The SCOW docket: Twin cases challenging congressional maps move forward

Note: In a normal SCOW docket post we crunch Supreme Court of Wisconsin decisions down to manageable size. The rules for this are that no justice gets more than 10 paragraphs as written in the actual decision and the “upshot” and “background” sections do not count because of their summary and necessary nature.

In this post, we’re breaking down last week's unsigned order of the court in cases challenging Wisconsin's congressional districting, plus the concurring and dissenting opinions. Each justice will still receive no more than 10 paragraphs. Regular italics are in the original opinion. Italics surrounded by parentheses indicate WJI insertions.

This post is slightly different than prior ones because there are actually two orders. Two separate cases challenge Wisconsin’s congressional districting, and the court issued an order in each case. The orders and opinions in each case are nearly identical and address substantively the same arguments. The quotations for this post come from Bothfeld.
 
As usual, we’ve generally removed citations from the opinions for ease of reading. However, in this instance, some statutory citations and references to prior Supreme Court decisions are necessary to understand the opinions. Several references to the multiple Johnson opinions in particular are left in. That case concerned the challenges to Wisconsin’s redistricting maps following the 2020 census and resulted in opinions subsequently called Johnson I, Johnson II, and Johnson III.
 
Finally, we have included both versions of one paragraph of Justice Annette Kingsland Ziegler’s dissent. Following issuance of these orders on Nov. 25, journalist Mark Joseph Stern quickly posted on Bluesky and reported in Slate about Ziegler’s inaccurate quotation and interpretation of the U.S. Supreme Court's decision in Moore v. Harper. Stern told Wisconsin Justice Initiative last week that he asked the Wisconsin Supreme Court to correct it. Ziegler’s initial dissent was replaced by a new version eliminating the quotation marks and adding a parenthetical. We quote both versions, with the changed language in bold.
 
 The cases:     
Elizabeth Bothfeld v. Wisconsin Elections Commission
Wisconsin Business Leaders for Democracy v. Wisconsin Elections Commission

Majority: Unsigned but consisting of Chief Justice Jill Karofsky and Justices Rebecca Dallet, Janet Protasiewicz, and Susan Crawford (5 pages)

Concurrence in part and dissent in part: Justice Brian K. Hagedorn (2 pages)

Dissent: Justice Annette Kingsland Ziegler (9 pages)

Dissent: Justice Rebecca Grassl Bradley (7 pages)

Upshot

(The court held that pursuant to state statutes it must appoint a three-judge panel and select a venue for each case to hear the challenges to congressional districting. The court chose Dane County Circuit Court as the venue for both cases and appointed the following circuit court judges:

Bothfeld case:
Julie Genovese, Dane County Circuit Court
Mark Sanders, Milwaukee County Circuit Court
Emily Lonergan, Outagamie County Circuit Court

WBLD case:
David Conway, Dane County Circuit Court
Patricia Baker, Portage County Circuit Court; and
Michael Moran, Marathon County Circuit Court)

Background

On July 22, 2025, this court received written notice from the Dane County Clerk of Courts of the filing of a summons and complaint on July 8, 2025, by Elizabeth Bothfeld and other individual voters (collectively, “Bothfeld”) against the Wisconsin Elections Commission et al. (collectively, “WEC”). The complaint alleges that Wisconsin’s current congressional map violates the Wisconsin Constitution in various respects. The Dane County Clerk of Courts enclosed a copy of the summons and complaint in its July 22, 2025 written notice to this court. This court opened miscellaneous Case No. 2025XX1438 to receive these filings.
 
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On September 25, 2025, this court entered an order requiring the parties to submit simultaneous briefs and response briefs addressing “whether Bothfeld’s complaint filed in the circuit court constitutes ‘an action to challenge the apportionment of a congressional or state legislative district’ under WIS. STAT. § 801.50(4m).”
 
(The court granted motions by individual voters and the Wisconsin Legislature to file amici curiae (nonparty) briefs and granted a motion to intervene filed by a group of Congressmen and individual voters.)

Majority
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. . . . WISCONSIN STAT. § 731.035(1) states that “[u]pon receiving notice under s. 801.50(4m), the supreme court shall appoint a panel consisting of 3 circuit court judges to hear the matter. The supreme court shall choose one judge from each of 3 circuits and shall assign one of the circuits as the venue for all hearings and filings in the matter.”
 
