Searching for ‘fair’ on Montana’s legislative map

Boiled down to its basic criteria, the task of drawing Montana’s next legislative map doesn’t sound that complicated:

The districts, used to elect Montana’s 100 state representatives and 50 state senators, must be compact and contiguous. They need to divide the state’s population, as counted by the 2020 census, as equally as possible. They should comply with the federal Voting Rights Act, giving the state’s Native American voters a fair chance to elect the candidate of their choice. 

With the aid of modern technology that can calculate everything from population deviation to contiguity, just how hard could it be?

Plenty hard, it turns out, as the five members of Montana’s 2020 Districting and Apportionment Commission are finding as they put their first draft maps out for public comment.

Among the sticky questions commissioners face are which communities to keep whole (or split), and which geographic boundaries to follow (or cross) with district lines. And then there’s the big one: What exactly does “fair” mean when it comes to the boundaries that will define Montana’s playing field for the coming decade of legislative politics?

The body’s two Democratic appointees, Kendra Miller and Joe Lamson, have argued the commission should prioritize drawing competitive districts, rather than districts that lean so far Republican or Democrat that the winner of the dominant party’s primary is virtually assured general election victory.

The Democrats have also made a case for prioritizing high-level proportionality, advocating for a map that produces a Legislature in which the number of seats held by each major party is proportional to the parties’ overall vote share statewide. If one party gets, say, 60% of the vote in a given election, they argue, that party should expect to win about 60 of 100 seats in the Legislature. In contrast, the Democrats say, the initial maps proposed by the commission’s two Republican members would bake in a GOP advantage beyond what Montana voters statewide actually support, in part by isolating likely Democratic voters into urban districts. 

“We’re very cognizant of the problem of creating supermajorities in which parties dominate way beyond the vote share of the state,” Lamson told Montana Free Press. “That is a very important thing. The reason is, it’s been shown time and time again that power corrupts, and absolute power corrupts absolutely.”

But the commission’s Republicans, Dan Stusek and Jeff Essmann, have bristled at the suggestion their maps are unfair. They say they’re prioritizing the compact, contiguous and equal population criteria outlined in the state Constitution, and add that there’s nothing in the Constitution that says the maps should encourage proportional representation. Democrats, they argue, want to draw contrived districts that combine urban and rural voters in order to dilute the Republican-leaning rural vote.

“The word ‘fair’ does not appear in the Montana Constitution with respect to drawing these maps,” Essmann said in an August commission meeting. 

The commission, which is soliciting public comment on the four maps already advanced by the partisan commissioners through the end of September, will begin voting on House district lines following the November elections. That map will then be put before the Legislature for feedback in January, though commissioners are free to disregard input from lawmakers.

As politically engaged Montanans try to parse the debates swirling around the proposed legislative maps, one way to make sense of the various indices, criteria and metrics under discussion is to look at how they apply to the current map, which was drawn after the 2010 census and first applied to legislative elections in 2014. Since the new map won’t take effect until the 2024 cycle, the current map will also be used in one last election this fall.

THE DATA 

The debates animating the current redistricting commission aren’t new, a look at the historical record indicates. The last commission, which redrew the map following the 2010 census, had its own intense arguments about appropriate criteria, political advantage, and how to accommodate Montana’s urban-rural divide.

Now that the current map has been voter-tested across four election cycles, it’s possible to see how thorny decisions about fairness and proportionality have played out in actual, as opposed to hypothetical, election results.

Election data available from the Montana secretary of state for the past four cycles indicates that, in each of those elections, the Republican Party has won slightly more seats in the Montana House than it would have under a map that produced representation perfectly proportional to the overall statewide vote. 

In 2014, for example, Republican candidates received 54% of all votes cast in legislative elections, and won 59 of 100 House seats. In contrast, 45% of votes were cast for Democrats, who won the remaining 41 House seats. Similar patterns played out in 2016, 2018, and the “red wave” of 2020, when Republicans picked up 62% of the legislative vote statewide and 67% — or 67 of 100 — House seats.

(MTFP’s analysis of the current district map focuses only on Montana House districts for the sake of simplicity. Each of the state’s 50 Senate districts is composed of two adjacent House districts.)  

Another way to evaluate the performance of the current map is to look at how many of the current districts have produced competitive general elections. That district-level competitiveness can be measured in multiple ways.

As it considers new legislative maps, for example, the 2020 redistricting commission has agreed to classify proposed districts as “competitive” if each party has won the district in at least three of 10 major statewide races since 2016. (Political scientists often look at statewide races when measuring partisanship because they’re thought to be less subject to idiosyncrasies like incumbency or candidates who have some sort of unique appeal).

