The Wisconsin Supreme Court heard more than six hours of argument on Wednesday in two cases seeking to overturn the state's congressional map, and the most contested thing in the room was not a district boundary. It was a doctrine called "least change," the rule the court applied in 2022 when it adopted a congressional map that largely preserved the lines Republicans drew in 2011.
The two cases, Bothfeld v. Wisconsin Elections Commission and Wisconsin Business Leaders for Democracy v. Wisconsin Elections Commission, take different routes to the same destination. The first argues the map is an unconstitutional partisan gerrymander and challenges the least-change approach itself. The second, brought by the law firm Law Forward for a bipartisan group of business leaders, argues the map is an anti-competitive gerrymander built to protect incumbents, a theory the Wisconsin court has never squarely tested. Neither case reached the merits on Wednesday. The court is deciding whether lower panels were right to dismiss the challenges, and the answer determines whether any of this gets litigated at all.
Why least change keeps coming up
Least change is exactly what it sounds like. When courts must adopt new maps, the doctrine instructs them to adjust the prior map only as much as the census requires. The logic is judicial restraint: a court redrawing political boundaries should change as little as possible rather than impose its own vision.
The trouble, as the challengers see it, is what the doctrine conserves. The 2011 Wisconsin map was drawn by a Republican legislature and was among the most aggressive partisan gerrymanders of its era. The 2022 court, then controlled by conservatives, applied least change to produce a map that closely tracked it. Republicans hold six of the state's eight congressional seats, in a state that statewide elections repeatedly show is narrowly divided.
Chief Justice Jill Karofsky put the objection plainly during argument: the doctrine "bakes in whatever the political motivations were of that 2011 Legislature for perpetuity." The point is structural. A rule designed to keep courts out of politics can end up locking in the politics that were there before the court arrived.
The procedural question in front of the court
Two three-judge circuit panels dismissed the cases earlier this year, reasoning that lower courts lack authority to overturn maps adopted by the state Supreme Court. Those panels were selected under a 2011 law that assigns redistricting challenges to specially appointed judges, a process used for the first time in this litigation.
If the justices reverse, the cases go back to the circuit courts for discovery and trial. Several justices suggested the two cases could be consolidated there. If the dismissals stand, the challenges end without any court ever weighing the merits of the map itself.
Attorney Abha Khanna of the Elias Law Group, representing the Bothfeld challengers, argued that the court's own 2023 decision rejecting least change for legislative maps compels revisiting the congressional map, because "the injury is incurred anew with every election." That is the challengers' answer to the timing objection: a map that dilutes votes is not a completed wrong from 2011 or 2022, but an ongoing one, renewed each time it is used.
The skeptical case for leaving the map alone
The defenders of the map, including attorneys for the Legislature and the Wisconsin Institute for Law and Liberty, argued that a map "doesn't stop anyone from voting," that the challenges came too late, and that the court lacks authority to reconsider lines adopted through the constitutional process.
Justice Brian Hagedorn gave the argument its sharpest form. The Wisconsin Constitution, he noted, does not explicitly prohibit partisan gerrymandering. "You're asking us to just invent a new right that has never been recognized," he told the challengers. Justice Rebecca Dallet pressed both sides on where the line sits between ordinary political fairness and the extreme gerrymander courts can police, a line the U.S. Supreme Court famously declined to draw in federal cases, leaving state courts and state constitutions as the arena.
That federal retreat is part of what makes Wisconsin matter beyond Wisconsin. Since the U.S. Supreme Court closed federal courts to partisan gerrymandering claims in 2019, state constitutions have become the field of battle, and state courts have split on how far they will go. Wisconsin's liberal majority has already remade legislative maps under a fairness reading of the state constitution. Whether the congressional map gets the same treatment will say a lot about how far the state's anti-gerrymandering turn extends.
