V.14 Districting and Apportionment

Text

Article V, Section 14. Districting and Apportionment. (1) The state shall be divided into as many districts as there are members of the house, and each district shall elect one representative. Each senate district shall be composed of two adjoining house districts, and shall elect one senator. Each district shall consist of compact and contiguous territory. All districts shall be as nearly equal in population as is practicable.

(2) In the legislative session following ratification of this constitution and thereafter in each session preceding each federal population census, a commission of five citizens, none of whom may be public officials, shall be selected to prepare a plan for redistricting and reapportioning the state into legislative districts and a plan for redistricting the state into congressional districts. The majority and minority leaders of each house shall each designate one commissioner. Within 20 days after their designation, the four commissioners shall select the fifth member, who shall serve as chairman of the commission. If the four members fail to select the fifth member within the time prescribed, a majority of the supreme court shall select him.

(4) The commission shall submit its plan for legislative districts to the legislature at the first regular session after its appointment or after the census figures are available. Within 30 days after submission, the legislature shall return the plan to the commission with its recommendations. Within 30 days thereafter, the commission shall file its final plan for legislative districts with the secretary of state and it shall become law.

(5) Upon filing both plans, the commission is then dissolved.

https://leg.mt.gov/bills/mca/title_0000/article_0050/part_0010/section_0140/0000-0050-0010-0140.html

History

The districting and apportionment provisions in the various version of the Montana Constitution followed the transformation of the Federal Court system, especially after the Supreme Court decisions of Reynolds v. Simms as well as taking into considerations methods to preserve a representative body of legislators in the State. The 1884 Proposed provisions left all decision making to the legislative body on the basis of the enumeration of citizens throughout the state. It called for laws to be passed by the legislature to determine the ratios of the population to the districts.

The 1889 Constitution maintained the power of districting and apportionment to the legislative assembly following the enumeration of inhabitants of the state and again following enumerations by the United States. There were additional requirements for every county to be entitled to one senator, where senate districts cannot consist of more than one county. A difficult task handed to the Apportionment and Representation committee during the 1889 convention was to establish districts of the state. This lead to a significant amount of debate during the session, and resulted in the specified number of delegates listed as subsections. In 1965, an amendment to the section of Districting and Apportionment was submitted to the Electors of the State of Montana repealing the provisions of specific apportionments made to counties for both senate and representative seats during the 1989 convention, while also amending language to ensure apportionment was based by population for both Senate and House seats.

The 1972 Constitution took on a different approach to the districting and apportionment of the state, where there was a recognition for a need to separate politics from the highly impactful endeavor of districting and reapportionment. The Montana Constitutional Convention Commission outlined the history and debate of reapportionment in a Memorandum written by Ellis Waldron which helped give the delegates a base for the subject. Debate arose surrounding the purpose of a selected independent commission, and what process should be in place to ensure representation of Montana citizens. Ultimately, the convention settled on the establishment of a five person citizen Reapportionment Commission whose members are selected by the majority and minority leaders of each house and whose chairman is selected by those members.

Sources

1884 Proposed Montana Constitution

Art IV Sec. 4 – “After the first session of the Legislative Assembly of the State, and until otherwise provided by law, the Senate shall consist of twenty-one members, and the House of Representatives of forty-five members. It shall be the duty of the first Legislative Assembly to divide the State into Senatorial and Representative districts, but there shall be at least one Senator from each county. The Senatorial districts shall be numbered from one to twenty-one, if there be so many. The Senators shall be divided into two classes; those elected in district designated by even numbers shall constitute one class, and those elected in districts designated in even odd numbers shall constitute the other class, except that Senators elected in each of the districts having more than one Senator shall be divided as equally as may be between the two classes. The Senators of one class shall hold for two years, those of the other class shall hold for four years, to be decided by lot between the two classes, so that one half of the Senators, as nearly as practicable, may be elected biennially thereafter.

Art IV Sec. 45 – “Until otherwise provided by law, the Representatives of the State of Montana in Congress of the United States shall be elected by the State at large. When a new apportionment shall be made by Congress, the Legislative Assembly shall divide the State into Congressional districts accordingly.”

Art IV Sec. 46 - “The Legislative assembly, at its first session held under the Constitution, shall provide by law for an enumeration of the inhabitants of the State, and as often thereafter as in the opinion of the Legislative Assembly such enumeration shall be necessary, and shall revise and adjust the apportionment of Senators and Representatives on the basis of such enumeration according to the ratio fixed by law.”

