Broad Construction of “Apportionment” and Mandatory Three‑Judge Panels in Wisconsin Redistricting Challenges: Commentary on Wisconsin Business Leaders for Democracy v. WEC

Broad Construction of “Apportionment” and Mandatory Three‑Judge Panels in Wisconsin Redistricting Challenges

Commentary on Wisconsin Business Leaders for Democracy v. Wisconsin Elections Commission, 2025 WI 52

I. Introduction

The Wisconsin Supreme Court’s order in Wisconsin Business Leaders for Democracy v. Wisconsin Elections Commission, 2025 WI 52 (“WBLD”), marks an important development in the procedural law governing redistricting challenges in Wisconsin. While the order does not address the merits of the plaintiffs’ constitutional claims against the current congressional map, it squarely resolves a threshold statutory question with broad implications: what counts as “an action to challenge the apportionment of a congressional or state legislative district” under Wis. Stat. § 801.50(4m)?

The answer controls whether such cases must be heard by a specially constituted three‑judge circuit court panel under Wis. Stat. § 751.035, rather than by a single circuit judge. The court’s majority reads “apportionment” broadly, effectively equating it with redistricting for purposes of this statute, and holds that the Supreme Court has a mandatory duty to appoint such a panel when triggered.

The case emerges in the shadow of the court’s earlier, high‑profile redistricting decisions in the Johnson v. WEC trilogy, where the court adopted (and later reaffirmed) congressional maps originally proposed by Governor Evers. The plaintiffs in WBLD—Wisconsin Business Leaders for Democracy and individual voters—seek to challenge those very maps as unconstitutional under the Wisconsin Constitution.

This prompted a sharp split on the court:

  • A per curiam majority order interprets the statutes broadly and appoints a three‑judge panel.
  • Justice Hagedorn concurs in the statutory holding but criticizes how the panel and venue were selected, and rejects using the court’s superintending authority to short‑circuit the case at the outset.
  • Chief Justice Ziegler and Justice Rebecca Grassl Bradley each file lengthy dissents, arguing that the order violates the Wisconsin Constitution’s allocation of judicial authority, facilitates an impermissible collateral attack on a final Supreme Court judgment, and is barred by laches, among other objections.

The precedent set here is procedural, but its consequences are substantial: it defines the gateway through which future redistricting and apportionment litigation must pass in Wisconsin state courts, and it surfaces deep disagreement on separation of powers and the finality of the Supreme Court’s own redistricting remedies.

II. Summary of the Court’s Order

A. Procedural Background

On July 8, 2025, Wisconsin Business Leaders for Democracy and several individual voters filed a summons and complaint in Dane County Circuit Court against the Wisconsin Elections Commission and related defendants (collectively “WEC”), challenging Wisconsin’s current congressional map under the Wisconsin Constitution. On July 10, 2025, the Dane County Clerk of Courts notified the Wisconsin Supreme Court pursuant to Wis. Stat. § 801.50(4m), which provides:

“Not more than 5 days after an action to challenge the apportionment of a congressional or state legislative district is filed, the clerk of courts for the county where the action is filed shall notify the clerk of the supreme court of the filing.”

Section 801.50(4m) further states that venue in such an action is governed by Wis. Stat. § 751.035, which in turn requires the Supreme Court to appoint a three‑judge panel:

“Upon 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.” (Wis. Stat. § 751.035(1))

The Supreme Court opened Misc. Case No. 2025XX1330 to address whether the WBLD complaint fell within § 801.50(4m)—that is, whether it is “an action to challenge the apportionment of a congressional or state legislative district.” The court ordered simultaneous briefing on that question and allowed:

  • The Wisconsin Legislature and Billie Johnson plus other voters (“Johnson”) to file amicus briefs.
  • A group of Congressmen and individual voters (“the Congressmen”) to intervene.

The WEC defendants took no position on the statutory question.

B. Competing Characterizations of the WBLD Lawsuit

WBLD’s position. WBLD argued that their case plainly fits within § 801.50(4m) because:

  • Wisconsin courts, including the Supreme Court, have long used “apportionment,” “reapportionment,” and “redistricting” interchangeably when referring to the drawing of congressional and state legislative district lines.
  • Article IV, § 3 of the Wisconsin Constitution itself titles the section “Apportionment” and directs the legislature to “apportion and district” anew, suggesting the concepts are intertwined in practice.
  • Federal courts interpreting the analogous 28 U.S.C. § 2284 (which governs three‑judge panels in federal “apportionment” cases) routinely treat “apportionment” as synonymous with redistricting.

On that understanding, WBLD contended, the statute is triggered whenever a party challenges a congressional or state legislative map—regardless of whether the alleged defect is in district boundaries or in allocation of representatives, and regardless of whether the plan was enacted by the legislature or adopted by a court.

