Wisconsin Business Leaders for Democracy v. Wisconsin Elections Commission

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do not comment at this early stage on the parties' legal theories, or try to develop arguments in favor of one side or another. But see Justice Ziegler's dissent, ¶¶7-16. Instead, we must—as a majority of this court does—stick to our neutral role, and let the parties argue their case before we render judgment. When the time comes to issue our decision, we will follow the law wherever it leads. Accordingly, I respectfully concur. ANNETTE KINGSLAND ZIEGLER, J., with whom REBECCA GRASSL BRADLEY, J. joins, dissenting.

¶3 Today, my colleagues have decided, without any analysis, to hear the appeal filed by the Wisconsin Business Leaders for Democracy, et al. (collectively hereinafter "WBLD"), appealing the April 28, 2026 decision of the three-judge panel dismissing its complaint. I dissent from the court's decision to accept review of this matter for this reason, and a number of the reasons stated in my prior writings in this matter. See WBLD v. WEC, 2025 WI 52, 418 Wis. 2d 515, 27 N.W.3d 522 (Ziegler, J., dissenting) (published order appointing three-judge panel); WBLD v. WEC, No. 2025XX1330, unpublished order (Wis. Sept. 25, 2025) (Ziegler, J., concurring) (reluctantly agreeing with order for briefing on whether WBLD's complaint filed in circuit court constituted an action to challenge apportionment of a congressional or state legislative district under WIS. STAT. § 801.50(4m)). Whether WBLD has a right to appeal is, at a minimum, questionable. The court's actions thus far in this unique and unprecedented case, unfortunately, have the taint of judicial activism, evidencing a lack of restraint. Before granting this appeal, we should stop and consider whether WBLD has stated a cognizable claim and whether we can even provide the relief that WBLD seeks. Continuing to entertain this newfound theory, and now affording an appeal, for a map that was implemented some time ago and has been repeatedly used in elections, smacks of judicial overreach and should raise eyebrows. Making matters worse, unlike many matters of the court, this order will not be published, thus limiting accessibility of the public. In a matter like this, which is an unprecedented matter of public import, every effort should be made to make the public aware of this issue. Because this case is in such a highly unusual procedural posture, this order should be published and readily available to the public. ¶4 Like sending this case to the panel, our court's review of the panel's dismissal seems to be, at best, unnecessary make work. Because the panel could not overturn our precedent regarding the map at issue, the panel had no choice but to dismiss WBLD's creative pleading. Moreover, our court too has previously and repeatedly denied further consideration of the court's adopted congressional map, as was drawn by Governor Evers. One would certainly hope that the majority is not entertaining the notion

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of revisiting and perhaps even redrawing congressional maps, but it begs the question:

Why else would this appeal be heard?

¶5 With a shocking lack of hesitation, a majority of our court now accepts review of the panel's dismissal. It does so without even a word of analysis about jurisdiction, whether there exists a cognizable claim or whether there is a right to appeal. The appeal is granted without a transparent application of our criteria for review. If in reality the court wishes to review Johnson I and II,¹rather than whether the panel's dismissal was proper, it has engaged in legal shenanigans, transforming this case into an original action under the guise of an appeal. If this is indeed the case, WIS. STAT. § 801.50(4m) was not the proper avenue to pursue. Others have tried to attack the Evers' congressional map by filing original actions, but those have been consistently denied. See infra, ¶6. In short, the incongruous nature of this case is demonstrated by the fact that the panel could never grant the relief being sought, but yet the case was sent to it. And, even if the court were to somehow determine that the panel was incorrect to dismiss the complaint, the panel would be in the same predicament, constrained by the Johnson I and II decisions.

¶6 From the start, sending this matter to the panel was improper because the panel was not constitutionally empowered to overturn our precedent. On this congressional map, we have spoken. In accordance, the panel concluded:

The Wisconsin Supreme Court has held that claims of the sort [WBLD] allege[s] are not actionable under Wisconsin law, and this panel, as an inferior tribunal exercising the powers of a circuit court, has no authority to modify or overrule that precedent. . . . The panel is left with no option but to dismiss [WBLD's] claims.

