Broadening “Apportionment” in Wisconsin: Three‑Judge Panels for All Congressional and Legislative Redistricting Challenges After Bothfeld v. Wisconsin Elections Commission

I. Introduction

The Wisconsin Supreme Court’s order in Elizabeth Bothfeld et al. v. Wisconsin Elections Commission et al., 2025 WI 53, addresses a seemingly technical question that carries substantial consequences for redistricting litigation in Wisconsin: what counts as “an action to challenge the apportionment of a congressional or state legislative district” under WIS. STAT. § 801.50(4m)?

At stake was not the validity of Wisconsin’s current congressional map—adopted by the court itself in Johnson v. WEC, 2022 WI 14 (“Johnson II”)—but whether a new challenge to that map must be heard by a specially constituted three‑judge circuit court panel under WIS. STAT. § 751.035. The majority concludes that it must, construing “apportionment” broadly to include conventional redistricting challenges and to cover court‑drawn maps. In doing so, the court aligns Wisconsin’s statutory scheme with the federal three‑judge panel statute, 28 U.S.C. § 2284, and sets a binding procedural rule for all future redistricting litigation in state court.

The decision, however, generated deep division on the court. While Justice Hagedorn concurred in the statutory holding but criticized the way the panel and venue were selected, Chief Justice Ziegler and Justice Rebecca Grassl Bradley each authored forceful dissents. They argue that applying the statute here facilitates an impermissible collateral attack on a final judgment of the Wisconsin Supreme Court, violates the state and federal constitutions, and ignores equitable defenses such as laches.

This commentary explains the background, summarizes the order, and analyzes its legal reasoning, the precedents invoked, and its likely impact on Wisconsin’s redistricting jurisprudence and on the relationship between the state supreme court and the circuit courts.

II. Background and Procedural Posture

A. Parties and Claims

• Plaintiffs: Elizabeth Bothfeld and other individual voters (“Bothfeld”), challenging the legality of Wisconsin’s current congressional map under the Wisconsin Constitution.
• Defendants: The Wisconsin Elections Commission (WEC), its members, and its administrator, in their official capacities.
• Intervening Defendants (“the Congressmen”): A group of sitting members of Congress and individual voters, aligned with maintaining the existing map and opposing the procedural route the plaintiffs seek.
• Amici: Billie Johnson and other voters (plaintiffs in the earlier Johnson litigation), and the Wisconsin Legislature appeared as amici curiae, arguing against treating this as an “apportionment” action under the statutes.

The claim itself is constitutional: Bothfeld alleges that Wisconsin’s current congressional plan—adopted by the Wisconsin Supreme Court in Johnson II after a legislative–executive impasse—violates provisions of the Wisconsin Constitution. The precise constitutional theories are largely beyond the scope of this order; the court focuses solely on the procedural threshold question.

B. Statutory Framework

Two Wisconsin statutes are central:

• WIS. STAT. § 801.50(4m) – a venue statute:

  • When “an action to challenge the apportionment of a congressional or state legislative district” is filed in circuit court, the county clerk must notify the clerk of the Supreme Court within five days.
  • Venue in such an action “shall be as provided in s. 751.035.”

• WIS. STAT. § 751.035(1) – the panel-appointment statute:

  • Upon receiving notice under § 801.50(4m), “the supreme court shall appoint a panel consisting of 3 circuit court judges to hear the matter.”
  • One judge must be selected from each of three different judicial circuits.
  • The Supreme Court must assign one of those circuits as the venue “for all hearings and filings in the matter.”

Together, these provisions create a Wisconsin analogue to the federal three‑judge district court requirement under 28 U.S.C. § 2284 for certain redistricting and reapportionment challenges.

C. How the Case Reached the Supreme Court

On July 8, 2025, Bothfeld filed a summons and complaint in Dane County Circuit Court challenging the congressional map. On July 22, 2025, the Dane County Clerk of Courts notified the Wisconsin Supreme Court under § 801.50(4m) that such an action had been filed and transmitted the pleadings. The Supreme Court opened Miscellaneous Case No. 2025XX1438 to process the notification.

On September 25, 2025, the court ordered the parties to file simultaneous opening briefs and responses addressing a single question:

“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 order before us—2025 WI 53—resolves that procedural question and, depending on the answer, either triggers or avoids the statutory requirement to appoint a three‑judge panel under § 751.035.