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The Bothfeld plaintiffs argue that their complaint clearly constitutes “an action to challenge the apportionment of any congressional or state legislative district” for purposes of WIS. STAT. § 801.50(4m). This is so given that, in various cases over many years’ time, this court has used the terms “redistricting,” “apportionment,” and “reapportionment” interchangeably to mean redrawing Wisconsin’s congressional and state legislative districts so as to comply with state or federal law. The court’s use of these terms interchangeably comports with (the Wisconsin Constitution), which labels the state legislative redistricting process “Apportionment” in its title and describes the legislature’s task as to “apportion and district” anew. Moreover, cases interpreting an analogous federal statute, which requires appointment of three-judge panels to hear “apportionment” challenges in federal courts, consistently use the terms “apportionment” and “redistricting” interchangeably. Given the above, the Bothfeld plaintiffs argue, their complaint plainly falls within the scope of § 801.50(4m), thus requiring this court to appoint a three-judge panel and designate a circuit court venue pursuant to state law.
 
The Congressmen, the Legislature, and the amici generally argue that Bothfeld’s complaint does not fall within the scope of WIS. STAT. § 801.50(4m) because the complaint is not an “apportionment” challenge, which they define narrowly as a challenge to the distribution of legislative seats among districts. Bothfeld’s complaint is instead a “redistricting” challenge, which they define narrowly as a challenge to district boundaries. In their view, the non-synonymous nature of the terms is confirmed by the Wisconsin Constitution, which uses the terms “apportion” and “district” in a single section, indicating that the terms have distinct meanings. Moreover, these parties argue, “apportionment” refers only to legislative action, not the remedial judicial action that this court took in Johnson II, of adopting Wisconsin’s current congressional map. Because Bothfeld’s lawsuit is not an “apportionment” challenge, these parties submit, the court should not appoint a three-judge panel. Instead, the court should employ its superintending authority and dismiss Bothfeld’s complaint, as the suit constitutes an improper collateral attack on Johnson II that a lower court is in no position to adjudicate.
 
The defendants—WEC, its members, and its administrator—filed a statement explaining that it takes no position on the question posed.

We conclude that Bothfeld’s complaint does constitute “an action to challenge the apportionment of any congressional or state legislative district” for purposes of WIS. STAT. § 801.50(4m). We acknowledge, as noted by the parties, that in (a prior case) we stated in a footnote, without citation, that “[r]eapportionment is the allocation of seats in a legislative body where the district boundaries do not change but the number of members per district does (e.g., allocation of congressional seats among established districts, that is, the states); redistricting is the drawing of new political boundaries[.]” But this statement did not address the meaning of § 801.50(4m)—a statute that did not exist until nearly 10 years after the Jensen decision. Were we to view Jensen as dispositive of the meaning of the term “apportionment” in § 801.50(4m)—such that here, the term would refer only to the allocation of congressional seats to Wisconsin—it is difficult to conceive of any state-court “action to challenge the apportionment of any congressional . . . district” to which § 801.50(4m) would apply, as “apportionment” in that sense occurs only at the federal level, not the state level. We decline to adopt such a cramped reading of the statute, particularly given that neither we nor other courts have consistently used the term “apportionment” in such a limited sense. We also reject as unsupported the suggestion in the briefing that “apportionment” refers only to legislative action, not judicial action.

Because Bothfeld’s complaint constitutes an “action to challenge the apportionment of a congressional or state legislative district” within the meaning of § 801.50(4m), this court is required to appoint a three-judge panel and to select a venue for the action pursuant to (state statute).

Hagedorn

Concurrence in part and dissent in part
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The question before us at this stage is a narrow one, and it does not involve whether the petitioners have valid claims or can obtain their requested relief. The issue is simply whether this court should appoint a three-judge panel pursuant to (state statutes). As the court’s order explains, I conclude these statutes apply to this case, and a panel must be appointed.

I disagree, however, with how this court is fulfilling its statutory mandate. Wis. Stat. § 801.50(4m) provides a unique venue selection mechanism for actions challenging “the apportionment of any congressional . . . district,” and directs us to WIS. STAT. § 751.035. That section then sets forth procedures to provide both a new location and a new judicial decision-maker. These statutes are transparently designed to prevent forum shopping in disputes over where congressional lines should be drawn. To avoid litigants simply choosing their preferred venue and judge, the statute requires the appointment of a three-judge panel with each judge coming from a different judicial circuit, and then requires that venue be assigned to one of those circuits.
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Given the nature of this case and the statute’s implicit call for geographic diversity and neutrality, a randomly-selected panel and venue would be a better way to fulfill the statutory mandate. Instead, my colleagues have chosen to keep this case in Dane County and leave the originally assigned Dane County judge on the panel. The court has also hand-selected two additional judges rather than using a neutral process. To be clear, I am not suggesting the judicial panel will fail to do its job with integrity and impartiality. But this approach is an odd choice in the face of a statute so clearly designed to deter litigants from selecting their preferred venue and judge.
 
