Overview
On September 16 the Wisconsin Supreme Court heard the first of two appeals asking it to discard the congressional map the Court itself adopted in 2022. The plaintiffs in Bothfeld v. Wisconsin Elections Commission offer two routes. The first treats the map as a casualty of Clark v. Wisconsin Elections Commission, the 2023 decision that abandoned the Court’s least-change approach to redistricting. The second asks the Court to recognize, for the first time, a claim for extreme partisan gerrymandering under Article I of the Wisconsin Constitution.
A three-judge panel dismissed the case in March, holding that circuit judges cannot overturn the Supreme Court’s own map. The argument ran more than three hours and turned on method: whether general clauses about popular sovereignty and equality can supply an enforceable limit on partisan line-drawing that the text never states.1
What You Should Know
Four things to carry into the decision
- The map under challenge is Governor Evers’s least-change proposal, adopted in Johnson II (2022). It keeps roughly 95 percent of the 2011 map. Republicans hold six of Wisconsin’s eight House seats.2
- The lead theory needs no trial. Because Clark overruled any part of Johnson mandating least change, the plaintiffs say the map rests on a repudiated method and must fall as a matter of law.
- The fallback asks the Court to hold that extreme partisan gerrymandering violates Article I, §§ 1, 3, 4, and 22. Counsel recommended Pennsylvania’s test but told the Court it could pick another, including Justice Kagan’s Rucho dissent.
- The Legislature, the six Republican members of Congress, and voters represented by WILL answered that Johnson I already rejected this claim, that a circuit panel cannot sit in judgment of the Supreme Court’s final injunction, and that laches bars the suit.
The Two Routes
The plaintiffs did not put all their weight on one theory. The routes ask for different things and carry different risks.
The map is collateral damage from Clark
Clark overruled any part of Johnson mandating a least-change approach. If that passage is a constitutional holding, the congressional map rests on a repudiated method and falls as a matter of law.
A new right against partisan gerrymandering
Article I, §§ 1, 3, 4, and 22 — popular sovereignty, speech, assembly, petition, and frequent recurrence to fundamental principles — supply an enforceable limit on partisan line-drawing.
What Happened
The map traces to an impasse. After the 2020 census the Legislature and the governor could not agree, and the Court took the case in its original jurisdiction. Click any step for detail.
Johnson I — least change adopted
The Court held it would cure malapportionment by making the fewest changes necessary to the 2011 maps and would not weigh partisan fairness, which it concluded the Wisconsin Constitution does not address.
Johnson II — the governor’s map selected
The Court selected the governor’s congressional plan as the best fit for that directive.2 It is the map now under challenge.
Clark — least change overruled
After the Court’s membership changed, Clark struck the state legislative maps as noncontiguous and overruled the least-change mandate — but left the congressional map alone.
Original-action petition denied
The Court declined to take the challenge directly. The plaintiffs refiled in Dane County.
Three-judge panel appointed
Appointed under Wis. Stat. § 751.035.
Panel dismisses for lack of authority
As circuit judges, it held, it had no authority to supersede decisions of the Wisconsin Supreme Court.3
Argument — more than three hours
Abha Khanna opened for the plaintiffs by calling this the last least-change map standing.
Justice Hagedorn, who wrote Johnson II, rejected the premise that the Court had absorbed the 2011 Legislature’s motives: “We said what our intent was in that opinion.” Chief Justice Karofsky and Justices Dallet and Taylor pushed the other way, asking how a constitution grounded in the consent of the governed can leave diluted votes without a remedy.
Legal Background
The federal Constitution assigns congressional districting to state legislatures, subject to Congress. Rucho (2019) held partisan gerrymandering claims nonjusticiable in federal court while noting that state constitutions and state courts could address the problem, and Moore v. Harper (2023) confirmed that state courts may review congressional maps under state law within the ordinary bounds of judicial review.4
The Wisconsin Constitution sets districting rules only for the Legislature itself, in Article IV. The plaintiffs therefore rely on general provisions: Article I, § 1 (people are born equally free and independent, and governments derive their just powers from the consent of the governed), §§ 3 and 4 (speech, assembly, petition), and § 22 (frequent recurrence to fundamental principles).