¶7 The three-judge panel's dismissal order was not only predictable, but it was constitutionally required. Despite knowing this constitutional fact to be true, the

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majority, nonetheless, adopted WBLD's request to send this matter to the panel even though the majority could not have expected a different result. And how could they?

WBLD has not explained how its new legal theory is supported in the law or how the panel could possibly grant the requested relief. And, our court is not requiring any such showing or consideration. Specifically, WBLD's complaint requested that the panel declare the current congressional map, proposed and drafted by Governor Evers, to be unconstitutional. It also asked the panel to adopt a new congressional map, despite the fact that this court already adopted the Governor's map in Johnson II. See WBLD v. WEC,

418 Wis. 2d 515 (Ziegler, J., dissenting); WBLD v. WEC, No. 2025XX1330 (Ziegler, J., concurring). The allegations WBLD makes are that the Democratic governor proposed a congressional map, that is "anti-competitive," against his own party. In other words, WBLD is asking this court, under an unknown legal theory, to make the Democratic governor's map even more Democratic. The majority does not require anything more about how this new theory could be grounded in the law or how it might differ from previous partisan gerrymandering challenges. Regardless, a majority of this court assented to WBLD's request, even though we have repeatedly denied requests to reconsider the imposition of Governor Evers' congressional map. ¶8 To be clear, this court has decided that Governor Evers' congressional map, adopted in Johnson II, would not be reviewed—four times. Johnson v. WEC, No. 2021AP1450-OA, unpublished order (Wis. Apr. 15, 2022) ("[T]he motion . . . for reconsideration of this court's March 3, 2022 opinion and order . . . is denied."); Johnson

v. WEC, No. 2021AP1450-OA, unpublished order (Wis. Mar. 1, 2024) ("[The] motion for relief from judgment is denied."); Bothfeld v WEC, No. 2025AP996-OA, unpublished order (Wis. June 25, 2025) ("[T]he petition for leave to commence an original action is denied."); Felton v WEC, No. 2025AP999-OA, unpublished order (Wis. June 25, 2025) ("[T]he petition for leave to commence an original action is denied."). The United States Supreme Court also declined to review a challenge to the Johnson II congressional map. Grothman v. WEC,

142 S. Ct. 1410 (2022). And, when the court decided the Johnson cases,²it was because an impasse existed between the legislature and the governor. We do not have that problem

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now, and we are many years and several elections down the road. Unlike when the Johnson cases arose, our court is not faced with an impasse between the other branches which are constitutionally tasked with map drawing, nor is there the undeniable need for maps because of impending elections. How does WBLD reconcile that distinction here?

¶9 Moreover, WBLD has yet to explain how this court has jurisdiction to hear this challenge. Wisconsin's statute indeed resembles 28 U.S.C. § 1253 in the federal system. Like Wisconsin's provision, under that federal statute, the United States Supreme Court "may" accept an appeal of a final order from a three-judge panel. 28 U.S.C. § 1253. Unlike Wisconsin, in Supreme Court appeals, the appellant must file a jurisdictional statement. U.S. Sup. Ct. R. 18.3. This ensures that the party is properly before the Court as it "ensures that we act as judges, and do not engage in policymaking properly left to elected representatives." Hollingsworth v. Perry, 570 U.S. 693, 700 (2013). After considering its jurisdiction, the Court may dispose of the case or order briefing on the Court's jurisdiction and the appellant's standing. See, e.g., Gill v. Whitford, 585 U.S. 48, 73 (2018) (remanding the case to the district court to brief standing). If we are to employ this procedure, we should require more before granting the appeal.