The Congressmen’s and Legislature’s position. The intervening Congressmen, the Legislature, and supporting amici argued almost the opposite:

  • “Apportionment” should be read narrowly to mean only the distribution of legislative seats among districts; “redistricting” refers to drawing or revising district boundaries.
  • The Wisconsin Constitution’s text (“apportion and district” in Art. IV, § 3) uses both terms in a single provision, indicating they have distinct meanings.
  • “Apportionment” concerns legislative action; it does not encompass judicial remedial action such as the Supreme Court’s decision in Johnson v. WEC, 2022 WI 14 (“Johnson II”), where the court selected a congressional map.
  • WBLD’s suit is therefore a “redistricting” challenge, not an “apportionment” action, and §§ 801.50(4m) and 751.035 do not apply.
  • Moreover, they urged the Supreme Court to use its superintending authority to prevent a circuit court from entertaining what they characterize as an improper collateral attack on Johnson II—a final decision of the state’s highest court.

C. The Majority’s Holding

The court’s per curiam order concludes that the WBLD complaint does constitute “an action to challenge the apportionment of a congressional or state legislative district” within the meaning of § 801.50(4m). From that conclusion, the court holds that it is required by § 751.035(1) to appoint a three‑judge panel and select a venue.

The majority:

  • Declines to read “apportionment” narrowly as only the allocation of congressional seats among states.
  • Rejects the argument that “apportionment” is limited to legislative action and excludes judicially adopted maps.
  • Interprets “apportionment” in state law consistently with how courts often use that term in federal law to include redistricting challenges.

Having found the statute applicable, the majority appoints the following three‑judge circuit court panel:

  • Hon. David Conway, Dane County Circuit Court;
  • Hon. Patricia Baker, Portage County Circuit Court;
  • Hon. Michael Moran, Marathon County Circuit Court.

It further orders that the venue for “all hearings and filings” will be the Dane County Circuit Court.

D. Separate Opinions

  • Justice Hagedorn (concurring in part, dissenting in part). He agrees that §§ 801.50(4m) and 751.035 apply and that the court must appoint a three‑judge panel, but:
    • Criticizes the court’s method of satisfying the statutory scheme: the panel is not randomly chosen; it retains the originally assigned Dane County judge and venue, which undercuts the goal of avoiding forum shopping.
    • Rejects calls to use the court’s superintending authority to seize the case and dismiss it as a collateral attack on Johnson II, stressing that at this stage the court’s role is limited to appointing the panel.
  • Chief Justice Ziegler (dissenting). She would not appoint a panel at all, but instead would dismiss the case, arguing among other things:
    • Only the Supreme Court may revisit its own decisions; a circuit court panel cannot reconsider Johnson I and II.
    • The lawsuit is barred by laches and constitutes impermissible partisan judicial activism.
    • The secretive, “hand‑picked” selection of the panel undermines public confidence.
  • Justice Rebecca Grassl Bradley (dissenting). She similarly insists that:
    • The Wisconsin Constitution’s grant of superintending and appellate jurisdiction to the Supreme Court precludes the legislature from empowering circuit courts to review Supreme Court judgments.
    • Sections 801.50(4m) and 751.035 cannot constitutionally be applied to send a collateral challenge to Johnson II to a lower‑court panel.
    • The only constitutionally permissible outcome is dismissal, not appointment of a panel.

III. Detailed Analysis

A. Statutory Framework and Procedural Posture

The core legal framework comprises two interlocking statutes:

  1. Wis. Stat. § 801.50(4m) (venue in apportionment challenges). This subsection:
    • Requires county clerks of court to notify the Supreme Court within five days of filing in any “action to challenge the apportionment of a congressional or state legislative district.”
    • Specifies that venue in such an action is governed by § 751.035.
  2. Wis. Stat. § 751.035 (three‑judge panels for apportionment cases). Section 751.035(1) then provides that upon receiving such notice:
    • The Supreme Court “shall appoint a panel consisting of 3 circuit court judges to hear the matter.”
    • The 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.”

These provisions, enacted in the wake of contentious redistricting cycles, are aimed at structuring where and by whom apportionment challenges are heard, much as 28 U.S.C. § 2284 does at the federal level by requiring three‑judge district courts in certain redistricting cases.

The narrow question before the Supreme Court in WBLD was whether § 801.50(4m) is triggered by the WBLD complaint, which challenges the legality of the current congressional map—a map adopted in Johnson II as a judicial remedy after a political impasse between the legislature and the governor.

B. The Majority’s Interpretation of “Apportionment”

1. Rejecting the narrow “seat allocation only” definition

Opponents of panel appointment relied heavily on a footnote in Jensen v. Wisconsin Elections Board, 2002 WI 13, 249 Wis. 2d 706, 639 N.W.2d 537, which defined:

“Reapportionment [as] 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 [as] the drawing of new political boundaries[.]” (Jensen, ¶5 n.2)

Under that definition, “apportionment” would be limited to the assignment of U.S. House seats among the states based on the federal census, not the drawing of internal boundaries within a state.

