Gatekeeping Before Appointing Three‑Judge Redistricting Panels: Wisconsin Supreme Court to Decide What Counts as an “Apportionment” Challenge Under Wis. Stat. § 801.50(4m)

Gatekeeping Before Appointing Three‑Judge Redistricting Panels: Wisconsin Supreme Court to Decide What Counts as an “Apportionment” Challenge Under Wis. Stat. § 801.50(4m)

Introduction

In Wisconsin Business Leaders for Democracy v. Wisconsin Elections Commission (Wisconsin Supreme Court, Sept. 25, 2025), the court entered a procedural order that could reset how statewide redistricting challenges are routed through the courts. After receiving notice from the Dane County Clerk of Courts of a new lawsuit alleging that Wisconsin’s current congressional map violates the Wisconsin Constitution, the Supreme Court opened a miscellaneous docket and, crucially, asked for briefing on a threshold question: whether the suit is an “action to challenge the apportionment of a congressional or state legislative district” within the meaning of Wis. Stat. § 801.50(4m). That statutory designation matters because it triggers the appointment of a three‑judge circuit‑court panel under Wis. Stat. § 751.035(1).

The order also addresses participation requests by a group of Members of Congress and voters (the “Congressmen”) who attempted to involve themselves via correspondence. The court declined to act on their letters and directed that any nonparties wishing to be heard must formally move to intervene or seek leave to appear as amicus curiae.

The order is accompanied by a concurrence from Chief Justice Annette Kingsland Ziegler, counseling caution and emphasizing finality around congressional maps previously adopted by the court in Johnson v. WEC (2022 WI 14, “Johnson II”), and a dissent by Justice Rebecca Grassl Bradley, who would dismiss the case outright as an impermissible collateral attack in a lower court on a final judgment of the Wisconsin Supreme Court—regardless of what the statutes say.

Summary of the Opinion

  • The Supreme Court received notice under Wis. Stat. § 801.50(4m) of a complaint filed by Wisconsin Business Leaders for Democracy (WBLD) in Dane County Circuit Court challenging the state’s congressional map. The court docketed a miscellaneous case (No. 2025XX1330) to receive filings related to that notice.
  • The court ordered simultaneous merits briefs within 14 days (30 pages with monospaced font or 6,600 words with a proportional serif font), and simultaneous response briefs within seven days thereafter (15 pages or 3,300 words), on whether the WBLD complaint qualifies as “an action to challenge the apportionment” under § 801.50(4m).
  • The court took no action on the “Congressmen” correspondence and advised that any nonparties must formally move to intervene or request leave to participate as amicus curiae.
  • Chief Justice Ziegler concurred in seeking briefing but emphasized the court should not revisit partisan maps long after the last decennial redistricting, especially because the Supreme Court already adopted the current congressional map in Johnson II and repeatedly denied subsequent challenges.
  • Justice Rebecca Grassl Bradley dissented, asserting that the Wisconsin Constitution’s grant of superintending authority to the Supreme Court prevents any circuit court (including a three‑judge panel) from revisiting a final Supreme Court judgment such as Johnson II; she would dismiss immediately on constitutional grounds, without briefing the statutory question.

Analysis

A. Statutory Framework and the Court’s Gatekeeping Move

Two statutes are central:

  • Wis. Stat. § 801.50(4m): Within 5 days of filing “an action to challenge the apportionment of a congressional or state legislative district,” the county clerk must notify the Clerk of the Supreme Court. The statute states that venue in such an action “shall be as provided in s. 751.035.”
  • Wis. Stat. § 751.035(1): Upon receiving notice under § 801.50(4m), “the supreme court shall appoint a panel consisting of 3 circuit court judges to hear the matter,” selecting one judge from each of three circuits and assigning venue in one of them. (The opinion text cites “§ 731.035(1),” which appears to be a typographical error for § 751.035(1).)

