HELENA — The Montana Supreme Court on Wednesday appointed longtime University of Montana tribal law professor Maylinn Smith as the new chair of the state districting commission, the body that will redraw state legislative district boundaries and potentially divide the state into two U.S. House districts.
The commission chair is designed to serve as a nonpartisan tie-breaker vote on the state’s five-member 2020 Districting and Apportionment Commission, which also includes two Republicans and two Democrats. The body’s current chair, former Montana Commissioner of Higher Education Sheila Stearns, is resigning due to health concerns.
Smith is an attorney who has focused on American Indian issues throughout her career. She taught at the University of Montana’s law school for 25 years, she said Wednesday, and currently works as a civil prosecutor for the Confederated Salish and Kootenai Tribes. Her experience also includes stints as a judge in several tribal court systems.
Montana’s state House and Senate districts are redrawn by districting commissions every 10 years after detailed population data is gathered through the decennial U.S. census. Population projections also indicate that Montana may have grown enough since 2010 to regain a second seat in the U.S. House, which would task the 2020 districting commission with drawing lines that divy up the state for representation in Congress.
Because the resulting maps provide a foundational piece of Montana’s political landscape, the districting process could open the door to fierce debates over gerrymandering and fair representation for urban residents, rural residents and minority groups — particularly American Indians.
While the commission’s four partisan members are appointed by leaders of their respective parties, the Montana Constitution specifies that the state Supreme Court picks the fifth member if the other commissioners don’t name a consensus choice.
Justice Beth Baker, who nominated Smith in a hearing held via video conference Wednesday morning, said the lawyer would bring diversity to the commission and serve as a bridge to Indian Country.
“Maylinn did not apply. I called her out of the blue,” Baker said. “She stood out to me as someone who would bring strong skills and critical perspective to this important position.”
Justice Jim Rice asked Smith about her record of donating to Democratic candidates. When the court has made districting appointments in the past that have been seen as favoring a particular party, he said, those decisions have undermined public trust and resulted in the commission and the court itself being criticized for partisanship.
“Frankly, appointing someone whose political record only goes to one side — it’s worthy of a question, I guess,” Rice said.
Smith openly acknowledged her political giving at Wednesday’s hearing, saying she has donated primarily to former students who asked for her support when they run for office. She also pointed to her judicial experience as evidence that she’s capable of being impartial.
“I don’t view myself as a political operative. My contributions to political parties are not many, for sure,” Smith said.
State and federal campaign finance records indicate Smith has made about two dozen political contributions totalling $2,620 since 2010. Those include $150 to 2020 state auditor candidate Shane Morigeau, a total of $900 to Denise Juneau’s 2016 U.S. House bid, and a total of $350 to Jon Tester’s 2012 U.S. Senate campaign. Morigeau and Juneau both have law degrees from UM.
Rice also expressed discomfort Wednesday with the state Supreme Court’s constitutionally defined role in selecting the districting commission’s chair. Montana Supreme Court justices are elected on a nonpartisan basis.
“This is a totally unique appointment in the court’s role. It takes us across the line into political involvement and it is very uncomfortable,” Rice said. “I hate this appointment every time just because of that particular reason.”
Smith’s nomination was approved by a voice vote of the court’s seven justices without audible dissent.
The districting commission’s two Republicans, Dan Stusek and Jeff Essmann, had sought a lengthier process for filling the commissions’ chair vacancy, sending the court a letter Dec. 10 urging justices to solicit applicants and give the public more time to comment in an effort to make the process more transparent “[a]t a time when redistricting is become increasingly polarized around the country.”
“An open and public process would add legitimacy to and confidence in the eventual appointee,” the Republicans wrote. “While other commissioners are chosen by political party leaders, the chair must be a ‘neutral arbiter’ during what is an inherently political process.”
Stusek said after the meeting he was disappointed that justices had moved forward immediately with the selection, noting that the possibility the commission will be drawing U.S. House districts in addition to state legislative districts could draw national scrutiny to its work.
“There are plenty of Montanans across the state outside of the Supreme Court’s network that may have been good selections for the commission as well,” Stusek said.
“We look forward to working with Chair Smith on drawing districts that will be seen as fair and neutral across the Montana political spectrum,” he also said.
“I’m really sad to see Commissioner Stearns go,” Democratic Commissioner Kendra Miller said Wednesday. “I think that Chairwoman Smith brings the same level of respect and expertise.”
The Montana Republican Party took a notably more vocal stance against Smith’s appointment following Wednesday’s hearing, issuing a statement pointing to Smith’s donation history and accusing the court of “allowing Democratic insiders to Chair the redistricting process.” The statement also alleged the court had taken similar action in 2000 and 2010.
“It’s very disappointing to see the Montana Supreme Court appoint someone to this position with a blatant partisan past,” party chairman Don ‘K’ Kaltschmidt said in the release. “Our state needs a Presiding Officer they can trust to put the best interests of Montana first — not just the Democratic Party or liberal activists.”
For her part, Smith said she’s hoping to be a consensus builder as the districting commission’s work proceeds.
“Ultimately,” she said in an interview with Montana Free Press, “my goal is not to ever have to be a tie-breaking vote.”
This story was updated Dec. 16 to include the Montana GOP’s statement on Smith’s selection.
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