Montana Denies Gerrymander – The American Perspective
In her first year as a newly appointed tribal judge, Maylinn Smith had to decide who would lead the Colorado-based Southern Ute Indian Tribe for the next four years. An election to dismiss the seven-member Tribal Council had come down to a single vote, and a lawsuit claimed that a vote had been fraudulently cast. The future management of the 1,400-member tribe and their 681,000-acre reserve was at stake. “There was some angst in that decision because I knew I was going to piss off half the population no matter what. the way I was, âsays Smith. She rejected the lawsuit, and the tribe eventually held a new election.
Thirty years later, Smith has an even bigger decision in his hands: who will be included in a new congressional district that is expected to include half a million residents and 350,000 eligible voters. As chair of the Montana District and Allocation Commission, she has authority over the boundaries of one of the seven new congressional districts created after the 2020 census and one of 429 congressional districts in 44 states that need to be redesigned this year.
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But Montana is different from most of those states. The state’s five-person bipartisan Redistribution Commission is the oldest in the country and one of ten commissions in the United States that are not controlled by a single party. As a result, Smith has the ability to create new electoral boundaries for congressional and state legislative constituencies that are legal and fair to both major parties, which is rare.
His move could also bring a competitive district into play in the 2022 midterm election and spur the Democrats’ long-term attempt to hold their slim majority in the US House. If Smith is successful, then Montana could set an important example for a polarized country and show that the two big parties can do something they hate: compete on an equal footing.
Independent or bipartisan redistribution processes are mandatory in only 28% of congressional districts nationwide, including Montana.
“I think the redistribution in this country is a uniquely American mistake,” said Dave Wasserman, editor and senior analyst for the redistribution to the Cook Political Report. âThe other countries do not face this problem of gerrymandering or manipulation of the borders which leads the aggrieved party to think that the elections are rigged. In Canada and the UK, for example, redistribution is managed by independent commissions that are more immune to political influence than the partisan institutions that draw electoral boundaries in most US states.
In the six least populated states in America (Alaska, Wyoming, North Dakota, South Dakota, Vermont, and Delaware), the boundaries of congressional districts at large correspond to state boundaries. Voters in most of the other 44 states, however, are pawns on partisan cards. This year, Republican state lawmakers will draw electoral boundaries in 17 states. Democratic lawmakers will do the same in six states. Legislative control and the power to define constituencies are temporarily shared among parties in six other states. In the other 15 states, appointed commissioners draw electoral district boundaries, but partisan influence over these commissions varies widely.
According to Wasserman, five of these commissions are controlled by a single party: three by the Republicans (Utah, Iowa and Ohio) and two by the Democrats (Nevada and New York). Four are independent citizens’ committees designed to give non-partisan commissioners a plurality of votes, and six are bipartisan committees like Montana. In total, he concludes that Republicans control 187 districts, Democrats control 71 districts, and control is temporarily divided into 46 districts. This leaves only 121 districts in the hands of independent or bipartite commissions. In other words, independent or bipartisan redistribution processes are mandatory in only 28% of congressional districts nationwide, including Montana, where a new congressional seat is about to emerge.
This bipartisan tradition creates a small but significant opportunity for Democrats in a state that Trump won by 16 percentage points in 2020. Democrats dominated the Western District of Montana when the state had two seats in Congress, but they didn’t. haven’t won the headquarters for 25 years. However, if the new district boundaries include the Democratic strongholds of Missoula, Helena, Butte and Bozeman, then Democrats have a fighting chance. In most of the Red States, partisan lawmakers would have diced these blue towns into political uselessness. Montana lawmakers, however, were denied this opportunity nearly half a century ago: in 1973, Montana voters ratified a new constitution and created the nation’s first bipartisan redistribution commission.
The 2020 census propelled Montana ahead of Delaware to the rank of 43rd most populous state, making it one of six states that won a seat in Congress, alongside Oregon, Colorado, Florida, North Dakota and Texas, which won two seats. This redistribution of political power gave two seats to the Blue States and five to the Red States. But among those red states, Montana stands out as a sore thumb because it has a legislated bipartisan redistribution process, a significant anomaly in Republican-majority states.