The 2023 ruling hanging over the argument
Much of Wednesday's argument was an extended dispute over what the court already decided. In 2023, the court's new liberal majority rejected the least-change doctrine when it redrew the state's legislative maps, holding that the state constitution's fairness principles required more than minimal adjustment to the prior lines. The legislative maps were redrawn accordingly, and the 2024 legislative elections ran on them.
The congressional map, adopted under the old doctrine, survived untouched. That asymmetry is the heart of the challengers' case: the same constitution, the same court, and the same doctrine, with opposite outcomes depending only on which map came before the court when. Khanna's "injury is incurred anew" line was aimed precisely at this. The challengers need the court to say the congressional map deserves the same treatment the legislative maps received, and the defenders need it to say the two situations are different enough that one decision does not bind the other.
The procedural posture lets the court avoid that question for now, and it may prefer to. Reversing the dismissals sends the cases to trial without the justices having to say anything about the merits. Affirming ends the challenges without a merits ruling either. The least-change question, in other words, can survive this term unanswered no matter who wins the procedural fight.
The business-leaders theory, explained
The second case asks the court to recognize something Wisconsin has never adjudicated: that a map drawn to protect incumbents is an anti-competitive gerrymander, harming voters the way a rigged market harms consumers. The theory borrows from antitrust vocabulary deliberately. When districts are safe by design, the argument runs, the real election is the primary, the primary rewards the extremes, and voters in the general election are left choosing between candidates whose seats were already decided by mapmakers.
Law Forward attorneys Doug Poland and Jack Deschler represent the bipartisan group bringing the claim, Wisconsin Business Leaders for Democracy. The business framing is the tell. The theory is aimed at courts that have been reluctant to police partisan fairness but comfortable policing markets: a map that suppresses competition produces the same deadening effect on political responsiveness that a monopoly produces on prices. Whether the Wisconsin court is willing to import that analogy into election law is an open question, and Justice Dallet's questions about where the line sits between ordinary politics and unconstitutional rigging suggested the court knows how hard that line is to draw.
The two cases could be consolidated if they survive, which would put the partisan-gerrymander theory and the anti-competitive theory in front of the same trial court. A consolidated record would give the state's courts, and eventually the justices again, a single evidentiary picture of what the 2011 map has done across the cycles since.
What is at stake, and when
Ballots for this year's midterms are already out, so nothing decided here affects 2026. The fight is about 2028 and 2030. Plaintiffs are pushing for new maps in time for the 2028 cycle, which would give a redrawn delegation two election cycles before the next census.
The court gave no indication when it will rule. Its options at this stage are procedural: reverse the dismissals and send the cases back for a trial on the merits, or affirm and end them. The broader question, whether Wisconsin's congressional map survives contact with the court that already rejected least change once, remains for another day.
One measure of the stakes sat outside the courtroom. Governor Tony Evers has called for a constitutional amendment banning partisan gerrymandering outright, a proposal Republican lawmakers have not advanced. The court's procedural decision will determine whether the question gets a hearing in a trial court, and the least-change argument that dominated Wednesday will determine the answer if it ever does.
The calendar hangs over all of it. If the challenges survive and prevail, a trial court would need a completed evidentiary record and a redrawn map well before the 2028 election cycle's filing deadlines, which arrive in early 2028 in practical terms. The plaintiffs' push for 2028 maps assumes a litigation schedule with almost no slack, and every month the procedural fight takes is a month the 2028 option narrows. The court's next order, whenever it comes, is therefore not just a ruling on jurisdiction. It is a ruling on whether the 2028 congressional delegation will be elected under the map the challengers call rigged or under a new one, and the clock on that question is already running.
Primary sources
- WSAW for the six-plus hours of argument and the procedural posture of the two cases.
- FOX6 Milwaukee for the case background, the 2011 map, and the parties' positions.
- Wisconsin Law Journal for the preview of the arguments and the stakes for 2028.
- La Crosse Tribune for the likelihood that the cases return to the lower courts.