I also write to respond to the entreaty from the Congressmen, the Legislature, and the amici that we use our superintending authority to seize this case from the circuit court, exercise independent jurisdiction, and dismiss it on the merits. This request is not without force given the unique posture of this case. The petitioners here make the rather extraordinary plea for the circuit court to declare a 2022 decision and order of this court unconstitutional. That said, these issues are not yet ours to decide. Our role at this stage is limited—dealing only with the statutory mandate to appoint a three-judge panel which is then empowered to adjudicate the petitioners’ claims. To be sure, the Congressmen, the Legislature, and the amici raise legal roadblocks that must be reckoned with. But setting the precedent that this court should swoop in and shut down a case before it ever gets to us is not a door we should open. The circuit court panel will consider all the relevant substantive and procedural arguments in due course, and I would give it that opportunity. I therefore concur in the court’s order appointing the panel, but I disagree with the method the court uses to appoint the panel and select venue.

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Ziegler

Ziegler dissent
 
Today, my colleagues—disregarding the United States Constitution, the Wisconsin Constitution, and fundamental legal principles—approve a collateral attack of our court’s decision by a panel of circuit court judges, unsupported in the law and barred by laches. The majority not only undermines our constitutional authority and circumvents established redistricting precedent but also, again, usurps the legislature’s constitutional power. In allowing this litigation to proceed, the majority abdicates its constitutional superintending authority to Wisconsin’s circuit courts.

Compounding the constitutional problems which prohibit a circuit court panel from reconsidering or overturning our decisions, the selection process for this hand-picked panel lacks even a hint of transparency. Behind closed doors, my colleagues chose three circuit court judges to consider apportioning, not redistricting, court-established congressional maps - something this panel is not constitutionally empowered to do. This action is barred by laches and is contrary to the Wisconsin Constitution and the Elections Clause of the United States Constitution. Under our state constitution and the United States Constitution, map-drawing authority lies with the legislature alone. And, our court has repeatedly declined to reconsider its adoption of Governor Evers’ congressional maps in Johnson II.
 
While we were forced to act in the Johnson cases due to the impasse between the legislature and the governor, we are not faced with any such constitutional crisis here. This panel is not apportioning maps that the legislature drew and the governor approved. The so-called “apportionment” is of maps our court selected. The majority does not consider any of these distinctions in its order. Because these are court-created maps, the panel has no constitutional authority to revisit or change them, nor can it redefine apportionment because that too was decided in Johnson I. In Johnson I and Johnson II, the court decided apportionment, partisan gerrymandering, and congressional map districting, and those decisions remain unchanged, as do the court-selected congressional maps. Plaintiffs cite no authority to support a circuit judge panel revisiting our court’s determinations on apportionment. What the panel is to consider in addressing only apportionment is as clear as mud. If our court understands that the constitution forbids such a panel from reconsidering or overturning our court’s decision on apportionment or redistricting, then it is unclear what else the panel can do other than restate Johnson I and II. Otherwise, the court’s order has put the panel in a constitutional dilemma because the panel lacks any authority to revisit our decisions.
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I dissent without considering the merits of the case. In fact, it is impossible to know what the panel will be doing. The order ignores the many concerns that I raise, the questions to be answered by the panel, the factors to be weighed, the arguments that will be set forth, or any standards that might apply. Given Johnson I and its progeny, it is difficult to know what, if anything, this panel can or should do, and our court provides zero guidance. To me, the only constitutionally permissible action we should take is to dismiss this charade.

Once again, a majority of this court engages in partisan judicial activism—this time to reshape congressional maps. This is no isolated incident; it is a pattern. As Justice Rebecca Grassl Bradley recently observed: “Political forces continue to use this court to obtain what the democratic process denies them. The Wisconsin Constitution plainly prohibits a circuit court—empaneled by this court or not—from adjudicating a challenge to a final judgment of the supreme court. The majority nevertheless entertains yet another kick at the redistricting cat. “

We have heard the substance of this case before. The plaintiffs have merely returned for a second bite at the apple armed with a fresh legal theory. Even though they have cited no authority in support of their extraordinary legal theory, this court accepts their approach wholesale without demonstrating any legal analysis, critical reasoning, or attempt to reconcile this unprecedented proceeding with constitutional constraints. Not one word from the majority addressing laches. Instead, the court places this three-judge panel in the impossible position of considering “apportionment” without any authority to reconsider or overturn our precedent.