While § 751.035(1) uses mandatory language (“shall appoint”), the court’s order makes clear that appointment is not automatic upon receipt of notice: the court will first decide whether the case actually qualifies as “an action to challenge the apportionment” under § 801.50(4m). That is the gatekeeping function the court asserted here by calling for targeted briefing. If the case does not meet the statutory definition, the three‑judge‑panel mechanism does not engage.

The dissent’s approach would bypass the statutory question. It insists that regardless of how § 801.50(4m) and § 751.035 are read, the Wisconsin Constitution bars a circuit court (even a three‑judge panel) from reviewing or modifying a final Supreme Court judgment. Thus, in Justice R.G. Bradley’s view, the suit must be dismissed rather than assigned to a panel.

B. Precedents and Prior Proceedings Cited

  • Johnson v. WEC (“Johnson I”), 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469. The court established its remedial map framework post‑2020 census: intervene only to remedy cognizable constitutional/VRA violations; do not consider partisan makeup; and adopt a “least‑change” approach that respects the Legislature’s lawful policy choices. Chief Justice Ziegler highlights this as the governing template the court applied.
  • Johnson v. WEC (“Johnson II”), 2022 WI 14, 400 Wis. 2d 626, 971 N.W.2d 402. The court adopted Governor Tony Evers’ proposed congressional and legislative maps. While the U.S. Supreme Court summarily reversed the state‑legislative maps on Voting Rights Act grounds, it did not disturb the congressional map. A request to reconsider the congressional map was denied. The 2022 and 2024 elections used the Johnson II congressional map.
  • Wisconsin Legislature v. WEC, 595 U.S. 398 (2022) (per curiam). Reversed the state‑legislative maps on VRA grounds, leaving the Johnson II congressional map intact.
  • Grothman v. WEC, 142 S. Ct. 1410 (2022). U.S. Supreme Court denied an emergency stay application targeting the congressional map adopted in Johnson II.
  • Johnson v. WEC (“Johnson III”), 2022 WI 19, 401 Wis. 2d 198, 972 N.W.2d 559. On remand from the U.S. Supreme Court, Wisconsin adopted the Legislature’s proposed state‑legislative maps. The congressional map from Johnson II remained in place.
  • Clarke v. WEC, 2023 WI 79, 410 Wis. 2d 1, 998 N.W.2d 370. The court concluded the then‑existing state‑legislative maps violated the Wisconsin Constitution’s contiguity requirement, enjoined their use, and ordered remedial maps ahead of 2024 elections. No congressional map challenge was raised in Clarke. Justice R.G. Bradley later characterized efforts there as a collateral attack; her dissent here cites Clarke as the type of maneuver that should ordinarily be “dismissed upon arrival” when trained on a Supreme Court judgment.
  • Bothfeld v. WEC, No. 2025AP996‑OA; Felton v. WEC, No. 2025AP999‑OA. Two original‑action petitions filed in May 2025 challenging the congressional map were unanimously denied by the Wisconsin Supreme Court on June 25, 2025.
  • State v. Arberry, 2017 WI App 26, 375 Wis. 2d 179, 895 N.W.2d 100, aff’d, 2018 WI 7, 379 Wis. 2d 254, 905 N.W.2d 832; Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997). Cited for the principle that lower courts cannot overrule or modify holdings of the Wisconsin Supreme Court. These authorities anchor the dissent’s constitutional argument against any circuit‑court review of Johnson II.
  • Madison Teachers, Inc. v. Walker, 2013 WI 91, 351 Wis. 2d 237, 839 N.W.2d 388; State ex rel. J.H. Findorff & Son, Inc. v. Cir. Ct. for Milwaukee Cnty., 2000 WI 30, 233 Wis. 2d 428, 608 N.W.2d 679; State ex rel. Fourth Nat. Bank of Philadelphia v. Johnson, 103 Wis. 591, 79 N.W. 1081 (1899); Gabler v. Crime Victims Rights Bd., 2017 WI 67, 376 Wis. 2d 147, 897 N.W.2d 384; City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738. These decisions articulate and defend the Wisconsin Supreme Court’s superintending authority over lower courts and the limits of legislative power to alter that constitutional hierarchy—another pillar of the dissent’s position.
  • Jensen v. Wisconsin Elections Board, 2002 WI 13, 249 Wis. 2d 706, 639 N.W.2d 537. Referenced for the distinction between “reapportionment” and “redistricting,” which the dissent suggests bears on whether § 801.50(4m) covers this complaint. The definitional scope of “apportionment” is now the central statutory question the majority has asked the parties to brief.