Art IV Sec. 49 – “When a Senatorial or Representative district shall be composed of two or more counties, they shall be contiguous and the districts as compact as may be. No county shall be divided in the formation of a Senatorial or Representative district.”https://courts.mt.gov/portals/189/library/docs/1884const.pdf<ref/>

1889 Montana Constitution as Ratified

Art VI – Apportionment and Representation

Section 1 – One representative in the congress of the Unites States shall be elected from the state at large, the first Tuesday in October, 1889, and thereafter at such times and places, and in such manner as may be prescribed by law. When a new apportionment shall be made by congress the legislative assembly shall divide the state into congressional districts accordingly.

Section 2 – The legislative assembly shall provide by law for an enumeration of the inhabitants of the state in the year 1895, and every tenth year thereafter; and at the session next following such enumeration, and also at the session next following an enumeration made by the authority of the United State, shall revise and adjust the apportionment for representatives on the basis of such enumeration according to ratios to be fixed by law.

Section 3 – Representative districts may be altered from time to time as public convenience may require. When a representative district shall be composed of two or more counties, they shall be contiguous, and the districts as compact as may be. No county shall be divided in the formation of representative districts.

Section 4 – Whenever new counties are created, each of said counties shall be entitled to one senator, but in no case shall a senatorial district consist of more than one county.

Section 5 – The senatorial districts of the state shall be constituted and numbered as follows:

The county of Beaverhead shall constitute the First district, and be entitled to one senator.The county of Madison shall constitute the Second district, and be entitled to one senator.The county of Gallatin shall constitute the Third district, and be entitled to one senator.The county of Jefferson shall constitute the Fourth district, and be entitled to one senator.The county of Deer Lodge shall constitute the Fifth district, and be entitled to one senator.The county of Missoula shall constitute the Sixth district, and be entitled to one senator.The county of Lewis and Clarke shall constitute the Seventh district, and be entitled to one senator.The county of Choteau shall constitute the Eighth district, and be entitled to one senator.The county of Meagher shall constitute the Ninth district, and be entitled to one senator.The county of Silver Bow shall constitute the Tenth district, and be entitled to one senator.The county of Custer shall constitute the Eleventh district, and be entitled to one senator.The county of Yellowstone shall constitute the Twelfth district, and be entitled to one senator.The county of Dawson shall constitute the Thirteenth district, and be entitled to one senator.The county of Fergus shall constitute the Fourteenth district, and be entitled to one senator.The county of Park shall constitute the Fifteenth district, and be entitled to one senator.The county of Cascade shall constitute the Sixteenth district, and be entitled to one senator.

Section 6 – Until an apportionment of representatives be made in accordance with the provisions of this article, they shall be dived among several counties of the state in the following manner:

The county of Beaverhead shall have two (2).The county of Madison shall have two (2).The county of Gallatin shall have two (2).The county of Jefferson shall have three (3).The county of Deer Lodge shall have seven (7).The county of Missoula shall have five (5).The county of Lewis and Clarke shall have eight (8).The county of Choteau shall have two (2).The county of Meagher shall have two (2).The county of Silver Bow shall have ten (10).The county of Custer shall have two (2).The county of Yellowstone shall have one (1).The county of Fergus shall have two (2).The county of Park shall have two (2).The county of Cascade shall have two (2).The counties of Dawson and Cascade shall have one (1) jointly.The counties of Deer Lodge and Beaverhead shall have one (1) jointly.The counties of Jefferson and Gallatin shall have one (1) jointly.https://courts.mt.gov/portals/189/library/docs/1889cons.pdf<ref/>

1965 Amendment

Chapter 273, Laws of 1965, proposed amendments to Section 2 and Section 3, while also repealing section 4, 5, and 6. The Amendment was in response to the United States Supreme Court decision l under the equal protection clause of the Fourteenth Amendment where the standard of apportioning seats to Counties was effectively gross disproportion of representation to the voting population. The proposed amendment to the constitution reads as follows:

“An act to Submit to the Qualified Electors of the State of Montana an Amendment to the Montana Constitution Relating to the Apportionment of the Legislative Assembly; Amending Section 2 and 3, Article VI; and Repealing Sections 4 and 45, Article V, and Sections 4, 5 n d6, Article VI.

Be it enacted by the Legislative Assembly of the State of Montana:

Section1. Section 2, Article VI of the constitution of the state of Montana is amended to read as follows:

‘Section 2. (1) The senate and house of representatives of the legislative assembly each shall be apportioned on the basis of population.

