Apportionment-Panel Appeals Under Wis. Stat. § 751.035(3): The Supreme Court May Proceed Without Deciding Whether Review Is as of Right and Will Apply Ordinary Appellate Rules Absent Special Order

1. Introduction

This matter arises from an apportionment-related lawsuit filed in Dane County (Case No. 2025CV2252) by Wisconsin Business Leaders for Democracy and others (“WBLD”) against the Wisconsin Elections Commission (“WEC”). Pursuant to Wisconsin’s specialized apportionment procedure, the case was decided by a three-judge circuit-court panel, which dismissed WBLD’s complaint on April 28, 2026. WBLD filed a notice of appeal the same day and moved to expedite briefing and argument.

Intervenors-defendants-respondents—individual voters led by Billie Johnson (“Johnson”) and the Wisconsin Legislature—prompted a threshold procedural dispute: whether WBLD could proceed by ordinary appeal or instead had to seek discretionary review by petition (under WIS. STAT. § 808.10 and § (Rule) 809.62) because WIS. STAT. § 751.035(3) says such an appeal “may be heard by the supreme court.”

The key issues presented by the order are procedural rather than merits-based:

• whether the court must decide if review under § 751.035(3) is “as of right” or discretionary before moving forward;
• whether expedition is warranted; and
• what appellate procedural rules govern once the Wisconsin Supreme Court agrees to hear the matter directly.

2. Summary of the Opinion (Order)

The court (1) denied WBLD’s motion to expedite and (2) directed that the “rules that ordinarily govern procedures in appeals to the court of appeals” will apply to this appeal unless the court later orders otherwise, citing WIS. STAT. § (Rule) 809.63.

Although the court acknowledged an unresolved interpretive question—whether an appeal from a three-judge panel under WIS. STAT. § 751.035(3) is a matter of right or discretion—it declined to resolve it because doing so “will not affect the outcome.” The court explained that even if the statute makes review discretionary, it had decided this appeal “will be heard.” As a result, the court did not address the substance of the May 1, 2026 letters arguing for dismissal or petition-for-review procedures.

3. Analysis

3.1 Precedents Cited

A. The court’s avoidance of a non-dispositive statutory question

• State ex rel. Greenway v. Cnty. Ct. of St. Croix Cnty., 32 Wis. 2d 6, 10, 144 N.W.2d 569 (1966): The majority invoked Greenway for a restrained judicial practice: courts need not decide which of two possible legal frameworks applies when the result would be the same under either. Here, the court applied that principle to the unresolved meaning of “may be heard” in § 751.035(3). Whether review is mandatory or discretionary, the court stated it would hear the appeal; therefore, resolving the statutory question was unnecessary at this stage.

B. Jurisdiction, justiciability, and federal analogies raised in dissent

• Hollingsworth v. Perry, 570 U.S. 693, 700 (2013): Cited in Justice Ziegler’s dissent to emphasize jurisdiction and standing as preconditions to adjudication and to caution against courts drifting into policymaking.
• Gill v. Whitford, 585 U.S. 48, 73 (2018): Cited for the proposition that appellate courts may require focused briefing and factual development on standing before proceeding to merits—used to argue the Wisconsin Supreme Court should demand more jurisdictional/threshold showing before “granting” review.

C. Wisconsin election-law timing and laches (raised in dissent)

• Trump v. Biden, 2020 WI 91, 394 Wis. 2d 629, 951 N.W.2d 568: Cited (in dissent) as an example of laches limiting belated election challenges, and quoted for a definition of laches via Wis. Small Bus. United, Inc. v. Brennan.
• Wis. Small Bus. United, Inc. v. Brennan, 2020 WI 69, 393 Wis. 2d 308, 946 N.W.2d 101: Quoted (in dissent) for a formulation of laches as an equitable defense.
• Clarke v. WEC, 2023 WI 79, 401 Wis. 2d 1, 998 N.W.2d 370: Cited (in dissent) as a comparator for laches applicability in map litigation timing.
• Hawkins v. WEC, 2020 WI 75, 393 Wis. 2d 629, 948 N.W.2d 877 (per curiam): Cited (in dissent) regarding timing and laches in election-related litigation.

D. Redistricting merits precedents referenced to argue the panel was bound (raised in dissent)

• Johnson v. WEC, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469 (“Johnson I”): Cited in dissent for propositions about what state constitutional provisions constrain redistricting, and to caution against expanding Article I into a basis for partisan-gerrymandering-style claims.
• Johnson v. WEC, 2022 WI 14, 400 Wis. 2d 626, 971 N.W.2d 402 (“Johnson II”), summarily rev'd sub nom. Wis. Legislature v. Wis. Elections Comm'n, 595 U.S. 398 (2022) (per curiam): Cited extensively in dissent to argue the three-judge panel could not grant relief contrary to existing Wisconsin Supreme Court precedent, and to frame the congressional map’s procedural history.
• Johnson v. WEC, 2022 WI 19, 401 Wis. 2d 198, 972 N.W.2d 559 (“Johnson III”): Referenced in the dissent’s laches discussion and to identify the series of Johnson cases.
• Jensen v. Wis. Elections Bd., 2002 WI 13, 249 Wis. 2d 706, 639 N.W.2d 537: Cited (in dissent) for the proposition that redistricting is “inherently political,” supporting a cautionary approach to judicial involvement.

E. Federal constitutional constraints on state-court role in federal elections (raised in dissent)

• Moore v. Harper, 600 U.S. 1, 36 (2023): Cited to argue state courts may not exceed “ordinary bounds of judicial review” in ways that effectively arrogate the legislature’s constitutional authority over federal election regulation.

F. Prior Wisconsin orders cited to show repeated denials of reconsideration/original actions (raised in dissent)

• Johnson v. WEC, No. 2021AP1450-OA, unpublished order (Wis. Apr. 15, 2022)
• Johnson v. WEC, No. 2021AP1450-OA, unpublished order (Wis. Mar. 1, 2024)
• Bothfeld v WEC, No. 2025AP996-OA, unpublished order (Wis. June 25, 2025)
• Felton v WEC, No. 2025AP999-OA, unpublished order (Wis. June 25, 2025)
• Voces de la Frontera, Inc. v. Gerber, No. 2025AP2121-OA, unpublished order (Wis. Dec. 3, 2025)

G. U.S. Supreme Court non-review of the congressional map (raised in dissent)

• Grothman v. WEC, 142 S. Ct. 1410 (2022) (certiorari denial cited to indicate the congressional map challenge was not taken up federally).

3.2 Legal Reasoning

A. The operative holding: procedure, not merits

The binding portion of the court’s action is narrow:

• Expedition denied. The court rejected WBLD’s proposed accelerated schedule as unnecessary.
• Ordinary appellate procedures apply. The court directed that the procedural rules used in court of appeals matters (docketing statement, transcript statements, briefing deadlines, etc.) will govern this Wisconsin Supreme Court appeal, absent later order, citing WIS. STAT. § (Rule) 809.63.

B. Deliberate non-resolution of the “may be heard” question

The court explicitly recognized an “unresolved question” about whether a three-judge-panel decision under WIS. STAT. § 751.035(3) is appealable as of right or only by the Supreme Court’s discretion. But it declined to interpret the statute because the court would hear the appeal either way. This is a practical application of the Greenway principle: avoid deciding more than necessary to resolve the immediate procedural posture.

C. What the writings reveal about competing institutional views

• Justice Dallet’s concurrence frames the order as a routine scheduling/procedure decision and criticizes the dissents for implying prejudgment and for injecting merits arguments at the review-acceptance stage.
• Justice Ziegler’s dissent treats the acceptance of review as the consequential act, urging analysis of (i) jurisdiction and proper vehicle (appeal vs petition), (ii) whether WBLD states a cognizable claim under existing precedents like “Johnson I” and “Johnson II,” (iii) the availability of relief, and (iv) equitable defenses such as laches.
• Justice Rebecca Grassl Bradley’s dissent frames the decision through a lens of partisan influence and predicts federal reversal, emphasizing “Moore v. Harper” and the Elections Clause.
• Justice Hagedorn’s separate writing explains internal court practice: orders typically do not disclose vote counts; dissents to orders have become more common in significant cases; and a justice’s silence on an order should not be read as agreement.

