MADISON, Wis. (CN) - State lawmaker intervenors in a mid-decade challenge to Wisconsin's congressional districts moved to dismiss the case on Thursday, creating the first test for the novel three-judge panel.

Wisconsin is required by its constitution to draw up new congressional maps every 10 years using the latest census data to maintain roughly equal districts from which members of Congress are elected.  

In 2020, the Republican controlled state Legislature and Democratic governor couldn't agree, prompting the state Supreme Court to step in. The court applied a "least change" approach that made only small tweaks to the prior decade's map to keep the districts equal in size.

However, the prior decade's map - known as Act 44, signed into law by former Governor Scott Walker in 2011 - was challenged at the time as an extreme partisan gerrymander. This left the new map, the current map, with deep flaws that led a left-leaning voting rights group called the Wisconsin Business Leaders for Democracy to sue the Wisconsin Election Commission for new maps.

For the first time, the state Supreme Court enforced a 2011 law to appoint a panel of three judges from three counties to hear the challenge and determine if it has merit. The panel convened in December 2025 to chart its unprecedented path forward.

On Thursday, the Wisconsin Legislature filed a motion to dismiss the case as an intervenor and set up the first test of the panel's functioning and power.

The primary argument by the state Legislature is that the three-judge panel simply does not have the authority to enter the business leaders' requested relief, a new map, because the 2021 map was enacted by a final judgment from the state's high court.

"What happens next is plain: dismissal," said attorney Matthew Fernholz on behalf of the Legislature in the 27-page motion. "Only the Wisconsin Supreme Court can vacate the Johnson II injunction. ... That marks the end of the road for plaintiffs."

The motion is the first real test of the panel's authority, bestowed on it by the Wisconsin Supreme Court. The panel includes Dane County Circuit Judge David Conway, Portage County Circuit Judge Patricia Baker and Marathon County Circuit Judge Michael Moran.

Fernholz pointed out that the justices have been asked three times to revisit the maps, and each time, they have declined.

The intervenors also argue the lawsuit was unduly delayed and, therefore, barred by the doctrine of laches, which is a defense that prevents legal ambushes that would disadvantage the respondent in a lawsuit.

The business leaders should have participated in the Johnson litigation four years ago when the 2021 map was being drawn, Fernholz said, or moved to reopen the case after the 2022 elections when the map was first used.  

The Wisconsin Business Leaders for Democracy's primary claim is one of anticompetitive gerrymandering, which differs from partisan gerrymandering in that the former benefits those already in office, while the latter "packs" and "cracks" voters likely to support the disfavored party.

The group claims in briefs that the authors of the Act 44 map, led by former U.S. Representative Paul Ryan, avoided putting incumbents together in the same district and avoided flipping districts to insulate incumbents from electoral competition.

When it was time to redraw in 2021, and the Wisconsin Supreme Court applied the least change approach, the new map perpetuated the "primary flaws" of the 2011 map, according to the business leader plaintiffs.

The result is incumbent victories by upwards of 30% across the map, they say, and an unconstitutional voting scheme.

The business leaders group has said in prior filings that it was waiting on district-by-district data to file suit and said in its original complaint that only the Supreme Court could grant proper relief, adding fuel to the Legislature's argument for dismissal.

A second challenge to the maps was filed around the same time as the business leaders' challenge, spearheaded by Elizabeth Bothfeld of Dodgeville. She, too, argues that the 2011 map was gerrymandered, leading to a 2021 map with the same unconstitutional problems.

Rather than focus on incumbents, though, Bothfeld's gripe is that the maps are a straightforward partisan gerrymander. Her case, too, will be heard by a three-judge panel in Dane County Circuit Court.

The Wisconsin Supreme Court abdicated the least change approach not long after adopting the 2021 remedial maps in Clarke, a challenge to partisan legislative maps.

Chief Justice Jill Karofsky wrote the majority opinion in that case and took the opportunity to walk back the approach articulated in Johnson: "Because no majority of the court agreed on what least change actually meant, the concept amounted to little more than an unclear assortment of possible redistricting metrics."

If this case survives the motion to dismiss, the court has the authority to conduct fact-finding without directly overturning the maps, according to Bryna Godar, a staff attorney at the UW Law School's State Democracy Research Initiative.

The state Legislature has requested oral argument after its motion is fully briefed, which is likely to take place in the spring.

Source: Courthouse News Service