III. Summary of the Court’s Order

A. The Majority’s Holding

The Supreme Court holds that Bothfeld’s lawsuit is “an action to challenge the apportionment of a congressional … district” within the meaning of § 801.50(4m). On that basis, it concludes that § 751.035(1) obligates the court to:

• Appoint a three‑judge circuit court panel; and
• Assign one of their circuits as the venue for all proceedings.

The majority therefore:

• Appoints:
  • Judge Julie Genovese (Dane County Circuit Court);
  • Judge Mark Sanders (Milwaukee County Circuit Court); and
  • Judge Emily Lonergan (Outagamie County Circuit Court).
• Designates Dane County Circuit Court as the venue.

The order expressly leaves all merits questions—including the map’s constitutionality, laches, alleged collateral-attack character, and the scope of state constitutional redistricting constraints—for the three‑judge panel to address.

B. Justice Hagedorn’s Concurrence/Dissent

Justice Hagedorn agrees that §§ 801.50(4m) and 751.035 apply and that a three‑judge panel must be appointed. He parts ways with the majority on how the court should implement that duty:

• He underscores that the statutes were transparently designed to prevent forum shopping by:
  • Moving the case out of the litigant’s chosen venue; and
  • Ensuring geographic and institutional diversity in the panel’s composition.
• He criticizes the majority for:
  • Keeping the case in Dane County;
  • Leaving the originally assigned Dane County judge (Genovese) on the panel; and
  • Hand‑selecting the other two judges without a neutral, random process.
• He rejects the invitation from the Congressmen, the Legislature, and amici to use the court’s superintending authority to seize the case and dismiss it on the merits as an improper collateral attack on Johnson II, reasoning that:
  • At this stage the court’s role is limited to appointing the panel; and
  • Setting a precedent of prematurely “shutting down” a circuit‑court case before it reaches the Supreme Court would be unwise.

C. Chief Justice Ziegler’s Dissent

Chief Justice Annette Kingsland Ziegler dissents. In her view:

• The order authorizes an unconstitutional collateral attack on the Supreme Court’s own final judgment in Johnson II by a panel of circuit court judges.
• This result:
  • Contravenes the Wisconsin Constitution, which vests final redistricting authority (for congressional districts) in the Legislature subject to limited judicial review;
  • Violates the Elections Clause of the U.S. Constitution (Art. I, § 4), as interpreted in Moore v. Harper, 600 U.S. 1 (2023);
  • Oversteps the judiciary’s proper role in redistricting; and
  • Ignores laches, which she believes clearly bars this belated challenge.
• The complaint presents nothing fundamentally new—only a re‑packaged legal theory that was or could have been raised in prior litigation (Johnson, Clarke, and related proceedings).
• The Supreme Court should exercise its superintending authority to dismiss the case outright rather than delegate an impossible task to a circuit‑court panel that has no constitutional power to revisit Johnson I and II.
• The selection of judges was opaque, “behind closed doors,” risking public confidence and placing the appointed judges in “an untenable position.”

D. Justice Rebecca Grassl Bradley’s Dissent

Justice Rebecca Grassl Bradley also dissents, emphasizing constitutional structure:

• Under the Wisconsin Constitution, the Supreme Court is the court of last resort with:
  • Superintending and administrative authority over “all courts” (Art. VII, § 3(1)); and
  • Appellate jurisdiction over all courts (Art. VII, § 3(2)).
• Circuit courts have only the appellate jurisdiction “in the circuit” that the Legislature may prescribe (Art. VII, § 8); they cannot constitutionally be given power to review a Supreme Court judgment.
• Statutes such as §§ 801.50(4m) and 751.035 cannot:
  • Authorize circuit courts to reconsider the constitutionality of a final Supreme Court decision; or
  • Compel the Supreme Court to delegate its appellate authority to lower courts.
• Therefore, whatever these statutes mean in ordinary apportionment challenges, they cannot be applied to a case whose gravamen is a challenge to Johnson II itself.
• The only constitutionally permissible disposition, in her view, is for the Supreme Court to dismiss the action.

Justice R.G. Bradley situates this case within a broader pattern in which, she contends, “political forces continue to use this court to obtain what the democratic process denies them,” and the majority’s ruling threatens the finality of Supreme Court decisions and the stability of the rule of law.

