Voters casting ballots (Getty Images)
Montana on Monday made history — with the help of number crunchers and surveyors from the U.S. Census Bureau — becoming the first state to lose a congressional seat and then gain one back.
The Census announced Monday that Montana would be one of six states to pick up at least one congressional seat — Texas gets two — at the expense of seven states that are losing a seat thanks to the results of the most recent decennial census, which helps determine the number of congressional and state legislative seats across the country.
It’s a landmark moment for a state that currently has just one at large district of more than one million people after losing a second seat following the 1990 census.
“We don’t need the largest congressional district by population and land mass anymore,” said Jeff Essmann, a former GOP lawmaker who now serves on Montana’s Districting and Apportionment Commission.
The Census Bureau reported Montana’s population as 1,085,407, just enough to qualify for a second congressional seat, ahead only of Minnesota, also in line to pick up an additional representative in Congress. The results show a continuing growth in political power in the South and West, which have seen a net gain of 84 seats since 1940.
Essmann belongs to the body that’s tasked with drawing the lines — or more likely, the one single dividing line — between the two new congressional districts in Montana. The five-member Districting and Apportionment Commission, created with the new state constitution in 1972, draws both congressional and legislative districts in Montana. But that process can’t quite play out until the delivery of another, more granular batch of federal population data, which is expected to come in late September. From there, a 90-day clock starts for the commission to submit a districting plan to the Secretary of State.
“I’m just happy we’re back to two seats,” said Mailynn Smith, an attorney recently appointed by the state Supreme Court to chair the districting commission.
If the second seat sticks, voters would choose a second congressional representative in 2022.
What a second seat means
Aside from the restoration of some state pride, having two congressional seats in Montana confers a fairly obvious advantage determined by the state’s geography.
“The economy of western Montana is starkly different from the economy of eastern Montana,” Essmann said. “The mountain economy is starkly different from the prairie economy.”
That was the logic that undergirded the drawing of the state’s two districts in the past. While the boundary meandered slightly every 10 years, with Park or Glacier counties going back and forth between east and west, among others, generally speaking the line followed the Continental Divide. The eastern district, with Billings and Great Falls, typically swung Republican. The western district, with Helena, Missoula, and Butte, the one-time nexus of Democratic Party power in Montana, typically favored Democratic candidates.
“Democrats were winning 56-57 percent of the vote on average during the district’s existence,” said Peter Miller, a political scientist with the Brennan Center for Justice, who grew up in Billings, during a Zoom panel hosted by the Montana League of Women Voters in August of last year.
Under the same logic, the new district could provide a lifeline for Democrats in the increasingly red-hued state, especially if the districts break at the Continental Divide. But that’s far from certain. Party leaders from both sides of the aisle put out statements applauding the additional district, calling for lines to be drawn without partisan machinations or gerrymandering.
A second seat for Montana could well also mean litigation, a near-constant feature of the redistricting process in many states, especially once the lines are actually drawn. Even before then, a state can sue over the apportionment process. Montana was in that position in 1992, when it sued the U.S. Department of Commerce, which oversees the Census Bureau, over the formula used to divide up 435 seats in the U.S. House.
“Congress is the one that determines the formula for apportioning seats,” said University of Montana constitutional law professor Anthony Johnstone. “… There is no objectively correct formula to allocate seats to the states fairly.”
Montana’s argument in the 1992 case was essentially that other formulae, including ones that had been used before, would have allowed the state to keep its second seat, Johnstone said. But the high court deferred to Congress, and Montana’s been stuck with one seat since.
Regardless, a state that was on the cusp of gaining a seat this time around could challenge the apportionment process just as Montana did. New York, for example, only needed a few dozen more people in its apportionment population count to earn an additional congressional seat. One state, Minnesota, separates Montana from New York in the priority ranking.
Ironically, the fact that the U.S. Supreme Court rebuffed Montana’s challenge 30 years ago might help protect the state’s new seat in 2021, as it set an unwelcome precedent to lawsuits centering on the apportionment formula. What’s more likely, especially in a year still pockmarked by the pandemic, is that a state alleges an undercount, Johnstone said.
It’s a zero-sum game, so it’s theoretically possible for a successful legal challenge on those grounds to yank Montana’s new seat away, though Minnesota may offer a buffer. But, Johnstone said, it’d be a difficult case to win in a Census year where population growth on the whole was at a near-record low. Many states, ultimately, lost seats they felt they deserved, or didn’t gain seats they may have taken for granted.
“Here you’re trying to unscramble this nationwide omelet of allocating people to places on grounds that are not reflected in policy but are instead embedded in the practices of individual counters in different areas,” Johnstone said. “A state would have to establish which states those seats came from.”
What happens next
It’s too early to know what the new district — should it remain Montana’s — will look like. But the commission is poised to begin its work.
“Both Democrats and Republicans have suggested to the chair a series of meetings in May, June, July to get the rules in place for drawing,” Essmann said. “We expect to have a lot more public input this cycle.”
Montana’s five-person commission consists of four citizens appointed by Republican and Democratic leaders in the state House and Senate and a fifth member selected by the first four. If those four can’t come to a consensus, as has often been the case, the state Supreme Court selects a chair. That’s what happened with Mailynn Smith.
Under the law, the districts have to be as close in population as is practicable, and must also comply with the federal Voting Rights Act, which requires that minority voters have an equal opportunity to select a candidate of their choice.
“I don’t think there’s any sort of magical formula for west-east divide, or north-south, or diagonally,” Smith said. “I think that it’s all open.”
As far as the boundary the Montana Rockies used to trace between the two districts is concerned, Miller of the Brennan Center said in his presentation that Montana shouldn’t count on being able to use the old district maps.
“I don’t think the maps as they were drawn in the 1980s would pass constitutional muster,” Miller said. “Strict population equality at the federal level is required.”
Growth in the west has far outpaced growth in eastern Montana, he said.
“If we were to adopt the maps that were drawn in the 1980s, the population inequality between those districts would be roughly 50,000,” Miller said. “This would be ground for a challenge on population inequality and 14th Amendment grounds.”
Editor’s note: This story was updated at 8:37 p.m. on April 26 to correct the spelling of Jeff Essmann’s last name.
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