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.