, Cnty. &

Mun. Emps. v. Soc. Sec. Admin., 172 F.4th 361, 374 (4th Cir. 2026) (en banc)

(emphasis omitted). The injunction “w[ould] resume in force—if ever—only after

events that would post-date [the Fourth Circuit’s] decision and over which [it] ha[d]

no control.” Id. Likewise, the Second Circuit recognized that its merits decision

affirming a preliminary injunction could not itself make the injunction operative

because it “ha[d] already been stayed by the Supreme Court, not only through [the

Second Circuit’s] disposition of the case, but also through the disposition of [the

Government’s] petition for a writ of certiorari.” New York v. U.S. Dep’t of Homeland

Sec., 969 F.3d 42, 88 (2d Cir. 2020), cert. denied, 592 U.S. 1314 (2021).

Sheer logic reinforces that rule. If this Court’s stay order bars a court of appeals

from making a stayed injunction operative by affirming it, it cannot accomplish the

same result by packaging the same relief in a new injunction. This Court expressly

determined that the district court’s HB 1 injunction would remain suspended through

16

the Eighth Circuit’s disposition and this Court’s ensuing certiorari review. “In light

of” that order, “it is inconceivable” that the Eighth Circuit “was free to again” order

the relief this Court had stayed. Gen. Atomic Co. v. Felter, 436 U.S. 493, 497 (1978)

(per curiam). This Court should clarify that its September 10 stay precludes

enforcement of the replacement injunction—or any additional federal court

injunctions contrary to the stay order—so long as that stay remains in effect.

II.

The Eighth Circuit had jurisdiction only to correct the district court’s

failure to convene the three-judge court required by federal law.

If this Court concludes that its September 10 stay does not already resolve the

matter, it should stay the replacement injunction pending appeal. To start, the

Eighth Circuit’s judgment is likely to be reversed because it had no jurisdiction to

enter it in the first place: Under federal law, this case should have been referred to a

three-judge court, with appellate review by this Court—not the Eighth Circuit.

Federal law provides that “[a] district court of three judges shall be convened”

when “an action is filed challenging the constitutionality of the apportionment of

congressional districts.” 28 U.S.C. § 2284(a). Although a single judge may enter a

temporary restraining order, he may not “hear and determine any application for a

preliminary or permanent injunction.” Id. § 2284(b)(3).

A court of appeals may review a single district judge’s failure to refer a case to

a three-judge court. See Borden Co. v. Liddy, 309 F.2d 871, 876 (8th Cir. 1962). But

if a three-judge court was required, the court of appeals is precluded from reviewing

the case on the merits. See Stratton v. St. Louis Sw. Ry. Co., 282 U.S. 10, 16 (1930);

Borden Co., 309 F.2d at 876–77; Page v. Bartels, 248 F.3d 175, 182, 185 (3d Cir. 2001)

17

(finding that it had “no jurisdiction to grant interim injunctive relief” where the case

should have been referred to a three-judge court). Otherwise, appellate review would

“defeat the purpose of the statute by substituting a decree by a single judge and an

appeal to the Circuit Court of Appeals for a decree by three judges and a direct appeal

to” the Supreme Court. Stratton, 282 U.S. at 16.

The Eighth Circuit never denies outright that § 2284(a) applies. Nor could it:

the Complaint asks the court to declare the use of Missouri’s only lawful

congressional districts “unconstitutional” and to mandate use of HB 1—relief that

falls squarely within the plain text of § 2284(a). Compare Compl. at 26 (seeking

“declaratory relief stating that Defendants’ failure to use the HB[]1 Congressional

maps—as ordered by von Glahn—is unconstitutional” and enjoining them from using

any other map), with 28 U.S.C. § 2284(a) (requiring that a three-judge district court

“shall be convened . . . when an action is filed challenging the constitutionality of the

apportionment of congressional districts”). 6

The Eighth Circuit expressed “doubt[] that this action contesting which map

Missouri should use in the November 2026 election ‘challeng[es] the constitutionality

of the apportionment of congressional districts,’” App. 13a, but it cites no authority to

support that thinly-sliced distinction. And a recent federal court opinion explains why

it fails. In Hale v. Lee, the district court held that a challenge to the timing of

congressional reapportionment, and not to the apportionment itself, must be heard

by a three-judge court: because “[t]he harm sought to be remedied” concerned the

“apportionment of congressional districts,” there was “no basis” to conclude that three

judges were unnecessary. No. 3:26-cv-00603, 2026 WL 1433312, at *3 (M.D. Tenn.

6

18

The Eighth Circuit justified its jurisdiction by another route, finding that the

district court had no obligation to convene a three-judge court because none of the

parties have ever requested one. App. 12a–13a. That argument stacks one

unsupported premise atop another. Applicants did request a three-judge court, and

the Eighth Circuit identified no authority suggesting that the form of that request

was inadequate. App. 13a. More fundamentally, no federal court has held that a party

must request a three-judge court before § 2284(a)’s mandatory jurisdictional rule

applies.