The majority acknowledges this footnote but gives it limited weight for two reasons:

  1. Different context; later‑enacted statute. Jensen preceded § 801.50(4m) by nearly a decade. The court notes that the Jensen footnote “did not address the meaning of § 801.50(4m)—a statute that did not exist until nearly 10 years after the Jensen decision.” The footnote therefore cannot be dispositive of legislative intent in enacting the later statute.
  2. Practical consequences of a cramped reading. If “apportionment” in § 801.50(4m) were limited to the allocation of congressional seats among states, then no realistic state‑court case could ever fall within the statute. As the majority points out, that type of apportionment “occurs only at the federal level, not the state level. See U.S. Const. art. I, § 2, cl. 3.” Such a reading would effectively render § 801.50(4m) a dead letter.

The court declines to adopt such a construction, preferring a meaning that gives the statute robust and practical effect.

2. Embracing the broader, functional understanding of “apportionment”

Instead, the majority adopts a broad, functional understanding of “apportionment” akin to how courts and commentators often use the term when discussing legislative districting generally:

  • The court notes that “neither we nor other courts have consistently used the term ‘apportionment’ in such a limited sense.” Even Jensen itself acknowledged that “[t]he cases . . . sometimes use the terms ‘reapportionment’ and ‘redistricting’ interchangeably.”
  • The majority draws explicit support from federal practice under 28 U.S.C. § 2284, which mandates three‑judge district courts for “any action challenging the constitutionality of the apportionment of congressional districts.” In Shapiro v. McManus, 577 U.S. 39 (2015), the U.S. Supreme Court characterized a partisan gerrymandering challenge to Maryland’s congressional plan as an apportionment case without controversy:
    “[N]obody disputes that the present suit is ‘an action . . . challenging the constitutionality of the apportionment of congressional districts’ for purposes of 28 U.S.C. § 2284(a).” (Shapiro, 577 U.S. at 43)

By analogy, the Wisconsin court interprets its own “apportionment” venue statute to embrace the full set of challenges to congressional and legislative district maps, not only those directed at seat allocation among states.

3. Rejecting the idea that only legislatures “apportion”

The Legislature and Congressmen also argued that “apportionment” is inherently a legislative act, and that judicial redistricting remedies fall outside that concept. The majority firmly rejects this distinction as “unsupported,” relying on U.S. Supreme Court precedents:

  • Growe v. Emison, 507 U.S. 25 (1993): The Court there emphasized that in redistricting disputes, “both state branches”—state legislatures and state courts—are appropriate “agents of apportionment.” (507 U.S. at 34) (emphasis in original).
  • Chapman v. Meier, 420 U.S. 1 (1975): The Court referred to reviewing a court‑ordered reapportionment plan as “regular grist” for a three‑judge panel convened under § 2284(a).

These cases underscore that judges can and do engage in “apportionment” when they design or adopt remedial maps. Accordingly, the Wisconsin Supreme Court concludes that:

  • “Apportionment” in § 801.50(4m) includes both legislative and judicially crafted maps.
  • A challenge to the constitutionality of the current congressional map adopted in Johnson II is indeed an “action to challenge the apportionment” of congressional districts.

4. The mandatory nature of the three‑judge panel mechanism

Once the statute applies, the structure of § 751.035 is emphatically mandatory: the court “shall appoint” a panel of three circuit judges drawn from three circuits and “shall assign” one circuit as venue. The majority does not treat this as a discretionary option; it treats it as a command the court must follow whenever § 801.50(4m) is triggered.

This has two important doctrinal consequences:

  1. The Supreme Court cannot evade the panel requirement merely by characterizing the underlying claim as a political question, a collateral attack, or otherwise disfavored on the merits.
  2. At least at the threshold, the Supreme Court must facilitate, rather than block, lower‑court adjudication of such challenges, whether or not the court will ultimately agree with any remedies the panel might order.

Justice Hagedorn’s concurrence underscores this last point: in his view, the court’s role at this stage is “limited—dealing only with the statutory mandate to appoint a three‑judge panel.” Questions about collateral attack, laches, and constitutional boundaries are for the panel to consider in the first instance.

C. Precedents and Authorities Cited

1. Jensen v. Wisconsin Elections Board (2002)

As noted, Jensen provided a technical distinction between “reapportionment” (seat allocation among districts or states) and “redistricting” (boundary‑drawing). However:

  • It predated the statutory scheme at issue here.
  • Even Jensen acknowledged that courts “sometimes use the terms ‘reapportionment’ and ‘redistricting’ interchangeably.” (¶5 n.2)

The WBLD majority therefore treats Jensen as a useful but non‑controlling background authority. The dissents, in contrast, lean more heavily on Jensen’s insistence that apportionment and redistricting are conceptually distinct, especially when construing the state Constitution’s language in Article IV, § 3.

