Special session push over PSC districts, elections stalls

‘This is to fingerprint who’s the real conservatives’

By: - February 18, 2022 6:51 pm

A proposed map advanced by Skees (Courtesy Rep. Derek Skees)

A push from a group of Republican lawmakers to assemble the Legislature in a special session to redraw Public Service Commission districts has fizzled out.

Rep. Derek Skees, R-Kalispell, who is running for PSC this cycle and has been the driving force behind the push for a special session, said in a letter to Gov. Greg Gianforte Friday afternoon that a lack of consensus around the aims of a potential session stymied the effort. Skees and his supporters had not only been seeking to redraw PSC districts, but also to use the special session to launch and fund a select election integrity committee, something that drew skepticism from legislative leadership and the governor’s office.

“We were very close on support for the PSC 9 map but, without a majority supporting the call, we felt it was not in the best interest of your office, the legitimacy of the Legislature or the benefit of Montana to submit the failed attempt to you,” Skees wrote, referencing a draft map of new PSC districts that he had been circulating.

The failure to gain majority support behind this call does not necessarily mean Republicans can’t still unite behind a new district map in a single-issue special session. But with a March 14 court deadline on the horizon, time to make that happen is dwindling, increasing the chances that a panel of federal judges choose new PSC districts. All five of the commission’s current members are Republicans, though three of the commissioners aren’t up for election until next cycle.

Looming over the call by Skees and others is a December lawsuit challenging the constitutionality of Montana’s five PSC districts, which were last approved by the Legislature in 2003 and have since grown to contain populations of vastly varying sizes — differentials in some cases of more than 50,000 people. Plaintiffs in the suit, filed in U.S. Federal Court in Missoula, argue the districts violate the “one-person, one vote” principle in the U.S. Constitution.

Attorneys for the state sought to convince the judges to let the Legislature redraw district lines in the 2023 session, the first with complete 2020 Census data. But the panel of three judges said they were unconvinced that the Legislature would actually address the out-of-balance districts, and called for a new map for the current election cycle, in which two seats on the PSC are up for grabs. Until that happens, the court has enjoined Secretary of State Christi Jacobsen from certifying candidates for PSC District 1 and PSC District 5, where Skees intends to run. Randy Pinocci, the commissioner in District 1, is running for re-election.

The possibility of a federal judge drawing or choosing a PSC map has spurred weeks of talks between Republican legislative leadership, the governor and Skees on whether and how the Legislature could redraw the districts before March 14, when candidate filing closes. Skees has argued that the Legislature, as the entity that created the PSC, has the sole authority to alter the districts, and for the judges to act in that manner would violate the 10th Amendment to the U.S. Constitution.

It would violate my oath of office if I ran for a map that’s unconstitutional,” he said. 

Plaintiffs in the suit have filed a series of their own map proposals that make adjust district boundaries so as to equalize populations. The judges have also called for Jacobsen to produce a map.

Special session negotiations came to a head this week, when Skees began circulating a proposed PSC map and a letter he intended to send to the governor on Friday calling for a special session for two purposes: redrawing the PSC districts and establishing a special select election committee set up to investigate allegations of voter fraud. Ironically, the map he said most Republicans seem to favor would draw his home of Flathead County out of the district that he intended to run in, which would have effectively stopped him from pursuing a candidacy this year.

He said that it was clear he would not be able to get a majority of the Legislature to agree on a specific call for a special session, so he turned his focus to the governor, who can bring lawmakers into session on his own.

But while Republicans seemed to generally agree that they did not want the federal judges to select a new PSC map, House Speaker Wylie Galt, Senate President Mark Blasdel and Gianforte all said they would only agree to a special session if there was unity behind a proposed alternative, and if the session’s scope was limited only to redistricting, not extended to include an elections committee with ill-defined investigative scope and cost. And even if such an agreement was reached, there would be no official mechanism to stop Skees or anyone else from making a motion to expand the session’s scope once it was assembled.

