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Jacobsen proposes new PSC districts under court order despite disagreement – Daily Montanan

['Arren Kimbel-Sannit', 'More From Author', '- February']

Date: 2022-02-24 00:00:00

Montana’s Secretary of State has proposed redrawing the state’s Public Service Commission districts which would likely bring them in constitutional compliance, despite the office’s insistence that only the Legislature should adjust the body’s electoral geography.

Attorneys for Secretary of State Christi Jacobsen argued in court documents this week that the 2022 elections for PSC districts 1 and 5 should be conducted with the current maps, and that neither Jacobsen, the court or anyone but the Legislature should be responsible for redrawing them. However, under an order from a panel of three federal judges, Jacobsen’s office reluctantly submitted a map that would shift three counties to create a presumptively constitutional population balance between the PSC’s five districts.

District 1, the lowest-population PSC district, would gain Glacier and Mussellshell counties. District 4 would inherit Deer Lodge county from District 3, the highest population division. The maximum deviation between the resulting districts would be 9.44%, the state says, likely enough to clear the 10% standard that’s been de facto established through court precedent. The Department of Justice, which represents Jacobsen, the state’s top elections officer, also argued that the court should reject maps previously submitted by a series of plaintiffs challenging the constitutionality of the current PSC map.

“While the Secretary maintains that she has no constitutional or statutory role in PSC redistricting, her proposed map more closely embodies legislative policy and judgment than Plaintiffs,” attorneys with the DOJ wrote this week.

Attorneys for the plaintiffs, former Secretary of State Bob Brown, former Gallatin County Commissioner Donald Seifert and Montana State University student Hailey Sinoff, said Thursday that they had no specific problem with the Secretary of State proposal.

“The SOS proposed map privileges different criteria than the maps that the plaintiffs offer, but as long as the map is lawful, and there’s a reasoned explanation of the way that the court is balancing the redistricting criteria, there are any number of appropriate solutions,” said attorney Constance Van Kley with Upper Seven Law.

The Public Service Commission regulates utilities in Montana — thus helping determine electricity and gas rates. Montana is one of relatively few states with elected utility regulators, and unlike legislative and congressional districts in the state, the shape of PSC districts is determined by the Legislature, which has no statutory obligation to draw new districts at any regular interval. All five of the body’s current members are Republicans.

Population disparity

A group of former state officials — and prospective voters in the 2022 PSC elections — filed suit in December alleging that the commission’s current districts, last drawn by the Legislature in 2003, have drifted so far apart in population as to violate the “one person, one vote” principle in the U.S. Constitution. As counted by the 2020 Census, the population disparity between District 3, which contains Gallatin County, among others, and District 1, which currently encompasses the sparsely populated northeast quadrant of the state, was more than 24%.

The plaintiffs have asked the judges to either pick one of their proposed remedies or redraw the map themselves.

“Because the maximum population deviation exceeds 10% and no legitimate rationale justifies the deviation, the current Commission map violates the Fourteenth Amendment,” attorneys for the plaintiffs wrote this week. “Because the 2022 election is impending and the Montana Legislature is not in session and has not called a special session, the Court is the only authority that may act to prevent imminent constitutional harm.”

A cadre of legislative Republicans mounted a push this month to bring the Legislature into special session to preempt the court and draw PSC districts in time for the 2022 election, but the effort has likely fizzled out amid intra-party divisions over the scope of the session. Rep. Derek Skees, R-Kalispell, who intends to run for PSC in District 5 on the current map, was at the front of that effort. Commissioner Randy Pinocci, R-Sun River, is running for re-election in District 1.

The court has said it will make a decision in the suit on March 4, 10 days before the end of candidate filing. The Secretary of State is enjoined from certifying candidates in Districts 1 and 5 until that decision is reached.

Proper jurisdiction

The U.S. District Court in Montana has recognized the unconstitutional imbalance of the current districts, and the sole defendant, Jacobsen, hasn’t disputed it. The crux of the argument between the state and plaintiffs has instead been one of form vs. substance — that is, whether the constitutional imperative of equal representation supersedes the Legislature’s long-standing role in drawing PSC districts.

