Judge: Public Service Commission districts likely violate the U.S. Constitution

Lines may need to be redrawn before election or candidates certified

By: - December 24, 2021 8:27 am

The Russell Smith Federal Courthouse. (Tommy Martino, for the Daily Montanan)

A federal judge has ruled the current Montana Public Service Commission districts are likely unconstitutional and has also issued a temporary restraining order against Montana Secretary of State Christi Jacobsen from certifying candidates running for the positions.

United States District Judge Donald W. Molloy said that the case, filed by three residents including former Republican Secretary of State Bob Brown, is likely to win on its merits and the initial filings, based on the 2020 Census, show that the current districts are likely unconstitutional.

The five districts have not been redrawn in 20 years, and the population has both grown and shifted. Because of this, there is a 24 percent variance in the size of the smallest district when compared to the largest district. That fact, Molloy ruled, would likely lead to the legal conclusion that the current districts violate the 14th Amendment of the U.S. Constitution which guarantees a one-person, one-vote principle. Essentially, as it currently sits, those in the smallest district have more power per vote than the largest district.

The five-member Public Service Commission is currently held by all Republicans. They oversee public utility regulation like water and natural gas. They also oversee some other services like LAN line phone carriers within the state.

Jacobsen was sued in her capacity as Secretary of State because she has control of elections. The order from Molloy said that she’ll have a chance to challenge the restraining order at a Jan.7 hearing in Missoula.

The Secretary of State’s Office could not be reached for comment for this story, and it’s unclear what that will mean for those wishing to run for Districts 1 and 5 respectively, which are up for election in 2022. The filing period to run for those seats begins on Jan. 13, 2022.

The districts show uneven population with District 1, which stretches across the northeastern part of the state having 186, 616 people, while District 3, which covers the southwest portion of the state, has 239,748 residents living in it.

“Because such a significant deviation potentially magnifies the weight carried by a vote in District 1, while potentially diminishing the weight carried by a vote in District 3, plaintiffs are likely to succeed in showing the current districts are presumptively unconstitutional,” Molloy’s order reads.

The order also addresses candidates in the districts who are interested in running.

“Temporarily restraining the certification of candidates on the basis of the Commission’s present districts will indicate to potential candidates that the districting system is under review, which may allow them to assess the strategy of their prospective campaigns at the earliest possible juncture,” the order said.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.