Introduction

In a procedural order with significant implications for how Wisconsin courts will handle post‑census map litigation, the Wisconsin Supreme Court, in a miscellaneous docket arising from Elizabeth Bothfeld v. Wisconsin Elections Commission, directed simultaneous briefing on a threshold question: whether the Dane County complaint is an “action to challenge the apportionment of a congressional or state legislative district” under Wis. Stat. § 801.50(4m). The Court deferred the automatic appointment of a three‑judge circuit court panel under Wis. Stat. § 751.035 until that statutory predicate is satisfied and declined to act on requests from non‑parties (a group of Congressmen and voters) absent a formal motion to intervene or for amicus participation.

The order is accompanied by a concurrence from Justice Annette Kingsland Ziegler emphasizing caution and finality in redistricting matters, and a dissent from Justice Rebecca Grassl Bradley arguing that any effort to revisit the Supreme Court’s 2022 adoption of the congressional map is an impermissible collateral attack that the Constitution forbids the circuit court to entertain at all.

Background and Parties

The case arises from a July 21, 2025, complaint filed in Dane County Circuit Court by Elizabeth Bothfeld and others against the Wisconsin Elections Commission (WEC), asserting that Wisconsin’s current congressional map violates the Wisconsin Constitution. On July 22, 2025, the Dane County Clerk of Courts notified the Wisconsin Supreme Court under Wis. Stat. § 801.50(4m), a venue statute that, when applicable, prompts the Supreme Court to appoint a three‑judge circuit court panel under § 751.035 to hear apportionment challenges.

The Supreme Court opened a miscellaneous case (No. 2025XX1438) to receive the notice and the complaint, and then issued the present order on September 25, 2025. Although a group of Congressmen and voters sent correspondence seeking to be deemed intervenors, the Court clarified they are not parties in the miscellaneous matter and must formally move to intervene or seek leave to appear as amici.

Summary of the Opinion (Order)

• Threshold Briefing Required: Within 14 days, the parties must file simultaneous briefs addressing whether the complaint constitutes an “action to challenge the apportionment of a congressional or state legislative district” under § 801.50(4m). Simultaneous response briefs are due within seven days of the initial briefs.
• No Automatic Panel Appointment: The Court did not immediately appoint a three‑judge circuit court panel under § 751.035; instead, it will first determine whether the case falls within § 801.50(4m)’s scope.
• Non‑Party Correspondence: The Court will take no action on requests made by the “Congressmen” via correspondence. If they wish to be heard, they must file a motion to intervene or for leave to participate as amici.

Concurrence (Ziegler, J.): Agrees with obtaining briefing but emphasizes that redistricting is primarily a legislative/executive function; warns against reopening settled congressional maps adopted by the Court in 2022 and used in multiple elections; and urges the parties to explain why relief is warranted after years of finality and repeated denials of similar claims.

Dissent (R.G. Bradley, J.): Argues that the Wisconsin Constitution’s superintending authority makes the Supreme Court’s 2022 adoption of the congressional map a final judgment not reviewable by lower courts; therefore, the circuit court must dismiss and the Supreme Court should not appoint any panel—indeed, it should dismiss the actions outright.

Analysis

A. The Statutory Framework and the Court’s Gatekeeping Move

The venue statute, Wis. Stat. § 801.50(4m), requires the circuit clerk to notify the Supreme Court within five days after “an action to challenge the apportionment of a congressional or state legislative district” is filed. Upon receiving such notice, § 751.035 provides that “the supreme court shall appoint a panel consisting of 3 circuit court judges to hear the matter.” Read together, these provisions create a specialized forum and venue mechanism for certain redistricting litigation.

