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March 28, 2023

A slate of constitutional amendment proposals to reshape Montana’s independent redistricting process are receiving bill hearings this week as the legislative deadline to transmit ballot referrals approaches. 

House Bill 866, sponsored by Rep. Brandon Ler, R-Savage, was heard in the House Judiciary Committee Monday, while House Bills 895 and 934 are scheduled for committee hearings later in the week. In the upper chamber, Billings Republican Sen. Tom McGillvray’s Senate Bill 534 is scheduled for a hearing in the Senate State Administration Committee Friday. 

Collectively, the proposals — each of which would ultimately require voter approval to take effect — represent Republican frustration with the state’s decennial legislative redistricting process, the most recent round of which concluded earlier this year. Republicans criticized the new legislative maps as political gerrymanders designed to sap their control in the Legislature, despite the fact that the new map still gives the GOP a hypothetical 60-40 majority. The party has threatened to challenge the map in court. 

Montana’s Districting and Apportionment Commission was among the country’s first independent redistricting bodies when it was established in the state’s 1972 Constitution to solve what had been a recurring problem in the state’s early history: lawmakers tended to draw legislative districts to benefit themselves, often creating districts that were grossly under- or over-populated.

The five-member commission meets after the census every decade to draw new U.S. House and legislative districts based on updated population numbers. The two major parties each appoint two members, while the fifth is a nonpartisan presiding officer picked either by the partisan commissioners or, more often, by the state Supreme Court. 

Ler’s bill would eliminate the presiding officer — whose association with the Supreme Court has often generated GOP ire — and weight the votes of each partisan member “by a percentage equivalent to the votes cast in the general election preceding the commissioners’ appointment for the gubernatorial candidate of the appointee’s party.”

In other words, if a Republican won the governor’s race in the preceding general election, the votes of Republican redistricting commissioners would carry more weight, and vice versa. 

Ler framed the change as a response to one of the central arguments of the recent redistricting cycle: whether, and to what extent, commissioners should draw maps based on past and predicted political outcomes. Democratic commissioners argued for maps that, in an average election year, yield each party a number of legislative seats in accordance with their aggregate vote share over the previous several elections. Republicans argued the commission should only follow base criteria like compactness and population equality. (The latter strategy, it should be pointed out, would have created a map that favored Republicans even beyond a 60-40 split). 

“If we want to go down that road of, ‘Well, we’ve got this percent of the vote in the last general election, so that’s how many percent of the seats we should have,’ well, this would do that,” Ler testified Monday. 

As for the elimination of the presiding officer, Ler explained that Republicans have been frustrated to see the nonpartisan officer vote against their plans. 

“All the proposed maps that were given by Republicans were voted down by the third-party chair,” he testified. “That’s half the reason why I would like to do this.”

The commission’s final legislative maps were approved on a 3-2 vote, with chair Maylinn Smith joining the two Democrats. Smith joined Republicans in adopting Montana’s two new U.S. House districts a year before. 

Either way, Ler said he doesn’t believe the presiding officer is truly a nonpartisan position anyway.

“The Supreme Court hasn’t ruled in our favor in a long time, so I believe that that’s kind of a partisan seat in itself,” he said. 

The bill had no public proponents. Opponents said the commission’s current process guides the two parties toward consensus and doesn’t need to be changed.

“It is a good structure that is not in need of changing,” testified Norane Appling-Freistadt of Helena. “Regardless of how you feel about the outcome of this or any districting congressional or legislative cycle, our goal in redistricting should be to do as much as possible to arrive at an independent, deliberative and fair process that prioritizes the voices of local citizens about their own communities.”

McGillvray’s SB 534 has the backing of both House and Senate Republican leadership. If approved by voters, it would add language to the Montana Constitution preventing redistricting commissioners from considering “any data pertaining to the political affiliation of electors or prior election results” when establishing new districts. 

House Bill 895, sponsored by Rep. Paul Green, R-Hardin, would require legislative approval of any new commission-drawn redistricting plan. Currently lawmakers can only recommend changes. HB 934, sponsored by Rep. Lola Sheldon-Galloway, R-Great Falls, is similar to Ler’s bill, but would make the presiding officer a non-voting member rather than eliminating the position entirely. It too would weight commissioners’ votes based on the results of the previous election. 

Supermajority Republicans have a historic opportunity this session to propose amendments to the Montana Constitution, a document that has repeatedly thwarted the party’s legislative ambitions in court. The GOP has 102 seats in the Legislature, two more than the two-thirds required to send constitutional amendments to voters in the 2024 election. 

So far, more than a dozen such proposals are in the mix, several of which address the redistricting process. Ballot referrals, along with budget bills, must pass out of their chamber of origin by next Tuesday to stay alive, meaning this week is chock-full of hearings on potential amendments.

Counting the votes on those bills is a little wonky. The 100-vote threshold crosses both chambers. As such, interested parties will need to add up the votes each amendment referral receives in each chamber of the Legislature to know if they’ll pass. As a dramatic example: a proposed constitutional amendment that receives 99 votes in the House but none in the Senate is presumed dead. One that receives 25 votes in the Senate and 75 in the House passes. 

If party leadership can decide which proposals to support and keep their members in line, Republicans can pass constitutional amendments to the voters with zero Democratic buy-in. But that’s a big if.

“100 is a high bar, as I’ve always said,” House Speaker Matt Regier, R-Kalispell, said last week. “A lot of conversations and coordination will have to take place to get a constitutional amendment through both chambers and onto the ballot.” 