IV. Precedents and Authorities Cited

A. Wisconsin Cases on Redistricting and Apportionment

1. Jensen v. Wisconsin Elections Board, 2002 WI 13, 249 Wis. 2d 706, 639 N.W.2d 537

Jensen involved redistricting disputes in the early 2000s. A footnote there defined “reapportionment” and “redistricting” as distinct:

“Reapportionment 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.” (¶5 n.2)

The majority in Bothfeld acknowledges this footnote but finds it non‑dispositive for several reasons:

• It was an uncited footnote, not a considered interpretation of § 801.50(4m), which did not yet exist (enacted almost a decade later).
• Adopting that narrow meaning (tied to the allocation of congressional seats among states) would make § 801.50(4m) almost a dead letter as to congressional districts, because such “apportionment” occurs only at the federal level under U.S. CONST. art. I, § 2, cl. 3.
• Even in Jensen itself, the court noted that “the cases … sometimes use the terms ‘reapportionment’ and ‘redistricting’ interchangeably,” undercutting any rigid distinction.

Chief Justice Ziegler, by contrast, treats the constitutional use of “apportion” and “district” together in WIS. CONST. art. IV, § 3 (“apportion and district anew”)—and Jensen’s definitions—as confirming that the terms are distinct and that the Legislature (not the courts) bears primary responsibility.

2. Johnson v. Wisconsin Elections Commission (Johnson I–III)

• Johnson I, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469:
  • The court, facing a legislative–executive impasse after the 2020 census, took original jurisdiction to address malapportionment.
  • The majority adopted a “least change” approach and explicitly rejected partisan-gerrymandering limits under Art. I, §§ 1 and 22 of the Wisconsin Constitution, holding that redistricting constraints are limited to Art. IV, §§ 3–5.
• Johnson II, 2022 WI 14, 400 Wis. 2d 626, 971 N.W.2d 402:
  • The court adopted Governor Evers’ proposed congressional map as the remedial plan and declared it constitutionally compliant (¶¶25, 52).
  • That remedial map is the one now challenged by Bothfeld.
• Johnson III, 2022 WI 19, 401 Wis. 2d 198, 972 N.W.2d 559:
  • Addressed remedial state legislative maps after a summary reversal by the U.S. Supreme Court (Wis. Legislature v. Wis. Elections Comm’n, 595 U.S. 398 (2022) (per curiam)).

Chief Justice Ziegler stresses that Johnson I and II already decided:

• What “apportionment” requires under the Wisconsin Constitution;
• That partisan gerrymandering claims are non‑justiciable under Art. I, §§ 1 and 22; and
• Which congressional map is constitutionally permissible.

Therefore, she argues, a circuit‑court panel cannot revisit those determinations without violating constitutional hierarchy and the rule of Cook v. Cook.

3. Clarke v. Wisconsin Elections Commission, 2023 WI 79, 410 Wis. 2d 1, 998 N.W.2d 370

In Clarke, the court (in an original action) invalidated state legislative maps as violating the state constitution’s contiguity requirement and ordered remedial maps. Chief Justice Ziegler’s dissent in Clarke and her dissent here both portray the majority’s redistricting decisions as a pattern of “outcome‑based” judicial activism.

Justice R.G. Bradley’s dissent in Clarke, quoted here, argued that collateral attacks on Supreme Court judgments “would ordinarily be dismissed upon arrival,” a principle she believes should apply with equal force to Bothfeld.

B. Federal Apportionment Jurisprudence

1. 28 U.S.C. § 2284 and Shapiro v. McManus, 577 U.S. 39 (2015)

28 U.S.C. § 2284(a) requires a three‑judge federal district court for any action “challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.” In Shapiro, a partisan-gerrymandering challenge to Maryland’s congressional map, the U.S. Supreme Court noted:

“Nobody 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).”

The Wisconsin Supreme Court relies on this to show that federal practice treats “apportionment of congressional districts” and “redistricting” as effectively synonymous for panel‑appointment purposes, supporting a broad reading of “apportionment” in WIS. STAT. § 801.50(4m).

2. Growe v. Emison, 507 U.S. 25 (1993)

Growe involved competing state and federal efforts to redraw Minnesota’s legislative and congressional districts. The U.S. Supreme Court emphasized:

“We hold that it was error for the District Court to disregard the Minnesota state apportionment process. Reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.”