In a Feb. 17 letter to members, Blasdel and Galt wrote that “a majority of each caucus would support a special session for the sole purpose of PSC redistricting according to informal leadership vote counts, but we haven’t been able to get agreement to limit the special session to only that subject.”

Skees indeed said that he didn’t view the governor’s condition as something that would stop him or an ally from bringing a motion to form an elections integrity panel.

“Please note, the call of the governor for the PSC map is a single-issue call, yet the creation of a select committee is an internal procedure directing Legislative budgets, and will not need to go to the governor for approval,” he wrote on Facebook Thursday.

Skees said Thursday that he was not sure whether he would still run for PSC if the judges selected a new map, but did not respond to further request for comment on Friday. However, he told the Montana Free Press he would support a single-issue focus on PSC redistricting if a special session is called in time.

In a statement, Republican leadership blamed legislative Democrats for not supporting the special session call, necessitating difficult consensus building within the GOP.

“Democrats have said they’re fine with liberal and California judges drawing Montana’s maps, so Republican leadership has been working hard for months to get consensus among the diverse Republican caucus,” Galt and Blasdel said. “Whether it’s in a special session or during the next regular session, Republicans are going to reform the system to ensure federal judges can’t interfere in Montana’s PSC elections again.”

However, communication from leadership to the members also shows they had a series of questions about the logistics of a special session and the purpose of an elections investigation they said went unanswered by Skees, a vocal proponent of election fraud theories. For example, he told them that the committee’s cost could reach up to $250,000.

“Regarding the answers to the questions we had asked, we have concerns about the lack of specificity,” Galt and Blasdel wrote. “The proposed funding includes $150,000 for legal staff, travel expenses, and expert witnesses. What action will require $50,000 in legal expenses? Who is going to be traveling, to where, for what purpose? The Legislature doesn’t normally pay people to testify before us, so why would we need to spend $50,000 on that?

“Again, we are seeking these details about the election integrity proposal because special sessions are too short to make a plan on the fly, and we also don’t think legislators should be expected to sign a letter without understanding the plan they are signing onto,” they wrote.

1 Leadership follow up letter regarding special session (2)

They also addressed questions that Skees had asked — such as why the Legislature didn’t join the PSC suit as a defendant so it could appeal the judge’s eventual decision, or why it hadn’t moved faster to call a special session.

“Leadership has no legal authority to do that on our own, it is outside of our powers,” the letter said in response to the first point. “Outside of session, it would take at least a vote of Legislative Council, which is a deadlocked committee due to its equal partisan makeup (to join the suit as a party).”

Skees, a key figure among hardliners in the Montana GOP, told the Daily Montanan Thursday that part of the reason he wanted to raise the issue of elections during the special was to force lawmakers to commit to a position on the record. A collection of legislators known informally as the Conservative Solutions Caucus has been opposed to the election integrity push and in some cases to the idea of a special session entirely. A series of contested primaries slated for June will, at least in some districts, pit candidates affiliated with one faction or another against each other.

There are certain members in the party that are preventing this from happening,” Skees said. “What we want is consequences. If you don’t think election integrity is important enough to do this, and if you don’t think we should block the judges, then we want that on the record for Montana.”

Skees’ approach irked some in the caucus, even those who signed the letter. Among those is Sen. Brad Molnar, R-Laurel, who took issue with language in Skees’ initial call that attributed the special session push to “your conservative Legislators in the GOP.”

Molnar said the effort was more about proving faith in doctrine more than actually assembling a session — Gianforte had made clear that he wouldn’t call a special session if the elections committee was on the table, and Skees had made clear that he would not take it off the table, creating a “poison pen” scenario. He had a medical procedure scheduled for this week, he said, and would have changed the date if he thought a special was likely. 

“This is to fingerprint who’s the real conservatives,” Molnar said. “You’re gonna fingerprint me, well I’ll fingerprint you.” 

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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.

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