Courts in roughly ten states have recognized partisan gerrymandering claims, but the textual footing varies. Pennsylvania relied on a free-and-equal-elections clause; New Mexico applied the Kagan framework under equal protection; New York and Florida enforce express bans on partisan intent.5
Wisconsin has neither clause and no fair-districts amendment. That is the plaintiffs’ central obstacle, and it is why the case turns on whether general language can do the work specific text does elsewhere.
Key Quotes
Quotations are drawn from the Court’s recording and lightly conformed to correct transcription errors.
“There’s only one least change map left standing in Wisconsin. . . . [T]hat map is essentially resting on legal quicksand.”
“Least change says we are going to bake in whatever the political motivations were of that 2011 legislature, and we’re going to bake it in for perpetuity.”
“[I]t’s not resting on anything other than, from what I can tell, your appeal to us, our personal sense of fairness. And that seems to me like lawlessness.”
“Not everything that’s bad in the world is unconstitutional.”
Zoom In
Three problems recurred, and each is a methodology problem rather than a political one.
The plaintiffs asked the Court to recognize a right without committing to its content. Counsel called Pennsylvania’s test the clearest but said the Court could pick another.
Misha Tseytlin, who litigated New Mexico’s case under the Kagan framework, told the justices the choice decides cases: he lost there despite what he called smoking-gun evidence of intent, because the court demanded proof that the disfavored party could not win.
A right whose test depends on which state a court borrows from is hard to describe as a command of Wisconsin’s text.
Even justices open on the merits hesitated over a circuit panel reviewing the Supreme Court’s own injunction. Justice Crawford called that route premature and quite unprecedented.
The intent inquiry compounds it: the map was drawn by the governor and adopted by the Court, so the plaintiffs must argue the Court channeled the 2011 Legislature’s intent.
The lead theory needs Clark’s least-change passage to be a constitutional holding. The Chief Justice, who wrote it, said she did not know how she could have been clearer.
The defenders answered that calling a method unworkable is not the same as holding its use unconstitutional, and that Clark concerned legislative districts under Article IV.
What’s Next
The plaintiffs are aiming at 2028; the 2026 midterms will run under the current map. Justices Protasiewicz and Crawford denied recusal motions on September 3.
Affirm on procedural grounds
The panel’s lack of authority, or laches, without reaching the merits.
Hold that Clark already dooms the map
And run a remedial process itself.
Recognize a claim and announce a test
Then remand for fact-finding, likely coordinated with the companion Wisconsin Business Leaders for Democracy case.
Whatever the Court does, the rules it announces will govern the redistricting that follows the 2030 census.
Endnotes & Authorities · 5 citations
- Bothfeld v. Wis. Elections Comm’n, No. 2026AP1168 (Wis. argued Sept. 16, 2026), on appeal from No. 2025CV2432 (Dane Cnty. Cir. Ct. Mar. 31, 2026) (three-judge panel).
- Johnson v. Wis. Elections Comm’n, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469 (Johnson I); Johnson v. Wis. Elections Comm’n, 2022 WI 14, 400 Wis. 2d 626, 971 N.W.2d 402 (Johnson II); Clark v. Wis. Elections Comm’n, 2023 WI 79, ¶ 63, 410 Wis. 2d 1, 995 N.W.2d 735.
- Wis. Stat. §§ 751.035, 801.50(4m); 3-Judge Panel Rejects Congressional Map Lawsuit, Wis. L.J. (Apr. 1, 2026).
- U.S. Const. art. I, § 4; Rucho v. Common Cause, 588 U.S. 684 (2019); id. (Kagan, J., dissenting); Moore v. Harper, 600 U.S. 1 (2023); Wis. Const. art. I, §§ 1, 3, 4, 22; id. art. IV, §§ 3–4.
- League of Women Voters v. Commonwealth, 178 A.3d 737 (Pa. 2018); Grisham v. Van Soelen, 2023-NMSC-027, 539 P.3d 272; Harkenrider v. Hochul, 38 N.Y.3d 494 (2022); Fla. Const. art. III, § 20; see also Wis. Small Bus. United, Inc. v. Brennan, 2020 WI 69, 393 Wis. 2d 308, 946 N.W.2d 101 (laches).