Reinforcement of Procedural Rigors for Original Actions and Non-Party Amicus Briefs under Wisconsin Supreme Court Practice

Introduction

In Elizabeth Bothfeld et al. v. Wisconsin Elections Commission et al. (No. 2025AP996-OA), the Wisconsin Supreme Court addressed a petition for leave to commence an original action challenging congressional redistricting maps. The Court’s order of May 15, 2025, establishes firm deadlines for the respondents’ answer, sets out rigorous requirements for non-party amicus briefs under Wis. Stat. § 809.19(7), and mandates that all participating Wisconsin-bar attorneys “opt in” to the case in the electronic filing system. Justice Rebecca Grassl Bradley dissented, invoking prior redistricting decisions (Johnson II; Clarke) and United States Supreme Court precedent (Caperton v. Massey) to criticize what she saw as partisan attacks on the Court’s integrity.

Summary of the Judgment

The Court grants leave for petitioners to file an original action and directs the Wisconsin Elections Commission (and other respondents) to file a formal response by June 5, 2025.
Non-parties seeking to file amicus briefs must move for leave under Wis. Stat. § 809.19(7), attaching a proposed brief (≤ 20 monospaced pages or ≤ 4,400 proportional‐font words) by June 6, 2025.
All Wisconsin-licensed attorneys participating must opt in to the case via the appellate court e-filing system no later than May 22, 2025.
Justice Bradley’s dissent argues these petitions seek to relitigate issues decided in Johnson v. WEC (2022) and Clarke v. WEC (2023), warns of undue politicization, and invokes Caperton v. Massey to stress judicial impartiality concerns.

Analysis

Precedents Cited

Johnson v. WEC (2022 WI 14): The Court adopted Governor Evers’s proposed congressional map. Those claims remain settled; Justice Bradley notes this Court declined to revisit Johnson II in an unpublished March 2024 order.
Clarke v. WEC (2023 WI 79): A majority redrew state legislative maps; the dissent decried a legislative “usurpation.” Bradley contends petitioners recycle Clarke’s failed arguments.
Caperton v. Massey (556 U.S. 868 (2009)): Establishes the due-process standard for recusal where the “probability of actual bias” is “too high.” Bradley cites this decision to underscore concerns about justices campaigning on issues they later decide.
Miller v. Carroll (2020 WI 56): Applies the Caperton standard verbatim to social-media contacts; clamps down on judge-litigant interactions that may violate due process.

Legal Reasoning

The Court’s order does not address the substantive redistricting merits but instead reinforces procedural prerequisites for original jurisdiction actions:

Original Actions: Under Wis. Stat. § 809.70, the Supreme Court may grant leave to file petitions directly in the highest court. Deadlines ensure expedition and fairness.
Amicus Curiae Regulation: Wis. Stat. § 809.19(7) limits non-party submissions to 20 monospaced pages or 4,400 proportional-font words, and requires leave. This guards against voluminous, unvetted briefs while preserving outside perspectives.
Attorney Participation: Mandatory “opt-in” for Wisconsin-bar attorneys ensures the Court’s docket control, electronic‐service accuracy, and proper service of process and notices to counsel.
Dissent’s Due-Process Concern: Invoking Caperton and Miller, the dissent warns of decisions made by justices who have already signaled positions during highly partisan campaigns, threatening judicial impartiality and public confidence.

Impact

This order clarifies and reaffirms several procedural norms that shape original actions and amicus participation in Wisconsin’s highest court:

It underscores the Supreme Court’s commitment to prompt resolution of politically charged petitions by imposing strict, non-extendable deadlines.
It standardizes the amicus-brief process, preventing potential “brief flooding” by interest groups, and aligning with comparable federal and state high-court practices.
By requiring electronic opt-in by all counsel, the Court enhances transparency and service reliability in e-filing—an increasingly vital feature of modern appellate practice.
Although the order is procedural, Justice Bradley’s dissent signals continued friction over redistricting and judicial impartiality, portending further litigation and possibly future recusal motions under the Caperton framework.

Complex Concepts Simplified

Original Action: An application filed directly in the Supreme Court—bypassing lower courts—for extraordinary relief (e.g., redistricting challenges).
Amicus Curiae: “Friend of the court”—a non-party allowed to file briefs offering specialized knowledge or perspectives relevant to a case.
Caperton Standard: A due-process rule requiring recusal when the probability of actual bias is intolerably high, established by the U.S. Supreme Court in Caperton v. Massey.
Opt-In Requirement: A procedural rule mandating that all attorneys formally register their participation in a case through the court’s electronic filing system to ensure they receive filings and notices.

Conclusion

Bothfeld v. Wisconsin Elections Commission does not itself redraw maps or decide redistricting merits. Instead, it cements a rigorous framework for original petitions: setting prompt response dates, codifying amicus-brief protocols under Wis. Stat. § 809.19(7), and mandating electronic service compliance. This procedural ruling will expedite highly sensitive election-law disputes and streamline participation by non-parties and counsel. At the same time, Justice Bradley’s dissent underscores enduring concerns about judicial independence, partisan influence, and the proper application of due-process recusal standards. Practitioners should note the deadlines and brief-format constraints, and remain alert to potential recusal issues under the Caperton due-process test in future election-law litigation.