2. Shapiro v. McManus (2015) and 28 U.S.C. § 2284

Shapiro is important not for its merits ruling (it concerned whether a three‑judge panel was required) but because the U.S. Supreme Court casually referred to a partisan gerrymandering challenge as uncontroversially being an “action . . . challenging the constitutionality of the apportionment of congressional districts” under § 2284(a).

The Wisconsin court effectively borrows this usage to justify a similarly broad understanding of “apportionment” in its own special‑panel statute.

3. Growe v. Emison (1993) and Chapman v. Meier (1975)

These U.S. Supreme Court cases are cited to refute any limitation of “apportionment” to legislative activity:

  • Growe demands that federal courts respect the primacy of state institutions in redistricting and describes “both state branches”—legislatures and courts—as “agents of apportionment.”
  • Chapman treats court‑ordered reapportionment plans as routine “grist” for three‑judge panels under § 2284, further confirming that judicial maps are encompassed in “apportionment” challenges.

These authorities buttress the majority’s rejection of a legislative‑only view of apportionment.

4. The Johnson trilogy and subsequent state redistricting cases

Chief Justice Ziegler and Justice Rebecca Grassl Bradley situate WBLD within the broader arc of Wisconsin’s redistricting jurisprudence. The relevant cases (all cited in the dissents) include:

  • Johnson v. WEC, 2021 WI 87 (“Johnson I”), 399 Wis. 2d 623:
    • Addressed the court’s role in redrawing maps after a political impasse.
    • Concluded that Article I, §§ 1 and 22 do not supply substantive redistricting limits; the relevant provisions are in Article IV, §§ 3–5.
    • Warned against plunging the court into the “political thicket” by embracing broad, judicially enforceable redistricting norms.
  • Johnson v. WEC, 2022 WI 14 (“Johnson II”), 400 Wis. 2d 626:
    • Adopted congressional and legislative maps, including Governor Evers’ proposed congressional map, as the court’s remedial plan.
    • Later the U.S. Supreme Court summarily reversed portions related to legislative districts, but not the congressional map.
  • Johnson v. WEC, 2022 WI 19 (“Johnson III”), 401 Wis. 2d 198:
    • Issued subsequent orders in light of the U.S. Supreme Court’s intervention.
  • Clarke v. WEC, 2023 WI 79, 410 Wis. 2d 1:
    • Struck down state legislative maps (not congressional) as violating the Wisconsin Constitution’s contiguity requirement.
    • Triggered remedial redrawing of state legislative districts.
    • Produced sharply divided opinions on laches, collateral attacks, and judicial role—foreshadowing the tensions seen in WBLD.

The dissents stress that:

  • The congressional maps at issue in WBLD have been used for multiple election cycles.
  • Both the U.S. Supreme Court and this court have declined to disturb them despite multiple prior challenges and requests for reconsideration.
  • The court has already refused new original actions attacking these maps (e.g., Bothfeld and Felton petitions, denied June 25, 2025).

From their perspective, WBLD is not an ordinary “first‑instance” apportionment challenge but an attempt to reopen a settled Supreme Court judgment.

5. Separation of powers and superintending authority cases

The dissenting justices invoke a long line of cases defining the Wisconsin Supreme Court’s constitutional powers under Article VII:

  • State ex rel. Fourth Nat’l Bank of Philadelphia v. Johnson, 103 Wis. 591, 79 N.W. 1081, 1091–92 (1899): Held that the Supreme Court’s superintending control over inferior courts is conferred by the Constitution and cannot be curtailed by statute.
  • Gabler v. Crime Victims Rights Board, 2017 WI 67, 376 Wis. 2d 147:
    • Reaffirmed that the legislature cannot unduly burden or substantially interfere with the judicial branch’s core functions.
    • Struck down a statutory board’s power to discipline judges as violating separation of powers.
  • Madison Teachers, Inc. v. Walker, 2013 WI 91, 351 Wis. 2d 237:
    • Described the Supreme Court’s superintending authority as “as broad and as flexible as necessary” to ensure proper administration of justice and to control litigation in lower courts.
  • State v. Pollard, 112 Wis. 232, 87 N.W. 1107 (1901):
    • Held that the legislature could not strip circuit courts of their constitutionally vested supervisory powers over lower tribunals.
  • In re Constitutionality of § 251.18, Wis. Statutes, 204 Wis. 501, 236 N.W. 717 (1931); Bank of U.S. v. Halstead, 23 U.S. 51 (1825), as quoted there:
    • Support the idea that rule‑making and procedural regulation in the courts are inherently judicial functions, not legislative, though courts may voluntarily follow procedural statutes.
  • Cook v. Cook, 208 Wis. 2d 166 (1997):
    • Confirmed that only the Wisconsin Supreme Court can overrule or modify its own decisions; lower courts are bound by Supreme Court precedent.
  • Sutter v. DNR, 69 Wis. 2d 709 (1975):
    • Described this court as a “court of last resort” whose decisions are final on questions of state law.

