Will Montana legislators fix their state's unconstitutional redistricting process?
Casually and systematically violating the Fourteenth Amendment is unfashionable in 2023
As 2022 closed out, so, too, did the contentious redistricting saga that followed the 2020 Census. Every state held a congressional election in the 2022 midterm election with its new set of districts, and almost every state held state legislative elections with their new districts, too. Redistricting is over!
With some exceptions, of course: Federal district court orders striking down congressional maps in Alabama and Louisiana for violating the Voting Rights Act are on hold as the U.S. Supreme Court determines their fate. Litigation has commenced in Mississippi over the legality of its legislative maps under the VRA. South Carolina’s 1st congressional district was just struck down as an unconstitutional racial gerrymander under the Fourteenth Amendment. Congressional and state legislative districts in North Carolina and Ohio, previously struck down by their state supreme courts, are now back in the hands of Republican-dominated legislatures—and with a significant ideological shift happening on both courts, the new conservative majorities are unlikely to carefully scrutinize the maps drawn by the legislatures. Litigation over Florida’s congressional districts has languished in state courts and might finally see some (much belated) action in 2023. Separate litigation is pending in state courts across the country, including in Kentucky and Utah, over whether their state constitutions prohibit partisan gerrymandering. And, of course, if the Supreme Court decides to (even partially) embrace the independent state legislature theory, it could overturn congressional maps drawn by state courts (and potentially redistricting commissions, too).
And then there’s Montana. After the 2020 Census, Montana gained a second congressional district—and its state redistricting commission had to draw a second congressional district for the first since since 1983. Public attention focused on whether the commission would draw two dark-red districts—or one dark-red district and one light-red district that could flip blue under the right circumstances. The commission opted for the latter option. And after that point, the attention of redistricting junkies was mostly focused elsewhere.
But redistricting in Montana consists of far more than the redistricting commission drawing a single line to divide the state into two equipopulous pieces. State legislative redistricting did not take place in 2022 at all. Though the redistricting commission started the process of drawing legislative districts in 2022, this year’s elections were held under maps drawn last decade—despite a significant variance in population between the most- and least-populated districts.
And what about the Public Service Commission? The five members of the PSC are elected from districts that the legislature last redrew in 2003, and the legislature’s failure to do so following the 2020 Census prompted a federal lawsuit. A three-judge panel ordered the adoption of districts for the 2022 election if the legislature failed to act—and will remain in place until (or unless?) the legislature adopts new maps.
What gives? Why is this happening? And what needs to change?
First, an overview of redistricting in Montana. Like most states, up until the 1960s, Montana engaged in redistricting on an irregular schedule. The State Senate consisted of one senator from each county—and the Senate grew in size as new counties were created. The State House was apportioned on the basis of population, with each county receiving a set number of representatives based roughly on its population. Redistricting for the State House happened about every decade—in 1921, 1939, 1941, 1951, and 1961. A federal lawsuit in the 1960s persuaded the state legislature to amend its constitution to require both the State Senate and State House maps to be apportioned on the basis of population; a subsequent lawsuit in 1971 resulted in the first equitably apportioned state legislative districts in the state’s history.
All of this change led into the 1971-72 state constitutional convention. There, delegates adopted a significant change to the reapportionment of the state legislature by creating a bipartisan redistricting commission. Delegate Carman Skari, a member of the Legislative Committee, explained that the Committee’s aim was to “provide for the creation of a commission reasonably free of legislative pressure.” The commission, as proposed in the 1972 Constitution, consisted of five members—two appointed by the major parties in the legislature, and a final member selected by the first four commissioners. The proposed constitution was narrowly ratified at the 1972 election, and the commission drew new state legislative districts that were first used at the 1974 election.
So far, so good.
But following the 1980 Census, the process broke down. Two different provisions of the 1972 Constitution intersect with each other—and conflict with when Census data is released to the states.
First, Article V, Section 14, of the 1972 Constitution, which created the redistricting commission, requires that the commission
submit its plan to the legislature at the first regular session after its appointment or after the census figures are available. Within 30 days after submission, the legislature shall return the plan to the commission with its recommendations. Within 30 days thereafter, the commission shall file its final plan with the secretary of state and it shall become law.
(emphasis mine).
Second, the Montana Legislature meets in “regular session” once every two years, and both the Legislature and the Governor have the power to convene the Legislature for a “special session.”
Third, Census data is usually released to the states the year after the Census.
