House districting negotiations snag on ‘what’s fair?’ question

HELENA — An effort by Montana’s independent districting commission to reconcile Republican and Democratic proposals for dividing the state into two U.S. House districts slid into a thicket this week, as public comment split on largely party lines and an initial work session saw the body’s partisan commissioners yield only modest ground to their colleagues across the table.

Montana Districting and Apportionment Chair Maylinn Smith, the five-member body’s tiebreaker vote, opened a work session Thursday saying she hoped the commission would be able to hammer out a map amenable to both Republicans and Democrats by the end of the day.

“I have confidence that we can actually reach consensus despite the number of people that have expressed disbelief to me when I make that statement,” she said. “I’m going to try and work toward consensus because I do think that’s what’s best for Montana.”

Thursday’s meeting followed a Tuesday hearing where the commission spent a full day listening to public comment on a batch of nine maps, five proposed by its two Democratic commissioners and four advanced by its two Republicans. That public feedback largely split along partisan lines, with some commenters backing GOP proposals that divide the state on an east-west basis, and some supporting Democratic proposals that bundle Missoula, Butte, Helena and Bozeman together into a district anchored in southwest Montana.

The divide was echoed by the commissioners Thursday. Following hours of back and forth between the Republican and Democratic camps, Smith was resigned to a fallback position: letting each major party choose a single map for another round of public input. 

Instead of settling on a single proposed map this week and finalizing the pick as soon as the next commission meeting, set for Saturday, Oct. 30, the body now hopes to settle on a single proposal Oct. 30 and finalize it at an additional meeting before its Nov. 14 deadline for submitting its ultimate choice to the Montana secretary of state. If the commissioners can’t reach a consensus agreement on Oct. 30, Smith said, she’ll pick one of the proposals to throw her vote behind.

The latest Republican map, advanced by commissioners Dan Stusek and Jeff Essmann, features eastern and western districts. It includes Kalispell and the Blackfeet Indian Reservation in the western district, balancing that population by assigning Helena to the eastern district. It also splits Gallatin County, relegating Belgrade, Four Corners and Bozeman proper to the western district while assigning northern, eastern and southern Gallatin County to the eastern district.

The latest Democratic map, backed by commissioners Kendra Miller and Joe Lamson, also proposes an east-west divide, but draws a boundary that assigns the Blackfeet Reservation and all of Flathead County except Whitefish to the eastern district. In exchange, it groups the entirety of Gallatin and Park counties in the western district.

At the heart of the debate over the maps is the interpretation of a fairness goal Republican and Democratic commissioners alike say they agree on — producing a map that is not “drawn to unduly favor a political party.”

Republicans have, by and large, taken the position that the fairness goal is best served by drawing a map without paying particular concern to the political makeup of the resulting districts. That approach produces two districts where Democratic candidates would likely face an uphill fight as they campaign for Congress over the next decade.

Democrats, in turn, have generally argued it’s fairer to draw lines that group enough Democratic-leaning areas to produce a competitive district that has historically voted for Republican candidates by, on average, no more than 5 percentage points. That way, they say, Montanans who identify as Democrats won’t be effectively excluded from a reasonable chance at electing a U.S. representative who can voice their values in Washington, D.C. 

Miller, one of the Democratic commissioners, presented an analysis Thursday based on historic election data from 20 races for statewide office held in Montana since 2014. Using earlier versions of the Democratic and Republican maps, she said her math indicates there were only two of those 20 races where Democrats — Steve Bullock in 2016 and Jon Tester in 2018 — received enough votes to win either GOP-proposed district.

In contrast, the Democratic map Miller analyzed would carve out a southwestern district where Democratic candidates received more votes than Republicans about half the time. Kathleen Williams, for example, received enough votes to win that proposed southwestern district in her 2018 and 2020 races, but would have lost in both years in the GOP-proposed districts Miller analyzed.

Republican commissioner Stusek said Thursday that he doesn’t dispute Miller’s figures, but that he believes it’s misguided for the commission to put too much emphasis on the map’s partisan consequences as opposed to focusing on population balance and geographic compactness. He noted the analogous districting commission in Washington state — which, in contrast to Montana, is controlled by Democrats — is seeing a similar debate play out in reverse as minority Republicans there advocate for maps that give GOP congressional candidates a shot at winning more seats. 

“Just two states away we’ve got this argument completely flipped, where Republicans are putting forward the competitive language and Democrats are saying, ‘no that is gerrymandering,’” Stusek said.

A state statute technically bans the Montana districting commission from considering political information such as historic election results while drawing congressional and legislative districts, but, in part because that law may be unconstitutional, commissioners have chosen to ignore it. A state court previously struck down a portion of the 2003 law, saying it infringed on the power of the independent commission. However, the remainder of that law, including new districting requirements added to the statute by this year’s Legislature, haven’t been directly challenged in court and remain in a state of legal limbo.

Also a factor in the commission’s deliberations are how the proposed maps will influence the representation of the eight Native American communities in Montana, where residents tend to vote disportionately for Democrats. Western Native Voice, a Native advocacy group, has called for a map that places at least two reservations in each district. A resolution passed by the Confederated Salish and Kootenai Tribes has asked commissioners to advance maps that include as many Native American communities as possible in a competitive district.

“Those [maps would] mean that politicians need to engage with us and other tribal nations to secure our votes,” CSKT Chairwoman Shelly Fyant said at a Tuesday commission meeting. “CSKT believes that competition leads to a healthier democracy and more favorable outcomes for our people.”

Neither proposal on the table currently necessarily satisfies those preferences. The map currently proposed by Republicans includes the Flathead and Blackfeet reservations in the western district, but isn’t necessarily as competitive as progressives would prefer. The current Democratic proposal places only one Native area, the Flathead Indian Reservation, in its western district. 

Ultimately, unless Republican and Democratic commissioners can forge a compromise, the “what does fair mean?” question will be decided by a vote from Smith, a tribal law attorney and former University of Montana professor who was appointed to the commission by the Montana Supreme Court. While her role is officially nonpartisan, Republicans have questioned Smith’s independence by noting she has occasionally donated to Democratic candidates including Jon Tester and Denise Juneau. She has defended those donations as infrequent and said that she does not view herself “as a political operative.”

Even so, she appeared to show at least some sympathy to the Democratic position this week, saying Thursday that she thinks it’s important for the commission to produce a map that takes political competitiveness into consideration.

“I really would like to have a map that does not favor any political party to the extent that we can,” she said. “I’m a realist here — I know what the makeup of Montana is. I don’t see that we’re going to have two districts that are not going to favor a party. I don’t see that as happening given the nature of Montana. But I do think we need to strive to achieve that for a district whenever we can.”