Oral Argument Primer
Institute for Reforming Government
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Wisconsin Business Leaders for Democracy v. Wisconsin Elections Commission

A New Name for an Old Claim?

Hours after hearing Bothfeld, the Court took up a second challenge to the same congressional map — this one built on a theory no Wisconsin court has recognized.

Argued Sept. 16, 2026
Wisconsin Supreme Court
No. 2026AP1008
Companion to Bothfeld
0
Seats that changed parties in a decade
3
Judges on the dismissing panel
7
Trial days reserved, then released
2028
Target for final maps
I

Overview

Hours after hearing Bothfeld, the Wisconsin Supreme Court took up a second challenge to the same congressional map, this one built on a theory no Wisconsin court has recognized. The plaintiffs in Wisconsin Business Leaders for Democracy v. Wisconsin Elections Commission contend that the map deliberately suppresses electoral competition and that the Wisconsin Constitution contains an anti-entrenchment principle forbidding it.

A three-judge panel dismissed the case in April, calling the claim functionally equivalent to the partisan gerrymandering claim the Court turned away in Johnson I. Harvard professor Nicholas Stephanopoulos, arguing for the plaintiffs, insisted the theory is distinct because it does not care which party wins. Most of the afternoon went to pinning down what the right is, whom it protects, and how a trial court would know it had been violated.1

II

What You Should Know

Four things to carry into the decision

  • WBLD, represented by Law Forward and Harvard Law School’s Election Law Clinic, alleges that Wisconsin’s congressional seats are so safe that no incumbent has lost and no seat has changed parties in more than a decade.
  • The claimed right rests on Article I, § 1 (government by the consent of the governed) read with Article III (the franchise), supported by Article I, § 22 and McGrael v. Phelps (1910).3
  • The proposed test adapts Justice Kagan’s Rucho dissent: intent, effect, and if necessary causation, with suppressed competition in place of partisan skew. Effect would be shown by comparing the map’s median margin of victory to thousands of computer-generated maps. Counsel declined to propose a numerical threshold.
  • The defenders argued that competitiveness trades off against legitimate values such as representation and seniority, that the simulations would treat ordinary incumbency considerations as forbidden, and that the theory cannot coexist with the partisan claim argued that morning.
III

Two Theories, One Map

The anti-competitive theory is more modest than a partisan-fairness claim in one respect and more ambitious in another.

WBLD · The plaintiffs

Officeholders entrenching themselves

Partisan gerrymandering is one party benefiting at another’s expense; anti-competitive gerrymandering is officeholders of any party benefiting at voters’ expense. Injury would be district-specific, and plan-wide and district claims could proceed together.

Advantage: it does not ask courts to decide which party deserves how many seats. Vulnerability: counsel declined to propose a numerical threshold for what counts as too little competition.
The defenders

A new name for a claim already rejected

Competitiveness trades off against legitimate values — representation, seniority, bipartisan agreement. The simulations amount to a rule against political considerations in districting, and a circuit court cannot review a judgment of the Supreme Court.

Advantage: Johnson I, plus Gabler v. Crime Victims Rights Board on the vehicle. Vulnerability: the Court never decided an anti-competitive claim in Johnson.
IV

What Happened

The case moved quickly from filing to dismissal, and the panel had already reserved trial time in case the complaint survived. Click any step for detail.

2025

WBLD sues under the same statutes as Bothfeld

The Court appointed a separate three-judge panel: Judges David Conway, Michael Moran, and Patricia Baker.

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Before ruling

Seven trial days reserved

The panel set aside seven days in April 2027 in case the complaint survived.

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Apr. 28, 2026

Panel dismisses

It held the anti-competitive claims are functionally equivalent to partisan gerrymandering claims, observed that in a two-party system partisan fairness and competitiveness are correlated, and concluded that until the Supreme Court says otherwise the claims are nonjusticiable.2

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Sept. 16, 2026

Argument — the same afternoon as Bothfeld

Nicholas Stephanopoulos and Doug Poland of Law Forward for the plaintiffs; Misha Tseytlin, Luke Berg, and Taylor Meehan for the defense.

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Stephanopoulos drew the distinction this way: partisan gerrymandering is one party benefiting at another’s expense; anti-competitive gerrymandering is officeholders of any party benefiting at voters’ expense. The justices pressed on scope. Could a voter in the competitive Third District sue? Is a statewide claim different from a district claim? Is keeping a Speaker of the House in office a legitimate districting goal? Counsel answered that injury would be district-specific, that plan-wide and district claims could proceed together, and that insulating a particular incumbent is not permissible.

Doug Poland argued the panel may both declare the map unconstitutional and impose a remedy. For the defense, Misha Tseytlin argued that a circuit court cannot review a judgment of the Supreme Court, citing Gabler v. Crime Victims Rights Board; Luke Berg argued the two theories conflict; and Taylor Meehan argued the simulations amount to a rule against political considerations in districting.