First, the request: Applicants invoked the three-judge court requirement in

their first filing in the district court—a proposed motion to dismiss appended to their

intervention motion. Applicants asserted that the Complaint is defective because it

seeks relief from a single judge rather than a three-judge court, as required by federal

law. See Proposed Mot. to Dismiss at 15, D. Ct. Doc. 12-4. They explained that since

the Complaint “unquestionably challenges the constitutionality of the apportionment

of congressional districts,” a three-judge court is “mandatory,” and “[a] single judge

cannot grant the relief Plaintiffs seek.” Id. (citing 28 U.S.C. § 2284(a)).

May 21, 2026). Chief Judge Sutton “agree[d] that a three-judge panel [wa]s

warranted” and designated one for the remainder of the proceedings. See Order, Hale

v. Lee, No. 2:2026-cv-00603, Dkt. No. 48 (May 22, 2026). The legislative history of the

three-judge statute supports that conclusion: In enacting § 2284, “Congress was

concerned less with the source of the law on which an apportionment challenge was

based than on the unique importance of apportionment cases generally.” Page, 248

F.3d at 190; see also S. Rep. No. 94-204, at 9 (1976) (retaining three-judge courts for

congressional reapportionment because such cases “are of such importance that they

ought to be heard by a three-judge court”).

19

The Eighth Circuit determined that Applicants’ clear invocation of the rule was

insufficient because Applicants “did not file a stand-alone request for a three-judge

court” or make an “affirmative[] request” for one. App. 13a. But the court cited no

authority holding that an express invocation of § 2284(a)’s mandatory requirement is

insufficient merely because it was stated as a legal requirement rather than phrased

as a question. Nor does anything suggest a separate motion is required. Indeed, the

Eighth Circuit’s prior practice confirms the opposite. In Simpson v. Hutchinson, for

example, the “request” for a three-judge court appeared in the complaint, not in a

separate motion, and the Chief Judge of the Eighth Circuit designated the panel. See

Compl., No. 4:22-cv-213-JM-DRS-DPM (E.D. Ark. Mar. 7, 2022), Dkt. No. 1; Order,

No. 4:22-cv-213-JM-DRS-DPM (E.D. Ark. Mar. 29, 2022), Dkt. No. 9. No authority

supports a different disposition here. Indeed, Applicants are aware of no case other

than this one in which a single district judge within the Eighth Circuit has

adjudicated the merits of a constitutional challenge to congressional or statewide

legislative apportionment covered by § 2284(a).

In any event, prior to the Eighth Circuit’s order, every circuit that has

considered the question has held that § 2284(a) is jurisdictional and thus applies

whether a request is made or not. As the Second Circuit explained, although § 2284(a)

does contemplate a “request,” the statute “uses typically jurisdictional language,”

stating that “a three-judge court ‘shall’ be convened, a word that generally connotes

a rule that it is both mandatory and jurisdictional.” Kalson v. Paterson, 542 F.3d 281,

287 (2d Cir. 2008); accord LULAC of Tex. v. Texas, 318 F. App’x 261, 264 (5th Cir.

20

2009) (per curiam) (“We agree with our sister circuits that the term ‘shall’ in § 2284

is mandatory and jurisdictional.”); Armour v. Ohio, 925 F.2d 987, 989 (6th Cir. 1991)

(holding that § 2284(a) is jurisdictional, notwithstanding its reference to a “request”).

Without acknowledging those cases, the panel created a new circuit split in an

emergency posture based solely on this Court’s decision in Shapiro v. McManus, 577

U.S. 39 (2015). See App. 12a–13a. But Shapiro supports the opposite conclusion.

There, this Court held that § 2284(a) “could not be clearer” and “admits of no

exception”: a three-judge court “‘shall be convened” whenever an action “is filed”

challenging the constitutionality of congressional apportionment. 577 U.S. at 43

(quoting 28 U.S.C. § 2284(a)). And the Court expressly rejected an effort to derive an

exception from subsection (b)(1)’s procedural instructions on how the court should be

convened. That provision—the same provision that contemplates a “request”—is

merely an “administrative detail” governing how the three-judge court is convened

once § 2284(a) applies. Id. at 43–44. The Eighth Circuit thus uses Shapiro’s

discussion of an “administrative detail” to justify the very exception Shapiro said

§ 2284(a) does not permit.