“[B]oth state branches”—state legislatures and state courts—are appropriate “agents of apportionment.” (emphasis in original)

The Bothfeld majority quotes Growe to reject the argument that “apportionment” refers only to legislative action and cannot encompass judicially drawn maps or judicial remedial action.

3. Chapman v. Meier, 420 U.S. 1 (1975)

In Chapman, the U.S. Supreme Court reviewed a court‑ordered reapportionment plan under the predecessor to § 2284. The Court described such review as “regular grist” for a three‑judge panel. The Wisconsin Supreme Court cites Chapman to reinforce that judicial involvement in apportionment does not take a case outside the ambit of a three‑judge-panel statute.

4. Moore v. Harper, 600 U.S. 1 (2023)

Moore clarified that:

• State legislatures have primary authority under the Elections Clause to regulate congressional elections; but
• State courts may enforce state constitutional limits on that authority—so long as they do not “transgress the ordinary bounds of judicial review” or “arrogate to themselves the power vested in state legislatures.”

Chief Justice Ziegler relies on Moore to argue that:

• Redistricting is a legislative function, and
• Repeated judicial re‑involvement in congressional map‑drawing—especially when not compelled by a fresh constitutional crisis or census—risks violating the Elections Clause’s allocation of power.

C. Wisconsin Constitutional Structure and Separation of Powers

Both dissents, particularly Justice R.G. Bradley’s, invoke a series of cases on the Wisconsin Supreme Court’s superintending authority and the separation of powers:

• State ex rel. Fourth Nat’l Bank of Philadelphia v. Johnson, 103 Wis. 591, 79 N.W. 1081 (1899): Recognized the Supreme Court’s plenary power of “superintending control over all inferior courts” and held that “no part of that power can be taken away by a statute.”
• Gabler v. Crime Victims Rights Board, 2017 WI 67, 376 Wis. 2d 147, 897 N.W.2d 384: Held that the Legislature cannot create a body that effectively disciplines judges in ways that unduly interfere with judicial independence, emphasizing that the Legislature cannot “unduly burden or substantially interfere” with the judiciary.
• City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738: Confirmed that subject‑matter jurisdiction of Wisconsin courts is derived from the Constitution, not from statute; statutes can regulate practice and procedure, not jurisdiction itself.
• Madison Teachers, Inc. v. Walker, 2013 WI 91, 351 Wis. 2d 237, 839 N.W.2d 388: Reaffirmed the breadth of the Supreme Court’s superintending authority and its power to “control the course of ordinary litigation in lower courts.”
• Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997): Established that only the Wisconsin Supreme Court may overrule, modify, or withdraw language from its prior decisions; lower courts are strictly bound by Supreme Court precedent.
• Van Slyke v. Trempealeau County Farmers’ Mut. Fire Ins. Co., 39 Wis. 390 (1876), and State ex rel. Pollard v. District Court, 112 Wis. 232, 87 N.W. 1107 (1901): Stand for the idea that constitutionally conferred judicial powers—such as superintending control and certain supervisory jurisdiction—cannot be stripped by statute.

The dissents deploy these cases to argue that:

• Even if §§ 801.50(4m) and 751.035 generally apply to apportionment challenges, they cannot constitutionally require the Supreme Court to delegate review of its own final judgment (Johnson II) to a circuit‑court panel.
• Venue statutes cannot create jurisdiction or appellate authority that the Constitution does not permit.

D. Laches and Election‑Law Timing

Chief Justice Ziegler argues that laches bars this lawsuit. She cites:

• Trump v. Biden, 2020 WI 91, 394 Wis. 2d 629, 951 N.W.2d 568 (Ziegler, J., dissenting): Discussed laches as barring election challenges when plaintiffs unreasonably delay and prejudice results; quoted Wis. Small Bus. United, Inc. v. Brennan, 2020 WI 69, 393 Wis. 2d 308, 946 N.W.2d 101.
• Hawkins v. WEC, 2020 WI 75, 393 Wis. 2d 629, 948 N.W.2d 877 (per curiam): Considered laches in the context of ballot access challenges.
• Clarke, 410 Wis. 2d 1: Where the majority declined to apply laches to a state legislative redistricting challenge filed roughly a year and a half after Johnson III; Chief Justice Ziegler dissented, calling for a more robust application of laches in redistricting/election cases.

While the majority order in Bothfeld does not discuss laches, Chief Justice Ziegler’s analysis foreshadows that it will be a central defense before the three‑judge panel.