The key question—now squarely posed by the Court’s order—is whether a lawsuit claiming the unconstitutionality of existing congressional district boundaries qualifies as an “action to challenge the apportionment” within the meaning of § 801.50(4m). The Court’s decision to require briefing before appointing a panel is a significant procedural clarification: the Supreme Court will exercise gatekeeping to determine statutory applicability before triggering the mandatory panel appointment provision. In doing so, the Court signals that notice from the clerk does not, by itself, automatically compel the appointment of a three‑judge panel; the action must in fact be the kind of “apportionment” challenge the statute contemplates.

B. Precedents and Authorities Cited

• Johnson v. WEC, 2021 WI 87 (Johnson I): Established the Court’s remedial framework a decade after the census—intervention only to remedy a violation of cognizable rights under the U.S. Constitution, the Voting Rights Act, or Article IV, §§ 3–5 of the Wisconsin Constitution; rejection of partisan‑makeup considerations as non‑justiciable; and adoption of a “least‑change” approach to remedy infirmities in existing maps.
• Johnson v. WEC, 2022 WI 14 (Johnson II): The Court adopted Governor Evers’ congressional map, which has governed multiple election cycles. The Court denied reconsideration; and the U.S. Supreme Court denied a requested stay (Grothman v. WEC, 142 S. Ct. 1410 (2022)). Although the U.S. Supreme Court reversed the state legislative maps on VRA grounds, it left the congressional map intact (Wis. Legislature v. WEC, 595 U.S. 398 (2022) (per curiam)).
• Johnson v. WEC, 2022 WI 19 (Johnson III): On remand from the U.S. Supreme Court, the Wisconsin Supreme Court adopted the Legislature’s state legislative maps.
• Clarke v. WEC, 2023 WI 79: The Court later held the then‑operative state legislative maps violated Wisconsin’s constitutional seamless‑contiguity requirement and ordered remedial maps for 2024, while no challenge was brought to the congressional maps.
• Jensen v. Wisconsin Elections Board, 2002 WI 13, ¶5 n.2: Explains a distinction in terminology—“reapportionment” (allocating seats) versus “redistricting” (drawing boundaries). This definitional distinction is central to whether § 801.50(4m)’s “apportionment” phrasing encompasses a boundary‑challenge to congressional districts.
• Superintending Authority and Hierarchy Cases: Madison Teachers, Inc. v. Walker, 2013 WI 91; State ex rel. J.H. Findorff & Son, Inc. v. Circuit Court for Milwaukee County, 2000 WI 30 (concurring); State ex rel. Fourth Nat. Bank of Philadelphia v. Johnson, 103 Wis. 591 (1899); Gabler v. Crime Victims Rights Board, 2017 WI 67; City of Eau Claire v. Booth, 2016 WI 65; State v. Arberry, 2017 WI App 26, aff’d, 2018 WI 7; Cook v. Cook, 208 Wis. 2d 166. The dissent relies heavily on these authorities to argue that circuit courts cannot review a final Supreme Court judgment adopting a congressional map, and that statutes cannot diminish the Supreme Court’s constitutional superintending power.

C. The Court’s Legal Reasoning (as Reflected in the Order and Opinions)

The per curiam order itself is terse but impactful: it requires a threshold statutory analysis before activating § 751.035’s panel‑appointment mechanism. Implicit in this approach are two strands of legal reasoning:

• Textual Threshold: The Court must interpret § 801.50(4m)’s “action to challenge the apportionment” language to determine whether the complaint sounds in “apportionment” as the statute uses that term. The reference in Jensen to a technical distinction between “apportionment” and “redistricting” may be central. If the legislature used “apportionment” term‑of‑art narrowly (seat allocation), a boundary challenge may fall outside § 801.50(4m). If “apportionment” is read broadly as including the creation or revision of districts, then the statute applies.
• Institutional Gatekeeping: By not appointing a three‑judge panel immediately, the Court asserts its superintending authority to determine whether this specialized statutory mechanism is available in the first place. This is consistent with the Court’s constitutional role to manage the judicial system and ensure statutes operate within their intended scope.