The panel’s alternative holding only confirms that it lacked jurisdiction to

decide this case. The panel reasoned that, even if a three-judge court were required,

the single judge could issue the challenged order because § 2284(b)(3) permits a single

judge to issue a temporary restraining order. App. 13a. But an order styled as a TRO

is construed as a preliminary injunction when it functions as one, particularly where

the order has a “serious, perhaps irreparable, consequence.” Carson v. Am. Brands,

21

Inc., 450 U.S. 79, 83–84 (1981) (citation omitted); Sampson v. Murray, 415 U.S. 61,

86–88 & n.58 (1974). The Eighth Circuit was well-aware of this rule: Just one page

earlier, the panel secured its own jurisdiction by concluding that the challenged order

was not a true TRO. App. 11–12 (“The district court’s [TRO] effectively requiring use

of the 2025 map in the November 2026 general election would have governed ballot

printing and mailing of absentee ballots, which is ‘in practical effect a preliminary

injunction.’” (quoting La Belle Dairy v. Sharpe Holdings, Inc., 183 F.4th 606, 612 (8th

Cir. 2026)). The Eighth Circuit reasoned that although TROs are ordinarily not

appealable, it had appellate jurisdiction because the TRO was functionally a

preliminary injunction. Id. It then immediately reversed that same conclusion in the

following section when it no longer supported the court’s jurisdiction.

The panel cannot have it both ways. If the district court’s order was truly a

TRO, § 2284 may have permitted the district court to enter it 7—but the Eighth

Circuit lacked jurisdiction to review it. Edudata Corp. v. Sci. Computs., Inc., 746 F.2d

429, 430 (8th Cir. 1984) (per curiam). If the order had the “practical effect” of a

preliminary injunction sufficient to support appellate jurisdiction, App. 11a, then §

2284(b)(3) prohibited the single district judge from granting it, and review belonged

in this Court—not the Eighth Circuit. The panel cannot manufacture jurisdiction by

7 Here, even a true TRO was improper given the district court’s failure to refer the

case to a three-judge court, even after an explicit request in Applicants’ motion to

dismiss. See Simon v. DeWine, 98 F.4th 661, 666 (6th Cir. 2024) (holding that “the

district court lacked jurisdiction as a single judge to adjudicate any other pending

motion,” including a TRO, “because it was required to convene a three-judge court

under 28 U.S.C. § 2284”).

22

treating the same order as a preliminary injunction on one page and a TRO on the

next.

Nor can the panel use § 2284(b)(3)’s narrow TRO exception to accomplish what

that same provision forbids. Whatever the status of the original order, the statute is

unequivocal: a single judge “shall not . . . hear and determine any application for a

preliminary or permanent injunction” or “enter judgment on the merits.” 28 U.S.C.

§ 2284(b)(3). Yet having invoked the TRO exception to justify the district court’s

authority to act, the panel directed that same court to issue a permanent injunction.

App. 34a–35a. Section 2284 does not permit its narrow exception for temporary relief

to serve as a vehicle for entering the final relief Congress expressly reserved to a

three-judge court. See Shapiro, 577 U.S. at 44 (“It would be an odd interpretation that

allowed a district judge to do under § 2284(b)(1) what he is forbidden to do under §

2284(b)(3). More likely that Congress intended a three-judge court, and not a single

district judge, to enter all final judgments in cases satisfying the criteria of

§ 2284(a).”). The Eighth Circuit’s judgment—and the permanent injunction entered

at its direction—should be stayed.

III.

Purcell bars a federal court from demanding impossible relief that

guarantees confusion in an election that is already underway.

Election officials from all 116 local Missouri jurisdictions agree: “At this point,

it is . . . impossible to revert to the HB 1 map.” Missouri Clerks’ Amicus Br. at 12.

Absentee voting under the 2022 map began today, September 22—one day after the

Eighth Circuit ordered the district court to require a different map. Id. at 10; see App.

23

21a. 8 Ballots using the 2022 map have been printed and mailed, and voters have

already begun returning them. 9 In-person absentee voting began today as well, also

under the 2022 map. Mo. Rev. Stat. § 115.277.3. And thousands of ballots using the

2022 map have already been mailed to military and overseas voters, some of whom

have already used them to vote. 10 Those votes cannot now be undone. As one county

clerk explained, once an absentee ballot has been cast, “You cannot pull a voted ballot

back out of a tabulator and redo it.” 11

Under Purcell, that should be the end of the matter. To avoid a stay, latebreaking judicial intervention must be “at least feasible before the election without

significant cost, confusion, or hardship.” Merrill v. Milligan, 142 S. Ct. 879, 881 (2022)

(Kavanaugh, J., concurring) (emphasis added). But the Eighth Circuit’s new

injunction cannot be implemented “before” the election at all; the election is no longer

“merely ‘close,’ or even ‘imminent’—it is happening right now.” Pierce v. N.C. State

Bd. of Elections, 97 F.4th 194, 227 (4th Cir. 2024) (citation modified). And election

officials statewide confirm that reverting to HB 1—which would require proofing new

8 Because the Eighth Circuit ordered the district court to stay its injunction until

September 28 to allow for this Court’s review, officials were not required to

immediately comply with it. App. 35a. By that time, thousands more votes under the

2022 map will already have been cast.