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(Original version:)
Worse yet, the plaintiffs’ theory disobeys the United States Constitution’s Elections Clause which vests redistricting responsibility exclusively in “the Legislature thereof.” As the United States Supreme Court recently reaffirmed, the role of state courts in congressional redistricting is “exceedingly limited.” Moore v. Harper, 600 U.S. 1, 34 (2023). This lawsuit invites the very judicial meddling that the Constitution prohibits. We see other states invoking fairly interesting procedures to address congressional maps. We do not see other state supreme courts allowing their lower courts to re-evaluate court-established congressional maps. While it may be more expedient for those in political favor to continue to turn to our court for map drawing, redrawing, and redrawing, or any of a host of “hot” political issues, that is not what the Constitution demands. And, these are federal congressional maps, but the majority does not give any weight to important federal constitutional concerns. The judiciary is to be the least dangerous branch of government. Not today, at least in Wisconsin.
 
(Replacement paragraph:)
Worse yet, the plaintiffs’ theory disobeys the United States Constitution’s Elections Clause which vests redistricting responsibility exclusively in “the Legislature thereof.” As the United States Supreme Court recently reaffirmed, the role of state courts in congressional redistricting is exceedingly limited. See Moore v. Harper, 600 U.S. 1, 36 (2023) (“[S]tate courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”). This lawsuit invites the very judicial meddling that the Constitution prohibits. We see other states invoking fairly interesting procedures to address congressional maps. We do not see other state supreme courts allowing their lower courts to re-evaluate court-established congressional maps. While it may be more expedient for those in political favor to continue to turn to our court for map drawing, redrawing, and redrawing, or any of a host of “hot” political issues, that is not what the Constitution demands. And, these are federal congressional maps, but the majority does not give any weight to important federal constitutional concerns. The judiciary is to be the least dangerous branch of government. Not today, at least in Wisconsin.
 
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(T)he majority appoints circuit court judges to do something, but provides no guidance. This panel cannot constitutionally reconsider the court’s legal conclusions regarding apportionment or the congressional maps. Allowing the abuse of WIS. STAT. § 801.50(4m) in this way runs headlong into constitutional constraints. Before we even begin to consider ordering a panel to apportion under this statute, we must start with the constitution. The majority instead starts with a facial application of the statute, completely ignoring constitutional implications of having a panel act on a matter that has been definitively decided by our court.

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Compounding the constitutional violations is the opaque process by which my colleagues selected the three-judge panel. There has been no disclosure of criteria, no explanation of procedure, and no transparency whatsoever. Not that these judges bear any fault in their selection, but there are over 260 circuit judges in our state, and we have no information on how or why these six judges were picked. The secrecy surrounding the selection process invites doubt. The public will never know what guided these choices; neither do I.

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Today is not a good day for Wisconsin’s judicial system. Our court has undermined its own constitutional authority in furtherance of affording the Democratic Party even more partisan political advantage than it already has with Governor Evers’ congressional maps in place. My colleagues ought not complain when our precedent is not taken seriously or followed. By entertaining this legal fiction, the majority jeopardizes the credibility of the judiciary and invites violation of foundational constitutional principles. Redistricting and reapportionment authority belongs to the legislature—not the judiciary. It occurs after a census. Because of the impasse after the last census, our court was the final word regarding apportionment and selecting the congressional maps. A circuit court panel simply cannot overturn or revise Johnson I and II.

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Bradley

Bradley dissent

The plaintiffs frame this court’s sole role in the proceedings as fulfilling a ministerial duty imposed by statute. The majority agrees. The members of this court, however, swore an oath to uphold the Wisconsin Constitution, which prohibits lower courts from reconsidering decisions of this supreme court. The Wisconsin Constitution is superior to the Wisconsin Statutes, and is dispositive.

The circuit court nevertheless gave notice to this court of the WBLD and Bothfeld Complaints . . . . In response, the majority pretends this is a fresh challenge to an apportionment—rather than a collateral attack on a judgment of this court—and . . . appoints a hand-picked three-judge panel to consider plaintiffs’ challenge to this court’s adoption of Governor Tony Evers’ proposed congressional map in Johnson. None of this comports with the constitution.