The redistricting commission’s competitiveness criteria is satisfied by nine of the state’s current 100 House districts. Sixty-two of the remaining districts have leaned too Republican to count as competitive under that criteria, and 29 have leaned too Democratic.

Another way to measure competitiveness, at least with the existing map, is to look at which districts have proven to be legislative swing seats in practice. Sixteen of the current 100 House districts have elected both Republicans and Democrats since 2014, while 54 have elected only Republicans and 30 only Democrats.

TWISTS OF POLITICAL GEOGRAPHY 

The commission’s competitiveness metric and past election results don’t always align — in part because they don’t necessarily account for individual candidates bucking their district’s political tilt. House District 3 in Columbia Falls, for example, has voted Republican in all 10 statewide races encompassed by the redistricting commission’s competitiveness criterion, and leans about R+20 in partisanship metrics based on average margins in past races. But HD 3 has been represented in three of the last four Legislatures by Democratic Rep. Zac Perry, who eked out narrow wins over a series of Republican challengers. When Perry resigned to attend graduate school in 2019, the Flathead County Commission appointed Democrat Debo Powers in his place. The next year, then-20-year-old GOP hardliner Braxton Mitchell trounced Powers by 20 points. 

Conversely, House District 48 in central Billings appears Democratic on the basis of legislative results alone, having elected Democratic Rep. Jessica Karjala by at least five points the last four elections in a row. The district has, though, split evenly in the 10 statewide races during that time, electing Democratic candidates in five contests and Republicans in five others — indicating it could well prove a swing seat this year as term limits take Karjala off the ballot.

Those aren’t isolated situations in Montana’s political geography. A detailed look at the current Montana House map illustrates the complexity involved in trying to distill a 100-district political map — even one with an electoral track record — down to a single metric. 

The current Montana House map does have its share of deep red and deep blue districts. In southeast Montana’s House District 37, for example, just 13.8% of voters on average cast ballots for Democrats in statewide races, and in Butte’s House District 74, only one voter in three generally votes Republican. But the map also includes streaks of political purple that have historically anchored Montana’s political identity.

Northwest Missoula’s House District 96, for example, has bounced between Democratic and Republican control since 2014, making it perhaps Montana’s swingiest swing seat under the current map. Dave’s Redistricting, a widely cited district-drawing data resource, rates HD 96 as leaning ever-so-slightly-Democratic based on recent results in statewide elections.

Much of the current map’s political geography is familiar to Montana political observers. Democrats have their strongest footing in urban cores, particularly in college towns Missoula and Bozeman. Republicans generally dominate the politics of more rural areas, especially the agricultural communities of the state’s central and eastern plains.

Montana’s tribal communities are the most notable exceptions to that urban-rural divide.

Under the current map, six of 100 House seats were drawn as “majority-minority” districts in order to comply with the federal Voting Rights Act, which forbids maps that are drawn such that racial and linguistic minority groups “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

Those six districts represent 6% of the Montana House. In comparison, 7.9% of Montana’s population identified as at least partially Native in the 2010 census count, and 8.7% identified as at least partially Native in 2020. Eight members of the Montana House of Representatives elected in 2020 — seven Democrats and one Republican — identify as Native.

The only majority-Native district that has elected a Republican since 2014 is House District 32, which spans the Rocky Boy’s and Fort Belknap reservations in north-central Montana.

GENESIS OF THE 2010 MAP

Montana is one of 15 states that puts redistricting authority not in the hands the state Legislature but rather with a districting commission — appointed bodies intended to avoid the tendency of legislators, left to their own devices, to draw districts that benefit partisan agendas. 

Montana’s Districting and Apportionment Commission was established as a five-person bipartisan body by the 1972 state Constitution. The four partisan commissioners are appointed by the majority and minority leaders from each chamber of the Legislature. Those four partisans are then tasked with choosing a fifth member to serve as chair, though in practice the two Republican, two-Democrat composition has generally produced impasses that require the state Supreme Court to select the body’s presiding officer. The chair often ends up casting tie-breaking votes on the commission’s key decisions. 

Given the political stakes involved in the maps, redistricting is an intense process. And while commission-based redistricting takes the Legislature out of the process, party bosses are never too far away.

“Both sets of commissioners are under a lot of pressure from both parties,” said Jon Bennion, a Republican member of the 2010 commision, said. “Not any single commissioner on the Republican or Democratic side is in the driver’s seat. It can be a very frustrating process.” 

The 2010 redistricting cycle was the fifth time Montana used the commission model. Democrats appointed Lamson and Pat Smith, while Republicans appointed Bennion and Linda Vaughey. Chairing the commission was former Supreme Court Justice Jim Regnier.  