For the dissenters, these authorities collectively mean that the legislature cannot, via §§ 801.50(4m) and 751.035, authorize a circuit‑court panel to revisit—or even appear to revisit—a final redistricting judgment of the Wisconsin Supreme Court.

6. Laches and election‑law timing cases

Chief Justice Ziegler also invokes Wisconsin cases on laches in the election and redistricting context, including:

  • Trump v. Biden, 2020 WI 91, 394 Wis. 2d 629:
    • Applied laches to bar several post‑election challenges, reinforcing the principle that delaying election litigation until after key steps are completed is presumptively prejudicial.
  • Wis. Small Business United, Inc. v. Brennan, 2020 WI 69, 393 Wis. 2d 308:
    • Clarified laches as an equitable defense arising from unreasonable delay that prejudices the opposing party.
  • Hawkins v. WEC, 2020 WI 75, 393 Wis. 2d 629:
    • Declined to apply laches in a ballot‑access context, highlighting variability in the court’s application of the doctrine.
  • Clarke v. WEC, supra:
    • Majority rejected laches in a challenge brought about 18 months after Johnson III, but dissenters argued that a similar delay should have been barred.

Ziegler contrasts the court’s flexible application of laches in those cases with the plaintiffs’ 14‑year delay (as she measures it) from the alleged origins of anti‑competitive district design, arguing that if laches means anything, WBLD should be barred.

7. The Elections Clause and Moore v. Harper (2023)

The dissent also invokes the U.S. Constitution’s Elections Clause:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” (U.S. Const. art. I, § 4)

and the U.S. Supreme Court’s decision in Moore v. Harper, 600 U.S. 1 (2023), which:

  • Confirms that state courts may review state legislative action under state constitutions in the election context.
  • But cautions that “state 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.” (600 U.S. at 36)

For Chief Justice Ziegler, WBLD invites precisely this sort of judicial overreach by asking a court (indeed, a lower‑court panel) to further revise congressional maps originally selected by the Wisconsin Supreme Court rather than by the legislature, effectively giving courts primacy over the legislative role in congressional redistricting.

D. Competing Judicial Perspectives in WBLD

1. The majority’s purely statutory focus

The per curiam majority frames the case narrowly as a matter of statutory interpretation:

  • Does the WBLD complaint qualify as “an action to challenge the apportionment” under § 801.50(4m)?

The majority does not address:

  • Whether the plaintiffs’ claims are barred by laches.
  • Whether a circuit‑court panel may constitutionally reconsider a Supreme Court‑adopted map.
  • Whether—and to what extent—the Supreme Court retains power to halt or reclaim the case under its superintending authority.

By concluding that the WBLD complaint does fit § 801.50(4m) and that § 751.035 mandates a panel, the majority necessarily (if implicitly) rejects the request to simply terminate the lawsuit at this preliminary stage. But it leaves wide open what, if anything, the lower‑court panel may ultimately do with the case.

2. Justice Hagedorn: Statutes apply, but panel selection is flawed; no early merits intervention

Justice Hagedorn’s opinion reflects a narrower, process‑oriented concern:

  • He agrees with the majority’s statutory interpretation and agrees that the Supreme Court is obligated to appoint a panel.
  • He diverges on how the court should execute that mandate, critiquing:
    • The decision to keep the case in Dane County—the very place where plaintiffs filed the complaint—rather than randomizing venue.
    • The choice to leave the originally assigned Dane County judge on the panel and to “hand‑select” the other two judges, rather than using a neutral, random process that would better advance the legislature’s apparent goal of curbing forum shopping.

On the more substantive request that the Supreme Court seize and dismiss the case on the merits as an impermissible collateral attack on Johnson II, Hagedorn is cautious:

  • He acknowledges that the relief plaintiffs seek—having a circuit court declare a 2022 Supreme Court decision unconstitutional—is, in his words, “extraordinary.”
  • He notes that the Congressmen and Legislature raise “legal roadblocks that must be reckoned with.”
  • Yet, he warns that “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.”
  • He favors allowing the panel to address procedural and substantive defenses in the first instance, with Supreme Court review only after the usual course of litigation.

