The new PSC map approved by the 2023 Montana Legislature, which is being challenged in court as unconstitutional. (Screenshot via lawsuit)
A Lewis and Clark County District Court judge said that an expert witness proved that maps redrawn by a legislator to redistrict the Montana Public Service Commission would likely mean a Republican stranglehold for years to come, but he said that repeated evidence and testimony could not establish that partisan advantage was the primary motivating factor when former State Sen. Keith Regier drew up the map.
Judge Christopher Abbott said that Regier’s testimony at the Legislature never changed, and while admitting that the way the Republican-led lawmakers split up the commission seemed to dilute Democratic power, his other reasons for doing so remained constant and defensible. Abbott said in his 48-page ruling released on Monday that while the maps raise questions, the one enacted does not specifically violate the state’s constitution, and therefore, the will of the Legislature must be respected.
Former Sen. Regier, a Republican from Kalispell, is a longtime Montana political leader and the father of two current legislators, Montana Senate President Matt Regier, R-Kalispell, and Rep. Amy Regier, R-Kalispell.
The Montana PSC is an all-Republican, five-member body that oversees various public utilities and services.
Abbott said in his findings that nine of 12 advisory jury members also concluded that Keith Regier’s testimony and facts suggested that Regier did not draw the lines of the new map, part of Senate Bill 109 during the 2023 Legislature, to value partisan divides above population distribution or legislative boundary lines, something that Regier said that he factored.
“Sen. Regier argued the Legislature did not need to draw compact districts, noting that the only criterion the Legislature had to follow was population equity, noting that compactness and other constitutional criteria did not apply to the PSC,” Abbott stated in his conclusion.
Abbott also acknowledged that Regier’s plan ultimately carved up the most populous cities and counties in the state, including dividing Cascade County into three districts.
“Regier freely acknowledged in the Senate Energy and Telecommunications Committee that he did not strive to keep communities of interest together, noting that the Constitution does not require the Legislature to do so,” Abbott said. “Sen. Regier consistently responded to this criticism by maintaining that splitting cities may inure to their benefit by giving them two commissioners answerable to that community.”
Abbott also noted that Regier had repeatedly testified that he didn’t know how to focus on the particular political party divides of a county or city and didn’t study those things when redrawing the maps. The judge also found that Regier’s testimony at legislative hearings remained consistent.
Montana Secretary of State Christi Jacobsen, who was sued in her official capacity as the executive in charge of voting districts across the state, cheered the ruling on Monday afternoon.
“The jury got it right,” Jacobsen said. “The ruling proves that this was nothing more than a baseless lawsuit to create headlines and undermine Montana’s procedures and processes. Montanans are fed up with the political games and out-of-state dark money trying to change our state.”
Expert witness Stephanie Somersille used several statistical models to prove that the map that Regier and the Legislature settled on were likely drawn with consideration given to the partisan divides in many, if not all, of the Montana urban communities where Democrats enjoy stronger representation. However, Abbott said in his ruling that the plaintiffs in the case, which included former Republican elected officials, must prove that it was the primary motivation, something the judge said attorneys had failed to do.
“The enacted plan was a statistical outlier compared to (neutral comparison models), making it ‘extremely unlikely that the designers of this plan were merely indifferent to splitting city boundaries,’” Abbott said.
He said that this lead to multiple districts in places like Billings, Bozeman, Helena, Missoula, Kalispell and Great Falls, all of which are divided.
Somersille’s conclusions, backed by statistical science, said that all five PSC districts “provide an advantage for Republican candidates and voters.”
Abbott said that even if other maps presented to the Legislature drew the lines that wouldn’t split similar counties or cities, that would not prove that Regier’s proposal was illegal.
“(Other maps) demonstrate that while it is possible to achieve better population parity with fewer city splits or using county lines, they do not necessarily evince a discriminatory motive,” he said. “The court notes that a holding for plaintiffs here effectively requires the court to conclude that when Sen. Regier said — publicly and multiple times — that he did not consult partisan data or consider political advantage in formulation SB109, he was not being truthful. Questioning the veracity of a senior elected member of a coordinate branch of government is a serious matter that should not be determined cavalierly.”
Furthermore, Abbott clarified that even had the Legislature and Regier factored in partisan advantage, it would not have necessarily been illegal or unconstitutional.
“Political or partisan advantage need not have been the Legislature’s ‘sole’ purpose — only the predominating motivating factor,” Abbott said. “This court has already held that it can, must, and would so interfere should it find discriminatory intent, but that does not mean the accusation is proof. Plaintiffs failed to prove by a preponderance of the evidence that the Legislature’s motive in enacting SB109 was to favor Republicans or disfavor Democrats or other non-Republican candidates or voters.”
Attorney Rylee Sommers-Flanagan of Upper Seven Law, who represented the group of plaintiffs, said they were considering next steps.
“Plaintiffs respectfully disagree with the court’s conclusions and are considering all options, including a potential appeal to the Montana Supreme Court,” she said.
Findings of Fact, Conclusions of Law and Merits Order