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Sensitive to a long history of litigation challenging inadequate Native American representation in Montana, the 2010 commission began with a consensus decision, adopting similar versions of the six majority-minority House districts included on the prior map. But the rest of the process would prove highly contentious. Regnier regularly broke ties between the Democratic and Republican commissioners. At one point he even drew his own plan for Lake County amid gridlock. 

Looming large over that work was the prior redistricting commission, which Republicans viewed as having drawn a map too favorable to Democrats, in part because it generally assigned slightly larger populations to red-leaning districts than to blue-leaning ones. During the first election the map was used, in 2004, Democrats gained nine legislative seats, enough for a Senate majority and a tie in the state House. 

“There was a sense amongst a lot of Republicans that they got a raw deal,” Bennion told Montana Free Press in September. 

In the intervening decade, Montana had grown by 87,220 people, or around 10%. But that growth was uneven. While Flathead and Gallatin counties grew by 20% and 32%, respectively, Treasure, Judith Basin, McCone, Daniels, and Sheridan counties, among others, were shedding population — shifting the state’s population weight from east to west.

The new lines had to accommodate the state’s changing demographics, which contributed to sticking points in Montana’s urban areas, Regnier and Caitlin Boland Aarab wrote in a 2014 University of Montana Law Review article about the redistricting process.

Generally speaking, Republicans sought to more clearly separate rural and urban communities  — in effect reducing the Democratic advantage in and around cities during the prior decade as a result of the 2000 map blending likely Republican and Democratic voters into competitive or blue-leaning districts.

At specific issue were so-called wagon wheel districts in urban counties, especially Missoula. Those districts fanned out from densely populated, liberal urban cores into the county like spokes from a hub, grouping likely conservative voters living on more rural properties on the outskirts into competitive or blue-leaning districts. In Missoula County, Republicans successfully pushed to do away with that configuration in 2010 and draw a rural-only — and reliably red — district in southwest Missoula County.

Lamson said Republican fixation on the idea that Democrats are diluting rural votes obscures the fact that many voters don’t fit cleanly into an urban or rural category. Republicans would attack the shape of any blue-tinged district he proposes, he said.  

“Republicans like to cast it as an urban-rural split,” said Lamson, who has served on redistricting commissions as a Democrat since 2000. “That’s not what it is at all. It’s a question of how we represent urban and suburban voters in fair numbers. In Montana, like the rest of the country, people routinely migrate in and out of urban areas both ways for various reasons. It’s a broader, more mobile community.”

A similar scramble played out in southwest Montana. There, the Democratic commissioners of 2010 fought to maintain four districts in deep-blue Butte, which would require incorporating chunks of Jefferson County. Republicans wanted to keep Jefferson County whole in its own district. Regnier, citing public comment from Jefferson County residents and Silver Bow County’s decreasing population, voted with the Republican commissioners, effectively reducing the Butte delegation to three House seats. The Jefferson County seat, House District 75, has elected only Republicans. 

The 2010 commission unanimously approved a tentative 100-district House map, seemingly a sign that Regnier had successfully wrangled the four partisan commissioners into something resembling compromise. But that didn’t hold. 

In February 2013, after Regnier had presented the map to the Legislature for comment, Republican commissioners Bennion and Vaughey proposed alterations to the Helena and Great Falls lines that would have reduced their Democratic lean. Regnier sided with the Democrats, meaning the final map was passed on a 3-2 vote. 

In 2014, the map’s first test case, Democrats picked up two House seats, but remained solidly in the minority. That margin remained essentially static until 2020’s red wave, when Republicans took all the Great Falls-area House districts and gained seats in the Flathead Valley and Billings.

Lamson said Regnier’s final vote with the Democratic commissioners has led to some suspicion that the current map favors the minority party, but that several elections in which Democrats failed to increase their legislative wins suggest otherwise. In fact, he contends, the map did Republicans favors in the Flathead and southwestern Montana.

“We proceeded to never control a single [chamber] of the Legislature for the entire time that the map has been in effect,” Lamson told MTFP. “But that reflects where the voters were on a lot of these things.”

Bennion said the Republican performance under the current map has more to do with broader political trends than with the shape of the districts. 

“We’ve just seen more and more offices, whether it’s statewide offices, regional offices, right down to the Legislature, that are going into the Republican camp,” he said. 

WHY COMPETITIVENESS? 

The fairness debate has pervaded the state’s redistricting process over multiple cycles. Regnier, among others, has opined that competitiveness is a worthwhile goal. 

