What was listed as a two-hour argument became an eight-hour grind. On Wednesday, Wisconsin Supreme Court justices spent the better part of a day grilling lawyers over whether the state’s current congressional map can be challenged in circuit court at all — and whether the Wisconsin Constitution even contains a judicially enforceable right against partisan or “anti-competitive” gerrymandering.
By 5 p.m., attorney Luke Berg of the Wisconsin Institute for Law & Liberty was on the road from Madison to Milwaukee. He went straight from the Capitol to WILL’s 15-year celebration dinner at the Italian Community Center, where National Review senior editor Charles Cooke delivered the keynote. Berg’s assessment of the day was the court’s liberal majority appeared to be “fulfilling their campaign promises,” and the outcome did not look favorable for defending the existing map.
The court heard two related appeals: Bothfeld v. Wisconsin Elections Commission, framed as a partisan-gerrymandering claim, and Wisconsin Business Leaders for Democracy v. Wisconsin Elections Commission, which argues the map is an unconstitutional anti-competitive gerrymander that protects incumbents and “wastes” votes in lopsided districts. Republicans currently hold six of Wisconsin’s eight U.S. House seats.
Plaintiffs say that split does not match a closely divided statewide electorate. Defenders say the map was adopted by the Supreme Court itself in 2022 under a “least change” approach after a legislative-governor impasse, and that lower courts correctly held they lack authority to second-guess that judgment. Attorneys representing the Republican congressional delegation argue the cases should be dismissed.
Lower three-judge panels dismissed both suits earlier this year. Wednesday’s argument was over whether the Wisconsin Constitution provides a standard for courts to apply without picking a preferred political outcome.
Berg, representing voters who support the current lines, told the justices the plaintiffs were stitching together voting and speech rights into a novel claim the constitution does not recognize. “They just sort of briefly reference the right to vote, briefly reference the right to speech and say throw it all together in a soup and you get this new claim,” he said. “A map doesn’t stop anyone from voting.”
The newly elected liberal Justice Chris Taylor told Berg she found the argument “so disconnected from the constitution” and asked, “I’m struggling. How could it be that we can’t remedy an infringement if its shown on a right to vote?”
Chief Justice Jill Karofsky pressed the point — if one party entrenches itself under “extremely gerrymandered” maps, she said, “the power is not coming from consent of the governed. Power is coming from the maps that were drawn by the legislature.” Conservative Justice Brian Hagedorn and others questioned whether plaintiffs had identified any manageable constitutional test — when ordinary partisan effect becomes “extreme,” and who decides.
Reporting from the session described a court that seemed open to letting the challenges proceed, with the liberal majority, which holds a 5–2 majority, appearing more receptive to arguments that state courts can police congressional lines even after the U.S. Supreme Court held that federal courts generally cannot. Plaintiffs hope any remand or merits ruling could produce new maps before 2028. Oral argument stretched well past the scheduled two hour window. No decision was announced Wednesday.
