Wisconsin Supreme Court May Treat a “Notice of Appeal” as Sufficient to Invoke Review of a Three‑Judge Apportionment Panel and Apply Court of Appeals Procedures by Default

1. Introduction

Case: Elizabeth Bothfeld v. Wisconsin Elections Commission, No. 2026AP1168 (Wis. June 11, 2026).
Context: Plaintiffs-appellants Elizabeth Bothfeld et al. (collectively, “Bothfeld”) sought review of a March 31, 2026 decision by a three-judge panel dismissing their complaint in Dane County Case No. 2025CV2432.
Key procedural issue: Intervenors-defendants-respondents Billie Johnson et al. (“Johnson Intervenors”) moved to dismiss because Bothfeld filed a notice of appeal rather than a petition for review, arguing Bothfeld failed to file the required petition within 30 days under WIS. STAT. § 808.10.
Statutory backdrop: The dispute turns on how to understand WIS. STAT. § 751.035(3), which states that an “appeal” from a panel order or decision “may be heard by the supreme court and may not be heard by a court of appeals.”

2. Summary of the Opinion (the Court’s Order)

The Wisconsin Supreme Court denied the Johnson Intervenors’ motion to dismiss. Although the court acknowledged an “unresolved question” whether an appeal from a three-judge panel in an apportionment challenge is as of right or discretionary under WIS. STAT. § 751.035(3), it held the question was unnecessary to decide because the result would be the same either way: the court would hear the case.

The court further ordered that, unless it later orders otherwise, the procedural rules that ordinarily govern court of appeals practice will apply to this supreme court matter (e.g., docketing statement, transcript statement, briefing deadlines), citing WIS. STAT. § (Rule) 809.63.

3. Analysis

3.1. Precedents Cited

  • State ex rel. Greenway v. Cnty. Ct. of St. Croix Cnty., 32 Wis. 2d 6, 10, 144 N.W.2d 569 (1966)
    The majority relied on Greenway for a restraint principle: when resolving a statutory interpretation question is unnecessary to the outcome, the court may decline to decide it. Here, rather than definitively interpreting whether “appeal” in WIS. STAT. § 751.035(3) creates an appeal as of right or a discretionary route, the court avoided a holding and proceeded to hear the matter regardless.
  • Wisconsin Business Leaders for Democracy v. Wis. Elections Comm'n, No. 2026AP1008, unpublished order, ¶¶3-18 (Wis. May 29, 2026) (Ziegler, J., dissenting)
    In dissent, Chief Justice Ziegler invoked her recent dissent in this unpublished order as a parallel critique: the court is accepting review without sufficient jurisdictional/threshold analysis, suggesting a pattern.
  • Bothfeld v. WEC, 2025 WI 53, 418 Wis. 2d 545, 27 N.W.3d 508 (Ziegler, J., dissenting) and Bothfeld v. WEC, No. 2025XX1438, unpublished order (Wis. Sept. 25, 2025) (Ziegler, J., concurring)
    The dissents use these prior writings to argue the case should not have been routed through the three-judge panel mechanism and to question whether the claim is cognizable given existing redistricting precedent.
  • Johnson v. WEC, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469 (“Johnson I”) and Johnson v. WEC, 2022 WI 14, 400 Wis. 2d 626, 971 N.W.2d 402 (“Johnson II”), summarily rev'd sub nom. Wis. Legislature v. Wis. Elections Comm'n, 595 U.S. 398 (2022) (per curiam), plus Johnson v. WEC, 2022 WI 19, 401 Wis. 2d 198, 972 N.W.2d 559 (“Johnson III”)
    These decisions operate as the substantive gravitational center of the dissents. They are cited for two propositions: (1) Johnson I rejected a justiciable right based on partisan fairness (“the partisan makeup of districts does not implicate any justiciable or cognizable right”), and (2) Johnson II adopted Governor Evers’ congressional map (while its state legislative maps were summarily reversed by SCOTUS on Voting Rights Act grounds), leaving the congressional map intact—an important point in the dissents’ argument that the panel could not grant the relief sought.
  • Grothman v. WEC, 142 S. Ct. 1410 (2022)
    Cited in dissent to show that the United States Supreme Court declined to review a challenge to the Johnson II congressional map, supporting the dissents’ theme that repeated relitigation should be resisted.
  • Hollingsworth v. Perry, 570 U.S. 693, 700 (2013) and Gill v. Whitford, 585 U.S. 48, 73 (2018)
    The Ziegler dissent uses these federal cases to argue for a more rigorous threshold inquiry into jurisdiction/standing before accepting merits review—analogizing Wisconsin’s procedure to federal three-judge-court review practice and emphasizing gatekeeping as a separation-of-powers safeguard.
  • Trump v. Biden, 2020 WI 91, ¶113, 394 Wis. 2d 629, 951 N.W.2d 568 (citing Wis. Small Bus. United, Inc. v. Brennan, 2020 WI 69, ¶11, 393 Wis. 2d 308, 946 N.W.2d 101), plus Clarke v. WEC, 2023 WI 79, ¶37, 410 Wis. 2d 1, 998 N.W.2d 370 and Hawkins v. WEC, 2020 WI 75, ¶5, 393 Wis. 2d 629, 948 N.W.2d 877 (per curiam)
    These cases are cited in dissent to frame a potential laches problem (delay plus prejudice) that, in the dissent’s view, the majority should confront before hearing the appeal.
  • Jensen v Wis. Elections Bd., 2002 WI 13, ¶10, 249 Wis. 2d 706, 639 N.W.2d 537
    Cited for the proposition that redistricting is “inherently political,” reinforcing the dissent’s caution against judicial overreach into political questions.
  • Moore v. Harper, 600 U.S. 1, 36 (2023)
    Cited in the R.G. Bradley dissent to argue state courts may not exceed “ordinary bounds of judicial review” in a manner that usurps the legislature’s authority over federal elections under the Elections Clause.
  • Voces de la Frontera, Inc. v. Gerber, No. 2025AP2121-OA, unpublished order
    Justice Hagedorn’s separate writing cites this (and Wis. Business Leaders for Democracy v. WEC) to explain internal court practices: orders like this typically do not reveal individual votes, so silence is not assent.

