IT IS ORDERED that the motion to dismiss the appeal filed by the Johnson Intervenors is denied; and
IT IS FURTHER ORDERED that the rules that ordinarily govern procedures in appeals to the court of appeals will apply to this appeal, including the procedures for filing a docketing statement, for filing a statement on transcript, for establishing the deadlines for the filing of briefs, etc., unless otherwise ordered by this court in a future order. See WIS. STAT. § (Rule) 809.63.
ANNETTE KINGSLAND ZIEGLER, J., with whom REBECCA GRASSL BRADLEY, J., joins, dissenting.
¶1 Once again, my colleagues have decided, without any analysis, to hear the appeal filed by Elizabeth Bothfeld, et al. (collectively hereinafter "Bothfeld"), appealing the March 31, 2026 decision of the three-judge panel dismissing her complaint. I dissent from the court's decision to accept review of this matter for many of the same reasons that I disagree with hearing the appeal in Wisconsin Business Leaders for Democracy v. Wis. Elections Comm'n, No. 2026AP1008, unpublished order, ¶¶3-18 (Wis. May 29, 2026) (Ziegler, J., dissenting), and a number of the reasons stated in my prior writings in this matter. See Bothfeld v. WEC, 2025 WI 53, 418 Wis. 2d 545, 27 N.W.3d 508 (Ziegler, J., dissenting) (published order appointing three-judge panel); Bothfeld v. WEC, No. 2025XX1438, unpublished order (Wis. Sept. 25, 2025) (Ziegler, J., concurring) (reluctantly agreeing to order briefing on whether Bothfeld's complaint fell under WIS. STAT. § 801.50(4m), the three-judge panel statute). Whether Bothfeld has a right to appeal is, at a minimum, questionable. The court's actions thus far are unique, unprecedented, and have the taint of judicial activism, evidencing a lack of restraint from this court. Before granting this appeal, we should stop and consider whether Bothfeld has stated a cognizable claim capable of the relief that Bothfeld seeks. Entertaining Bothfeld's previously rejected theory to once again overturn a map that was already ordered by this court, well outside the court's normal constitutional boundaries, smacks of judicial
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overreach. Moreover, this order will not be published, thus limiting accessibility of the public. This is an unprecedented matter of public import, and every effort should be made to make the public aware of this issue.
¶2 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 Bothfeld's creative pleading. Moreover, our court 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 of revisiting and perhaps even redrawing congressional maps, but it raises the question:
Why else would this appeal be heard?
¶3 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. Bothfeld, and 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.
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¶4 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:
As circuit court judges, we conclude that the Panel possesses no authority to supersede decisions of the Wisconsin Supreme Court.
. . .
Without a clear holding from the Wisconsin Supreme Court . . . , this Panel has no basis to find the current congressional map invalid. . . . [T]his Panel must stay within its lane as a "circuit court." The Wisconsin Supreme Court addressed the exact same assertion that [Bothfeld] set[s] forth here—whether there is a right to partisan fairness in the Wisconsin Constitution—and a majority of our supreme court held that there is no such right.
. . .
[W]e, as circuit court judges, do not have the authority to read into a Wisconsin Supreme Court case an analysis it does not contain. ¶5 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 majority, nonetheless, adopted Bothfeld's request to send this matter to the panel even though the majority could not have expected a different result. And how could they? The panel cannot possibly grant the requested relief. See Bothfeld v. WEC, 418 Wis. 2d 545 (Ziegler, J., dissenting); Bothfeld v. WEC, No. 2025XX1438 (Ziegler, J., concurring). Specifically, Bothfeld's complaint requested that the panel declare the current congressional map, proposed and drafted by Governor Evers, to be unconstitutional because it is the result of unlawful partisan gerrymandering. This despite the fact that this court already adopted the Governor's map in Johnson II, 400 Wis. 2d 626, ¶52, and has held that "the partisan makeup of districts does not implicate any justiciable or cognizable right." Johnson I, 399 Wis. 2d 623, ¶8. The allegations Bothfeld makes are that the Democratic governor proposed a congressional map, that is the result of "unlawful partisan gerrymandering" against his own party. In other words, Bothfeld is asking this court to make the Democratic governor's map even more Democratic. The majority does not require anything more about how Bothfeld's theory might differ from previous
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partisan gerrymandering challenges. Regardless, a majority of this court assented to Bothfeld's request, even though we have repeatedly denied requests to reconsider the imposition of Governor Evers' congressional map.