3. Chief Justice Ziegler: constitutional limits, laches, and concerns about partisanship

Chief Justice Ziegler’s dissent is multifaceted and strongly worded. Her key contentions include:

  1. Only the Supreme Court may revisit Johnson I and II.
    • Under Cook v. Cook, lower courts lack authority to overrule or modify Supreme Court precedent.
    • Since Johnson I and II resolved questions about apportionment, partisan gerrymandering, and the selection of congressional maps, she sees WBLD as an impermissible collateral attack on those final decisions.
  2. Redistricting is legislatively assigned; judicial involvement is exceptional.
    • Article IV, § 3 assigns the legislature the task to “apportion and district anew” following each census.
    • Judicial map‑drawing, as in Johnson, was justified only by a political impasse; there is no such impasse now, and thus no warrant for further judicial revision—especially via a circuit‑court panel acting on court‑drawn maps.
  3. The Elections Clause and Moore v. Harper.
    • She reads Moore as cautioning against state courts taking on an expansive role in federal election regulation, including congressional redistricting.
    • She contends that allowing a circuit‑court panel to adjust congressional maps goes beyond “ordinary bounds” of judicial review and encroaches on the legislature’s exclusive Elections Clause role.
  4. Laches.
    • She emphasizes WBLD’s substantial delay and the repeated prior challenges to the same maps.
    • In her view, a 14‑year delay from the genesis of the alleged problem and multiple elections since make this challenge a paradigm case for laches.
  5. Superintending authority and jurisdiction.
    • She insists that § 801.50(4m) is “a venue statute that cannot grant jurisdiction on a circuit court, nor strip it from our court,” given that jurisdiction is constitutionally defined in Wisconsin.
    • From this, she concludes that the court should use its superintending authority to dismiss what she calls a “charade” rather than facilitate it by appointing a panel.
  6. Critique of “hand‑picked” and “secret” selection of judges.
    • She decries the lack of transparency in how the three‑judge panel was chosen.
    • She lists the judges selected in WBLD and in the separate Bothfeld panel, emphasizing gubernatorial appointment histories and election years, and suggests a pattern of partisan selection aimed at benefiting Democrats.

Her conclusion is stark: she believes that allowing this case to proceed “comes at great cost to the judicial system and judicial independence,” and that the only constitutionally permissible action is dismissal.

4. Justice Rebecca Grassl Bradley: constitutional supremacy over procedural statutes

Justice R.G. Bradley’s dissent focuses even more tightly on constitutional structure:

  • She argues that §§ 801.50(4m) and 751.035, properly understood, cannot require the Supreme Court to appoint a lower‑court panel to review the constitutionality of a Supreme Court judgment (Johnson II).
  • Article VII, § 3 vests the Supreme Court with:
    • “Superintending and administrative authority over all courts,” and
    • “Appellate jurisdiction over all courts.”
  • Article VII, § 8 gives circuit courts only “such appellate jurisdiction in the circuit as the legislature may prescribe by law,” underscoring that circuit courts cannot be placed above, or at parity with, the Supreme Court.
  • Given this constitutional hierarchy, a statute cannot:
    • Authorize a circuit court panel to exercise effective appellate review of a Supreme Court remedy; nor
    • Compel the Supreme Court to facilitate such review by appointing that panel.
  • She underscores that when there is a conflict between statute and constitution, “The Wisconsin Constitution controls, and it supersedes the legislature’s enactments.”
  • Accordingly, she contends the court is duty‑bound to dismiss the actions as impermissible collateral attacks, not to treat its role as a ministerial box‑checking exercise.

In her view, the majority’s approach threatens the finality of Supreme Court decisions and the stability of the rule of law by suggesting that lower‑court panels might second‑guess remedies ordered by the state’s court of last resort.

E. Constitutional Questions Left Open

While the majority conclusively decides the statutory issue, several constitutional questions remain unresolved, expressly flagged by the dissents and implicitly deferred by Justice Hagedorn:

  1. Can a circuit‑court panel revisit a Supreme Court‑adopted redistricting remedy?
    • The dissents say “no,” citing Cook and the state Constitution’s hierarchy.
    • The majority order does not address the issue; it merely enables the panel to consider the WBLD claims.
    • Justice Hagedorn anticipates that the panel will weigh “legal roadblocks” such as collateral attack and laches in due course.
  2. What is the scope of the Supreme Court’s superintending authority vis‑à‑vis § 801.50(4m)?
    • Could the court, even after appointing a panel, later reclaim and terminate the case if it perceived a constitutional violation?
    • Or does its acceptance of the statutory mandate now constrain that power in this context?
  3. Does the Elections Clause limit Wisconsin courts’ power to order mid‑decade changes to congressional maps initially adopted by the judiciary itself?
    • Chief Justice Ziegler and Justice Bradley see serious federal constitutional concerns; the majority says nothing about them at this stage.
  4. How does laches apply to recurrent redistricting challenges over multiple cycles?
    • The dissents decry what they view as inconsistent doctrine and argue that WBLD should clearly be barred as stale.
    • The majority takes no position; that issue will fall to the panel first.

The resolution of these questions, if and when the panel rules and the case returns on appeal, will significantly shape Wisconsin’s redistricting jurisprudence beyond the immediate procedural holding in WBLD.