V

Legal Background

The plaintiffs’ textual case begins with Article I, § 1 and Article III, and reads McGrael v. Phelps, which reviewed a ballot-design statute under both provisions, as forbidding election rules that entrench the party in power or deny candidates an equal chance to compete. The defenders noted that McGrael upheld the statute and declined to decide whether the Legislature had gone too far.

The plaintiffs also rely on State ex rel. Attorney General v. Cunningham (1892), where the Court struck a malapportioned map and rejected the argument that the remedy lay only with the Legislature.3

The federal cases cut the other way. The U.S. Supreme Court has treated incumbency-related goals, such as avoiding contests between incumbents, as legitimate districting objectives. Johnson I read the Wisconsin provisions at issue here to contain no judicially enforceable guarantee of partisan fairness.4

States that want to forbid favoring incumbents have said so in their constitutions: New York bars districts drawn to discourage competition, and Florida bars districts drawn with intent to favor an incumbent. Wisconsin has neither.

VI

Key Quotes

Quotations are drawn from the Court’s recording and lightly conformed to correct transcription errors.

“Wisconsin’s Constitution does not tolerate office holders entrenching themselves in power and cutting out the people by suppressing electoral competition.”
Nicholas Stephanopoulos
Counsel for WBLD
“Should that not give us some pause that maybe the concept of ordered liberty and article 1 section one . . . doesn’t include this thing that nobody even thought was a thing just a few years ago?”
Justice Brian Hagedorn
Wisconsin Supreme Court
“So apparently in their view the constitution requires enough competition but not too much . . . . Where any of this is coming from in the constitution is unclear.”
Luke Berg
Counsel for intervening voters
“[T]his case is not about who wins. It’s about whether anyone can ever lose.”
Nicholas Stephanopoulos
In rebuttal
VII

Zoom In

The theory does not ask courts to decide which party deserves how many seats. It asks them to choose among competing theories of good representation that the Constitution does not rank.

The effect test compares the enacted map to simulations applying every lawful criterion except an intent to suppress competition. Whether keeping a Speaker or a senior appropriator in office is a lawful criterion is the disputed question — and the answer is built into the simulation before the math begins.

Meehan told the Court that some voters prefer a cohesive district with a strong voice in Congress to a close general election, and that nothing in the Constitution lets a court choose between those preferences.

Both claims use the same voting data and the same simulation ensembles. One justice told counsel there is not a whole lot of airspace between this claim and the partisan gerrymandering claim.

Berg made the point from the other side: a maximally competitive map can hand every seat to whichever party wins statewide, and a perfectly balanced four-four map can be uncompetitive.

New York and Florida wrote competition and incumbency rules into their constitutions by amendment. Wisconsin’s framers addressed gerrymandering with specific districting rules and single-member districts.

Whether a general commitment to accountability can do the work those amendments do is the question, and a test that leaves “severe” undefined hands much of the answer to the trial court.

VIII

What’s Next

If the Court reverses, the plaintiffs want a remand by January 4, 2027, trial April 5–13, 2027, a liability ruling by May 28, a remedial ruling by August 6, and final maps by March 15, 2028.

The defenders’ answer

They never agreed to that pace

They would seek discovery reaching back to the 2011 map-drawing and the governor’s 2022 submission.

Consolidation

One trial, or two?

Several justices asked about consolidating with Bothfeld; Poland preferred separate liability trials with consolidation at the remedy stage.

If neither claim is recognized

The map stands through 2030

The 2028 and 2030 elections run under the current map and the fight moves to the redistricting that follows the 2030 census.

Endnotes & Authorities · 4 citations
  1. Wis. Bus. Leaders for Democracy v. Wis. Elections Comm’n, No. 2026AP1008 (Wis. argued Sept. 16, 2026).
  2. Lawsuit Challenging Wisconsin Congressional Maps Dismissed by Three Judge Panel, Wis. Examiner (Apr. 28, 2026); Second Judicial Panel Rejects Challenge to Wisconsin Congressional Map, WPR (Apr. 28, 2026).
  3. Wis. Const. art. I, §§ 1, 22; id. art. III; McGrael v. Phelps, 144 Wis. 1, 128 N.W. 1041 (1910); State ex rel. Att’y Gen. v. Cunningham, 81 Wis. 440, 51 N.W. 724 (1892); State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 126 N.W.2d 551 (1964).
  4. Karcher v. Daggett, 462 U.S. 725, 740 (1983); N.Y. Const. art. III, § 4(c)(5); Fla. Const. art. III, § 20(a); Rucho v. Common Cause, 588 U.S. 684 (2019) (Kagan, J., dissenting); Johnson v. Wis. Elections Comm’n, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469; Gabler v. Crime Victims Rts. Bd., 2017 WI 67, 376 Wis. 2d 147, 897 N.W.2d 384.

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