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Montana secretary of state, voters agree rights are being violated by outdated PSC districts
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Montana secretary of state, voters agree rights are being violated by outdated PSC districts

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Montana Public Service Commission District Map

It’s been 20 years since Montana’s Public Service Commission districts have been adjusted. Now voters in the rapidly growing west are suing for change before the 2022 election.

While there’s agreement the constitutional rights of Montana voters are being violated by political districts that haven't had a population adjustment in 19 years, federal justices Friday questioned whether the court should intervene or give state legislators another year to make it right.

At issue are the five voting districts of the Montana Public Service Commission, which has attracted public attention after three years of scandal. The commission districts, last drawn into balance in 2003, violate the one-person, one-vote provision of the 14th Amendment. Voters suing for a redraw and defendant Montana Secretary of State Christi Jacobsen agree on that much.

Voters seek to prevent the secretary of state from carrying out the 2022 election of two PSC districts until the districts are reapportioned by a three-judge panel, unless the Montana Legislature does the job.

But Jacobsen’s state attorney Friday argued the reapportionment should be left up to the 2023 Legislature. Though he assured a three-judge panel in Missoula Friday he wasn’t suggesting the Legislature would actually do the work, Jacobsen’s attorney, Brent Mead, said lawmakers deserved a chance to act before the court stepped in.

“The Montana Legislature must be afforded the opportunity to reapportion, based on the data received in August,” Mead told the court.

The data Mead referenced is the 2020 U.S. Census for the Montana, which provides the most recent population statistics available for political districts.

Representing voters, attorney Constance Van Kley said there’s no reason to believe the Legislature will redraw the maps when it next convenes in 2023, not to mention that voters are disadvantaged now. There’s no need to put the Legislature’s next turn ahead of voters’ constitutional rights, she argued.

“The PSC has been redistricted exactly one time in nearly 50 years,” Van Kley told the court. “There's no state constitution, or statutory mechanism to ensure that redistricting will ever be considered again by the Legislature.”

As the districts are currently drawn, the least populated district, District 1 spanning 400 miles of the Hi-Line from Shelby to Sidney, has 53,132 fewer people than the most populated District 3, anchored by Bozeman and Butte. As a result, District 1 voters get as much say on what Montana utility customers pay for the electricity and natural gas as those in District 3 despite having 33% fewer people.

The PSC sets the rates for more than 400,000 utility customers in Montana. In cases where customers are captive, meaning they must rely on one business for services like electricity, garbage or water, the commission is supposed to balance customers' right to a reasonable price and reliable service with a utility's right to a rate of return. A PSC commissioner job pays $112,000 a year.

During the last three years, several scandals have played out at the PSC, including false claims to law enforcement, poor use of public funds and impersonating a state legislator.

In December, voters Hailey Sinoff and Donald Seifert of Gallatin County, and Bob Brown, a former Montana Republican secretary of state, sued to force the districts into balance for the 2022 election. Brown lives in District 5, which includes Helena and Kalispell and is on the ballot as an open seat this year along with District 1, where Republican Commissioner Randy Pinocci is seeking a second term.

The five districts would balance if each had a population of 216,845. The 14th Amendment accepts a deviation of 10% from the ideal population.

The justices hearing the case Friday were U.S. District Judge Don Molloy, of Missoula, District Judge Brian Morris, of Great Falls, and Ninth Circuit Judge Paul Watford, of Pasadena, California.

Because the U.S. District Court in Missoula was hard to reach after heavy snowfall, attending the hearing remotely was allowed for the judges and interested parties.

Justices questioned the merits of putting voters’ rights on hold so the Legislature could have another chance to balance the political districts.

“What’s the issue with the voter who has the diluted vote, or the voter who has an over-represented vote? They just grin and bear it?” Molloy asked Mead.

Montana’s top election official, the secretary of state, framed the voters’ lawsuit as attempting to leverage new districts based on the 2020 Census. Were that the case, the first chance the Legislature would get to use the Census data would be early 2023, unless they called for a special session to fix the districts this year. Using the Census data to change the maps in 2022 would be jumping the gun, Mead argued, because the districts on the ballot this year would have been tied to the Census from a decade earlier.

Mead said the voters hadn’t used the 2010 Census to make their case.

“If they want to challenge the 2022 elections, they must bring a claim based on the 2010 census,” Mead argued. “They don't do that. They only bring a claim based on the 2020 census.”

But Watford said Mead was on shaky ground, given that Legislators chose not to make the districts constitutional in 2013. And Mead made clear he wasn’t suggesting the Legislature would actually restore voters rights when lawmakers convened for regular session in 2023. The attorney just suggested the voters’ case wasn’t ripe until the Legislature had a chance to redraw the district in 2023 using the latest Census numbers.

“Is your position that the Legislature never has to act when there’s a constitutional violation of one-man, one-vote until someone brings a lawsuit, but (voters) can’t bring the lawsuit until the Legislature acts?” Watford said.

No, Mead said. The voters’ case should target the 2010 Census and the Legislature’s decision not to make the districts constitutional in 2013. With 2022 being the election year in that 10-year cycle, Mead argued the voters had waited too long to act.

Van Kley told the court the release of the Census wasn’t the issue. Rather, the date of redistricting was the issue, in which case the last redrawing was 2003 and that map had already been unconstitutional for at least a decade when the 2010 Census indicated the districts varied by more than 13%.

“We’re bringing this challenge because the map is stale and malapportioned,” Van Kley told the court.

But if the trigger for the lawsuit was the 2020 Census, the secretary of state’s argument would have a lot of merit, Watford said.

Friday afternoon, the court extended a restraining order preventing Jacobsen from starting the election process for PSC districts on the 2022 ballot, starting with candidate registration, which was scheduled to begin Jan. 13. The restraining order is good through Jan. 18, a date by which the judges indicated they would reach a decision about whether to halt the PSC election process until the districts are redrawn.

Federal restraining orders in civil matters are hard to come by. A party must prove their lawsuit is likely to succeed in order to obtain one. Molloy issued the restraining order Dec. 22, after concluding that voters were “likely,  though not certain” to succeed in their lawsuit to have the districts redrawn before the 2022 election.

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