The separate writings sharpen the constitutional and prudential context:

• Concurrence (Ziegler, J.): Stresses finality, separation of powers in redistricting, and the “least‑change” remedial principles of Johnson I. She catalogues repeated denials of efforts to disturb the congressional map, underscoring that relief now would require a compelling justification. Her concurrence does not reject briefing but warns that briefing “should not be confused with” the availability of relief.
• Dissent (R.G. Bradley, J.): Asserts that circuit courts lack authority to review a Supreme Court’s final adoption of a congressional map (Johnson II) and that any action purporting to do so is an unconstitutional collateral attack. On this view, the only permissible course is dismissal; there is no room even for a threshold statutory inquiry, given the constitutional hierarchy and the Supreme Court’s superintending authority.

D. What Counts as an “Action to Challenge the Apportionment”?

The briefing the Court has ordered will likely center on four interpretive questions:

• Term‑of‑Art vs. Ordinary Meaning: Does “apportionment” in § 801.50(4m) carry the technical meaning highlighted in Jensen (seat allocation) or the broader, colloquial sense encompassing how a state divides its population into districts (i.e., redistricting)?
• Statutory Setting and Purpose: The structure of §§ 801.50(4m) and 751.035 suggests the legislature crafted a special forum for politically sensitive districting litigation. Read purposively, confining the statute only to cases reallocating seats (rare in a fixed nine‑seat congressional delegation) could nullify its effect for congressional cases.
• Prior Usage and Practice: To the extent Wisconsin litigation and legislative drafting have used “apportionment” and “redistricting” interchangeably outside of Jensen’s footnote context, a broader reading may be supported.
• Constitutional Avoidance and Harmony: A reading that preserves the Supreme Court’s superintending power and avoids conflict with the finality of Johnson II, while still giving effect to the panel‑appointment statute, may counsel recognizing a gatekeeping step (as the Court has done) and limiting the statute’s reach where it would function as a vehicle to collaterally attack a Supreme Court judgment.

E. Impact and Prospective Significance

• Immediate Procedural Impact: Litigants cannot assume that clerk notice under § 801.50(4m) automatically triggers a three‑judge panel. The Supreme Court will first decide whether the case fits the statute. This slows any immediate progression to three‑judge proceedings and places a dispositive statutory interpretation question at the forefront.
• Substantive Constraints Signal: The concurrence and dissent together send a strong signal of judicial skepticism about reopening congressional maps adopted as a remedy in Johnson II and used for multiple cycles. Even if the action is deemed an “apportionment” challenge for statutory purposes, constitutional and remedial‑principle hurdles remain.
• Intervention and Amicus Practice: The Court’s refusal to act on informal correspondence from would‑be intervenors clarifies that participation in such miscellaneous matters requires formal motion practice. This promotes procedural regularity and avoids ad hoc participation via letters.
• Future Redistricting Litigation: The order establishes a gatekeeping precedent likely to be cited in future map litigation, particularly where parties seek to use § 751.035 panel procedures. It also foregrounds the “apportionment” vs. “redistricting” distinction as a threshold filter in Wisconsin practice.
• Separation of Powers and Finality: The dissent’s constitutional critique will shape briefing and perhaps any subsequent opinions. If adopted in some form, it could significantly curtail efforts to relitigate Supreme Court‑ordered maps via circuit court mechanisms, even those authorized by statute.