(2) The legislative assembly following each census made by the authority of the United States, shall revise and adjust the apportionment for representatives and senators on the basis of such census.

(3) At such times as the constitution of the United States is amended or interpreted to permit apportionment of one house of a state legislative assembly on factors other than population, the senate of the legislative assembly shall be apportioned on the basis of one senator for each county.’

Section 2. Section 3, Article VI of the constitution of the state of Montana is amended to read as follows:

‘Section 3 – Senatorial and representative districts may be altered from time to time as public convenience may require. When a senatorial or representative district shall be composed of two or more counties, they shall be contiguous, and the districts as compact as may be.’<p.>

Section 3. Section 4 and 45, Article V, and Sections 4, 5, and 6 of Article VI of the constitution of the State of Montana are repealed.

Section 4. When this amendment is submitted to the electors of Montana, there shall be printed on the ballot the title and sections 1, 2 and 3 of this act and the following words:

‘□ For the above amendment □ Against the above amendment’

Approved March 9, 1965.”

1972 Montana Constitution as Ratified

Art IV, Section 14. Districting and apportionment.

(1) The state shall be divided into as many districts as there are members of the house, and each district shall elect one representative. Each senate district shall be composed of two adjoining house districts, and shall elect one senator. Each district shall consist of compact and contiguous territory. All districts shall be as nearly equal in population as is practicable.

(2) In the legislative session following ratification of this constitution and thereafter in each session preceding each federal population census, a commission of five citizens, none of whom may be public officials, shall be selected to prepare a plan for redistricting and reapportioning the state into legislative districts and congressional districts. The majority and minority leaders of each house shall each designate one commissioner. Within 20 days after their designation, the four commissioners shall select the fifth member, who shall serve as chairman of the commission. If the four members fail to select the fifth member within the time prescribed, a majority of the supreme court shall select him.

(3) The commission shall submit its plan to the legislature at the first regular session after its appointment or after the census figures are available. Within 30 days after submission, the legislature shall return the plan to the commission with its recommendations. Within 30 days thereafter, the commission shall file its final plan with the secretary of state and it shall become law. The commission is then dissolved.https://courts.mt.gov/portals/189/library/docs/72constit.pdf<ref/>

1984 Amendment

Chapter 421, Laws of 1983, proposed amendments to Article V, section 14 amended section 3 and section 5 requiring the plan to be filed to the secretary of state and legislature within 90 days of the official final decennial census figures (Sec. 3) and dissolving the commission upon the filing of the plans (Sec. 5). Amendment Number 14 was approved by voters on November 6, 1984. Commentary on the purpose of the amendment are found below in Elison and Snyder’s Reference Guide. The proposed amendment to the constitution reads as follows:

“AN ACT TO SUBMIT TO THE QUALIFIED ELECTORS OF MONTANA AN AMENDMENT TO ARTIVLE V. SECTION 14, OF THE MONTANA CONSTITUTION TO PROVIDE THAT THE CONGRESSIONAL DISTRICTS IN MONTANA BE REDISTRICTED WITHIN 90 DAYS AFTER THE OFFICIAL FINAL DECENNIAL CENSUS FIGURES ARE AVAILABLE; AND PROVIDING EFFECTIVE DATE

Be it enacted by the Legislature of the State of Montana:

Section 1. Article V, section 14 of the Constitution of the State of Montana is amended to read:

‘Section 14. Districting and apportionment. (1) the state shall be divided into as many districts as there are members of the house, and each district shall elect one representative. Each senate district shall be composed of two adjoining house districts, and shall elect one senator. Each district shall consist of compact and contiguous territory. All districts shall be as nearly equal in population as is practicable.

(3) Within 90 days after the official final decennial census figures are available, the commission shall file its final plan for congressional districts with the secretary of state and it shall become law. (4) The commission shall submit its plan for legislative districts to the legislature at the first regular session after its appointment or after the census figures are available. Within 30 days after submission, the legislature shall return the plan to the commission with its recommendations. Within 30 days thereafter, the commission shall file its final plan for legislative districts with the secretary of state and it shall become law. (5) Upon filing both plans, the commission is dissolved.’

Section 2. Effective Date. If approved by the electorate, this amendment becomes effective October 1, 1985.

Section 3. Submission to electorate. This amendment shall be submitted to the electors of the state of Montana at the general election to be held November 6, 1984, by printing on the ballot the full title of this act and the following:

‘□ FOR requiring the congressional redistricting plan to be finalized within 90 days after official census data are available and eliminating provisions for legislative comment. □ AGAINST requiring the congressional districting plan to be finalized within 90 days after official census data are available and eliminating provisions for legislative comment.’