Following the 1980 Census, redistricting data wasn’t released to the states until March 1981, as the Montana Legislature was in the final days of its session. Anticipating that the Census data wouldn’t come out until the legislative session was over (or nearly over), the chairman of the Commission sought an opinion from the state Attorney General in 1980 as to what it should do. The attorney general concluded that if the Commission received redistricting data in December 1980, it was required to submit a plan to the legislature by January 1981. He suggested that, if delivery of the Census data occurred late in the session, the Legislature could recess itself to give the Commission time to develop a plan, and resume its session once a plan had been developed.
But once Census data was released in 1981, the Commission concluded that it would submit its plan to the Legislature in 1983, which it believed was the “first regular session . . . after the census figures are available.” The attorney general brought suit to try to force the Commission to submit a plan to the Legislature in 1981, but the state trial court that heard the case concluded that the Commission’s interpretation of the constitution was correct. (As far as I can tell, this decision wasn’t appealed.)
As a result, every redistricting cycle that’s taken place since then has operated on this off-cycle timeline—which is entirely dependent on the timing of when Census data is released to the states. Unless it’s released by December of the year it was conducted (and it never has been), Montana’s state legislative redistricting will be asynchronous. (This originally affected congressional redistricting, too, but a 1984 amendment to the Montana Constitution modified the timeline to avoid this outcome by allowing the commission to finalize its congressional district maps without legislative submission.) The 2022 elections, therefore, were conducted with maps that were first used in 2014—and which had developed a significant population variance between the most- and least-populous districts that is almost assuredly unconstitutional.
But why bother with this at all? What does it matter if the Commission is able to submit the plan to the Legislature before its regular session? The ostensible rationale is to allow the Legislature the opportunity to provide feedback on the map—but any comments from the Legislature are totally superfluous. The Commission isn’t obligated to accept them, modify the maps based on them, or even respond to them at all—such that even in the face of unanimous, bipartisan legislative opposition to a map, the Commission could finalize that exact map without responding to any of the critiques.
So, to be clear, the reason for the delay in redistricting (and the usage of unconstitutional maps) is so that the Commission can receive comments from the Legislature on its proposed map that it is not obligated to respond to at all. Hardly a compelling rationale—especially given that the congressional maps are never submitted to the Legislature following the 1984 amendment to the constitution.
The explanation for the Public Service Commission districts is far less complex. Prior to the 1970s, the Railroad Commission was a three-member body created by statute that was elected statewide. At the 1971-72 Constitutional Convention, delegates debated abolishing the Railroad Commission and replacing it with an appointed public utility commission—but none of these plans was embraced in the final document. After the adoption of the 1972 Constitution, the Legislature converted the Railroad Commission into a five-member Public Service Commission elected by districts that were drawn by the Legislature, not the redistricting commission. Accordingly, the Legislature drew an initial set of districts in 1974 . . . and no new districts were drawn again until 2003! No new districts were drawn in 2011 or 2021, either.
Accordingly, in late 2021, a group of Montana voters—including Bob Brown, the 2004 Republican nominee for Governor—sued in federal court over the usage of the 2003 PSC map in the 2022 election. A three-judge panel was convened and ordered the adoption of a new set of maps that made the fewest amount of changes possible. (Only four counties were shifted.)
The court made clear, however, that its map would only come into effect if the Legislature failed to act. And the Legislature did nothing at all, so the maps were used in the midterm elections.
As an aside—there was a fair amount of coverage from Montana outlets about the court’s order, but no discussion of the final outcome. The news articles mentioned the contingency (namely, that the court-drawn maps would only be used if the Legislature failed to act) but didn’t discuss whether the contingency came to pass! Accordingly, I called the Montana Secretary of State’s office and confirmed that no special legislative session would be held to draw new maps—and thus, the court-drawn maps would be used.
Now that the Legislature has convened, it’ll have the opportunity to draw new PSC maps. But if it doesn’t, the court-drawn maps will be used in 2024—and they’ll continue to be used until (or unless) the Legislature acts. I’m not aware of any pending legislation that would draw new PSC districts, and I haven’t seen any reporting about whether the Legislature will take up this issue, but it certainly should. The Legislature could draw new maps itself, and queue up a process for regular decennial redistricting, or perhaps even pass the task onto the redistricting commission.
The Legislature will also have the opportunity to pass a constitutional amendment that alters the timing of its state legislative redistricting. It could adopt the exact same process for its legislative maps as it does for its congressional maps—and give the redistricting commission the power to finalize its maps without legislative feedback. If the Legislature wanted to preserve its power to provide (again, totally superfluous) feedback, it could adopt a constitutional amendment that might, for example, convene the Legislature into a special redistricting session to receive the commission’s map and offer comments.
Whatever the Legislature does, I hope it opts for action over inaction. Repeatedly holding elections under constitutionally defective maps is indefensible—especially given how frivolous the reasons are.