¶10 And WBLD has yet to explain why the court should once again implement a new map (and whose map) when there has been no constitutional impasse. As tempting as it might be, it is not our constitutional responsibility to draw maps, particularly when it comes to federal congressional maps. The Constitution vests redistricting responsibility exclusively in "the Legislature thereof." U.S. Const. Art. I, § 4. The role of Wisconsin courts in congressional redistricting is also limited by the Wisconsin Constitution. And here, the court in Johnson I, 399 Wis. 2d 623, and Johnson II, 400 Wis. 2d 626, already held that Article I, sections 1 and 22 of the Wisconsin Constitution do not impose limits on redistricting; rather, the only constitutional constraints appear in Wis. Const. Art. IV, §§ 3, 4, and 5. Johnson I, 399 Wis. 2d 623, ¶¶53-63. Our court has already recognized that reading additional limits into Article I would violate basic interpretive principles and thrust the judiciary into a "political thicket" beyond its authority. Id., ¶63. This court would be wise to avoid traversing that briar patch. In other words, redistricting is not a judicial task, and it is "inherently political." Jensen v. Wis. Elections Bd., 2002 WI 13, ¶10,

249 Wis. 2d 706, 639 N.W.2d 537. ¶11 Notably, WBLD's allegations are essentially that the Democratic governor's congressional map, which this court accepted in Johnson II, is "anti-competitive" because it does not favor the Democratic Party enough. The majority requires no explanation of how Governor Evers drew maps that were anti-competitive against his own party. And,

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as a practical matter, for at least four years, elections have been conducted under the congressional map proposed by Democratic Governor Tony Evers and adopted by this court in Johnson II. 400 Wis. 2d 626, ¶52. Because WBLD seems to mount a collateral attack based upon a political plea rather than one rooted in law, our court should be particularly careful about weighing in again.

¶12 We should be asking WBLD: Why are you bringing this challenge now? Is this a recognized legal theory? Could the panel grant the relief you requested given our precedent? Is this another attack on the congressional map, like the original actions in the past, masquerading as a Wis. Stat. § 801.50(4m) case? Why is this case appropriate for us to hear now, on review of the panel's decision? How does this challenge survive laches given our precedent?

¶13 WBLD alleges that Wisconsin's congressional map is a holdover from "anti- competitive" 2011 maps. While this legal theory has lean support in the law, even if this is so, WBLD waited over 14 years and seven elections to bring this unprecedented request. Such delay would seem to be unreasonable, inexplicable, and highly prejudicial. According to our court's own words, "'[l]aches is an affirmative, equitable defense designed to bar relief when a claimant's failure to promptly bring a claim causes prejudice to the party having to defend against that claim.'" Trump v. Biden, 2020 WI 91, ¶113, 394 Wis. 2d 629, 951 N.W.2d 568 (Annette Kingsland Ziegler, J., dissenting) (quoting Wis. Small Bus. United, Inc. v. Brennan, 2020 WI 69, ¶11, 393 Wis. 2d 308, 946 N.W.2d 101). But, ostensibly, those principles seem to ring hollow in this case. ¶14 If this case were to be treated as past cases were, the court would undertake a laches analysis. See Clarke v. WEC, 2023 WI 79, ¶37, 401 Wis. 2d 1, 998 N.W.2d 370 (finding laches inapplicable to a lawsuit filed a year and half after Johnson III, 401 Wis. 2d 198); Trump v. Biden, 394 Wis. 2d 629, ¶3 (applying laches to dispose of 3 of 4 election challenges); Hawkins v. WEC, 2020 WI 75, ¶5, 393 Wis. 2d 629, 948 N.W.2d 877 (per curiam) (not applying laches to bar action filed two days after certification of candidates for election). Notably, even when no controlling precedent existed, the laches doctrine prompted dismissal. See Trump v. Biden, 394 Wis. 2d 629, ¶3. If the majority applied the same laches analysis here, these claims would seemingly be barred. But, alas, no such analysis occurs and it seems a different standard is being employed in this case, begging the question: Why?