Section 4. Coordination instructions. If House Bill 629 introduced in the 48th legislature is not passed and approved, the date ‘November 6, 1984’ in section 3 of this act is changed to ‘November 8, 1983’.”

Drafting

1889 Convention

Below are instances when matters related to the Apportionment and Representation Committee were before the convention body. Page numbers to Proceedings and Debates: Constitutional Convention 1889 are given to direct readers to where debate was had on issues. https://archive.org/details/proceedingsdebat00montrich/page/n7/mode/2up<ref/>

July 6th, 1889 – Size of the Committee

Delegate Burleigh of Custer:

“Mr. President, it strikes me that one of the most important committees here is one on apportionment and representation, and it is one of the smallest committees in point of numbers. I see that the Committee on Mines and mining has nines members, and that on Apportionment and Representation seven members. I move to make the Committee on Apportionment and Representation eleven members.”

Delegate Toole of Lewis and Clark

“Mr. Chairman, the committee on Apportionment and Representation, as suggested by the gentlemen from Custer, is certainly a very important committee; but I think it was the idea of the Committee on Rules that owing to the importance of the matter, and with the view of being able to have fair representation of the members present, for the consideration of business, and in view of the fact that if there should any difficulty arise in the Convention, as invariably has been the case in the legislative assembly of the territory, it would probably arise in the apportionment and representation committee, and that we could perhaps dispose of it, better reach a fair and just conclusion by a smaller committee, than we could by a larger representation, and I think that it was with this view that the Committee on Rules recommended the number. I think that it will result advantageously to the convention by having a smaller representation, rather than by having a larger one.”

*The Chairmen then put the question, and a division being called by Delegate Burleigh, 30 members voted in the affirmative, and 27 in the negative. The Chair then announced that the motion was carried, and that the committee would stand eleven on apportionment and representation

August 2nd, 1889 – Debate on the Number of Representatives

(Page 597- 600) Motion to refer the proposed Provision back to the committee – the number of representatives.

Another battle between Burleigh and Toole.

August 2nd, 1889 – Representation of Counties

(page 622-626) (639-41)

August 14th, 1889 – The Apportionment and Representation Committee Report

(page 913)

August 15th, 1889 – Amendments to Proposed provision and debate on representation

(page 935 – 945)

1972 Convention

Constitutional Convention Commission – Memorandum No. 10 – Legislative Reapportionment

The 1971 Legislative Assembly created the Constitutional Convention Commission and directed it to assemble and prepare essential information for the convention. The Memorandum on legislative reapportionment was written by Ellis Waldron, a professor of political science at the University of Montana and Commission member. The memorandum includes historical background and present trends concerning the question of constitutional treatment of legislative reapportionment.

The report was organized to give context on issues related to reapportioning agencies in other states, including court backstops to the legislature, backstop reapportionment agencies, and Non-legislative agencies that initiate reapportionment. In addition, it included constitutional standards for an appropriation agency including the size of the chamber, population base, standards of equality, district contours, single- or multi-member districts, and gerrymandering.

Delegate Proposals

Delegate Proposal No. 62

Introduced on January 29, 1972 by Delegates Thomas “Katie” Payne

“Reapportionment and Boundary Commission

Section 1. COMMISSION. There is created a reapportionment and boundary commission, the Governor and the majority and minority leaders of the senate and the speaker and minority leader of the house each shall appoint one (1) member to the commission. Terms and compensation of the members shall be fixed by law.

Section 2. REAPPORTIONMENT. It shall be the duty of the commission after each United States census to prepare a plan of redistricting and reapportionment of the legislative assembly on the basis of equal representation. The plan will become effective sixty (60) calendar days after its submission to the legislative assembly unless rejected by a majority vote of the total membership of the legislative assembly.

Section 3. PRECINCTS. It is the duty of the commission after each United States census to redraw the boundaries of election precincts throughout the state so as to achieve equal representation. Such plan is effective sixty (60) calendar days after its submission to the legislative assembly unless rejected by a majority vote of the total membership of the legislative assembly.

Section 4. REJECTION. When the legislative assembly initially rejects either the legislative reapportionment or precinct plans provided for in sections 2 and 3 of this article, it shall have an additional thirty (30) days to adopt an alternative plan or plans. Failure to adopt such an alternative shall result in the original plan of the commission becoming law.