F. Likely Impact on Future Cases and the Law of Redistricting

1. All redistricting challenges now fall under the “apportionment” umbrella

The central precedential contribution of WBLD is its construction of “apportionment” in § 801.50(4m. Going forward, in Wisconsin state courts:

  • Any lawsuit that challenges the validity of congressional or state legislative district maps—whether based on state constitutional norms, federal norms, or both—will almost certainly be treated as an “action to challenge the apportionment” of districts.
  • It will not matter whether the alleged defect is:
    • Population malapportionment (one person, one vote violations);
    • Racial gerrymandering;
    • Partisan gerrymandering; or
    • Violation of specific state constitutional requirements (e.g., contiguity, compactness, communities of interest).

In each such case, county clerks must notify the Supreme Court, and the Supreme Court must appoint a three‑judge panel and designate venue under § 751.035.

2. Procedural structure: three‑judge panels and venue selection

This order confirms that:

  • Three‑judge panels are not optional; they are statutorily required whenever a qualifying apportionment case is filed in circuit court.
  • The Supreme Court retains considerable discretion in how to select the judges and venue (subject to the requirement that judges come from three different circuits), but:
    • The majority here chose to keep the originally assigned Dane County judge and venue, adding two judges from other circuits.
    • Justice Hagedorn would prefer random selection to more fully realize the legislature’s anti–forum‑shopping purpose.
    • The dissents view the selection process as potentially politicized and insufficiently transparent.

Future litigants and observers can therefore expect:

  • Apportionment/redistricting cases will be heard by panels rather than single judges—likely leading to more deliberative, collegial decision‑making at the trial‑court level.
  • Venue will often, though not necessarily always, remain where the case was filed, unless the Supreme Court chooses otherwise.

The order itself does not specify the appellate path (e.g., whether appeals go directly to the Supreme Court), but by analogy to § 2284 and as a matter of Wisconsin practice, such high‑salience cases are likely to receive prompt Supreme Court review.

3. Incentives for mid‑decade litigation

Because the court has read “apportionment” broadly enough to include challenges to judicially adopted maps, WBLD may encourage:

  • Mid‑decade redistricting litigation targeting:
    • Maps adopted after the initial post‑census cycle, or
    • Maps previously upheld but alleged to violate newly refined constitutional doctrines (e.g., new interpretations of state equal protection, free elections, or anti‑gerrymandering theory).
  • Litigation strategies that circumvent the Supreme Court’s original‑action gatekeeping:
    • As Chief Justice Ziegler notes, the court recently denied new original actions challenging the congressional maps (Bothfeld, Felton), yet the same or similar plaintiffs were able to file in circuit court and trigger the three‑judge panel process via § 801.50(4m).

The dissents warn this will motivate “another kick at the redistricting cat” whenever political coalitions hope for a more favorable composition of courts, thereby destabilizing settled lines and injecting more uncertainty into electoral systems.

4. Separation of powers and judicial legitimacy

Beyond election law, WBLD raises fundamental questions about:

  • The relationship between statutory procedure and constitutional judicial powers.
    • The majority effectively prioritizes statutory mandates at the threshold, assuming no constitutional conflict at this early stage.
    • The dissents insist that constitutional structure must override any statute that appears to give inferior courts authority over Supreme Court judgments.
  • The finality of Supreme Court remedies in structural cases.
    • If a panel could ultimately order different congressional maps, would that undermine the finality of Johnson II?
    • Or will the Supreme Court later step in and enforce strict limits on what the panel may do?
  • Public confidence in judicial impartiality.
    • The sharply worded accusations of “partisan judicial activism” and “hand‑picked” judges, though themselves partisan in tone, underscore the reputational risks whenever courts repeatedly redraw or revisit electoral maps.

Whatever one’s normative assessment, WBLD ensures that these questions will continue to arise as Wisconsin’s courts navigate recurring redistricting disputes under heightened political scrutiny.

IV. Key Legal Concepts Simplified

1. Apportionment, reapportionment, and redistricting

  • Apportionment (in the narrow, federal sense):
    • The assignment of a fixed number of seats (e.g., 435 U.S. House seats) among the states based on population after the decennial census.
  • Reapportionment (broad sense, often used interchangeably):
    • Sometimes used for seat allocation; sometimes used synonymously with redistricting.
  • Redistricting:
    • The drawing or redrawing of geographic boundaries of electoral districts (e.g., Wisconsin’s eight congressional districts, state assembly and senate districts) within a state.

In WBLD, the Wisconsin Supreme Court holds that for purposes of Wis. Stat. § 801.50(4m), “apportionment” is used broadly enough to include what many people would call redistricting.

2. Three‑judge panels vs. single‑judge courts

A three‑judge panel is a special trial‑court structure designed for cases of exceptional importance (like redistricting). Instead of one circuit judge, three judges jointly:

  • Conduct hearings.
  • Resolve legal questions.
  • Issue findings and injunctions.