“Redistricting commissions should strive to enable competitive elections within legislative districts because competitive districts are the opposite of the gerrymandered ‘safe seats,’” he and Boland wrote in their Montana Law Review article. 

Democrats in particular have run with the argument in the current cycle, though competitiveness is not a priority unique to the party. Republican commissioners in Montana have pointed out that in states where Democrats are in the majority, like Washington, it’s the GOP that routinely advocates for more swingable districts.

Competitive districts tend to encourage more moderate candidates who support less extreme policies, said Kal Munis, a Utah Valley University political scientist originally from Montana. Competitive general elections theoretically force candidates to campaign for a broad, multi-ideology coalition of voters, rather than letting them run up the score with appeals to hardliners in the party base.

Whether competitiveness is an objective good is a separate question. Creating competition means lumping opposed voters together in a system where some side has to lose, which Munis said can polarize an electorate even if candidates are more moderate. Some political scientists have argued for abandoning the principle entirely in favor of something akin to a bipartisan gerrymander: maximizing safe seats for each party and thus maximizing the number of “winning” voters. 

The open questions have fueled Republican suspicion of the competitiveness goal in Montana. Why shoot for a moving target when the bedrock criteria — compact, contiguous and population-equal — are laid out in the state Constitution?

“I think for at least the public at large — and a lot of times redistricting is such an inside-baseball thing that the public at large isn’t aware of all the different hearings or opportunities to participate — some of that dialogue around competitiveness is not going to translate to them,” Bennion said.

While it’s nice for both parties to have opportunities to make their case in an election, he said, it’s more important that voters feel represented by their elected officials on a personal and community level. 

“Voters need to feel like they have somebody they can go to that’s accessible, who can hear them out,” Bennion said.

Even if everyone agreed on competitive districts as a worthy goal, crafting them wouldn’t be easy. As the 2020 commission’s Republicans have pointed out, defining competitiveness requires selecting baseline races as points of comparison, which is hardly an objective decision. The best way to prevent gerrymandering, they argue, is to draw compact districts with equal populations that pass the eye test. In other words, if the district looks weird, it probably is. 

But that conception of what makes a proper district has its own political ramifications, especially in an environment where voters tend to self-sort into like-minded communities. Democrat-inclined voters in Montana, for example, have tended to disproportionately choose to live in urban neighborhoods in city cores — in effect gerrymandering themselves. As a result, drawing compact districts in, say, central Helena, often means creating one or two safe Democratic seats instead of spreading those voters out among several competitive districts that include both city and county communities.

“To actually make a competitive map given the degree of geographic polarization we have, it’s a tremendous undertaking, and it’s an undertaking that starts to feel a little bit silly on some level,” Munis said.

Competitiveness can also have a flexible definition. In the current cycle, the Democratic commissioners say they are just as concerned with achieving overall proportionality between legislative seats and the number of votes that either party receives in a given election as they are with drawing several individually competitive districts. But those goals are sometimes untethered from one another: Proportionality can just as well be accomplished by pumping the number of safe seats for one party or another. 

Proportionality in particular is a messy subject. As MTFP’s analysis shows, Republicans under the 2010 maps have repeatedly held a greater percentage of legislative seats than the percentage of votes they received in a given election. 

In Montana, that means thousands of Democratic voters living in rural, GOP-leaning districts had scarce opportunity to elect a candidate of their choice. The converse has been true in deep-blue urban districts, where GOP voters often find themselves politically stranded. 

“We think rural equals MAGA country, but across the U.S., Joe Biden was still getting about 30% of the votes in rural areas,” Munis said. “It’s a minority, but if you have 10 people in the room, three people is considerable.”

In 2020, for example, Montana Democrats cast 52,887 votes for their party’s legislative candidates in districts that have never once elected a Democrat. Republicans, meanwhile, cast 49,257 votes for their candidates in districts that have never elected a member of the GOP. 

These are the state’s stranded voters, and they’re stuck in a winner-takes-all system that was never designed to achieve proportional representation. Montana, like most U.S. states and unlike many other national democracies, has single-member districts: No matter how many voters supported the losing candidate, their desires are subsumed into those of the majority.

“It’s part of the way our system has evolved,” said Jeremy Johnson, a political scientist at Carroll College in Helena. “It is a feature and a bug of our democracy.”

And the more detached electoral results are from the actual composition of the electorate, the more obvious the inherent contradictions of single-member districts become, Johnson said. 

“It strains the system,” he said. “If you go outside Montana to states with legislatures drawing maps like that very intentionally, it becomes anti-democratic. If you start having those extremes like that, you start undermining the notion of one person, one vote.”