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Secretary of state responds to PSC redistricting lawsuit

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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.

Montana Secretary of State Christi Jacobsen says that now isn’t the time to make the state’s Public Service Commission districts right with the U.S. Constitution.

Voters are suing Jacobsen, the state’s top election official, because the PSC districts are lopsided in population, which violates the one-person, one-vote provision of the 14th Amendment. They want the districts redrawn before the 2022 election when two of the most disproportionate districts will be on the ballot.

If the state won’t redraw the districts, the plaintiffs ask that a panel of three judges do the job. It wouldn’t be the first time the federal courts have redrawn Montana districts after state lawmakers failed to do so.

It’s the Legislature that’s tasked with balancing the populations of the districts following the Census. But after the 2010 Census, Montana lawmakers chose not to. The districts haven’t been redrawn since 2003 and now differ in population by as much as 50,000 people.

Jacobsen responded to the lawsuit this week, telling U.S. District Judge Donald Molloy that state legislators should be given the chance to fix the districts in the next legislative session, which takes place in 2023. The Legislature only meets in odd numbered years.

“Plaintiffs’ claims rely on the assumption that the Montana Legislature, when given opportunity, will fail to reapportion based on the 2020 census,” Jacobsen said in her response. The secretary of state argues there’s no reason to assume the Legislature won’t correct the districts, and, that the very first time they could use the 2020 Census data is next year. The Census data was released in August 2021 after the Legislature ended.

The Public Service Commission sets the electricity 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.

The secretary of the state’s arguments focus on Montana’s right to draw its own districts, or at least be given the opportunity to before the court intervenes.

The plaintiffs, former Montana Secretary of State Bob Brown, of Flathead County, and Hailey Sinoff and Donald Seifert of Gallatin County, focus their arguments on the rights of voters to be fairly represented. By not redrawing the PSC districts after 2010 when the Census showed the districts violated the 14th Amendment, legislators assured fairness wouldn’t be the rule.

A Friday hearing is scheduled to decide whether Molloy should prevent Jacobsen from going forward with the PSC elections in 2022 until the districts are corrected. The Montana Legislature appears poised to act after Molloy rules. The Montana Legislative Council plans to review the lawsuit Jan. 13 and potentially act.

Molloy has already indicated the voters are likely to succeed. The judge issued a restraining order on Jacobsen at December’s end, stopping the secretary of state from acting on the PSC election until the Jan. 7 hearing. In doing so, Molloy noted the voters’ likelihood at succeeding, but stopped short of saying they would prevail.

The 14th Amendment of the U.S. Constitution, which requires that political districts balance under the “one-person, one-vote rule” that allows a deviation of no more than 10% from the ideal population.

If each of the state’s five PSC districts contained 216,845 people, they would balance. Only one of Montana’s five PSC districts, District 2 anchored by Billings, comes close to the target population. Two of the districts up for election in 2022 happen to be extremely out of whack.

District 5, which includes Kalispell and Helena, has 15,521 more voters than the ideal. District 1 has 30,229 fewer voters than the ideal. The latter district, anchored by Great Falls, runs from the eastern boundary of Glacier National Park to the North Dakota border.

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. Those actions have attracted public attention to a commission that doesn’t normally face public scrutiny. The job pays $112,000 a year and comes with no requirement of previous experience.

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