Plaintiffs seek to enjoin gerrymandered PSC map
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News from Upper Seven Law
HELENA — On Nov. 29, 2023, Montana voters and the nonprofit Montana Conservation Voters filed a motion for preliminary injunction to prevent the State from holding the next Public Service Commission (“PSC”) election under a gerrymandered map.
During the 2023 legislative session, the Montana Legislature passed Senate Bill 109 (“SB 109”) to redistrict the PSC electoral map, using their supermajority to entrench one-party control of the PSC. The resulting map is nakedly partisan. Not only does it fail to further neutral redistricting criteria, it assures Republican wins across all districts with statistically anomalous consistency. Indeed, expert analysis reveals that Democratic voters were moved from more Democratic leaning districts to more heavily Republican districts to secure an election-proof map. The Plaintiff Voters’ expert explained that because “no reasonable districting constraint” can account “for the extreme partisanship of [SB 109], it is extremely unlikely that it was constructed using no partisan considerations.”
For all federal and state legislative districts, the Montana Constitution prevents partisan gerrymandering by assigning the task of redistricting to the Montana Districting and Apportionment Commission. Bipartisan by constitutional design, the group adopts neutral, agreed-upon districting criteria for each redistricting cycle.
But in 1972, when the Constitution was ratified, the PSC was overseen by three commissioners elected statewide, so there was no need to assign responsibility for redistricting the PSC to the Districting and Apportionment Commission. When the Legislature expanded the PSC and created five represented districts in 1974, it took on the job of redistricting. It failed to redistrict with any regularity, however—a failure that came to a head in 2021 when a federal three-judge panel struck a 2003 map due to vast population disparities between districts.
SB 109 accomplishes only one thing: it takes the decision about who can sit on Montana’s powerful PSC away from voters. But the Montana Constitution protects against such abuses of power. SB 109 is unconstitutional because it discriminates against voters on the basis of political ideas, undermining the effectiveness of their votes.
“There are no do-overs in democracy,” said George Stark, a Missoula voter. “If I vote in a gerrymandered district, there’s nothing I can do to get that vote back. My voice will always have counted less.”
“Montana Conservation Voters advocates for and supports candidates on both sides of the aisle because conservation is an issue without a party,” said Whitney Tawney, Montana Conservation Voters’ executive director. “When candidates fairly compete for votes, all Montanans—and the environment—win.”
“Partisan gerrymanders prevent competition,” said Constance Van Kley, Upper Seven’s litigation director and attorney for the plaintiffs. “It doesn’t matter whether you are a Republican or a Democrat—for democracy to work, we have to agree that voters must ultimately decide who represents us.”
Montana nonprofit law firm Upper Seven Law represents the plaintiffs.