This can:

  • Provide more diverse judicial perspectives.
  • Reduce the perception of partisan or individual bias.
  • Facilitate more robust appellate review by yielding a fully reasoned, multi‑judge decision at the trial‑court level.

3. Venue vs. jurisdiction

  • Jurisdiction is the court’s power to hear a certain type of case at all, typically defined by the Constitution (subject‑matter jurisdiction) and statutes (personal jurisdiction).
  • Venue is about where within a jurisdiction the case is heard—e.g., which county or circuit.
  • Section 801.50(4m) is a venue statute; it does not itself grant or remove jurisdiction, but it does dictate the geographic and institutional setting for apportionment challenges and triggers the three‑judge panel mechanism of § 751.035.

4. Superintending and administrative authority

Under Article VII, § 3(1) of the Wisconsin Constitution, the Supreme Court has:

  • “Superintending and administrative authority over all courts.”

This means:

  • The Supreme Court can issue orders to lower courts to ensure the proper administration of justice.
  • It can control the course of litigation, including staying or redirecting cases, consolidating proceedings, or even terminating litigation in lower courts when necessary.

The WBLD dissents argue that the court should have used this power to dismiss the WBLD case instead of appointing a panel; the majority implicitly disagrees, at least at this threshold stage.

5. Collateral attack

A collateral attack occurs when a party attempts, in a new lawsuit, to undermine or invalidate a judgment from a prior case, rather than appealing or seeking relief in the original proceeding.

In WBLD:

  • The dissents characterize the WBLD complaint as a collateral attack on Johnson II, because:
    • Johnson II adopted the current congressional map as a constitutional remedy.
    • WBLD now asks a circuit‑court panel to declare that very map unconstitutional and to replace it.

Ordinarily, Wisconsin law disfavors such attacks on Supreme Court decisions; instead, parties must petition the Supreme Court itself to reconsider or modify its prior rulings.

6. Laches

Laches is an equitable doctrine barring claims when:

  1. The plaintiff delays unreasonably in asserting a right.
  2. The delay is unexplained or inexcusable.
  3. The delay prejudices the defendant (e.g., by disrupting settled expectations or causing wasted effort and expense).

In election and redistricting cases, courts are especially sensitive to timing, because:

  • Election calendars are rigid.
  • Officials and candidates rely on established rules and boundaries.
  • Frequent or late changes can confuse voters and undermine confidence.

Chief Justice Ziegler contends that WBLD’s lengthy delay, combined with prior unsuccessful challenges, makes laches an obvious bar. The majority order leaves this for the panel to address.

7. The Elections Clause

The U.S. Constitution’s Elections Clause (Art. I, § 4) gives state legislatures the primary role in setting rules for congressional elections, subject to congressional override. State courts:

  • May interpret and enforce state constitutions against legislative actions, including redistricting plans, as confirmed in Moore v. Harper.
  • But may not go so far as to “arrogate to themselves” the core legislative power to regulate federal elections.

How far is “too far” remains contested. The WBLD order does not decide that question; it simply sets a procedural path. But the dissents warn that repeated judicial reshaping of congressional maps—especially mid‑decade and through lower‑court panels—risks pushing the judiciary beyond the “ordinary bounds” of review.

V. Conclusion

Wisconsin Business Leaders for Democracy v. WEC, 2025 WI 52, is procedurally modest but doctrinally significant. The Supreme Court holds that:

  • The phrase “action to challenge the apportionment of a congressional or state legislative district” in Wis. Stat. § 801.50(4m) encompasses challenges to the constitutionality of district maps—including judicially adopted maps—and is not confined to narrow questions of seat allocation or legislative action.
  • When such an action is filed, the court is statutorily required to appoint a three‑judge circuit‑court panel and designate venue under Wis. Stat. § 751.035.

On that basis, the court appoints a three‑judge panel and keeps venue in Dane County, allowing WBLD’s challenge to proceed at the circuit‑court level. In doing so, the majority declines, at least for now, to wield its superintending authority to halt what critics view as an impermissible collateral attack on the court’s own redistricting decisions in Johnson II.

The concurring and dissenting opinions highlight unresolved and profound issues:

  • Whether inferior courts may ever reconsider or modify a remedial map adopted by the state’s highest court.
  • How far legislative procedural statutes can constrain or direct the Supreme Court’s constitutionally vested superintending and appellate authority.
  • How laches should apply to serial or delayed redistricting challenges, particularly when maps have been repeatedly litigated and used for multiple elections.
  • To what extent the Elections Clause and Moore v. Harper limit state‑court involvement in congressional redistricting.

In the immediate term, WBLD ensures that all redistricting litigation in Wisconsin—whether Congressional or state legislative, legislative‑enacted or court‑adopted—will be channeled through three‑judge panels with Supreme Court oversight. In the longer term, the case sets the stage for further clarification of the balance between legislative primacy, judicial review, and the finality of Supreme Court remedies in the politically charged domain of electoral districting.

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