Political district-drawing commission finalizes its sideboards

HELENA — Montana’s Districting and Apportionment Commission voted Tuesday to finalize the criteria it will use to draw Montana’s new U.S. House and state legislative districts using data from the 2020 census.

The commission previously approved criteria specific to U.S. House districts at a meeting earlier this month, but ran out of time to hash out criteria for state legislative districts.

That language regarding congressional criteria specified that U.S. House districts “must be as equal in population as is practicable,” and also committed the commission to drawing districts that are compact, contiguous and in compliance with the federal Voting Rights Act, which articulates standards intended to ensure that minority groups like Native Americans are fairly represented in the state’s politics.

Commissioners also outlined several second-tier goals for their political maps, among them a desire to minimize subdivisions within towns, counties and Indian reservations and formal expression of intent that “no plan may be drawn to unduly favor a political party.”

Commissioners adopted similar language for dividing the state into 100 House and 50 Senate districts Tuesday, adding a criteria that limits how far they can veer from perfectly equal population splits as they try to comply with the Voting Rights Act and balance their other criteria.

Montana is one of 15 states that draws its U.S. House and state legislative districts through an independent commission, rather than the state Legislature. The five-member districting commission includes two Republican-appointed and two Democrat-appointed members, as well as a chairwoman, Maylinn Smith, who was appointed by the Montana Supreme Court to preside over meetings and cast tie-breaking votes.

The commission’s meetings Tuesday and July 8-9 involved protracted wrangling over the specifics of criteria language between the commission’s two Republicans, Jeff Essmann and Dan Stusek, and its Democrats, Joe Lamson and Kendra Miller. 

Democrats pushed for more flexible criteria for legislative districts, specifically to allow for more district-to-district population variation in an effort to make it easier to achieve other goals like aligning district lines with county boundaries. Democrats also wanted the commission to make a formal effort to create competitive districts, arguing that having fewer deep-red or deep-blue districts where the election is essentially decided in the dominant party’s primary would discourage political polarization.

“If you want to dampen down the noise in our society and the partisanship, one of the ways to do that is to increase competitiveness,” Lamson said. 

Republicans pushed for more prescriptive districting criteria with narrower population tolerances. They also pushed back on the competitiveness idea, saying it would open the door to drawing districts designed for specific political outcomes.

“I think it’ll work itself out just fine like it has in the past without it being a stated criteria,” Essmann said.

Attorney General Austin Knudsen, a Republican, inserted himself in the debate over competitiveness criteria in a letter submitted to the districting commission last week. “Forcing these criteria into redistricting would inappropriately politicize and undermine Montanans’ faith in what should be a nonpartisan process,” he wrote.

The commission was able Tuesday to hammer out consensus language on the population deviation question, but couldn’t avoid a split vote on the competitiveness criteria. With support from the Democrats and Chair Smith, the commission voted 3-2 to add language specifying that the commission “may consider competitiveness of districts when drawing plans.”

“This is about as weak as you can get of a phrase here, so the impact of it is pretty negligible,” Smith said.

This decade’s districting cycle will be the first time Montana’s population has been sufficient to divide the state into two congressional districts since it lost its second U.S. House following the 1990 census. While the U.S. Census Bureau published state-level population counts from the 2020 census in April, the detailed demographic data necessary for redistricting work isn’t scheduled to be released until August.

After that data is published, the districting commission has 90 days to develop the congressional map. It will then shift its focus to redrawing the state’s 100 House and 50 Senate districts, which will be presented to the 2023 Legislature for feedback and take effect in the 2024 election cycle.

The Montana Legislature has at various points, including during this year’s session, passed laws intended to steer the districting commission’s work, though many of those laws have been overturned by judges who’ve ruled they conflict with the independence guaranteed to the commission by the Montana Constitution.

One statute that’s technically on the books, for example, tries to explicitly forbid the districting commission from considering previous election results, data that’s necessary to measure how competitive specific districts are. A Montana Law Review analysis co-authored by 2010 districting commission Chair Jim Regnier, notes that the requirements specified by that statute “are largely ignored” because they likely wouldn’t hold up if challenged in court.