V. The Court’s Legal Reasoning

A. Interpreting “Apportionment” in §§ 801.50(4m) and 751.035

The textual issue is whether Bothfeld’s suit is an “action to challenge the apportionment of a congressional … district” within § 801.50(4m). The competing views:

• Bothfeld’s view: “Apportionment” includes challenges to the configuration of districts (redistricting), whether the map was enacted by the Legislature or adopted by the courts. Wisconsin cases and federal practice use “apportionment,” “reapportionment,” and “redistricting” interchangeably.
• Congressmen/Legislature/amici view: “Apportionment” in § 801.50(4m) should be read narrowly to mean only the distribution of legislative seats among districts (or among the states), while “redistricting” refers to drawing boundary lines. They argue:
  • The use of both “apportion” and “district” in WIS. CONST. art. IV, § 3 shows distinct meanings.
  • “Apportionment” refers only to legislative action, not judicial remedial orders like Johnson II.
  • Because this is a collateral attack on a judicial map, it is not an “apportionment” challenge and does not trigger §§ 801.50(4m)/751.035.

The majority rejects the narrow interpretation on several grounds:

1. Statutory purpose and practical consequences

   Reading “apportionment” to mean only the federal allocation of congressional seats to states would make § 801.50(4m) nearly inapplicable in practice for congressional districts, since Wisconsin courts do not draw or alter the number of seats allotted to the state (that is determined by federal law and the census). The majority views such a “cramped reading” as implausible given:

   • The Legislature’s evident intention to create a specialized procedure for significant redistricting disputes; and
   • The absence of any other natural application for the statute if “apportionment” were so narrowly defined.

2. Usage in Wisconsin case law and the Wisconsin Constitution

   The majority acknowledges the Jensen footnote but notes that:

   • It was not construing these statutes (enacted later);
   • It itself conceded that cases “sometimes use the terms ‘reapportionment’ and ‘redistricting’ interchangeably”; and
   • Article IV, § 3 speaks of the Legislature’s duty “to apportion and district anew,” suggesting an integrated process rather than rigidly distinct legal categories for statutory purposes.

3. Analogy to federal practice under 28 U.S.C. § 2284

   Citing Shapiro v. McManus, the court observes that federal courts treat suits challenging congressional maps—including partisan‑gerrymandering suits—as challenging the “apportionment of congressional districts” under § 2284. Thus, a challenge to district lines is treated as an apportionment challenge in the federal context.

4. Judicial apportionment vs. legislative apportionment

   The majority rejects the contention that “apportionment” can refer only to legislative enactments:

   • Growe explicitly recognizes state courts, alongside legislatures, as legitimate “agents of apportionment.”
   • Chapman treats judicially imposed reapportionment plans as standard matters for three‑judge panels.
   • Accordingly, a challenge to a judicially adopted congressional map is still a challenge to “apportionment.”

Taken together, these considerations lead the majority to hold that:

“Bothfeld’s complaint does constitute ‘an action to challenge the apportionment of any congressional … district’ for purposes of WIS. STAT. § 801.50(4m).”

B. The Mandatory Nature of § 751.035

Once the court concludes the case falls within § 801.50(4m), it treats § 751.035 as imposing a mandatory duty:

“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 § 751.035.” (emphasis added)

The order does not entertain the argument—pressed by the Legislature and others—that the court could refuse to appoint a panel based on its constitutional superintending authority. The majority implicitly assumes that:

• The statutes are constitutionally valid as applied; and
• The court must perform its statutorily assigned procedural role before any merits questions are reached.

C. Justice Hagedorn: Statute Applies, But Implementation Matters

Justice Hagedorn emphasizes legislative policy behind these provisions:

• § 801.50(4m) and § 751.035 were “transparently designed to prevent forum shopping in disputes over where congressional lines should be drawn.”
• The mechanism aims to:
  • Dislodge the case from a single, self‑selected forum; and
  • Create a balanced, geographically diverse panel.

He criticizes the court for:

• Keeping the venue in Dane County, the original filing forum;
• Leaving the previously assigned Dane County judge on the panel instead of starting fresh; and
• Hand‑selecting, rather than randomly assigning, the other panelists.

Although he explicitly states he does not impugn the integrity of the selected judges, he views the court’s approach as “an odd choice” given a statute so plainly designed to prevent litigants from choosing “their preferred venue and judge.”