The Legislature created the PSC, and unlike with legislative or congressional districts, laid out the current PSC map in statute. As such, Jacobsen’s office has repeatedly insisted that the plaintiffs erred in naming the Secretary of State as a defendant.

“This creates a problem for Plaintiffs because the Secretary doesn’t participate in reapportionment, and she cannot redraw Public Service Commission district lines,” attorneys for the state wrote this week. “Even if the Secretary agreed, in full, with the Plaintiffs’ allegations, she cannot negotiate or reach a settlement to cure Plaintiffs’ alleged injuries because the issues in this case reach beyond the Secretary’s legal authority.”

Jacobsen has thus asked the court to stay litigation so the Legislature can redraw districts when it meets in 2023. For the court to redraw districts, or select districts submitted in legal filings, would “cross the line of interpreting a statute for constitutionality, to rewriting a statute to comply with the constitution,” Jacobsen’s attorneys wrote.

But Van Kley said the court can compel the SOS, which has executive authority over elections in the state, to implement maps produced as a result of this litigation, much in the same way it implements legislative and congressional maps submitted by the state Districting and Apportionment Commission. She said the plaintiffs aren’t suing the Legislature because the court cannot compel a Legislature that’s not in session to rewrite statute.

“If the Court orders Secretary Jacobsen to implement a constitutionally permissible map, the effectiveness of Plaintiffs’ votes will be maintained,” she and other attorneys wrote this week. “Standing is not a difficult issue here. And of course the Secretary is a proper party: she administers Montana’s elections, in which the harms at issue arise.”

The court’s decision to set a trial date on March 4, and its continued injunction against candidate filing in Districts 1 and 5, seems to have settled the matter for the purposes of this suit.

“To allow the candidate certification to proceed based on an a presumptively unconstitutional map – and despite plaintiffs showing that irreparable harm is likely occurring – for the sake of legislative public comment without assured action would teeter close to elevating form over substance,” the judges wrote in their order setting the trial.

The maps

With the court apparently satisfied with the ripeness and proper jurisdiction of the case, the question now becomes how it will redraw the map. The plaintiffs have submitted three plans that would bring population disparities between districts within constitutional bounds, but also suggested they’d be fine with the court drawing a map itself. The judges could, of course, also select Jacobsen’s proposal.

Both parties have agreed that the four maps would comply with the 14th Amendment. The plaintiffs, though, made more significant alterations to the existing map than Jacobsen in order to minimize population gaps as much as possible.

“The plaintiffs think that it is best to minimize vote dilution to the degree possible; to bring those numbers closer to even between districts is an important consideration,” Van Kley said.

Their first plaintiff proposal would yield a maximum population deviation of 1.8%, but split Sanders and Lake counties between Districts 5 and 4 and divide Silver Bow and Deer Lodge counties — often thought of as a singular “community of interest,” in redistricting parlance — between Districts 4 and 3. The second map would further minimize the deviation, but split Flathead and Pondera counties between districts 5 and 4. The third would have a maximum deviation of 2.75% with more minimal county splits.

Only Districts 1 and 5 are up for grabs this year. That means any proposal that redistricts voters from District 5 or 1 into Districts 2, 3 or 4 would result in those voters not being able to vote in the 2022 PSC elections as they would under the current maps.

The Secretary of State argued its map, with its limited alterations to current districts, as superior. Every voter shifted out of District 5 would then reside in District 1, ensuring “that every voter currently eligible to cast a ballot in 2022 will remain eligible.”

“Courts must consider the severity and nature of the constitutional harm against the disruption of the state’s elections process and mindful of the state’s sovereignty and primacy in redistricting,” attorneys for Jacobsen wrote. “Existing district boundaries should serve as the starting point; each voter currently entitled to cast a ballot for a commissioner in the 2022 elections should remain eligible to cast a ballot after any court-led reapportionment; and the Court should only make those changes necessary to cure the alleged constitutional violation and not substitute its will for that of the Montana Legislature.”

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