The majority and minority leaders of the Montana House and Senate each appoint two members, neither of whom can hold office. These four people are responsible for selecting a fifth person to chair the committee and providing a decisive vote. Disagreements tend to arise when the four partisan commissioners fail to agree on a chair. In these cases, the state Supreme Court steps in, which is exactly what happened this year.
In December, the seven judges selected Smith after the partisan commissioners stalled. Republican leaders were quick to attack the decision, citing his story of donating to the Democratic Party. Smith responded by pointing out his dedication to the law. After serving as a tribal judge for the Southern Ute Tribe, where her children are registered members, she ran the Margery Hunter Brown Indian Law Clinic at the University of Montana for 25 years. Now she is the Civil Attorney for the Confederate Salish and Kootenai Tribes on the Flathead Indian Reservation.
Ten months later, Smith appears to have found common ground with Commissioners on both sides of the aisle. Since June, they have won 28 votes and Smith has broken the tie only four times, siding twice with each party. The commissioners also agreed to keep each of Montana’s seven Native American reservations intact. This represents a significant area of ââagreement in a state with 12 federally recognized American Indian tribes and the fifth highest percentage of American Indians, 6.4 percent, in the country.
These tribes represent a powerful constituency – leftist but politically diverse – which has successfully enforced voting rights law in the past. Montana is required to maintain Indian-majority legislative districts to ensure fair representation of Native American voters (currently six House districts and three in the Senate), and the possibility of a lawsuit from Indigenous communities regarding the new Congressional district is probably in the minds of the commissioners.
These early signs of cooperation raise hopes that Montana could counter the national trend of gerrymandered districts, which currently dictate election results in more than 30 states.
A handful of other states are also working together towards this goal. In 2018, voters established commissions in the blue states of Colorado and Michigan, and voters in Virginia did the same in 2020. In 2018, voters in the red states of Utah and Missouri also approved redistribution reforms. In both states, however, these reforms were quickly watered down by GOP lawmakers keen to defend the Red Districts that were destroyed after the Tea Party wave of 2010.
Unsurprisingly, says Nathaniel Rakich, senior election analyst at FiveThirtyEight, âRepublican politicians globally are not so enthusiastic about the freelance [and] bipartisan redistribution as Democrats. Democrats have effectively become “the anti-gerrymandering party,” he adds, a position reflected in the For the People Act, the Democrats’ proposal to overhaul the country’s electoral system. The bill, which Republicans successfully blocked, would require states to form bipartisan citizens’ commissions with independent members who vote to break the tie, like Montana, Washington and New Jersey. .
Until this bill is passed, the partisan game of drawing partisan cards will persist. Whether Montana can play effectively under a different set of rules and get a fair result remains to be seen. Last month the commission has received 231 map proposals submitted by the Montanais or proposed by the members of the commission and 145 pages of public comments. In early October, the commissioners selected nine of these cards to frame their debate and elicit a second round of public comment. They must deliver a final card to the Secretary of State on November 5.
But the 50-year-old state commission hasn’t drawn a district in Congress for 30 years, and Smith’s Republican disapproval signals problems ahead. âThe jury is still out on Montana,â Wasserman says, but âa commission process is very different from a purely partisan legislative processâ because it provides more room for agreement between the parties. Of course, reaching that agreement is a difficult standard to meet for any committee, regardless of its structure. Litigation has become a common part of the redistribution process in America since 2010, and legal challenges will be filed against Cards in Montana and many other states with a wide array of redistributive processes.
The difference in Montana – and other states where redistribution reforms have been successful – is that contested districts will be the product of a bipartisan process that dampens political influence and, ultimately, partisan officials will be forced to accept a map drawn by citizens rather than politicians.
For her part, Smith seems less interested in how the outcome is viewed by party officials and more interested in how the new district holds voters accountable. âI have worked in areas of law where people don’t feel heard. It’s not just the Indians. It’s poverty, it’s rural areas versus urban areas, âshe told me. “I want to give people who normally don’t have a voice â a voice.”