His concurrence in part and dissent in part thus underscores an important secondary implication of the decision: while the statutory trigger for three‑judge panels is now clear, the internal process by which the Supreme Court selects those judges and venues remains largely unregulated and opaque, potentially inviting similar criticism in future cases.

D. The Dissents: Constitutional Limits, Collateral Attack, and Laches

1. Collateral attack on Johnson II and judicial hierarchy

Both dissents frame the case as a collateral attack on Johnson II—a final Supreme Court judgment adopting Governor Evers’ congressional map as a constitutional remedy to malapportionment.

• Justice Ziegler stresses that:
  • The Supreme Court has already decided “apportionment, partisan gerrymandering, and congressional map districting” in Johnson I and II.
  • Circuit courts cannot revisit or overturn those decisions; their only lawful option would be to restate and follow them.
  • Ordering a three‑judge panel without clarifying that it cannot question Johnson puts the panel in “a constitutional dilemma.”
• Justice R.G. Bradley elaborates the hierarchical argument:
  • Only the Supreme Court can overrule its decisions (Cook v. Cook).
  • Statutes cannot authorize lower courts to exercise appellate review over the Supreme Court or to “override” its judgments.
  • Therefore, regardless of the statutory language, any action that in substance challenges Johnson II must be dismissed.

This is a powerful structural critique. However, it does not directly engage with the majority’s narrower framing: that the court is only deciding a procedural trigger and that the three‑judge panel will decide in the first instance whether Johnson II forecloses the claims, whether laches applies, and whether any relief is possible.

2. Superintending authority vs. statutory obligation

The dissents argue that the court’s constitutional superintending authority over all Wisconsin courts (Art. VII, § 3(1)) is:

• Broader and more fundamental than any statutory procedural directive; and
• Obliges the Supreme Court to prevent lower courts from entertaining actions that functionally review or contradict Supreme Court judgments.

Justice R.G. Bradley criticizes the majority for treating § 751.035(1) as a command it must obey “with blinders on,” ignoring constitutional constraints. In her view, the Constitution relieves the court of any such statutory duty whenever compliance would produce an unconstitutional result (such as empowering a circuit court to reconsider Johnson II).

Justice Hagedorn, by contrast, takes a more restrained view: while he acknowledges the force of the constitutional arguments, he believes those are “not yet ours to decide” and should be addressed by the three‑judge panel in the first instance, subject to later review.

3. Laches

Chief Justice Ziegler’s laches analysis proceeds on two tracks:

• Delay: She emphasizes that plaintiffs waited “14 years and seven elections” to bring this theory. Although the current map dates to 2022, she characterizes the new claims as essentially a challenge to an “anticompetitive” redistricting regime in place since 2011, with plaintiffs now trying to leverage that history to demand even more favorable maps for Democratic candidates.
• Prejudice: Repeated redistricting litigation disrupts the electoral landscape and burdens election administrators and voters; reopening maps years later is inherently prejudicial.

She argues that if laches means anything in election‑law cases, it must bar such an extraordinarily delayed challenge, especially in light of earlier avenues plaintiffs could have used—direct challenges in Johnson, original actions denied in 2025 (Bothfeld and Felton), and a motion for relief from judgment in 2024 that the court denied.

The majority defers any discussion of laches to the panel, but the dissent signals that timing and reliance interests will be central merits issues when the panel ultimately addresses the complaint.

4. Transparency and judicial selection

Both Chief Justice Ziegler and Justice R.G. Bradley express concern about the opacity of the process used to select the three‑judge panel:

• They note the absence of any public criteria or procedure for choosing judges and assigning venue.
• They highlight that multiple judges on recent panels (including in the related case Wisconsin Business Leaders for Democracy v. WEC, “WBLD”) were appointed by Governor Evers, suggesting (in their view) partisan overtones.
• Chief Justice Ziegler lists the names and appointment histories of the judges on both panels and argues that secret selection “places them in an untenable position” and undermines public trust.

Justice Hagedorn’s narrower institutional critique dovetails with these concerns: he advocates a random, neutral selection process to promote the appearance and reality of fairness and to honor the anti–forum‑shopping purpose of the statutes.