¶15 What remains unknown, is how this case will develop. The panel essentially declared that, given Johnson I and II, it cannot act. ("Upon careful review of

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the law, the panel concludes . . . [t]he Wisconsin Supreme Court has held that claims of the sort [WBLD] allege[s] are not actionable under Wisconsin law, and this panel, as an inferior tribunal exercising the powers of a circuit court, has no authority to modify or overrule that precedent. . . . The panel is left with no option but to dismiss [WBLD's] claims."). We must now wait to see. But to be clear, accepting review without fully weighing and considering jurisdiction, whether this is a cognizable claim upon which relief could be granted by the panel, whether review is required or wise, our criteria for review, or the doctrine of laches, unnecessarily places this court in a political thicket. ¶16 Perhaps WBLD can explain these lingering questions. Until it does, WBLD's litigation seems to bring a political fight, which belongs in the partisan branches, to this court. Before our court steps into another map battle, we should demand that litigation be rooted in law and that it is a claim upon which relief could have been granted. If it is relief being sought by this court redrawing maps, that is more akin to an original action, which has been repeatedly decided the same way. To be clear, it matters not which political party is seeking different maps, we should be mindful of the difference between the need to act and the will to act. This lawsuit purports to advance the Democratic Party's position in elections by court, not legislative, action. Instead of welcoming this opportunity to overstep our boundaries, we should be particularly cognizant of the judiciary's role in reapportionment or redistricting, so not to tread on the constitutional domain of the other branches. And, in this political climate, especially when other states are reengaging in map drawing, and those battles are being fought in court,³our court

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should be wary of weighing in, particularly without analyzing whether it is required. Regardless of what might enhance the partisan political advantage of any political party, it comes at great cost to the judicial system and judicial independence. ¶17 It is indeed rare that I feel compelled to object to hearing a case. But here, I have concluded this is too important to stand silent. The public should be informed of the requests afoot and it should have the opportunity to stay abreast of these proceedings. And, of course, the briefing and arguments could cause me to conclude that this appeal was proper and relief should be granted. We shall see.

¶18 For all the foregoing reasons, the novel theory called "anti-competitive gerrymandering" should be not entertained by this court without further inquiry, of which the majority demands none. I respectfully dissent.

REBECCA GRASSL BRADLEY, J., dissenting.

¶19 An astonishingly activist court will once again revisit precedent it doesn't like in order to do the bidding of its political masters. The Democratic Party bought multiple seats on this court⁴to achieve yet another outcome unobtainable 2026, 4:18 PM), https://www.pbs.org/newshour/amp/politics/a-state-by-state-guide-to-the- redistricting-fight.

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democratically.⁵Like last time,⁶ the United States Supreme Court will likely reverse the majority's unlawful ruling and protect our Republic.⁷No kings. No queens either. facts of the legislative maps and not saying how she would decide any future case before the Wisconsin Supreme Court." Jason Calvi, Wisconsin Supreme Court

Race, District Map Possibly on the Line, FOX6 (March 26, 2025),

https://www.fox6now.com/news/wisconsin-supreme-court-race-redistricting-impact (emphasis added). Progressive candidates' recent campaign tactics are nothing more than gaslighting.

"To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it, to believe that democracy was impossible and that the Party was the guardian of democracy . . . . Even to understand the word 'doublethink' involved the use of doublethink."

GEORGE ORWELL, NINETEEN EIGHTY-FOUR 36 (Plume | Harcourt Brace Book 2003) (1949). Exhibiting a classic case of projection, Justice Rebecca Frank Dallet doubles down on doublethink in her attacks on the dissents. See Justice Dallet's Concurrence, ¶2. Joined by her progressive colleagues (as always), Justice Dallet denies prejudging this case and professes neutrality. No one is fooled. For the progressive majority in redistricting cases, the "law"

somehow always leads to victories for Democrats, at the expense of democracy. See generally Johnson v. Wis. Elections Comm'n, 2022 WI 14, 400 Wis. 2d 626, 971 N.W.2d 402 (Johnson II) (adopting Governor Tony Evers' proposed congressional map and state legislative maps and rejecting the legislature's), rev'd summarily sub nom., Wis. Legislature v. Wis. Elections Comm'n, 595 U.S. 398 (2022), and overruled by Clarke v. Wis. Elections Comm'n, 2023 WI 79, 410 Wis. 2d 1, 998 N.W.2d 370; Clarke, 410 Wis. 2d 1(adopting Governor Tony Evers' position and invalidating the legislature's redistricting maps).