9 See Mark Maxwell, Missouri’s First Ballots Are in the Mail as Federal Court Weighs

Congressional Map; 3 Have Already Come Back in St. Louis County, KSDK (Sep. 20,

2026), https://tinyurl.com/y33b4dun; see also Mo. Rev. Stat. § 115.281.1 (setting

deadline for printing absentee ballots).

10 See Rudi Keller, Missouri Election Officials Begin Mailing Ballots as They Await

Ruling on Congressional Map, Mo. Indep. (Sep. 19, 2026) (“Missouri election

officials”), https://tinyurl.com/3brft9au; Rosenbaum, supra note 1.

11 Keller, Missouri Election Officials.

24

ballots, loading them onto tabulators, and issuing them to voters, all while voting is

already underway—would be “impossible.” Missouri Clerks’ Amicus Br. 6–9, 12. This

Court has required a stay even where plaintiffs have a “fair prospect” of success on

the merits when “state and local election officials do not have sufficient time to

reasonably implement the rule before the elections.” U.S. Postal Serv. v. California,

No. 26A305, 2026 WL 2687160, at *1 (U.S. Sep. 14, 2026) (Kavanaugh, J.,

concurring). That rule forecloses the impossible task the Eighth Circuit imposes here.

Instead of crediting local election officials’ own assessment that they cannot

switch maps at this late hour, the Eighth Circuit deemed the changes “feasible” based

entirely on its own speculation. App. 31a. For example, despite conceding that the

court did not know “how many jurisdictions would need to change ballots” to

implement HB 1, how “much cost would be incurred to change the maps,” and how

much “time . . . it would take to implement” a new congressional map, id., the panel

concluded, without citation, that “[p]resumably, local election authorities needed only

a few days” in which to do so. App. 31a. But the officials themselves say otherwise,

and the panel was not entitled to ignore the undisputed record. See Missouri Clerks’

Amicus Br. at 12.

In any event, the Eighth Circuit’s feasibility analysis misses the point. Purcell

protects against “election administrator confusion” and safeguards the State’s

interest in “running an orderly, efficient election.” Democratic Nat’l Comm. v. Wis.

State Legislature, 592 U.S. 1039, 1043 (2020) (Kavanaugh, J., concurring). That

concern is at its apex once voting has begun. See id. (applying Purcell where the

25

district court intervened to change a ballot deadline “after absentee voting had

already begun”). And here, confusion is guaranteed. The district court’s TRO already

left Missourians “baffled and frustrated by this whole process.” 12 and further changes

would prove even more “chaotic.” Even if the changes were possible, “redo[ing] the

election and reprint[ing] the ballots would cost hundreds of thousands of dollars” and

place a “substantial hardship on Missouri’s local jurisdictions,” which, in many cases,

would be left to foot the bill. Missouri Clerks’ Amicus Br. at 11. And as one elections

official explained, implementing a new map now that votes have already been cast “is

the stuff of nightmares for election administrators.” 13

Indeed, the Eighth Circuit’s proposed solutions would only deepen chaos here.

For example, the panel theorizes that implementation remains “feasible” even though

ballots have already been sent to military and overseas voters because officials could

simply reprint and redistribute new ballots under the HB 1 map. Order at 20. But

that runs headlong into Purcell’s confusion concern. See Walen v. Burgum, No. 1:22cv-31, 2022 WL 1688746, at *5 (D.N.D. 2022) (“We would be hard pressed to think of

a situation more confusing to a voter than receiving a second ballot with instructions

12 Keller, Missouri Election Officials.

13 Rosenbaum, supra note 1.

26

to vote again.”). That demands a stay whether the changes are theoretically feasible

or not. 14

The panel protests that “other courts have ordered ballot changes that delayed

the commencement of absentee voting because ballots had to be reprinted.” Order at

21 n. 17. But its cases do not support federal intervention here. Both cases the panel

cites were state court decisions. See id. (citing Kennedy v. N. Carolina State Bd. of

Elections, 905 S.E.2d 55, 58 (N.C. 2024), and Holloway v. Byrne, 874 A.2d 504, 505

(N.J. 2005)). And “States are free to decide for themselves whether last-minute

changes to an election are in their best interests.” Allen v. Milligan, 608 U.S. 511, 514

(2026) (per curiam) (citation omitted). “It is one thing for a State on its own to toy

with its election laws close to a State’s elections. But it is quite another thing for a

federal court to swoop in and re-do a State’s election laws in the period close to an

election.” Merrill, 142 S. Ct. at 881 (Kavanaugh, J., concurring in the grant of a stay).