VI. Complex Concepts Simplified

A. “Apportionment” vs. “Redistricting” vs. “Reapportionment”

• Apportionment (in federal constitutional sense): The allocation of seats in the U.S. House among the states after each census. This is done by federal law and cannot be altered by states.
• Apportionment (as used in redistricting practice/statutes): More broadly, the arrangement of legislative representation—often used interchangeably with redistricting to refer to how districts are drawn and how seats are assigned within a state.
• Redistricting: The process of drawing or redrawing district boundary lines within a state for Congress or state legislatures.
• Reapportionment: Often used loosely to mean redistricting; in some technical usage, it means re‑assigning seats among districts or entities without necessarily changing boundaries.

In Bothfeld, the majority reads “apportionment” in the Wisconsin statutes in the broad sense—covering ordinary challenges to district maps—while the dissenters would confine it to more technical or legislative‑only contexts.

B. Venue vs. Jurisdiction

• Jurisdiction is a court’s power to hear and decide cases of a certain type. In Wisconsin, this power is conferred by the Constitution, not by statute.
• Venue is about “where” within the court system a case is heard (which county or judicial circuit).

WIS. STAT. § 801.50(4m) is a venue provision; it directs where a qualifying case must be heard and triggers the panel‑appointment procedure in § 751.035. It does not itself grant jurisdiction. The dissents leverage this distinction to argue that venue statutes cannot constitutionally confer on circuit courts the power to revisit Supreme Court decisions.

C. Three‑Judge Panels

Three‑judge panels in both federal and Wisconsin law are designed for cases of exceptional institutional importance—especially redistricting and apportionment. Key characteristics:

• They add institutional weight and diversity of perspective compared to a single‑judge trial court.
• They reduce the danger of one judge effectively reshaping the state’s political landscape.
• In the federal system, certain decisions of three‑judge panels are taken directly to the U.S. Supreme Court, bypassing intermediate appeals.

In Wisconsin, § 751.035 creates the panel structure; the Supreme Court controls its composition and venue assignment, subject now to the majority’s interpretation that its use is mandatory in all “apportionment” challenges.

D. Collateral Attack

A collateral attack is an attempt to undermine a judgment in a proceeding other than a direct appeal or authorized motion for relief from judgment. Here:

• The dissents contend that Bothfeld’s complaint is a collateral attack on Johnson II, because it effectively asks a circuit court to declare unconstitutional the same congressional map that the Supreme Court already declared constitutional.
• They argue that such an attack is inherently improper in any lower court; the only proper route would be:
  • A motion for relief from judgment in the Supreme Court itself; or
  • Prospective legislative change, subject to future judicial review.

E. Superintending Authority

The Wisconsin Supreme Court’s superintending and administrative authority (Art. VII, § 3) gives it broad power to:

• Regulate the internal procedures of the court system;
• Control the course of litigation in lower courts; and
• Issue writs (like mandamus or prohibition) to ensure the proper administration of justice.

The dissents maintain that this authority:

• Requires the court to prevent circuit courts from entertaining actions that would contradict Supreme Court judgments; and
• Supersedes any conflicting legislative directive regarding procedure (such as § 751.035) when necessary to protect the court’s constitutional role.

The majority, by contrast, treats the statutory directive as binding in these circumstances and does not directly engage the scope of superintending authority here.

F. Laches

Laches is an equitable defense that bars a claim when:

1. The claimant unreasonably delays in asserting a right; and
2. The delay prejudices the opposing party.

In election and redistricting cases, courts often apply laches to discourage last‑minute or strategically timed lawsuits that disrupt elections or undermine reliance on established maps. The dissents argue that:

• Bringing this apportionment theory after multiple election cycles and prior litigation is unreasonably late; and
• Redrawing maps again would prejudice the public, election officials, and political actors who relied on the existing maps.

VII. Impact and Future Implications

A. Binding Procedural Rule for Future Redistricting Litigation

The most immediate and concrete impact of Bothfeld is a clear, binding rule:

• Any state‑court action challenging the validity of congressional or state legislative district maps in Wisconsin constitutes “an action to challenge the apportionment” of those districts under § 801.50(4m).
• Such actions must be heard by a three‑judge circuit court panel, with venue designated under § 751.035.

This applies regardless of:

• Whether the challenged map was enacted by the Legislature or adopted judicially;
• Whether the constitutional theory is malapportionment, compactness/contiguity, partisan gerrymandering, or some other state‑law ground; or
• Whether the relief sought is a new map, declaratory judgment, or prospective injunction.