¶6 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 now, and we are many years and several elections down the road. How does Bothfeld reconcile that distinction here?
¶7 Moreover, Bothfeld 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)
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(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. ¶8 And Bothfeld has yet to explain why the court should once again revisit the map that we have already upheld in the middle of a decade. 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. 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. Redistricting is not a judicial task—it is "inherently political." Jensen v Wis. Elections Bd., 2002 WI 13, ¶10, 249 Wis. 2d 706, 639 N.W.2d 537.
¶9 Notably, Bothfeld's allegations are essentially that the Democratic governor's congressional map, which this court adopted in Johnson II, is the result of
"unlawful partisan gerrymandering" because it does not favor the Democratic Party enough. The majority requires no explanation of how Governor Evers drew a map that was unlawfully gerrymandered against his own party. Elections have been conducted under the congressional map for four years.
¶10 We should be asking Bothfeld: Why are you bringing this challenge now?
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?
¶11 Bothfeld alleges that Wisconsin's congressional map is a holdover from a 2011 map which resulted from unlawful partisan gerrymandering. Even if this is true, Bothfeld waited over 14 years and seven elections to bring this challenge. 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
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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.
¶12 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, 410 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?
¶13 What remains unknown, is how this case will develop. The panel essentially declared that, given Johnson I and II, it cannot act. 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.
¶14 Perhaps Bothfeld can explain these lingering questions. Until she does, Bothfeld'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 the 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 seems to be an attempt to advance the Democratic Party's legislative goals through the judiciary. 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
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when other states are redrawing maps, and those battles are being fought in court,3our court should be wary of weighing in, particularly without analyzing whether it is required to. 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. ¶15 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.
¶16 For all the foregoing reasons, the claim that Wisconsin's congressional map resulted from "unlawful partisan 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.
¶17 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
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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. from out of state donors, tripled the national record for state supreme court races. WisPolitics Tracks $56 Million in Spending on Wisconsin Supreme Court Race, WISPOLITICS (July 19, 2023), https://www.wispolitics.com/2023/wispolitics-tracks-56- million-in-spending-on-wisconsin-supreme-court-race/; see also Douglas Keith, The Politics of Judicial Elections 2023-24, BRENNAN CTR FOR JUST. (February 26, 2026), https://www.brennancenter.org/our-work/research-reports/politics-judicial-elections-2023-24. Democrats elected Susan Crawford in 2025 with another $10.7 million, in an election that surpassed $100 million in donations. WisPolitics Tally: Supreme Court Race Spending Tops $100M, Nearly Doubling Previous Record, WISPOLITICS (March 28, 2025),
https://www.wispolitics.com/2025/250328report/.
During her campaign, Protasiewicz referred to Wisconsin's electoral maps—on at least nine occasions—as "unfair" and "rigged." Clarke v. Wis. Elections Comm'n, 2023 WI 66, ¶16, ¶52 n. 22, 409 Wis. 2d 249, 995 N.W.2d 735. She sanitized her campaign promises as nothing more than an expression of her "values." Id., ¶17. Asked whether Protasiewicz "went a little too far,"
Crawford said no: "Not based on what I saw . . . I think she was making an observation about the 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).
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BRIAN K. HAGEDORN, J., writing separately. ¶18 I write separately to remind the public that orders of this type do not typically reveal the votes of each justice. This means that the failure to publicly dissent from an order does not mean a justice agrees with the order. For a fuller discussion of our internal practices and how to understand these orders, see my writings in Voces de la Frontera and WBLD.8
Samuel A. Christensen
Clerk of Supreme Court
Distribution List:
Hon. Julie Genovese (Electronic Notice)
Jeff Okazaki (Electronic Notice)
Luke N. Berg (U.S. Mail)
Nathalie E. Burmeister (U.S. Mail)
Richard M. Esenberg (U.S. Mail)
Matthew M. Fernholz (Electronic Notice)
Charlotte Gibson (Electronic Notice)
Karla Z. Keckhaver (Electronic Notice)
Abha Khanna (U.S. Mail)
Kevin M. LeRoy (Electronic Notice)
Branden Lewiston (U.S. Mail)
Taylor A. R. Meehan (Electronic Notice)
Jacob D. Shelly (U.S. Mail)
Misha Tseytlin (Electronic Notice)
Barret Van Sicklen (Electronic Notice)
Lucas Thomas Vebber (Electronic Notice)
Daniel M. Vitagliano (Electronic Notice)
Julie Zuckerbrod (U.S. Mail)
Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . .").