Lawsuit says Montana’s utility commission districts violate ‘one person, one vote’

HELENA — A lawsuit filed in federal court in Helena Monday argues that the districts used to elect the Montana Public Service Commission, the state’s utility regulation board, violate the U.S. Constitution because they haven’t been updated to account for population shifts in nearly two decades.

The plaintiffs, two former Republican elected officials and a Gallatin County resident, ask the federal court system to appoint a three-judge panel to draw a new PSC district map. They also ask the court to prevent defendant Christi Jacobsen, Montana’s secretary of state, from using the current districts for next year’s election, when two of the commission’s five seats will be on the ballot.

All five current Public Service Commissioners are Republicans. Environmental and climate activists, as well as Democratic candidates, have consistently criticized the commission in recent years for not being more aggressive about pushing NorthWestern Energy and other power utilities to more rapidly adopt renewable energy sources.

The current PSC district map was adopted by the Montana Legislature in 2003 following the 2000 census. Since that map was adopted, however, Montana’s population has grown unevenly. PSC District 3, for example, which includes Bozeman, Butte, and much of rural southwestern Montana, had added more than 60,000 residents as of the 2020 census count. In contrast, District 1, which includes Great Falls, Lewistown, and much of the northeastern Montana Hi-Line, has grown by only 2,400 people in the last 20 years.

That means District 3 commissioner James Brown represents about 53,000 more people than does District 1 Commissioner Randy Pinocci. The difference, a deviation of nearly 25%, in essence gives each District 1 resident proportionally more representation on the commission.

“It’s pretty clear that the districts are out of whack,” said plaintiffs’ attorney Constance Van Kley of Helena-based Upper Seven Law. “We’re just in a place where redistricting hasn’t happened for far too long, and now we have vote dilution happening.”

The lawsuit argues that the population disparities between the current PSC districts violate the U.S. Constitution’s Fourteenth Amendment, which guarantees Americans “equal protection of the laws” and has been interpreted by the U.S. Supreme Court as requiring that voting power be distributed evenly among citizens.

“Protecting the one-person, one-vote rule in Montana is essential. As Secretary of State, I fought to ensure that every Montanan had fair and equal access to the ballot box,” plaintiff Bob Brown said in a statement. “As the Public Service Commission districts stand today, Montanans are not equally represented.”

Richie Melby, a spokesperson for the secretary of state’s office, said Tuesday that the office hadn’t yet been served with the lawsuit and referred inquiries to other government entities.

PSC spokesperson Dan Stusek declined to comment Tuesday on whether the commission believes its districts need to be rebalanced, saying redistricting is the Legislature’s prerogative.

Stusek, who was recently hired into a staff role at the PSC, also serves on the state’s Districting and Apportionment Commission, which is responsible for redrawing the maps used in congressional and legislative elections.

Kyle Schmauch, a spokesperson for the Legislature’s Republican majority leadership, said Tuesday that PSC redistricting had not to his knowledge been brought to the Legislature’s attention this year, and characterized the plaintiffs’ filing as a bad faith rush to the courts.

“This lawsuit is transparently a political attempt to influence upcoming elections through the court system instead of through the proper legislative process,” Schmauch wrote in an email. “If the people suing were acting in good faith, they would have come to the legislature for a robust discussion with public input, instead of attempting to achieve their political goals through the courts.”

Brown, of Kalispell, served as secretary of state, the state’s chief election official, as a Republican from 2001 to 2004 and publicly broke with the GOP last year, citing frustration with President Donald Trump. Another plaintiff, Don Seifert, served as Gallatin County Commissioner as a Republican from 2015 to 2020.

Brown, Seifert and the third plaintiff, Hailey Sinoff of Gallatin County, are described in court filings as residents of their respective counties who intend to vote for representation on the Public Service Commission in future election cycles. Attorneys with Upper Seven Law and another firm representing the plaintiffs, Netzer Law Office of Sidney, are both involved in separate litigation challenging laws passed by this year’s Legislature.

The Public Service Commission, which consists of the elected commission and professional support staff, is tasked with regulating energy utilities and other companies that operate with captive customer bases and ensuring those companies don’t use their monopoly power to overcharge consumers.

The commission has also been beset in recent years by a series of interpersonal conflicts and scandals, including an audit that discovered missing financial records. The agency has also faced a series of court rulings in which judges determined that commissioners failed to properly apply the law to renewable energy projects.

The Legislature considered a bill this year that would have changed the Public Service Commission to a three-person body with members appointed by the governor. That proposal, sponsored by Sen. Doug Kary, R-Billings, floundered in the state Senate.

Several other bills proposed in prior legislative sessions would have either reapportioned PSC districts directly, specified a redistricting process for the commission, or otherwise restructured the body, the lawsuit notes. None of them passed into law.