The chaos the replacement injunction guarantees will extend even beyond the

election itself, casting doubt on its results and exposing officials to separate

consequences under state law. The Missouri Supreme Court held, as a matter of

Missouri law, that “[t]here is only one valid congressional redistricting in effect—the

14 Changing the map would also all but ensure that Missouri violates UOCAVA. The

Eighth Circuit attempted to skirt this fact by citing the hardship waiver provision in

UOCAVA, see Op. at App. 18a–19a (citing 52 U.S.C. § 20302(g)(2)(B)(ii)), but it failed

to even inquire as to whether such a waiver has been sought, nor evaluate whether,

if sought, such a waiver was likely to be granted. It is not. As the Missouri Republican

State Committee argued in their brief before the Missouri Supreme Court almost four

weeks ago, “it is entirely fanciful to think that the state could obtain a waiver at this

juncture.” Intervenor-Respondents’ Missouri Republican State Committee, et al., von

Glahn v. Hoskins, No. SC101805 (Mo. Sup. Ct. Aug. 27, 2026).

27

congressional redistricting the General Assembly established in 2022.” App. 53a n.8.

On that basis, the court enjoined the Secretary from “implementing, using, or

mandating the use of” HB 1 until the voters approve it. App. 54a. And when the

Secretary attempted to enforce the HB 1 map pursuant to the first federal TRO, the

Missouri Supreme Court held him in contempt. App. 82a–86a.

The Eighth Circuit claims the Supremacy Clause solves that problem. App.

33a. But that ignores the balance federalism requires. The Eighth Circuit has no

authority to review a decision by the Missouri Supreme Court, much less override it.

See D.C. Ct. of Appeals v. Feldman, 460 U.S. 462, 482 (1983) (stating that lower

federal courts have “no authority to review final judgments of a state court in judicial

proceedings,” and such review “may be had only in this Court”). Even if it could, its

sole basis for relief—Article I, section II of the U.S. Constitution—concerns only the

constitutionality of using the 2022 map when HB 1 was used during the primary.

App. 22a–26a. It thus cannot disrupt the Missouri Supreme Court’s central finding

under state law: that “HB 1 is not the law and has never been the law.” App. 53a

n.8 (emphasis added).

The replacement injunction thus bars officials from using any map other than

one that is legally invalid under state law. It therefore requires officials to violate not

only state law, but also federal law. For one, 2 U.S.C. § 2a(c) ensures that

representatives are elected from districts “prescribed by the law” of the State. HB 1

fails this test; it is flatly proscribed by Missouri law. App. 53a. Moreover, the Eighth

Circuit entirely glossed over the due process concerns that accompany its converting

28

a TRO—issued three days after the complaint was filed, without a hearing, without

a ruling on Applicants’ motion to dismiss, and without discovery—into a permanent

injunction. See, e.g., Univ. of Texas v. Camenisch, 451 U.S. 390, 396 (1981) (holding

the issuance of “a permanent injunction [presupposes] the parties will already have

had their trial on the merits” and finding it “inappropriate” to enter final judgment

at an interim stage); Corp. Synergies Grp., LLC v. Andrews, 775 F. App’x 54, 60 (3d

Cir. 2019) (finding “the entry or continuation of an injunction requires a hearing”)

(citation omitted).

The

uncertainty

created

by

these

multiple,

overlapping

conflicts

independently demands emergency relief. See Bost v. Ill. State Board of Elections, 607

U.S. 71, 80 (2026) (“Count first, and rule upon legality afterwards, is not a recipe for

producing election results that have the public acceptance democratic stability

requires.” (quoting Bush v. Gore, 531 U.S. 1046, 1047 (2000) (Scalia, J., concurring in

grant of stay)).

That is the electoral disorder Purcell exists to prevent—on steroids. And this

Court has prescribed the response when “a lower court intervenes and alters the

election rules so close to the election date”—the Court “should correct that error.”

Republican Nat’l Comm. v. Democratic Nat’l Comm., 589 U.S. 423, 425 (2020) (per

curiam). Last week, this Court did exactly that when it stayed the district court’s first

injunction. It must now stay the district court’s replacement injunction and the

Eighth Circuit’s order requiring it.

29

IV.

The remaining equitable factors demand relief.

Both Applicants and the public interest would suffer irreparable harm absent

a stay. The harm Applicants face is immediate, concrete, and irreversible. The stay

destroys Applicants’ (as well as the public’s) referendum right. Under the Missouri

Constitution, a valid referendum petition has two effects: (i) it suspends the

implementation of the law in question; and (ii) submits the law to a statewide vote.

See Mo. Const. art. III, § 52(b) (providing that “[a]ny measure referred to the people

shall take effect when approved by a majority of the votes cast thereon, and not

otherwise” (emphasis added)). If HB 1 is used for the November election, the first

right granted by the Missouri Constitution is irreversibly extinguished. Voters would

be asked to approve or disapprove of HB 1 in an election during which they are forced

to vote under its districts, despite the Missouri Supreme Court holding that HB 1 “is

not the law and has never been the law” in Missouri. App. 53a n.8; see also Eggers v.