C. The Court’s Emerging Legal Reasoning

The court’s order reflects two core premises:

  • Appointment of a three‑judge panel is not automatic. Even though § 751.035(1) uses the word “shall,” the Supreme Court will first determine whether the action fits § 801.50(4m)—i.e., whether it truly is “an action to challenge the apportionment.” The court’s own docketing and briefing schedule underscore that the Supreme Court, not the filing party or a county clerk, decides whether the statute’s trigger has been pulled.
  • Nonparty participation requires formal motions. The court declined to treat letters from nonparties as a basis for intervention or participation. If Members of Congress or other nonparties wish to be heard, they must follow the rules: move to intervene or seek amicus status.

The concurrence and dissent expose a deeper divide the court has not yet resolved:

  • Chief Justice Ziegler’s concurrence urges restraint and underscores finality. She recounts a four‑year history of using the Johnson II congressional map, multiple failed challenges (including denials of original actions in 2025), and the court’s prior adoption of a “least‑change” redistricting paradigm that eschews partisan considerations absent a cognizable legal violation. She agrees to briefing but warns against “redoing” partisan maps “as if starting anew” and admonishes against enabling “partisan gamesmanship.”
  • Justice R.G. Bradley’s dissent would cut straight to constitutional first principles: because Johnson II is a final judgment of the Supreme Court, no circuit court—single‑judge or three‑judge—has authority to review or modify it. She argues the constitution’s superintending authority makes statutory venue/assignment provisions irrelevant when they collide with final Supreme Court judgments. On this view, the only lawful outcome is dismissal, irrespective of how § 801.50(4m) is construed.

D. The Definitional Fight Over “Apportionment”

What does it mean to bring “an action to challenge the apportionment of a congressional or state legislative district”? The dissent suggests that “apportionment” (the allocation of seats) is distinct from “redistricting” (drawing district boundaries) and “reapportionment” (adjusting representation after a census). Depending on how the term is read in § 801.50(4m), a complaint targeting boundary lines (as here) may or may not fall within the statute that funnels such challenges to three‑judge panels.

The parties’ briefing will likely address:

  • Text and usage of “apportionment” across Wisconsin statutes and case law to determine whether the Legislature used the term as a term of art encompassing redistricting disputes or in a narrower sense limited to allocation of seats.
  • Structure and purpose of § 801.50(4m)/§ 751.035: whether the Legislature intended to channel all map‑drawing challenges to specialized three‑judge panels, mirroring federal three‑judge panel practice, regardless of whether the underlying map was enacted by the Legislature or imposed by court order.
  • Constitutional avoidance: whether a narrower reading of “apportionment” is necessary to avoid the separation‑of‑powers problem identified in the dissent—i.e., to ensure that the statute is not read to require lower‑court review of a final Supreme Court judgment.

E. Impact and Forward‑Looking Considerations

The court’s procedural order, though preliminary, carries significant implications:

  • Gatekeeping is now explicit. Litigants cannot presume that filing a redistricting complaint in circuit court will automatically produce a three‑judge panel. The Supreme Court will police the threshold question whether § 801.50(4m) applies.
  • Potential narrowing of the three‑judge‑panel pathway. If the court ultimately reads “apportionment” narrowly or holds that § 801.50(4m) does not reach challenges to court‑ordered maps, redistricting challenges may have to proceed either as ordinary circuit‑court cases (subject to constitutional constraints the dissent stresses) or as original actions in the Supreme Court.
  • Constitutional supremacy vs. statutory routing. The dissent tees up a separation‑of‑powers confrontation: Can the Legislature mandate that circuit courts (via three‑judge panels) hear challenges to a map the Supreme Court itself adopted? Or does the Supreme Court’s superintending authority preclude any lower‑court revisitation of its judgments? The court’s resolution will shape the permissible forums for future map litigation.
  • Finality and reliance interests. The concurrence emphasizes that the congressional map has governed multiple elections and has withstood repeated attempts at reconsideration. That theme may influence whether and how the court allows further litigation to proceed.
  • Procedural rigor for nonparties. The order’s instruction to the “Congressmen” makes clear that informal correspondence will not suffice. Anyone seeking a voice must file a motion to intervene or seek amicus status, with the requisite showings under the rules.
  • Election administration timelines. Though the court did not address timing beyond briefs, the simultaneous briefing schedule indicates an intent to reach the threshold question promptly, likely with an eye toward ensuring stability for upcoming election cycles if the case were to move forward.

Complex Concepts Simplified

  • Apportionment vs. Redistricting vs. Reapportionment. Apportionment refers to how many seats are assigned—across states (for Congress) or among districts (within a state legislature). Redistricting is drawing the lines of the districts themselves. Reapportionment often refers to post‑census adjustments in the number of seats or distribution among districts. The statutes here refer to an “action to challenge the apportionment of a…district,” raising the question whether the Legislature used “apportionment” broadly (including line‑drawing disputes) or narrowly (seat allocation).
  • Three‑Judge Panel (Wis. Stat. § 751.035). A special state‑law mechanism in which the Supreme Court appoints three circuit judges to hear certain apportionment challenges, centralizing venue and expediting review—analogous to federal three‑judge panels in some redistricting cases.
  • Superintending Authority. Under the Wisconsin Constitution (art. VII, § 3), the Supreme Court has broad supervisory and administrative authority over all lower courts. Among other things, it means that circuit courts cannot overrule the Supreme Court; only the Supreme Court can modify its own judgments.
  • Collateral Attack. An attempt to undermine or relitigate a final judgment in a separate proceeding rather than through direct appeal or authorized post‑judgment relief. The dissent characterizes the circuit‑court challenges to Johnson II as impermissible collateral attacks on the Supreme Court’s judgment adopting the congressional map.
  • Venue vs. Jurisdiction. Venue concerns the proper location for a case; jurisdiction concerns a court’s power to hear the case at all. The dissent emphasizes that § 801.50(4m) (a venue statute) cannot confer authority on a circuit court to review a Supreme Court judgment, because jurisdictional hierarchies are set by the Constitution.
  • Least‑Change Approach. The remedial standard the Supreme Court applied in Johnson I when forced to draw maps due to a political impasse, minimizing deviations from prior maps absent a legally cognizable defect, and avoiding partisan considerations where they do not implicate justiciable rights.

Conclusion

The Wisconsin Supreme Court’s order in Wisconsin Business Leaders for Democracy v. WEC does not decide the merits of the congressional map challenge. Instead, it signals a pivotal procedural rule: the court will decide, as a threshold matter, whether a redistricting complaint falls within Wis. Stat. § 801.50(4m)’s “apportionment” rubric before appointing a three‑judge circuit‑court panel under § 751.035(1). That gatekeeping stance, together with the court’s insistence on formal intervention or amicus motions for nonparties, tightens the procedural discipline around high‑stakes map litigation.

The concurrence underscores finality and warns against reopening settled mapping choices made under Johnson II, while the dissent presses a hard constitutional line: the Legislature cannot require circuit courts to revisit a Supreme Court judgment, and these cases should therefore be dismissed now. How the court resolves the definitional “apportionment” question—and whether it reaches the constitutional clash—will shape the trajectory of redistricting litigation in Wisconsin. At a minimum, this order announces that the Supreme Court, not the parties or clerks, will determine when the three‑judge‑panel pathway is available and on what terms.

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