The Wisconsin Constitution denies the legislature any authority to empower a lower court to review the constitutionality of a final judgment of this court. The legislature itself, as amicus curiae in these matters, rejects the majority’s contrary interpretation, recognizing that the court’s constitutional superintending and appellate authority over all Wisconsin courts precludes the circuit court from adjudicating plaintiffs’ claims. The constitution itself relieves this court of any ostensible obligation to appoint a three-judge panel to perform that which the constitution forbids. Nonetheless, the majority—without even mentioning the constitution—simplistically cites the statute and says it must obey what it perceives to be a legislative command. Impermissibly interpreting statutory law to override the constitution, the majority punts to a panel of lower court judges a decision they are constitutionally unauthorized to make.

In an unprecedented ruling, the majority holds that (a state statute) imposes a mandatory duty upon this court to appoint a three-judge circuit court panel for any “action to challenge the apportionment of any congressional or state legislative district” . . . . The majority says: “Because [the Bothfeld and WBLD] complaints constitute ‘actions to challenge the apportionment of a congressional or state legislative district’ within the meaning of § 801.50(4m), this court is required to appoint a three-judge panel and to select a venue for the action . . . .” (cleaned up) (emphasis added). The majority errs—gravely. Setting aside the purely political shenanigans underlying these particular cases, toppling Wisconsin’s judicial hierarchy undermines Wisconsin’s constitutional structure, damages this court’s legitimacy, and deprives the People of Wisconsin of the stability the rule of law provides.

In addition to ignoring the constitution, the majority makes no mention whatsoever of the redistricting actions resolved by this court, which Justice Annette Kingsland Ziegler recounts in her dissent. After the 2020 Census revealed malapportionment, the Wisconsin Legislature drew new maps, but Governor Evers vetoed them. This political impasse prompted an original action, which this court granted to remedy the unconstitutional malapportionment produced by population shifts. Thereafter, both the United States Supreme Court and this court denied multiple challenges to the constitutionality of the congressional map. This is no ordinary case in which a party brings an apportionment challenge in the first instance in circuit court; this supposedly supreme court has already spoken, and circuit court judges have no authority to revisit this court’s decision, even if the legislature purportedly gave it.
 
The majority’s interpretation of (pertinent statute statutes) permits a panel of Wisconsin circuit court judges to reopen a final judgment of the supreme court to reconsider the constitutionality of the Johnson II congressional map adopted by this court to remedy malapportionment. The hierarchy of appellate jurisdiction under the Wisconsin Constitution is plain, and the majority’s holding is glaringly unconstitutional. The legislature cannot empower a circuit court to review a final judgment of the Wisconsin Supreme Court, nor can the legislature require this court to appoint a circuit court panel to do so. The majority tacitly approves an impermissible collateral attack—in a lower court—on a decision of this court, but the Wisconsin Constitution prohibits such a maneuver.

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Under the Wisconsin Constitution, this court’s superintending authority is plenary and without limitation or exception. “Under the Wisconsin Constitution, [the administration of the courts is] expressly vested in this court; our authority to supervise and administer the Wisconsin court system is not created or circumscribed by the legislature.” The legislature cannot limit, invade, or strip this court’s constitutional authority.

No statute can invade this court’s constitutionally-conferred appellate jurisdiction either. Under (the state constitution) “[t]he supreme court has appellate jurisdiction over all courts . . . .” While plaintiffs concede (the pertinent state statutes) leave this court’s “superintending and administrative authority” under (the constitution) intact, plaintiffs posit it would be extraordinary for the court to exercise it in this case. Hardly. Allowing a panel of circuit court judges to adjudicate a challenge to a supreme court decision impermissibly gives lower court judges appellate jurisdiction over the state’s highest court. That is extraordinary. (The constitution) gives circuit courts “such appellate jurisdiction in the circuit as the legislature may prescribe by law.” The supreme court is, of course, beyond the realm of any circuit.

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​This  court  has  accepted  procedural  statutes  like  (those in this case), but under the original understanding of the Wisconsin Constitution, this court retains its ultimate authority over court procedure. Assertion of that authority is particularly imperative if a statute appears to elevate a circuit court to a position of appellate review over the supreme court—a constitutional impossibility. Legislative interference with the authority constitutionally conferred on the judiciary has long been recognized to violate the Wisconsin Constitution. . . .
 
“A collateral attack on a supreme court judgment” like these “would ordinarily be dismissed upon arrival.” (Citation to her own dissent in a prior case.) Political forces continue to use this court to obtain what the democratic process denies them. The Wisconsin Constitution plainly prohibits a circuit court—empaneled by this court or not—from adjudicating a challenge to a final judgment of the supreme court. The majority nevertheless entertains yet another kick at the redistricting cat. Unlike Schrödinger’s cat, this one most assuredly has been dead for years. I dissent.

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