A Montana environmental advocacy organization and several individual plaintiffs are challenging the constitutionality of newly drawn districts for the state’s utility commission on equal protection grounds, arguing that the Legislature illegally drew the new maps to benefit Republicans.
Montana Conservation Voters, former Montana Secretary of State Bob Brown (a frequent litigant in legal challenges to bills passed in the last two legislative sessions) and various other Montana voters argue in a lawsuit filed Monday that lawmakers drew Public Service Commission maps that dilute the vote in high-population parts of the state in order to “cement one-party rule of the PSC.”
Republicans have held every seat on the commission since 2012.
“On its face, the new map creates an impermissible classification between Republican voters and all others,” wrote plaintiffs’ attorneys Constance Van Kley, Christopher Patalano and Rylee Sommers-Flanagan, all of Helena’s Upper Seven Law. “It dilutes the voting power of non- Republican voters by placing those voters in non-competitive districts where they are outnumbered by Republican voters.
The lawsuit names Republican Secretary of State Christi Jacobsen, Montana’s top election administrator, as a plaintiff. A spokesperson for Jacobsen said the office does not generally comment on pending litigation and has yet to be officially served with the lawsuit.
In 2023, the GOP-dominated Legislature passed Senate Bill 109, redrawing districts for the Public Service Commission, the five-member panel that regulates monopoly utility companies in Montana. The bill, sponsored by Sen. Keith Regier, R-Kalispell, passed over the objection of legislative Democrats, who said the proposed map would dilute the vote of likely Democratic voters in the state’s urban areas by splitting 14 counties and almost every population center in the state into at least two districts.
“I know you know that there are a lot of ways these districts could have been grouped,” Sen. Janet Ellis, D-Helena, told Regier on the Senate floor in March. “One of the concerns I have, as you know, is this splits 14 counties, and almost all major cities in the state. It seems like there were other goals besides population equity.”
Legal precedent and redistricting practice generally suggest minimizing the number of county and city splits and keeping communities of interest together, in addition to baseline constitutional requirements like compactness, population equality and compliance with the Voting Rights Act. The logic of the Regier bill’s districts departed from previous PSC maps, which generally hewed closely to county lines, opponents of the plan said.
Regier said at the time that he didn’t draw the maps with political outcomes in mind — a claim Monday’s lawsuit calls “absurd,” given that all major redistricting software can model political outcomes — and that he did everything he could to obtain a minimal population deviance between counties. Further, he argued that split-district urban areas would benefit from having multiple representatives on the commission.
“We’re talking about PSC districts,” he said at the time. “A lot bigger. We’re not talking about small House districts. It’s an advantage to a city to have two commissioners answer to them.”
Monday’s lawsuit alleges that the map implemented by SB 109 violates the rights of equal protection and suffrage in the Montana Constitution. It’s one thing to split communities of interest in furtherance of legitimate goals, the lawsuit says, but it’s another to do so in furtherance of political aims.
Regier could not be reached for comment via email Monday afternoon.
The lawsuit is the second piece of litigation related to Montana’s PSC districts since 2021. At the center of both suits is the fact that lawmakers draw the commission’s districts, unlike legislative and congressional districts, which a nonpartisan redistricting committee draws on a decennial schedule based on census data and set criteria.
By commencement of the 2021 session, lawmakers hadn’t updated the PSC district map in 18 years. As a result of that — and of Montana’s prodigious but unevenly distributed population growth — the commission’s southwestern district had eclipsed its Hi-Line district by more than 50,000 people by 2021. By the end of that year, a group of Montana residents including Brown, the former secretary of state, challenged the map on 14th Amendment grounds, arguing that the population disparities between districts violated the principle of one person, one vote.
A panel of federal judges ultimately ruled the existing map unconstitutional, and ordered the use of a new map derived from a plan submitted by attorneys for the state. They noted, though, that the Legislature had the right to redraw the map when it met for its next regular session in 2023.
SB 109 began the 2023 session as an endorsement of the court-ordered map. But in a February committee meeting, Regier introduced a last-minute amendment to the bill that redrew the maps in the fashion that lawmakers eventually passed on party lines. The maximum population deviation between districts in Regier’s plan is 1.5%, far below the generally accepted threshold of 10%.
The new lawsuit asks a Lewis and Clark County District Court judge to block implementation of the Regier map, which would otherwise be used in the upcoming 2024 elections for PSC districts 2, 3 and 4.
“SB 109 is an attack on democracy,” Van Kley, the plaintiffs’ lead attorney, said in a statement. “We need elected officials to compete for the votes of all constituents, and that only happens when elections aren’t predetermined by partisanship.”
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