Evnen, 48 F.4th 561, 566–67 (8th Cir. 2022) (finding that a federal injunction “barring

[a] State from conducting this year’s elections pursuant to a valid provision in its

constitution” causes “serious[] and irreparabl[e] harm” (alterations in original)

(internal quotation marks omitted)). 15

15 The concurrence misunderstood the rights provided by the Missouri Constitution

when it determined that Applicants lacked standing to challenge the TRO before the

district court. While it correctly credited Applicants’ concrete interest in having HB

1 submitted to a referendum, App. 37a, it ignored the equally weighty interest that

30

Missouri voters who have already cast their ballots under Missouri law—

including Applicant Richard von Glahn—and those who continue to vote through

September 28 will also be irreparably harmed absent a stay. At best, their alreadycast votes would get thrown out and they would be forced to cast another ballot in the

November general election under new district lines. At worst, those voters will be

precluded from voting at all in the general election. See Mo. Rev. Stat. 115.297

(providing that election officials “shall not allow any person who has voted an

absentee ballot in the election to vote at the polls on election day”). Nothing in the

Eighth Circuit’s order or the district court’s permanent injunction requires that

voters who already cast ballots before September 28 be allowed to cast replacement

ballots thereafter.

By contrast, the Eighth Circuit also erred in determining that Plaintiffs would

suffer irreparable injury by voting and campaigning under the 2022 map—the only

lawful district map in the state. The Eighth Circuit’s conclusion was based on its

Applicants have in postponing the implementation of HB 1 until after, and pending

the outcome of, the referendum election. See Mo. Const. art. III, § 52(b). As this Court

made clear in Hollingsworth v. Perry, referendum proponents have standing to

challenge the failure to properly implement a referendum, because as proponents,

they have a “unique, special, and distinct” role in the process, which remains unique,

special and distinct until “the . . . enact[ment] [of] the law.” 570 U.S. 693, 706 (2013)

(internal quotation marks and citation omitted). In Missouri, that process includes

delaying the effectiveness of HB 1 until the referendum vote. Because the Eighth

Circuit’s and district court’s orders denied Applicants that right by precluding the

implementation of any map other than HB 1 for the November elections, the

concurrence erred in determining that Applicants suffered no concrete and tangible

harm from the decisions. That HB 1 will be on the ballot in November does not protect

Applicants’ state constitutional right to delay the implementation of HB 1 until after

the election.

31

erroneous determination that voters face constitutional injury when they vote in

different districts in November than they did in August. App. 30a. This claim has no

basis in law. See infra § V. Plaintiffs have no protectable interest in voting or

campaigning in districts created by an unlawful map.

If that were not enough, the equities here alone warrant a stay. A “strong

equitable presumption against the grant of a stay” exists when emergency relief

results from a litigant’s own delay. Hill v. McDonough, 547 U.S. 573, 584–85 (2006).

The timing crisis here was manufactured by the Secretary’s strategic delay, and

Plaintiffs waited until September 4 to file suit—knowing since December 2025 that

HB 1 would not be in effect if the referendum petition was sufficient. If Plaintiffs were

concerned about the prospect of using different maps for the August primary and the

November general election, they should have filed suit months ago, when the

Missouri Supreme Court made clear that a legally sufficient referendum petition

means that HB 1 shall not take effect unless and until it is approved by a majority of

voters. Maggard, 733 S.W.3d at 420. Plaintiffs can hardly claim surprise that, on

September 3, the Missouri Supreme Court confirmed that state law means what it

says.

32

V.

Plaintiffs have no likelihood of success on the merits of their federal

claims, which this Court has already twice considered.

The merits are no stronger than when this Court considered them 12 days ago.

The Eighth Circuit granted relief on just one claim: that holding the general election

under a different map than the primary election violates Article I, Section 2 of the

U.S. Constitution. App. 22a–28a. That decision is incompatible with this Court’s

precedents. Nothing in the Constitution entitles voters to vote for the same

candidates within the same constituency at successive stages of an election—

especially when state law requires otherwise.

The Eighth Circuit purports to “begin[] with the constitutional text.” App. 22a.

But beyond quoting Article I, Section 2, the panel never engages with what that text

actually says: that “[t]he House of Representatives shall be composed of Members”

who are chosen “by the People.” U.S. Const. art. I, § 2. Nothing in that language

supports the panel’s theory—nor does the panel explain how it could. All qualified

Missouri voters had an equal opportunity to participate in the August 4 primary, and

“[a]ll qualified voters [will] have an equal opportunity to select a district

representative in the general election,” Rodriguez v. Popular Democratic Party, 457

U.S. 1, 10–12 (1982). That satisfies the plain text of Article I, Section 2.