Complex Concepts Simplified

• Apportionment vs. Redistricting: “Apportionment” can mean assigning legislative seats among districts or jurisdictions; “redistricting” is drawing or re‑drawing the boundaries. Some Wisconsin authorities (e.g., Jensen) treat the terms distinctly, which matters because § 801.50(4m) speaks only of “apportionment.” Other legal contexts use the terms more loosely.
• Three‑Judge Panel (§ 751.035): In specified cases, the Wisconsin Supreme Court appoints a panel of three circuit judges—each from a different circuit—and designates venue for all filings. This panel hears the case in the first instance, expediting resolution and diversifying judicial input.
• Venue vs. Jurisdiction: Venue concerns the location where a case should be heard; jurisdiction concerns a court’s power to hear it at all. Section 801.50(4m) is a venue statute; it does not itself confer or strip jurisdiction. The Wisconsin Constitution vests subject‑matter jurisdiction in circuit courts for all civil and criminal matters, but that jurisdiction must yield to constitutional constraints, including the finality of the Supreme Court’s judgments and its superintending authority.
• Superintending Authority: The Wisconsin Constitution (art. VII, § 3) grants the Supreme Court broad supervisory power over all courts. This includes managing procedures, issuing writs, and ensuring lower courts do not contravene Supreme Court judgments.
• Collateral Attack: An attempt to undermine or relitigate a final judgment in a new proceeding rather than through direct appeal or authorized post‑judgment relief. The dissent views the Bothfeld and related cases as collateral attacks on Johnson II, which adopted the congressional map as a final remedy.
• Least‑Change Approach: A remedial principle the Wisconsin Supreme Court applied in Johnson I, designed to respect legislative policy choices by adjusting existing maps only as necessary to cure legal defects, avoiding wholesale partisan re‑engineering.

Practical Guidance from the Order

• Briefing Schedule: Initial briefs are due within 14 days of the order (30 pages in monospaced fonts or 6,600 words in proportional serif fonts), with simultaneous response briefs due within seven days thereafter (15 pages/3,300 words).
• Party Status: Only the named parties (Bothfeld and WEC) may file the ordered briefs unless and until others obtain leave to intervene or appear as amici. Informal letters will not be treated as motions.
• Threshold Question Controls: Whether a complaint is an “action to challenge the apportionment” is now the gate that determines the availability of the three‑judge panel procedure in this case. Parties should address textual meaning, statutory purpose, precedent (especially Jensen’s footnote), and constitutional considerations.
• Preservation of Constitutional Arguments: Given the dissent, parties should anticipate and address the contention that circuit‑court proceedings cannot revisit Johnson II at all, irrespective of § 801.50(4m). Arguments should be framed to avoid a constitutional collision with the Supreme Court’s final judgment and superintending authority.

Contextual Timeline Highlighted by the Concurrence

• 2021 (Johnson I): Court sets remedial guardrails for post‑census map disputes.
• March 3, 2022 (Johnson II): Court adopts Governor Evers’ congressional map; U.S. Supreme Court summarily reverses the state legislative maps on VRA grounds but leaves the congressional map intact; requests for stay and reconsideration of the congressional map denied.
• 2022 and 2024: Wisconsin’s congressional elections proceed under the Johnson II map.
• 2023–2024 (Clarke and related proceedings): The Court invalidates state legislative maps on contiguity grounds; no contemporaneous challenge is lodged against congressional maps.
• 2024–2025: New efforts to challenge the congressional map via original actions are denied; in 2025, Bothfeld and other plaintiffs file in circuit court, prompting the present order.

Conclusion

The Wisconsin Supreme Court’s order in Bothfeld v. WEC establishes a practical and precedentially meaningful gatekeeping rule: clerk notice under § 801.50(4m) does not automatically trigger the appointment of a three‑judge circuit court panel under § 751.035. The Supreme Court will first decide whether the filed case is, in fact, an “action to challenge the apportionment” within the statute’s scope. At the same time, the Court clarified that non‑party correspondence cannot effect intervention or participation; formal motions are required.

The accompanying opinions tee up deeper constitutional and prudential questions. The concurrence underscores judicial restraint, finality, and the Court’s prior least‑change remedial framework; the dissent insists that any circuit‑court revisitation of Johnson II would be an unconstitutional collateral attack, requiring dismissal rather than statutory parsing. How the Court resolves the threshold “apportionment” question will shape the pathway for future map litigation. Whatever the outcome, this order reaffirms the Supreme Court’s superintending authority to manage redistricting litigation and to ensure that specialized statutory mechanisms operate within their intended—and constitutional—boundaries.