Judges skeptical of ‘wait until 2023’ argument in PSC case

A panel of federal judges assembled to hear a lawsuit challenging the districts used to elect Montana’s utility regulation board indicated in a ruling Thursday that they’re hesitant to wait until 2023 to give the Montana Legislature a chance to update the districts for population change at its next regular session.

Instead, the judges extended an earlier ruling preventing the Montana secretary of state from certifying candidates for the two districts up for election this fall while the lawsuit proceeds. They also laid out an aggressive litigation schedule that could arrive at a final ruling on whether the current maps can be used in this fall’s election by this cycle’s March 14 filing deadline.

The judges also suggested lawmakers or the governor could address the districts in advance of the 2022 election by calling a special session.

The lawsuit was filed in December by two former Republican elected officials and a Gallatin County resident, naming Secretary of State Christi Jacobsen as a defendant. The plaintiffs argued that the Public Service Commission districts, which haven’t been updated for nearly two decades, have become unbalanced as a result of population shifts and now violate the “one person, one vote” principle guaranteed by the U.S. Constitution’s Fourteenth Amendment.

State attorneys and the Legislature’s Republican leaders haven’t disputed that the districts need updating, but have argued that it’s appropriate to leave that redistricting to the Legislature when it meets in 2023 rather than have the politically sensitive maps redrawn by federal judges. They’ve noted that the 2023 session will be the first regular meeting of the Legislature since the results of the 2020 census were published last summer.

“This certainly is something that needs to be looked at and needs to be dealt with during the 2023 session,” Senate President Mark Blasdel, R-Kalispell, said at a meeting Thursday before the order was published.

“I think everybody’s serious about that this needs to be fixed,” he added.

The current PSC district map was adopted by the Legislature in 2003 following the 2000 census. Since that map was adopted, Montana’s population has grown unevenly. For example, PSC District 3, which includes Bozeman, Butte and much of rural southwestern Montana, now has 53,000 more people than District 1, which includes Great Falls, Lewistown and much of northeastern Montana.

The plaintiffs argued that federal courts should step in because the Legislature failed to rebalance the Public Service Commission districts following the 2010 census and because no current statute or state constitutional provision requires lawmakers to update the districts in 2023.

The state Constitution, in contrast, specifies that legislative and congressional districts are redrawn following each decennial census by the Montana Districting and Apportionment Commission.

“It shouldn’t take a federal lawsuit to force the Legislature to do this work,” plaintiffs’ attorney Constance Van Kley said in an interview Thursday. “It seems as if the movement now is because the lawsuit has prompted it.”

Since the lawsuit was filed, lawmakers have taken some steps toward rebalancing the districts. Sen. Greg Hertz, R-Polson, for example, entered a request last month to draft a redistricting bill for the 2023 session, and Rep. Katie Zolnikov, R-Billings, requested that the Legislature’s Energy and Telecommunications Interim Committee add the issue to its Jan. 18 agenda.

In its ruling Thursday, the three-judge panel of Donald Molloy, Paul Watford and Brian Morris wrote that those actions indicate the issue is significant.

“Here, the communication from state legislators supports the proposition that some action is necessary to redistrict the Commission’s district map, and the essential issue is whether the redrawn five district map should derive from the Montana Legislature or the federal judiciary in advance of the 2022 election cycle,” they wrote.

The judges also concluded that the plaintiffs, who ask that the current districts be declared unconstitutional, are likely to succeed on the merits of their case based on the arguments presented so far.

All five current PSC commissioners are Republicans. Environmental activists and many Democrats have consistently criticized the commission in recent years for not being more aggressive about pushing NorthWestern Energy and other power utilities to more rapidly adopt renewable energy sources.

The lawsuit’s plaintiffs are Bob Brown, a former Republican who served as secretary of state in the early 2000s; former Gallatin County Commissioner Don Seifert, also a Republican; and Gallatin County resident Hailey Sinoff. They are represented by Van Kley and Rylee Sommers-Flanagan with Helena-based Upper Seven Law and Joel Krautter with the Sidney-based Netzer Law Office. Both law offices are involved in separate cases challenging legislation passed by the 2021 Montana Legislature.