The real problem, the panel explains, is that “if the 2022 map is used in the

November 2026 general election, some Missouri voters will have more say than others

on who represents them in Congress” because they did not select the candidates who

appear on their general election ballots. App. 24a. And because “Missouri has made

its primary ‘an integral part of the general election laws of the state’” for

33

congressional elections, primary voters are entitled “‘to have th[eir] vote[s] counted

as cast.’” App. 23a (quoting Klein v. United States, 176 F.2d 184, 187 (8th Cir. 1949)).

That reasoning confuses the right to participate in a primary and the

consequences that flow from that participation. This Court has emphasized the

distinction between the two. In Classic, the Court explained that when state law

makes a primary “an integral part of the election machinery,” the Constitution

protects the right to vote in it and to have that vote counted. United States v. Classic,

313 U.S. 299, 318 (1941). But the Court treated that right to participate as

independent from its consequences: the “right of participation is protected” regardless

of “whether the voter exercises his right in a party primary which invariably,

sometimes or never determines the ultimate choice of the representative.” Id. at 318–

19.

Critically, Classic looked to state law to determine the role the primary plays

in the electoral process and the rights that follow from that role. See id. The Eighth

Circuit recognizes this—and indeed devotes substantial discussion to Missouri law in

defining the rights it attributes to primary voters. Order at 21–24. But the panel

abandons its state-law analysis precisely where it begins to undermine its conclusion.

Although Missouri law provides that congressional candidates are selected through

a primary, see Mo. Rev. Stat. §§ 115.339, 115.343, it does not guarantee that the

winner of the primary invariably must appear on the general election ballot. For

instance, Missouri law provides that a primary winner’s name must appear on the

general election ballot “unless he is removed or replaced as provided by law.” Mo. Rev.

34

Stat. § 115.343; see also id. § 115.363(3) (authorizing a party committee to replace a

nominee who “dies, is disqualified, or withdraws”). It also permits challenges to

primary nominees within a statutory time period. Mo. Rev. Stat. §§ 115.527,

115.531. 16 And as relevant here, Missouri law establishes a referendum process that

precludes the use of a congressional map once a “legal, sufficient and timely”

referendum petition challenging that map is filed, unless and until the map is

approved by voters. Maggard, 733 S.W.3d at 418 (citation omitted); see Mo. Const.

art. III, § 52(b) (providing that once legislation has been “referred to the people,” it

“shall take effect when approved by a majority of the votes cast thereon, and not

otherwise” (emphasis added)).

The panel’s selective analysis of state law overlooks the central state-law fact

in this case: it is Missouri law that prohibits the use of HB 1. The Missouri Supreme

Court concluded that HB 1 “is not the law and has never been the law” based on its

interpretation of Missouri’s own referendum guarantees. App. 53a n.8. The panel

thus derives from Missouri law a federal right to preserve the consequences of a

primary conducted under a map that Missouri law itself does not permit the State to

use. Missouri law grants the right to vote in its primaries; it does not guarantee the

right to vote in a particular district under a map that is invalid under the Missouri

16 The Eighth Circuit observes that “some Missouri voters and unsuccessful primary

candidates have challenged Secretary Hoskins’ certification of the August 2026

primary election results for the Fifth Congressional District.” App. 24a n. 18. That

state-law procedure both underscores that primary results are not absolute under

Missouri law and confirms that state law provides a path for anyone aggrieved by the

circumstances presented here to seek relief, without resort to the sort of late-breaking

federal intervention Purcell forbids. See infra § III.

35

Constitution simply because the map was erroneously used during the primary

election. 17

Nor does the federal Constitution guarantee every voter an opportunity to

participate personally in every electoral step that ultimately determines who

represents them. In Rodriguez v. Popular Democratic Party, this Court considered a

statute permitting a political party to fill a legislative vacancy by appointment rather

than by election. 457 U.S. at 10–12. The challengers argued that the scheme unfairly

disadvantaged voters in districts with vacancies by “den[ying] the[m] the opportunity

to be represented by an elected legislator.” Id. at 10 n.10. The Court held otherwise:

The appointment procedure did “not restrict access to the electoral process or afford

unequal treatment to different classes of voters or political parties.” Id. at 10. As the

Court observed, “[a]ll qualified voters have an equal opportunity to select a district

representative in the general election,” and any changes in representation due to the

interim appointment provision “applies uniformly to all legislative vacancies.” Id. The

same is true here: the 2022 map “applies uniformly” to all Missouri voters,

notwithstanding any uneven consequences that flow from it.

17 The Secretary’s conduct makes the federal court’s displacement of state law even

more acute. The Secretary chose to conduct the primary under HB 1 despite “clear

guidance” from both the Missouri Supreme Court and a federal court that HB 1’s legal

status could not be determined until the referendum-certification process—including

judicial review—was complete. See App. 53a n.8 (citing Mo. Gen. Assembly, 2025 WL

3514277, at *2; Maggard, 733 S.W.3d at 419–20; NAACP, 734 S.W. 3d at 341 n.4).

