A panel of federal judges has ordered Montana Secretary of State Christi Jacobsen to use a court-drawn district map for this year’s Public Service Commission elections, shifting the district assignments for four Montana counties days before the March 14 candidate filing deadline for the two PSC seats up for election this year.
The order, issued Tuesday, also formally rules that the existing utility regulation board districts, which haven’t been updated by the state Legislature since 2003, have become so unbalanced that they violate voters’ rights to proportional representation.
“Reluctantly, the answer here is to narrowly impose a federal court order to reapportion state electoral districts until the Montana legislature acts,” wrote judges Donald Molloy, Paul Watford and Brian Morris. “Because the current Commission districts impermissibly violate the one person, one vote principle of the Fourteenth Amendment, the districts are unconstitutional.”
The judges also said the Legislature is free to replace the court-ordered map with one of its own during either a special or regularly scheduled legislative session and noted that they had made an effort to defer to state policy. Their court-ordered map, they said, was based largely on a proposal submitted by state attorneys representing the secretary of state.
“It bears repeating that this map remains in effect only in the absence of legislative action,” the judges wrote.
Some Republican lawmakers, such as Rep. Derek Skees of Kalispell, who is campaigning for a PSC seat, had pushed for a special session to draw a new map before the court took action. Negotiations aimed at getting a critical mass of the Legislature’s Republican majority on board stalled, however, as some hardline Republicans advocated for a special session that would also delve into their concerns over the integrity of Montana’s elections. Gov. Greg Gianforte had said he would consider calling a special session if it focused only on the PSC districting issue.
Prominent lawmakers have previously said publicly that they intend to bring legislation to redraw PSC districts during next year’s regularly scheduled session. If such legislation passes in 2023, the new, court-ordered map will be used only for the 2022 election cycle.
At oral arguments in the case March 4, the judges also floated the possibility of invalidating the current district map without ordering the state to use a new one. State attorneys said at the hearing that approach could have prevented new commissioners from being elected this year, creating vacancies that would then be subject to interim appointments by the governor.
The Public Service Commission, which consists of a five-member elected commission and professional support staff, is tasked with regulating energy utilities and other companies that operate with captive customer bases to ensure 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. With all five of its seats held by Republicans, it has also faced criticism from climate activists who want the agency to be more aggressive about pushing utilities like NorthWestern Energy to more rapidly adopt renewable energy sources.
Under the old PSC map, the commission’s District 1, which encompasses Great Falls and northeast Montana, had as a result of relatively slow population growth ended up with tens of thousands fewer voters than District 3, which includes fast-growing Bozeman and other parts of southwest Montana. As of the 2020 census, the two districts had a population deviation of 53,000 voters, or nearly 25% — giving Hi-Line voters more proportional representation on the commission than Bozeman voters.
Case law interpreting the 14th Amendment to the U.S. Constitution, which guarantees Americans equal protection under the law, generally prohibits political districts that have a population deviation greater than 10%.
The new court-drawn map remedies the population imbalance by swapping a handful of counties between districts. Deer Lodge County (Anaconda) and Musselshell County (Roundup) have been reassigned out of the overpopulated District 3. Similarly, Glacier County (Cut Bank and Browning) and Pondera County (Conrad) have been moved into the underpopulated District 1.
State attorneys had submitted a proposal that produced districts satisfying the 10% deviation criteria by moving only three counties: Deer Lodge, Glacier and Musselshell. The newly ordered map is similar, except the judges chose to also shift Pondera County in order to bring the deviation to 6.7% and avoid splitting the Blackfeet Indian Reservation.
Since PSC seats representing District 1 and 5 are up for election this year, the court notes, the new map’s reassignments mean every voter who was slated to vote for a commission candidate this year will still get that opportunity.
In a statement, Speaker of the House Wylie Galt, R-Martinsdale, reiterated the Legislature’s position that the court should have given lawmakers a chance to redraw the districts when it meets for its regularly scheduled 2023 session.
“I appreciate the court ordering a map that makes very few changes to prior legislative action and also for recognizing the Legislature’s ultimate authority to adjust Montana’s PSC districts,” Galt said.
A spokesperson for Jacobsen, who was named as the instigating lawsuit’s defendant, said Tuesday she was reviewing the ruling in order to provide guidance to election officials.
The lawsuit was brought by a trio of Montana voters represented by attorneys Constance Van Kley and Rylee Sommers-Flanagan of Helena-based Upper Seven Law and Joel Krautter of Sidney-based Netzer Law Office.
Van Kley applauded the ruling in a statement Tuesday.
“The court has affirmed that all Montanans have an equal right to vote,” she said. “This ruling is a victory for Montana voters and for democratic principles.”
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