At the trial the plaintiffs produced 31 individuals who testified they would have voted against the proposed scenario, had they known of the election. Though he agreed that the Election Board could have done a better job getting notice of the election to the voters, Matha ruled the Court cannot engage in speculation, writing that other factors may have kept people from voting. He ruled "the Court simply cannot allow the plaintiff’s challenge to prevail by inference."

Following oral arguments heard on March 15, 2002 before Supreme Court Justices Rita Cleveland, Debra Greengrass and Mary Jo B.Hunter, the Supreme Court reversed the decision and remanded the case back to the Trial Court for a rehearing. The Supreme Court ruled that in his decision, Matha applied a higher standard of proof beyond a reasonable doubt. The Supreme Court wrote:

If the plaintiffs had provided ninety-three (93) individuals, there would have been no question that the election would have been different. If Judge Matha has applied the standard of clear and convincing proof as the statue requires, he may have held that the plaintiffs had met their burden of showing that the facts asserted were highly probable. That is, the Trial Court could have held that the plaintiffs had provided the high probability of a different result because they provided thirty-one (31) individuals who would have voted against Scenario E. In addition, the Judge is in the position to access the likelihood that more individuals would have been provided if the Appellants had more time to locate the individuals. Yet, Judge Matha did not take this into account.

Ruling that the decision denied the individuals their due process rights as required by the Ho-Chunk Nation Constitution, the Supreme Court wrote,

Failure to ensure the proper publication of the Official Notice of Election to the Ho-Chunk Nation eligible voters infringes on an individuals fundamental right to vote. Secondly, the Court in haste to facilitate the current litigation, within the timeline of twenty (20) days, set strict deadlines in which the parties must submit their discovery. The Appellants due process rights were lessened when the time constraints were so narrow.

In referring the case back to the Trial Court the Supreme Court wrote

it is up to Judge Matha to determine if the plaintiffs met the requirements of a clear and convincing standard.

Back in Trial Court

At a hearing held April 2, 2002 at the Tribal Courthouse, Judge Matha admitted "I’m somewhat thrown by the Supreme Court’s decision" and "at a loss how to deal with this." Noting that the Constitution in Article VIII, Section 7, states The Trial Court shall hear and decide a challenge to the election within twenty (20) days after the challenge is filed in Trial Court, Matha believes the Higher Court’s ruling that the plaintiffs were not given enough time to present their case, was in effect the Supreme Court ruling that the Ho-Chunk Constitution is "unconstitutional".

The plaintiffs attorney, James Ritland suggested that perhaps the Trial Court could have changed the timeline in an effort to consider the voter’s rights but Matha believes that he was mandated by the Constitution to hold a trial and issue a decision within the restricted timetable.

While the plaintiffs contend that many potential voters were not aware of the election, citing the apparent differences between the voting and newsletter mailing list, the Trial Court again dismissed charges that the results were simply the result of people not being aware of the election. The Court also noted that the differences in the two lists had never before surfaced in the Court.

Ritland countered that because redistricting had "become a hotter issue" since it was first presented to the voters on October 14, 2000, it stands to reason more people would have voted on the scenario. The fact that 309 less people voted on January 12, 2002 then voted on October 14, 2000 supports the plaintiff’s argument, Ritland said. He suggested the Trial Court either order that the plaintiffs be supplied an alphabetical list of the 1000 voters allegedly not on the mailing list or order a new election.

Judge Matha, whose term expires April 12, 2002 promised to review the case but stated that with his term coming to an end it is possible the case may have to be heard before a new judge.

While plaintiff Michael Mullen fears that an addendum being presented to the voters on April 27, 2002 could make the entire case a mute point, Ritland believes that if the Trial Court orders a new election, that order would take precedent over the non-binding referendum on the ballot. One choice on the referendum gives voters the opportunity to repeal the entire section of the Constitution requiring redistricting or reapportionment.