3.2. Legal Reasoning

The majority’s operative reasoning is procedural and pragmatic:

  1. Unresolved statutory meaning acknowledged, but avoided.
    The court expressly notes it has not previously interpreted WIS. STAT. § 751.035(3) and recognizes uncertainty over whether “appeal” denotes an appeal as of right or discretionary review.
  2. Outcome-driven avoidance under Greenway.
    Invoking State ex rel. Greenway v. Cnty. Ct. of St. Croix Cnty., the court holds it need not decide the right-vs-discretion question because it would hear the case either way.
  3. Functional treatment of the filing.
    Even if review is discretionary, the court will treat Bothfeld’s “notice of appeal” as sufficient—either as the initiating document for an appeal as of right or as a functional petition requesting discretionary acceptance.
  4. Procedural default rule: apply court of appeals mechanics.
    The court selects administrative clarity by importing the court of appeals’ procedural framework via WIS. STAT. § (Rule) 809.63, absent future contrary order.

The dissents critique what the majority did not do: a transparent explanation of jurisdiction, standards for accepting review, cognizability of the claim, and equitable defenses like laches. They also emphasize that the three-judge panel—characterized as exercising “circuit court” authority—could not override controlling Wisconsin Supreme Court precedent (especially Johnson I and Johnson II), making the path of the case appear, in the dissents’ view, structurally mismatched to the relief sought.

3.3. Impact

  • Procedural access clarified (practically, if not doctrinally).
    Litigants seeking Wisconsin Supreme Court review of a three-judge apportionment panel decision gain a concrete signal: a filed “notice of appeal” may be accepted as sufficient to invoke review (or treated as a functional request for discretionary review) even amid statutory ambiguity.
  • Procedural uniformity and predictability.
    By applying court of appeals procedures under WIS. STAT. § (Rule) 809.63, the court reduces uncertainty about briefing schedules and filing steps in a posture that otherwise does not fit neatly into ordinary supreme court practice.
  • Doctrinal ambiguity preserved.
    Because the court declined to resolve whether review is as of right or discretionary under WIS. STAT. § 751.035(3), future litigants may continue to argue over the correct jurisdictional vehicle (notice of appeal vs petition), time limits, and the applicable acceptance standards.
  • Heightened scrutiny of redistricting litigation pathways.
    The dissents frame the decision as implicating separation of powers, justiciability, and the boundary between “appeals” and “original actions.” Even without a merits holding, the order may shape how parties strategically plead redistricting disputes and choose procedural routes.

4. Complex Concepts Simplified

  • “Appeal as of right” vs “discretionary review.”
    An appeal as of right means the court must hear the case if the party follows the correct steps. Discretionary review means the court chooses whether to take the case.
  • Notice of appeal vs petition for review.
    A notice of appeal typically starts an appeal automatically. A petition for review typically asks a higher court to accept a case at its discretion. The dispute here was whether Bothfeld used the wrong “starter” document and missed a statutory deadline.
  • Three-judge panel in apportionment/redistricting challenges.
    Wisconsin law routes certain redistricting disputes to a special three-judge panel. The statute at issue says the court of appeals cannot hear appeals from that panel, and the supreme court “may” hear them.
  • Laches.
    Laches is an equitable defense: if a plaintiff waits too long to sue and the delay prejudices the other side (or the public administration of elections), a court may deny relief even if the claim might otherwise be arguable.
  • Justiciability/cognizable claim.
    A claim is “cognizable” if the law recognizes it as one courts can decide and remedy. The dissents argue Johnson I forecloses certain partisan-gerrymandering theories as nonjusticiable under Wisconsin law.

5. Conclusion

This order establishes a practical procedural rule for WIS. STAT. § 751.035(3) cases: the Wisconsin Supreme Court may proceed to hear review from a three-judge apportionment panel even when the appellant files a notice of appeal rather than a petition for review, and it will, by default, apply court of appeals procedural rules under WIS. STAT. § (Rule) 809.63.

At the same time, the court leaves unresolved the deeper interpretive question—whether such review is as of right or discretionary. The dissents spotlight the costs of that restraint: continued uncertainty about jurisdictional standards, the proper screening of redistricting disputes, and whether equitable doctrines like laches should be addressed at the threshold. The decision’s immediate significance therefore lies less in redistricting substance than in how Wisconsin’s highest court will manage—and be asked to justify—its gatekeeping role in high-stakes election litigation.