The official districting criteria adopted by the commission are as follows:

Congressional Districts
Districts for the two U.S. Representatives Montana will elect in 2022.

Mandatory criteria for congressional districts:

• Districts must be as equal in population as is practicable (Article 1, Section 2, U.S. Constitution).
• Protection of minority voting rights are guaranteed in Article II, Section 4 of the Montana Constitution and through compliance with the Voting Rights Act. No district, plan, or proposal for a plan is acceptable if it affords members of a racial or language minority group “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” (42 U.S.C. 1973). Race cannot be the predominant factor to which traditional redistricting criteria are subordinated. (Shaw v. Reno, 509 U.S. 630 1993).
• Each district shall consist of compact territory. (Article 5, Section 14 of the Montana Constitution). The Commission shall consider the district’s functional compactness in terms of travel and transportation, communication, and geography.
• Each district shall be contiguous, meaning that a district must be in one piece. (Article 5, Section 14 of the Montana Constitution). Areas that meet only at points of adjoining corners shall not be considered contiguous. Areas separated by natural geographical or artificial barriers that prevent transportation by vehicle on a maintained road shall be avoided when not in conflict with the commission’s adopted criteria and goals.

Goal criteria for congressional districts:

• No plan may be drawn to unduly favor a political party.
• The commission shall attempt to minimize dividing cities, towns, counties and federal reservations between two districts when possible.
• Keeping communities of interest intact. The commission may consider keeping communities of interest intact. Communities of interest can be based on Indian reservations, urban interests, suburban interests, rural interests, tribal interests, neighborhoods, trade areas, geographic location, demographics, communication and transportation networks, social, cultural, historic, and economic interests and connections, or occupations and lifestyles.
• The commission may consider competitiveness of districts when drawing plans.

Legislative Districts
Districts for the legislative elections to be held starting in 2024.

Mandatory criteria for legislative districts:

• Legislative districts must be as equal in population as is practicable. The commission shall remain within plus or minus 1% deviation, to be exceeded within federally allowable standards only for purposes of complying with the Voting Rights Act, maintaining political subdivisions, or other constitutionally mandatory criteria. The maximum average deviation of all House districts shall be no more than plus or minus 1% deviation. The commission may adjust this deviation if undercount analysis from the U.S. Census Bureau demonstrates that systematic undercounting occurred among identified geographic or demographic groups.
• Protection of minority voting rights are guaranteed in Article II, Section 4 of the Montana Constitution and through compliance with the Voting Rights Act. No district, plan, or proposal for a plan is acceptable if it affords members of a racial or language minority group “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” (42 U.S.C. 1973). Race cannot be the predominant factor to which traditional redistricting criteria are subordinated. (Shaw v. Reno, 509 U.S. 630 1993).
• Each district shall consist of compact territory. (Article 5, Section 14 of the Montana Constitution). The commission shall consider the district’s functional compactness in terms of travel and transportation, communication, and geography.
• Each district shall be contiguous, meaning that a district must be in one piece. (Article 5, Section 14 of the Montana Constitution). Areas that meet only at points of adjoining corners shall not be considered contiguous. Areas separated by natural geographical or artificial barriers that prevent transportation by vehicle on a maintained road shall be avoided when not in conflict with the commission’s adopted criteria and goals.

Goal criteria for legislative districts:

• No plan may be drawn to unduly favor a political party.
• The commission shall attempt to minimize dividing cities, towns, counties, and federal reservations when possible.
• Keeping communities of interest intact. The commission may consider keeping communities of interest intact. Communities of interest can be based on Indian reservations, urban interests, suburban interests, rural interests, including elementary and high school districts, tribal interests, neighborhoods, trade areas, geographic location, demographics, communication and transportation networks, social, cultural, historic, and economic interests and connections, or occupations and lifestyles.
• The commission may consider competitiveness of districts when drawing plans.
• The commission shall consider assigning holdover senators to the Senate District which contains the greatest number of residents of the district from which they were previously elected when possible.

More information on the districting commission, including meeting briefing materials and information on submitting public comment to the group, is available at leg.mt.gov/districting/2020-commission/.