Litigants can no longer file such challenges and expect a single circuit judge of their choosing to adjudicate them; they must anticipate a multi‑judge panel.

B. Strengthened Analogy to Federal Three‑Judge Panel Practice

By aligning state practice with the federal understanding of “apportionment” under 28 U.S.C. § 2284, the court:

• Reinforces the special institutional treatment of redistricting cases; and
• Signals that federal case law interpreting § 2284 will likely continue to inform Wisconsin’s application of §§ 801.50(4m) and 751.035.

This may aid predictability and coherence, particularly when redistricting disputes simultaneously implicate federal and state courts.

C. Tension Between Statutory Procedure and Constitutional Structure

The dissents highlight a long‑term tension:

• The statutory scheme pushes significant redistricting disputes down to specially structured circuit‑court panels;
• The constitutional hierarchy reserves final authority—on both law and judicial review structure—to the Wisconsin Supreme Court.

While the majority resolves this case by simply applying the statutes, the underlying questions remain live:

• To what extent can the Legislature dictate how and by whom challenges to Supreme Court‑adopted maps are heard?
• Where is the line between a legitimate apportionment challenge and an impermissible collateral attack on a Supreme Court judgment?
• How aggressively will the Supreme Court use its superintending authority in future cases to manage or limit panel‑based redistricting litigation?

Bothfeld may therefore be seen as a procedural waypoint rather than a final settlement of these structural issues.

D. Forum Shopping, Perception of Neutrality, and Selection Procedures

Justice Hagedorn and the dissenters all raise concerns about:

• The risk that litigants’ venue choices (here, Dane County) and the court’s undisclosed selection processes could undermine the statutes’ anti–forum‑shopping purposes.
• The perception that panels may be politically curated, especially when their composition correlates with recent gubernatorial appointments.

Unless the Wisconsin Supreme Court formalizes transparent, neutral selection criteria—such as random assignment systems—the legitimacy and public confidence in three‑judge panels may become a recurring point of contention.

E. Substantive Redistricting Doctrine: A Coming Clash?

Although the order is formally limited to procedure, it foreshadows serious substantive disputes that the three‑judge panel—and ultimately the Supreme Court—will likely confront:

• Whether Johnson I’s rejection of state‑constitutional partisan-gerrymandering constraints on redistricting remains good law, or is distinguishable or subject to reconsideration.
• Whether laches or reliance interests bar mid‑decade or late‑cycle challenges to court‑adopted maps.
• How Moore v. Harper’s limits on court involvement under the Elections Clause apply when a state court repeatedly revisits congressional maps.

The dissents suggest a marked skepticism toward further judicial involvement in redrawing congressional maps outside a post‑census impasse. The majority, by contrast, appears open to allowing additional challenges to proceed through the ordinary judicial process, albeit with special procedural safeguards.

VIII. Conclusion

Bothfeld v. Wisconsin Elections Commission (2025 WI 53) establishes a significant procedural precedent in Wisconsin’s redistricting law: any challenge to congressional or state legislative district maps in state court is an “apportionment” challenge that must be heard by a three‑judge circuit court panel under WIS. STAT. §§ 801.50(4m) and 751.035.

In reaching that conclusion, the Supreme Court:

• Rejects a narrow, technical reading of “apportionment” rooted in a Jensen footnote;
• Aligns Wisconsin practice with federal three‑judge panel jurisprudence; and
• Affirms that judicially adopted maps are as much “apportionment” as legislatively enacted plans for purposes of the statute.

At the same time, the decision exposes deep rifts within the court about:

• The proper relationship between statutes and the Supreme Court’s constitutional superintending authority;
• The finality of Supreme Court judgments in redistricting cases and the permissibility of collateral attacks in circuit courts;
• The extent of judicial power under the Elections Clause; and
• The fairness and transparency of the process for selecting three‑judge panels.

For future litigants and practitioners, the immediate lesson is procedural but profound: any serious redistricting challenge in Wisconsin will now proceed in a structurally exceptional forum—a three‑judge circuit‑court panel—before it ever reaches the Wisconsin Supreme Court. How those panels handle the complex constitutional, equitable, and institutional questions raised in cases like Bothfeld will play a crucial role in shaping both Wisconsin’s electoral landscape and the evolving balance of power between its judiciary and Legislature.