Suit challenges Legislature’s new map as unconstitutional gerrymander

Blair Miller

(Daily Montanan) Lawyers for Montana Conservation Voters and a group of Montanans from across the state filed a lawsuit Monday challenging the new Public Service Commission district map redrawn this year by the Republican supermajority legislature, which they say is gerrymandered to favor Republicans in violation of the state constitution.

Attorneys for Helena-based Upper Seven Law filed the lawsuit in Lewis and Clark County District Court against Secretary of State Christi Jacobsen, in her capacity as the state’s chief election officer.

The plaintiffs in the case – MCV and seven Montana voters spread across the five new PSC districts – are asking a judge to declare the map implemented through the legislature’s Senate Bill 109, sponsored by Sen. Keith Regier, R-Kalispell, to be unconstitutional and in violation of the Montana Equal Protection Clause and the suffrage clause contained in the state constitution.

“Extreme political gerrymanders, like SB 109, lead to less competitive – and in many cases uncompetitive – electoral races,” the lawsuit says. “Partisan gerrymandering reinforces extreme partisanship. When they do not need to compete across party lines for votes, politicians have no incentive to build consensus or seek middle ground.”

SB 109 was heavily criticized by Democrats when lawmakers discussed the bill in committee and on the floor during the session. In March 2022, a judicial panel ordered a specific map be used for the 2022 PSC election after the 2003 map was struck down as unconstitutional. The map used in last year’s election contained a maximum population deviation between districts of 6.7%, down from the 25% deviation between districts 1 and 3 on the 2003 map.

But the judges also noted at the time that the legislature had the sole power to draw a new map.

When Regier first introduced the bill, it kept districts divided along county lines, and Regier said he was hoping for a map that had population deviations below 1%.

But in February, he proposed a bill amendment, which the Senate Energy and Telecommunications Committee approved, to redraw the map based on the state’s 100 House districts in a move that split up 14 counties and nearly all of Montana’s largest cities: Billings, Missoula, Great Falls, Bozeman, Helena and Kalispell. Only Butte-Silver Bow remained in one district, and that Flathead Indian Reservation was split between districts 4 and 5.

As the new version came up for floor discussion in April, Democrats insisted that the new map was a Republican-heavy gerrymander that split up communities of interest and political subdivisions – keeping them intact is typically a goal of a fair redistricting process – in order to put more of the larger-city Democrats in districts that also leaned more Republican.

Republicans rejected several amendments brought forward by Democrats that day, including ones that had less population deviation than Regier’s and another that gave every large city, including Butte, two commissioners – something Republicans had argued would be beneficial to those cities.

But Republicans also said they felt it was ironic that Democrats were supporting the redistricting commission’s work on redrawing legislative seats but rejecting their map they said was based off those newly drawn seats.

The new lawsuit against SB 109 contends that Regier was well aware of the partisan advantage the map would give Republicans and called it “absurd” that other politicians were unaware of the fact based on several other maps that were offered as amendments in committee and on the floor.

“Regardless of whether it is ever appropriate to split communities of interest and political subdivisions, rejection of this traditional districting principle must be in service of other, legitimate goals of redistricting,” the lawsuit says. “SB 109, however, does not advance any other legitimate goal; the Legislature rejected maps that were more contiguous, compact, and equal in population. The only justification for the Legislature’s rejection of neutral principles is undue partisan advantage.”

The attorneys believe that SB 109, which became law once Republican Gov. Greg Gianforte signed it on April 26, infringes on Montanans’ voting rights and for the rights of non-Republicans to run for a PSC seat, whom most of the plaintiffs would intend to vote for, according to the suit.

The attorneys allege the new map would keep elected PSC commissioners from being responsive to their constituents’ needs, and that directly targeting non-Republican voters violates the state’s Equal Protection Clause and suffrage clause.

“Montana is not unilaterally Republican: 40-45% of voters regularly choose Democratic and third-party candidates. It takes tactical line-drawing to undermine the influence and weight of Democratic voters where the congregate,” the lawsuit says. “The simplest – and most obvious – way to stifle competition is to crack the non-Republican vote share across PSC districts. That is exactly what the Legislature did.”

MCV Executive Director Whitney Tawney said her organization represents groups in favor of conservation no matter their party, and that the newly drawn PSC map violates their right to be fairly represented.

“Fair and competitive elections result in better representation for all Montanans and help hold our elected officials accountable to the jobs they are elected to do,” Tawney said in a statement. “This is as important for the Public Service Commission as anywhere else given their role in setting the utility rates of Montanans.”

Last week, the all-Republican PSC met and unanimously approved another 8% energy rate hike to bring the total over the past year-plus to a 28% increase under a settlement agreement with the monopoly utility.

“Energy costs are soaring, and elected officials should be accountable to voters, not special interests,” said Upper Seven Law Litigation Director Constance Van Kley.

Richie Melby, a spokesperson for the Secretary of State’s Office, said the office had not been served as of Monday afternoon, does not typically comment on pending litigation, and said the office “does not draw maps.”

The lawsuit asks a judge to issue injunctions barring the office from enforcing any aspect of the bill and to award the plaintiffs attorney’s fees and costs in the event the suit is successful in blocking the new map.