Section 5. BOUNDARIES. The commission shall be empowered to examine the boundaries of all local government units and to make recommendations to the legislative assembly regarding any changes which would improve governmental services.

Section 6. OTHER DISTRICTS. The commission shall be empowered to examine boundaries of congressional and judicial districts, and any other districts referred to it by the legislature, and make recommendations to the legislature regarding changes in boundaries of such districts.

Delegate Proposal No. 140

Introduced on February 4, 1972 by Delegate Grace Bates

“ . . .

Section 2. COMPOSITION. (1) the number of members of the legislature shall be prescribed by law but the senate shall consist of not more than fifty (50) nor less than thirty-five (35) and the house of not more than one hundred (100) more less than seventy-five (75).

(2) the state shall be divided into as many senatorial districts as there shall be members of the senate and each district shall elect one (1) senator. All senatorial districts shall be so nearly equal in population as is practicable. (3)Each senate district shall also serve as a house district for the election of two (2) members of the house of representatives. Each district may be divided into single member house districts as provided by law. (4) Every legislative district shall consist of compact and contiguous territory.

. . .

Section 12. APPORTIONMENT. In the session preceding each federal decennial census a reapportionment commission shall be established by the state legislature. The commission will have the power to reapportion if the legislature fails to do so within sixty (60) days of the first day of the first (1st) session after the census enumeration. The commission’s apportionment plan shall be filed with the secretary of state. The commission shall be balanced geographically and politically. Legislators may serve on the commission but shall not be in the majority

(1) Any person aggrieved by the preliminary plan shall have thirty (30 days to file exceptions with ethe commission in which case the commission shall have thirty (30) days after the date the exceptions were filed to prepare and file a revised plan. If no exceptions were filed within thirty (30) days, or if filed and acted upon, the commission’s plan shall be final and have the force of law. (2) Any aggrieved person may file an appeal from the plan directly to the supreme court within thirty (30) days after the filing. If the appellant establishes that the final plan is contrary to law, the supreme court shall issue an order remanding the plan to the commission and directing the commission reapportion and redistrict in a manner not inconsistent with such order. (3) When the supreme court has finally decided an appeal taken, the reapportionment plan shall have the force of law and the districts shall be used thereafter in elections to the legislature until the next reapportionment is required.”

Majority Proposal

Made on February 22, 1972 – (Note: As proposed it was in section 15 of Article V, later to become section 14).

“Sect. 15 (1) For the purpose of electing members of the legislature, the state shall be divided into as many districts as there shall be members of the legislature. Each legislative district shall consist of compact and contiguous territory and be so nearly equal in population as is practicable. (2) Immediately upon enactment of this section and in the session preceding each census made by the Authority of the United States a committee of four citizens, none of whom may be public officials, shall be designated to draft a plan for redistricting and reapportioning the state into legislative and congressional districts. The majority and minority leader of the legislature shall each designate two commissioners. The four commissioners, within twenty days after their designation, shall select the fifth member, who shall serve as chairman of the commission If the four members fail to select the fifth member within the time prescribed, a majority of the supreme court shall appoint the chairman. (3) No later than ninety days after appointment of the chairman, or following the official reporting of each federal census, whichever is later in time, the commission shall file a plan with the secretary of state. (4) Any person aggrieved by the preliminary plan shall have thirty days to file exceptions with the commission in which case the commission shall have thirty days after the date the exceptions were filed to prepare and file a revised plan. If no exceptions are filed within thirty days, or if filed and acted upon, the commission’s plan shall be final and have force of law. (5) Any aggrieved person may file an appeal from the plan directly to the supreme court within thirty days after the filing. If the appellant established that the final plan is contrary to law, the supreme court shall issue an order remanding the plan to the commission and directing the commission to reapportion and redistrict in a manner not inconsistent with such order. (6) When the supreme court has finally decided an appeal taken, the reapportionment plan shall have the force of law and the districts shall be used thereafter in elections to the legislature until the next reapportionment is required.”

Minority Proposal

Made on February 22, 1972 – (Note: As proposed it was in section 15 of Article V, later to become section 14).