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BRIAN K. HAGEDORN, J., writing separately. ¶20 This action comes to us in a unique posture. This case is not an original action filed in our court; rather, it is an ordinary circuit court case filed in Dane County. But because of the claims raised, a law passed in 2011 specified that the action must be heard not by a single circuit court judge, but by a panel of three circuit court judges selected by this court. WIS. STAT. § 801.50(4m); 751.035(1) (2023-24).⁸We appointed the panel, which then dismissed the action on the merits. The losing party has now appealed. ¶21 Ordinarily, a party has the right to appeal an adverse decision from the circuit court to the court of appeals. WIS. STAT. § 808.03(1). Once the court of appeals issues a decision, the losing party can ask this court to hear the case, which we may do at our discretion. WIS. STAT. § 809.62(1m)(a)1. A party can also petition to bypass the court of appeals and come straight to us, which we may grant or deny. WIS. STAT. § 808.05. According to our internal operating procedures, the vote of only three justices is sufficient to grant review in a normal petition for review, while four are needed to grant a petition for bypass.⁹And absent specification otherwise, the court can generally issue any order with the vote of four justices.

¶22 Yet the 2011 law governing this appeal specifies a different procedure—one we have not had occasion to apply. It states that an appeal of the decision "may be heard by the supreme court and may not be heard by a court of appeals for any district." WIS. STAT. § 751.035(3). This raises a question about whether this appeal is as of right—that is, one we must hear—or whether this court has discretion to hear or not hear the case. We do not address this issue, however, because a majority of the court has voted to hear this appeal regardless. The court's order thus reflects the internal vote of the court. ¶23 Unlike our final written opinions, orders of the court typically issue without notation of which justices voted for or against it—though this does not mean all justices were in accord. Disagreements are normal even though they are not usually made public. Historically, dissents to orders granting review in a case were rare, and declining to

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comment is still the default practice.¹⁰In recent years, however, such writings have become more common in cases involving unique and consequential issues. Most justices (including me) have at times weighed into the court's decision to hear a case. ¶24 The prevalence of this newer trend, however, could signal to the public that when a justice publicly dissents or comments, this means all justices are likewise expressing their views on the court's order. This inference would be incorrect. Therefore, I write separately to bring light to our standard practices, and to once again clarify that the failure to publicly dissent or comment on an order does not mean a justice agrees with the order.¹¹Justices regularly vote against granting review or disagree with other aspects of an order, while refraining from public comment at this stage of the litigation. Our internal operating procedures respect the right of justices to address the court's decision to hear a case, or to refrain from comment.

Samuel A. Christensen

Clerk of Supreme Court

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Distribution List:

Hon. David D. Conway (Elec. Notice) Jeff Okazaki (Electronic Notice) Luke N. Berg (U.S. Mail)

Nathalie E. Burmeister (U.S. Mail) T.R. Edwards (U.S. Mail)

Richard M. Esenberg (U.S. Mail) Matthew M. Fernholz (U.S. Mail) Charlotte Gibson (Electronic Notice) Ruth M. Greenwood (U.S. Mail) Karla Z. Keckhaver (Electronic Notice) Kevin M. LeRoy (U.S. Mail)

Jeffrey A. Mandell (U.S. Mail) Taylor A. R. Meehan (U.S. Mail) Douglas M. Poland (U.S. Mail) Nicholas Stephanopoulos (U.S. Mail) Misha Tseytlin (U.S. Mail)

Lucas Thomas Vebber (U.S. Mail) Daniel M. Vitagliano (U.S. Mail)