3.3 Impact

A. Immediate procedural impact for § 751.035(3) appeals

The order signals that when the Wisconsin Supreme Court elects to hear an apportionment-panel appeal, it may:

• decline to resolve whether review is “as of right” or discretionary if the court would hear the case regardless; and
• default to familiar court-of-appeals-style procedures under WIS. STAT. § (Rule) 809.63, promoting administrative regularity (docketing statements, transcript notices, standard briefing schedules) in a direct-to-supreme-court posture.

B. Doctrinal impact: an open statutory question remains open

Because the court expressly did not interpret WIS. STAT. § 751.035(3), future litigants and intervenors are likely to continue disputing whether “may be heard” creates:

• a mandatory appeal path to the Wisconsin Supreme Court (appeal as of right), or
• a discretionary path akin to petition-for-review criteria under § (Rule) 809.62.

That unresolved interpretive question may become outcome-determinative in a later case where the court is disinclined to hear the appeal, or where the proper filing vehicle affects timing, briefing, or jurisdictional treatment.

C. Institutional impact: increased visibility of “order-stage” disputes

The multiple separate writings reflect (and reinforce) a modern trend identified by Justice Hagedorn: public disagreements at the “grant/accept review” stage in high-salience litigation. That may affect litigant strategy (front-loading jurisdiction/laches/remedy arguments earlier) and public perception (viewing acceptance of review as a substantive signal, even when the majority disclaims that inference).

4. Complex Concepts Simplified

• Three-judge panel (Wisconsin apportionment procedure): Certain redistricting challenges are heard by a special three-judge circuit-court panel rather than a single judge, under statutes including WIS. STAT. § 801.50(4m) and § 751.035.
• “Appeal as of right” vs “discretionary review”: An appeal as of right means the higher court must hear it if properly filed; discretionary review means the court may choose whether to hear it (often via petition standards).
• Petition for review (Wis. Stat. Rule 809.62): A request asking the Wisconsin Supreme Court to take a case, typically after a court of appeals decision—governed by criteria set in WIS. STAT. § 809.62(1r).
• Bypass (WIS. STAT. § 808.05): A procedure to skip the court of appeals and go directly to the Wisconsin Supreme Court—granted or denied at the court’s discretion.
• Laches: An equitable doctrine that can bar relief when a plaintiff delays unreasonably in bringing a claim and the delay prejudices the defendant or the public interest—often invoked in election cases where timing is critical.
• Original action: A case filed directly in the Wisconsin Supreme Court (rather than appealed), typically requiring leave to commence; dissents here suggest concern that the appeal may function like a backdoor original action.
• Summary reversal (per curiam): A higher court’s swift reversal without full briefing/argument, sometimes via a short unsigned opinion; referenced here regarding “Wis. Legislature v. Wis. Elections Comm'n”.

5. Conclusion

The May 29, 2026 order in Wisconsin Business Leaders for Democracy v. Wisconsin Elections Commission is a procedural decision with meaningful practical consequences. The court denied expedition and directed that ordinary appellate procedures will govern the appeal, citing WIS. STAT. § (Rule) 809.63. Critically, the court acknowledged but declined to resolve the first-impression question of whether WIS. STAT. § 751.035(3) provides a right to appeal or only discretionary supreme-court review, reasoning the answer would not affect the immediate outcome because the court would hear the case either way.

At the same time, the separate writings expose the fault lines likely to shape the merits stage (and future procedural disputes): the dissents’ emphasis on jurisdiction, cognizable claims under “Johnson I” and “Johnson II,” remedial limits, and laches; the concurrence’s insistence on neutrality and non-prejudgment; and a clarifying institutional note that silence on an order does not equal agreement. The unresolved interpretation of “may be heard” remains the principal open question left for a future case where it may be dispositive.