And rather than seek resolution before the primary, the Secretary “chose to delay his

certification until the last possible day”—August 4, when the primary was already

underway, preventing earlier judicial review. Id. The Eighth Circuit now permits the

Secretary to turn his disregard for state law into a federal-law basis to entrench the

use of a map that Missouri law does not authorize.

36

Applying Rodriguez, federal courts have likewise rejected the premise that

temporary representational discontinuities that can accompany redistricting

transitions violate the Constitution. In Donatelli v. Mitchell, reapportionment placed

voters in a newly created state-senate district, represented for the remainder of the

pending term by a senator whom those voters had not elected. 2 F.3d 508, 514–15 (3d

Cir. 1993). Citing Rodriguez, the Third Circuit found “no constitutional basis” for the

claim that voters’ “right to vote for a state senator” was “infringed because they [were]

‘assigned’ a senator who was not elected by their district, or any significant portion

of it.” Id. at 516. Similarly, in Republican Party of Oregon v. Keisling, the Ninth

Circuit rejected a challenge arising from the combined consequences of

reapportionment and staggered senate terms, which caused some voters to wait six

years between opportunities to vote for a state senator. 959 F.2d 144, 144–46 (9th

Cir. 1992) (per curiam) (“Appellants’ challenge to the methods chosen by appellee for

regulating elections, in this case after reapportionment, has been roundly rejected by

the Supreme Court.”), cert. denied, 504 U.S. 914 (1992).

Rodriguez likewise controls this case. If the Constitution permits some voters

to be represented by a legislator they had no opportunity to elect at all, it cannot be

read to forbid the narrower and far more speculative injury alleged here.

No authority supports the Eighth Circuit’s new rule: that Article I, Section 2

guarantees a particular consequence from a primary election, even when that

consequence would violate state law. The panel purports to locate that newly

discovered right in Wesberry v. Sanders, which forbids states from drawing

37

congressional districts in a manner that “‘give[s] some voters a greater voice in

choosing a Congressman than others.’” App. 25a (quoting 376 U.S. 1, 14 (1964)). But

Wesberry addressed a different circumstance entirely. There, Georgia had drawn

congressional districts with dramatically different populations, such that one

district’s congressman “ha[d] to represent from two to three times as many people as

d[id] Congressmen from . . . other Georgia districts.” 376 U.S. at 2. Consequently,

votes cast in certain districts had significantly less weight than votes cast in others.

Id. at 2–3. Nothing comparable happened here. The primary votes were counted, and

those votes determined what candidates will appear on the general election ballot.

Conducting the general election under different district lines does not nullify those

votes or grant any of them different weight.

Here, voters face the same sort of representational shifts regularly produced

by candidate replacement, changes in district boundaries, and vacancies filled by

appointment. Those uneven electoral consequences are routine. As one three-judge

court observed, “[i]t is impossible, where Senate district boundaries are changed, to

avoid having some voters represented by a Senator for whom they had no opportunity

to support or oppose.” Ferrell v. Oklahoma ex rel. Hall, 339 F. Supp. 73, 82 (W.D.

Okla. 1972), aff’d sub nom. Ferrell v. Hall, 406 U.S. 939 (1972). The Eighth Circuit’s

theory would bar the ordinary consequences of redistricting, vacancies, and candidate

substitution that this Court and other federal courts have consistently treated as

permissible features of election administration.

38

CONCLUSION

The Motion to Clarify should be granted. In the alternative, this Court should

grant the Application for a Stay of the district court’s injunction and the Eighth

Circuit’s order requiring its entry and recall and stay the mandate to the extent

necessary to preserve the status quo, which is implementation of the 2022 map for

Missouri’s November 2026 elections.

Respectfully submitted,

ABHA KHANNA

Counsel of Record

ELIAS LAW GROUP LLP

1700 Seventh Ave., Suite 2100

Seattle, WA 98101

(206) 656-0177

AKhanna@elias.law

KATIE CHAMBLEE-RYAN

LUCAS LALLINGER

ELIAS LAW GROUP LLP

250 Massachusetts Ave. NW

Suite 400

Washington, DC 20001

(202) 948-1135

KChambleeRyan@elias.law

LLallinger@elias.law

CHARLES W. HATFIELD

ALEXANDER C. BARRETT

ALIXANDRA S. COSSETTE

GRETA M. BAX

STINSON LLP

230 W. McCarty Street

Jefferson City, MO 65101

(573) 636-6263

chuck.hatfield@stinson.com

alexander.barrett@stinson.com

alix.cossette@stinson.com

39

greta.bax@stinson.com

Counsel for Applicants People

Not Politicians and Richard von

Glahn

40

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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