Congressional redistricting requirements inserted into elections bill

Redistricting commissioner: Not Legislature’s job to decide “tradeoffs” of apportionment

By: - April 27, 2021 6:23 pm

The state House and Senate on Tuesday approved an amendment to an elections policy bill that would impose statutory restrictions on the state commission tasked with drawing Montana’s newly awarded congressional districts, raising questions about the Legislature’s authority to weigh in on the reapportionment process.

As initially introduced, House Bill 506, sponsored by Rep. Paul Fielder, R-Thompson Falls, tweaked voter registration laws. But an amendment Republican Sen. Steve Fitzpatrick of Great Falls introduced Tuesday — less than a day after the state of Montana discovered that it will get a second congressional seat for the first time since 1992 — would instruct the state’s Districting and Apportionment Commission to draw the new congressional districts in alignment with existing standards for legislative districts. That is to say that they must be as equal in population as is “practicable,” that the district boundaries should if possible coincide with existing political subdivisions like counties, that they be compact and contiguous and that they comply with the federal Voting Rights Act.

The amendment was added to the bill and both chambers approved the overall legislation within a day, an unusual process only possible because both the House and Senate voted to suspend rules that generally require bills receive separate hearings on separate days. Lawmakers used the rule suspensions to shepherd a number of other key bills across the finish line in a flurry of activity that’s also seen a series of conference committees add substantial chunks of new policy to existing bills, all while the Legislature hopes to end the session on Thursday. House Bill 506, as amended, will now go to the governor’s desk.

“People are concerned that we may not get fair districts, we may get very gerrymandered districts,” Fitzpatrick said in committee Tuesday morning.

When the state did have two congressional districts, they were generally split along the continental divide, with the western district leaning Democratic and the eastern district going the opposite way. 

But what the Legislature thinks may well be moot. As opponents have pointed out throughout the day’s activity, the many, many lawsuits that appear every 10 years during redistricting have created robust case law that suggests the Legislature has no opportunity to direct the independent commission how to draw congressional districts.

The commission was created with the new state constitution in 1972. An attorney general opinion from the next year found that in adopting that constitution, “the people of Montana divested the Legislature of all power” over the apportionment process, said Sen. Bryce Bennett, D-Missoula, on the floor in opposition to the amendment.

In 2003, as part of litigation over the 2000 redistricting process, the Supreme Court quoted the constitutional framers and found that the commission would in effect “bypass the Legislature from this point on.” Lawmakers, the court said, can only make “recommendations.” The list of similar cases goes on and on, Bennett said.

Fitzpatrick and other Senate Republicans justified the new language with a fear that the commission — which can’t even begin crafting maps until another batch of U.S. Census Bureau data is delivered in September — would draw districts that benefit Democrats. To illustrate this point, he and Sen. Greg Hertz, R-Polson, distributed a map that appeared to be from an online district drawing application that showed one Democratic-leaning c-shaped district beginning in the western part of the state and snaking east on the northern and southern boundaries of the state, encompassing a more compact right-leaning district. The state Republican Party made similar claims on Twitter.

But neither lawmaker could say where exactly the map came from, who designed it or whether it in any way represented an actual attempt to gerrymander the state’s new districts. Hertz said it was found by a staffer on a bench outside of a committee room, while Fitzpatrick said it had been floating around the Capitol for weeks. The map says “Confidential – Do Not Distribute” at the bottom.

A map that was reportedly found in the hallways of the Capitol was used as the impetus to pass an amendment about redistricting (From Twitter, introduced on the Montana House Floor).

“The (GOP) just distributed this map … on the House floor. It’s an attempt to scare their caucus into violating the MT constitution by interfering in the work of Montana’s INDEPENDENT redistricting commission,” tweeted Rep. Danny Tenenbaum, D-Bozeman. The amendments passed on largely party lines in both chambers. 

The language of the amendment is similar to existing standards in federal law, though the order of priority of those standards don’t necessarily line up. Prioritizing one standard over another — population equity over contiguousness, for example — always has necessary tradeoffs, said Democratic Districting and Apportionment Commissioner Kendra Miller.

“That’s why it isn’t the job of the Legislature to decide those tradeoffs in advance,” Miller said. “It’s always been that we have not ranked those criteria in the past and we’ve taken a more wholesale approach to considering everything. If you have to rank them, de facto, the lower ranked criteria end up being not that important.”

Bennett and others said that the language would flatly violate constitutional law, at least along the lines of process.

“This legislature is trying to tell the commission how to draw these districts in a way that is going to benefit one party over another,” Bennett said. “The good news is, the courts are going to strike this down.”

It may not be quite that simple, said University of Montana constitutional law professor Anthony Johnstone, but that nonetheless previous court rulings have suggested that it’s unconstitutional for the Legislature to alter the commission’s criteria.

“There’s a twist with Congressional districts. As the amendment alludes to, the U.S. Constitution provides that ‘The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,'” Johnstone said. “The Supreme Court rejected a challenge to Arizona’s independent redistricting commission and held that the people of a state have the power to design their lawmaking processes as they see fit, including delegating some legislative power to a commission.”

And that’s essentially what happened with Montana’s 1972 constitution. Fitzpatrick told the Daily Montanan that it’s important for the Legislature to express its opinion on the matter, and that adding the language to statute could give the Legislature jurisdiction to sue in federal court if the commission violates the law with its district maps.

He and Hertz both suggested the east-west alignment that characterized the state’s two congressional districts for much of its history.

“This is simply about having good practices,” Fitzpatrick said. “There’s no reason for anyone to be filing a lawsuit on this bill.”

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Arren Kimbel-Sannit
Arren Kimbel-Sannit

Arren Kimbel-Sannit is an Arizona-bred journalist who has covered politics, policy and power building at every level of government. Before getting his dose of northern exposure, Arren worked as a reporter in all manner of Arizona newsrooms, for the Dallas Morning News and for POLITICO in Washington, D.C. He has a special interest in how land-use decisions affect working-class people, which he displayed through reporting on the epidemic of pedestrian deaths in the U.S. for the Los Angeles Times and PBS Newshour. He's also covered housing, agriculture, the Trump presidency and more.