Court: Secretary of State enjoined from certifying PSC candidates

Expedited trial or briefing to take place

By: - January 13, 2022 6:21 pm

Gavel in front of legal person writing. (Provided by Ekaterina Bolovtsova via for the Daily Montanan)

The Montana Secretary of State won’t be able to certify candidates running for the Public Service Commission districts 1 and 5 for the time being, according to an order Thursday from the Helena Division of the U.S. District Court of Montana.

In a complaint against Secretary of State Christi Jacobsen, plaintiffs Bob Brown, Hailey Sinoff and Donald Seifert alleged the PSC districts had population distributions that were so far outside the accepted norm, they ran contrary to the one person, one vote principle.

In the order, a three judge panel granted a preliminary injunction to stop candidates from being certified in the two districts with elections this year. However, the judges, District Judge Donald Molloy, Ninth Circuit Judge Paul Watford, and Chief Judge Brian Morris, said a final determination and any remedy “is yet to be resolved.”

The Secretary of State argued the Montana Legislature should first have a chance to redraw the maps since the new census data came out this past August, after the 2021 session but before the 2023 session.

But the plaintiffs, who include former Secretary of State Brown, argued voters’ constitutional rights are violated with the high deviation, as much as 24 percent, from the 10 percent considered reasonable. The judges said it doesn’t matter that elections will take place in just two districts because that doesn’t eliminate harm for those voters.

“Notably, the parties agree the current districts exhibit significant deviations based on the 2020 Census,” the judges said. “Thus, the breadth of the Plaintiffs’ challenge and the parties agreement that the current districts do not reflect the realities of Montana’s population distributions means that Plaintiffs are likely to succeed on the merits of their claim.”

At the same time, the panel said it’s possible the Secretary of State may show that deviations of the current map based on 2020 census data “accommodate a recognized interest such as maintaining the integrity of political subdivisions.”

But that hasn’t happened just yet.

In the meantime, the judges said because the case has the potential to cause confusion, the court will move quickly.

“The case will be set on an expedited trial or summary judgment briefing schedule so that the merits of this case may be resolved prior to the March 14, 2022, candidate filing deadline,” the order said.

The judges also said it didn’t make sense to wait for the Legislature to act because so far, it hasn’t done so despite the opportunity: “Plaintiffs’ showing of a likelihood of irreparable harm, which falls in the shadow of the Legislature’s inaction, and the lack of a constitutional impetus to guarantee a legislative remedy, diminishes the persuasiveness of (Secretary of State) Jacobsen’s argument that deference to the Legislature is appropriate at the preliminary injunction stage.”

At the same time, the order said the Legislature isn’t precluded from acting, and the governor also is free to call a special session.

Regardless, the court will hold an expedited summary judgement briefing schedule to “minimize disruption” and resolve the matter before the March 14 candidate filing deadline.

PSC order

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. In Montana since 1998, she loves hiking in Glacier National Park, wandering the grounds of the Archie Bray and sitting on her front porch with friends. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana. She worked there from 2006 to 2020. As a Missoulian reporter, she was named a co-fellow by the Education Writers Association to report on a series about economic mobility; grantee of the Society of Environmental Journalists for a project on conservation from the U.S. to Africa; and Kiplinger Fellow in Digital Media and Public Affairs Journalism. She previously worked at the Great Falls Tribune and Missoula Independent, and she earned her master’s in journalism from the University of Montana. She lives in Missoula with her husband, Brock, who is also her favorite chef, and her pup, Henry, who is her favorite adventure companion. She believes she deserves to wear the T-shirt with this saying: “World’s most mediocre runner.”