Secretary of State Denny Hoskins wants the 8th U.S. Circuit Court of Appeals to remove a congressional redistricting referendum from the Missouri ballot and order the state to hold the November election under the gerrymandered map Republicans muscled through the Legislature last year.

In a filing Tuesday afternoon, state Solicitor General Lou Capozzi, writing on Hoskins’ behalf, renewed the state’s challenge to the Sept. 3 ruling of the Missouri Supreme Court that put the referendum on the ballot and required the Nov. 3 election to be held in the district lines drawn in 2022.

On Thursday, a three-judge panel will hear arguments in an appeal of a case filed by U.S. Rep. Bob Onder of Lake Saint Louis, the 3rd District incumbent, and state Sen. Rick Brattin of Harrisonville, the 5th District GOP nominee, along with two voters. Onder and Brattin want a ruling sustaining a restraining order from Chief U.S. District Judge Stephen Clark directing Hoskins not to use any map except the one drawn in 2025.

Capozzi wrote that Onder and Brattin are right on the law — that using a general election map different from the primary map violates the federal Constitution — and a ruling in their favor would open the door for the 8th Circuit to strike down the referendum itself, which was put on the ballot through an initiative petition campaign by the political action committee People Not Politicians. 

If it finds for Onder and Brattin, Capozzi wrote, “the court can and should hold that the origin of this drama — a referendum petition suspending a congressional map — is unconstitutional under the Elections Clause.”

When Hoskins tried to implement Clark’s ruling, the Missouri Supreme Court held him in contempt. He remedied the contempt by directing local election authorities to use the 2022 map after the U.S. Supreme Court issued a stay of Clark’s ruling.

Any decision from the 8th Circuit can be appealed to the Supreme Court. The court should tell Hoskins what it wants him to do in clear terms if it changes the map again, Capozzi wrote.

The Supreme Court’s order “strongly suggests that the justices have made up their minds that the 2022 congressional map should be used in the 2026 general election,” Capozzi wrote.

The hearing Thursday is likely the last chance for Republicans to get an election held in their preferred district lines and to keep the referendum off the ballot. Chuck Hatfield, attorney for People Not Politicians, wrote in his brief to the court that it should just declare the case moot and leave the 2022 map in place.

Timing issues

Meanwhile, county clerks argued Tuesday in a brief filed with the 8th Circuit that voters are confused by competing congressional district maps. Any change now, the clerks wrote, means a major disruption of their operations just as ballots are being prepared for mailing.

The amicus, or friend-of-the-court, brief is the second time clerks have weighed in on the dispute. In an Aug. 24 filing with the Missouri Supreme Court, Boone County Clerk Brianna Lennon and Polk County Clerk Rachel Lightfoot took no sides in the dispute, asking only for a final decision so they could prepare ballots. 

Now, with a Friday deadline looming for mailing ballots to overseas voters, anything that forces ballots to be reprinted would mean delays and massive additional costs for election officials, Lennon and Evan Kennedy wrote in the brief on behalf of the Missouri Association of County Clerks and Election Authorities.

“A late change to the ballot would risk not only their compliance with state and federal laws, but also the adequacy of votes from military and overseas voters,” the brief states.

The Missouri Supreme Court’s Sept. 3 decision was the first of three changes over seven days in the map controlling the congressional elections. 

Before the court ruling, Hoskins was planning the election based on the 2025 map. To comply with the decision, he sent county clerks an email on Sept. 8, the last day to change the ballot, telling them to use the 2022 map.

Clark issued his temporary restraining order at the end of the day Sept. 8, directing Hoskins not to use any map except the 2025 map. 

Hoskins sent another email to county clerks after Clark’s ruling, directing the use of the 2025 map.

The Missouri Supreme Court then held Hoskins in contempt of its Sept. 3 decision. On the morning of Sept. 10, the U.S. Supreme Court stayed Clark’s ruling, and Hoskins remedied the contempt by directing local election authorities to use the 2022 map.

No local election authority that was uncertain about the map could begin printing ballots until Sept. 10 because of the cost if a change had to be made, the clerks’ brief states.

“Indeed, the state-induced whiplash has put local election officials in a holding pattern so that

they can conduct the November 2026 general election within their means,” the clerks wrote to the 8th Circuit.

There is not enough time to resolve the case to be argued Thursday and still meet state and federal deadlines for delivering ballots, the clerks added.

Ballots for military and other voters overseas must be mailed no later than 45 days before the election, which falls on Saturday, pushing the deadline to Friday.. And under Missouri state law, ballots must be ready for absentee voters Sept. 22, six weeks before Election Day.

“Any further change inflicts additional vertigo on local election authorities — and the millions of Missourians who rely on them — after ostensibly-final resolution consistent with Missouri law,” the clerks wrote.

Legal arguments

While the clerks asked the 8th Circuit judges to consider the practical effect of a decision, the filings from the parties who see advantage in the 2025 map largely ignore those concerns. 

Drafted by attorney Marc Ellinger, the 8th Circuit brief for Onder and Brattin is written as though the 2025 map, not the previous map, is the one in place for Election Day. 

“The centralized voter registration system is locked until at least mid-November, and implementing a different map would require transferring hundreds of thousands of voters through a multiweek process that cannot be completed in time,” the filing states.

Onder and Brattin sued Hoskins, who in the filings before Clark agreed that a restraining order blocking the Missouri Supreme Court decision should be issued. Hoskins did not appeal, and the case is in front of the 8th Circuit because of an appeal by People Not Politicians, which intervened to defend the state high court ruling.

In the brief filed Tuesday on behalf of Hoskins, Capozzi, touches only briefly on the problem of timing.

“More than anything, Missourians need clarity about the map that they will vote under in the November general election,” Capozzi wrote. “Because the Supreme Court has already granted a stay forcing Missouri to use the 2022 congressional map for the 2026 general election, the secretary is complying with that ruling.”

Hatfield wrote it is too late for another change in the map. The fact that the 2022 map is in place should settle the matter for the federal courts, he wrote.

“The restraining order was improperly entered because (federal precedent) bars interference in Missouri’s election machinery at this late date,” Hatfield wrote.

The other legal arguments the judges will hear Thursday are common to many cases — questioning the standing, or right to be in court, of one party and contending the case is moot because the time for a decision has passed.

And the familiar arguments particular to the referendum — whether a referendum on a congressional map is allowed by the U.S. Constitution, what effect it has on the election map and whether holding a primary in one map means that map must be used in the general election — are raised as well.

Ellinger will try to convince the court that People Not Politicians do not have standing — a right to be in court — because Onder and Brattin sued Hoskins, who did not appeal.

With no other party in a position to appeal, he wrote, Onder and Brattin should prevail. They argue it violates the rights of voters who participated in the primary in one district if they must vote in the general election in a different district.

“Whatever disruption attends this election cycle was foreseeable,” Ellinger wrote, “and none of it is of plaintiffs-appellees’ making.”

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