Constitutional amendment proposals heat up ahead of deadline

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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.

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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.”