A Supreme Mistake

Isn’t ensuring Montana voters are fairly represented precisely what reapportionment and redistricting is supposed to ensure?

By Dave Skinner

Montana has a good chance of getting another seat in the U.S. House after the 2020 census results are final. Two votes of 435 is better than one of 435, right?

Besides the U.S. House seat, Montana was also looking pretty good with the 2020 U.S. Census-based state reapportionment and redistricting of our post-2022 (maybe 2024) legislative districts. But now I’m having serious doubts.

Obviously, redistricting and reapportionment is highest-stakes politics, more often than not filthy dirty. No political party is above stacking the vote decks their way, with Montana no exception. In fact, our stacking (by Montana legislators, like 37 states do it today) was so blatantly bad, first the federal courts and then the 1972 Constitution took redistricting power away from the Montana legislature and gave it to a commission.

Briefly, there are five commissioners: Four (none can be a current politician) are picked by the majority and minority party leaders of the state House and Senate. These four appointees must in turn must agree on a fifth as chairperson and tie-breaker. If they can’t, then the Montana Supreme Court breaks the deadlock. The commission is then expected to create districts as cohesive and compact as possible.

Now, I can’t figure out if the Supremes picked the 1990 chair, but I did find an old Mike Dennison story for Lee Newspapers reporting that MSU-Billings political scientist Craig Wilson and his son Evan had analyzed both the “Republican-controlled” 1990 and “Democratic-controlled” 2000 commissions. The Wilsons felt the 1990 “Republican-controlled” redistricting was not “gerrymandered” even though the GOP held sway that decade. But – as Dennison summarized, 2000’s “Democrat-controlled commission did a much more thorough job of cramming Republican-leaning voters into fewer districts and spreading Democratic-leaning voters among more districts.”

The person responsible? Commissioner Joe Lamson, a “longtime Democratic campaign manager,” later hired in 2007 (and still employed) as a Montana DNRC deputy director.

Who let Lamson be so “thorough?” In 2000, the Supremes picked Jeanine Pease Pretty on Top, a Crow member who was then known for her voting rights activism – which proved to be pretty partisan. In 2010, the Supremes picked retired fellow Justice Jim Regnier, a former GOP legislator, as chair. That redistricting has been mostly satisfactory – neither side was delighted.

In May of 2019, the Supremes unanimously picked former Commissioner of Higher Education Sheila Stearns, by all counts another grownup. So things were looking fair, even though Joe Lamson was back for the third time – yep, Joe was on the 2010 commission, too!

Unfortunately, Stearns had to resign, and 2020’s four remaining party-picked commissioners again deadlocked. So, on a 5-2 vote, the Supreme Court chose Maylinn Smith, a University of Montana law associate professor, former tribal courts judge, and now a civil prosecutor for the Confederated Salish and Kootenai Tribes.

Is this pick partisan? Yes, because like it or not, our elected Supreme Court is partisan, objectively to the left of Montana’s “center,” not far from being the last bastion of real power for Montana Democrats and “progressives.”

Further, Ms. Smith is politically partisan, and not just in terms of her Montana political contributions, all to Democrats according to FollowTheMoney.org. I stumbled across web archives of the Montana Trial Lawyers Association, containing an “Atmospheric Trust Petition” including “Affidavits of Petitioners.”

You may vaguely remember a “Children’s Trust” global warming lawsuit before the Montana Supreme Court that got shot down unanimously, by some of our current justices, no less. I wrote a column (Criminal Frivolity) about what in 2011 was basically an effort by extremist parents trying to front their kids as pawns (sorry, “petitioners”) rather than representing themselves. One activist was, yep, Mrs. Smith, who brought her complaint as “natural parent and guardian.”

The “Petition,” through Maylinn Smith’s own sworn words, signed and notarized, reveals not a necessary wise neutrality, but rather a demonstrated willingness to run around the will of Montana’s people as reflected by the makeup of the legislature.

Isn’t ensuring Montana voters are fairly represented precisely what reapportionment and redistricting is supposed to ensure? Yep, therefore it seems the Supreme Court really made a mistake. If it wasn’t a mistake – I have no words.

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