—Arren Kimbel-Sannit

Bill Report

House Bill 450, sponsored by Rep. Jedediah Hinkle, R-Belgrade, passed an initial vote on the Senate floor Tuesday 31-19. The proposal would allow public school students to use physical force to defend themselves or others from physical attacks. Republican supporters framed the measure as protecting a child’s “natural right” to self defense, while Senate Democrats argued it would give students “license to have a brawl.” Sen. Shane Morigeau, D-Missoula, recalled his own childhood experience standing up to a bully who, he later learned, was dealing with hardships at home. “It didn’t correct anything when I would successfully defend myself,” Morigeau said, speculating that if he had instead alerted a teacher, the bully might have received the help he needed. Three Republicans — Sens. Russ Tempel of ChesterJeff Welborn of Dillon and Walt Sales of Manhattan — voted against the bill alongside the Senate’s full Democratic caucus.

Trust the Trust, Again!

House Speaker Matt Regier, R-Kalispell, and House Minority Leader Kim Abbott, D-Helena, are teaming up on legislation that would transfer $115 million from the General Fund to the state’s coal severance tax trust fund for use developing and maintaining affordable housing in Montana. 

Regier’s House Bill 927 would authorize the state Board of Housing to administer the funds as revolving loans “for the development and preservation of homes and apartments to assist eligible low-income and moderate-income applicants.” It passed out of the House Taxation Committee shortly after its Tuesday hearing on a unanimous vote. 

Regier presented the bill as one of several possible options this session to address Montana’s housing crisis as lawmakers assemble the state’s budget. 

“As that puzzle comes together toward the end we need to make sure that all the pieces are on the table and that we can put that together,” he said in the bill’s hearing Tuesday. “If it’s not, then we’re just going to be short on the conversation.” 

Lawmakers entered the 2023 session with a more than $2 billion budget surplus, and have spent much of the last three months debating how to spend, save or return that money in a way that best serves the state’s needs, housing among them. 

One of those proposals was Butte Democratic Sen. Ryan Lynch’s Senate Bill 346which would have transferred $2 billion to the coal trust. Money in the coal trust is invested, generating interest that flows to uses including water and sewer projects, job creation grants and public school facilities. More than $1 billion is in the trust currently.

The bill attracted more than 40 sponsors on both sides of the aisle, but came into conflict with Republican leadership’s desire to spend the surplus on property and income tax rebates and cuts, and died. Lynch signaled at the time that a new coal trust bill could be coming in the second half of the session. 

“I’m thankful that the speaker was willing to put this in to keep the conversation going on what we do with a generational opportunity with the surplus,” Abbott testified Tuesday. “I think there’s a tension in this building about how we address it, how much we give back to taxpayers — I think we all want to give targeted tax relief back to taxpayers — how much we spend immediately and how much we save or invest, and this is the third part … where we’re putting money from the surplus into a revolving loan program that will continue to reinvest in our communities.” 

Democrats have repeatedly critiqued their majority-party counterparts this session for failing to make meaningful long-term investments in affordable housing. Abbott said she and Regier are still not totally aligned, but that he is interested in the concept of saving and reinvesting state dollars. 

How far the bill makes it in light of the governor’s own housing proposals is an open question, though. 

“My sense is the governor’s office isn’t thrilled with it,” Abbott said. “So my hope is that we can sort of keep it in the mix down the stretch, because it is a missing piece of the multiple-pronged housing solution we’re trying to push.”

Arren Kimbel-Sannit

Vote Viz

House Bill 334, sponsored by Rep. Laurie Bishop, D-Livingston, began its life as a bill allowing parents to let their kids stay home from school to accommodate mental health needs. It passed the House, but on the Senate floor Sen. Keith Regier, R-Kalispell, added language requiring that those mental health needs be medically diagnosed — which Bishop said is contrary to the intent of her bill. 

When one chamber adds amendments to a bill that originated in another chamber, the original chamber has to vote to concur on those amendments. If the original chamber doesn’t agree, the bill goes to a conference committee. Bishop said her original plan was to move to not concur the Senate amendment, but then she saw that the conference committee that would be appointed to reconcile the two versions of the bill would feature two House Republicans who opposed her proposal: Rep. Amy Regier, R-Kalispell, and Rep. Brandon Ler, R-Savage

She layed out her dilemma on the House floor ahead of the concurrence vote on Monday: Vote to concur with the Senate amendment, and you contradict the bill’s purpose. Vote not to concur with the amendment and you send the bill to a conference committee from which it may not emerge intact. 

Her frustration with the situation was evident, so much so that she called out a major — though rarely publicly acknowledged — dynamic of this session. Sen. Regier, chair of the Senate Judiciary Committee, is Rep. Amy Regier’s father. Amy Regier is the House Judiciary Committee chair. Keith Regier’s son is House Speaker Matt Regier, R-Kalispell, who has the power to appoint members to conference committees. 

“What’s clear to me is that the conference committee that has been appointed — all members who have voted against the bill would be joining me [on the conference committee],” Bishop said on the House floor Monday. “I’m going to be honest, we’re talking about a family that controls many steps of this process. I’m just going to be honest about that and say that at this point, my path forward is super unclear.”

The ensuing vote was fascinating, with 27 Republicans joining all Democrats in opposing the Senate amendment — and sending the bill to a conference committee.

—Arren Kimbel-Sannit

Heard in the Halls

“You never know where some bipartisanship is going to pop up in the building.”

—House Minority Leader Kim Abbott, D-Helena, on Speaker Matt Regier’s House Bill 927

On Background

Coal trust boon, or bust?: For more on how the coal trust fits into this session’s budget debate, see this previous Capitolized report. (MTFP)

Searching for ‘fair’ on Montana’s legislative mapThe redistricting debate in Montana has touched on some of the same themes for decades. See this Montana Free Press story for background. (MTFP)