**Subsection (1) is identical to the majorities. Below in debate on proposals, Delegate Nutting gives explanation on the differences. “(2) In a session preceding each federal decennial census, a reapportionment commission shall be established. The majority and minority leaders of the legislature shall each designate two commissioners. The four commissioners within twenty days after their designation, shall elect a fifth member, who shall serve as chairman of the commission. If the four members fail to select the fifth member within the time prescribed, a majority of the supreme court shall appoint the chairman. The commission shall have the power to reapportion if the legislature fails to do so within sixty days of the first day of the first session after the census enumeration. The commission’s apportionment plan shall be filed with the secretary of state. After enactment of the final plan, this commission shall be dissolved.”

Debate on Proposals

February 22, 1972 – Majority and Minority Committee Report on Proposed Language

Delegate Skari:

“Thank you, Mr. President. As I mentioned, the effects of reapportionment can greatly affect local and political structures for at least a decade. We feel that some consideration has to be paid to this area and how this is to be accomplished. the majority report recommends the establishment of a commission on reapportionment and redistricting which would initiate a reapportionment and redistricting plan which would essentially - - which would be appointed by legislative leadership but would be somewhat independent and autonomous. It would, in effect, bypass the legislature from this point on. It is our aim to provide for the creation of a commission reasonably free of legislative pressure. To do this, we recommend that the convention constitutionally delegate this power to this commission Our reason for this is as follows: we are not infatuated with the creation of special commissions to accomplish what some people fell to be a legislative function. There is a definite conflict of interest here…. The redistricting and reapportionment in the sixties did place a great strain under the methods we had worked under before. The Montana experience was that in 1965 the legislature was unable to reapportion. About a dozen bills were introduced and not a single one was accepted. Consequently, it fell to the federal district court to reapportion the state. In 1971 the legislature drew up one plan which was invalid because of a thirty-seven percent variance. After working through the regular session, one special session, the legislature finally *2094 that interest in redistricting should not be confined only to legislators, and would suggest that we avoid a long period of wasting time. came up with the present plan in the second special session, which the court allowed to stand for the election of this convention. . . . Other states have had similar experiences in the past fifteen years in new constitutions, only two leave legislative reapportionment undisturbed. There are several reasons why reapportionment is difficult for the legislature. Each legislator tends to create his own district first. I think this is only a natural human trait. It’s not meant as criticism. There is a great deal of difficultly being objective here because one man’s gerrymandering can be the other man’s logical district. There is a certain pressure from legislators not on the committee. Legislators themselves do not particularly enjoy this job, either. Also, it takes a great deal of the legislatures time. I would point out also that single member districts and residency requirements will greatly increase legislative difficulties I this area. Under this plan, the legislature - - the legislators and private citizens would have the same privilege of filing objections or exceptions to the commission. . ."

Delegate Nutting (Minority Report)

“ . . . the essential difference is not that we vary in the selection of the commission, not that we - - the method that the commission is selected. In plan two, it merely assumes that the—where you could get a more representative body to represent you than the legislature? So, what we do in plan two, we give the legislature the opportunity to reapportion themselves. If the legislature fails to do so, then the commission plan would go into effect. That’s essentially the only difference between the two plans. One leaves it with the commission with no recourse other than any citizen has a right to complain, but the commission’s plan itself goes into effect if they do not choose to consider the recommendations. This proposal, it acts more as a backstop commission and that it’s there. . . the commission could possibly introduce their plan first and the legislature would have the right to offer a plan or not, but essentially the difference between the plan as you see it in the book and Plan Two is that the legislature does have an opportunity to examine the plan and rewrite it - - write one of their own if they choose, and the commission would be a backstop under Plan Two; under the plan as it is in the book they would write the reapportionment law.”

Delegate Blend

“I rise in support of the majority subsection. As Mr. Nutting pointed out, the legislature has a great and vast knowledge of apportionment and redistricting. I feel that his can be informally handed on very well to the commission who would accomplish this act. I do not think that the legislature is psychologically fitted to reapportion itself. I think it’s too lengthy a program for them to undertake for something that should be accomplished by a non-partisan, or at least an impartial group.”

Delegate Joyce – Noting on the issues of Federal Supreme Court original jurisdiction on the matter

“After any plan, whether it is adopted by a commission or the legislature and has the force and effect of law, that plan must meet the test of the fourteenth amendment to the federal constitution. Therefore, at any time we cannot put any statute of limitations on anybody challenging that particular plan. So, therefore, you cannot divest the federal courts of jurisdiction and the United States Supreme Court has set up this procedure that whenever there is a challenge to a particular apportionment plan that it’s referred toa three judge federal court. It is superfluous and unnecessary and, as a matter of fact, a waste of time because assuming, for example, whichever plan may be adopted either by the legislature or by the commission and it’s then sent over to the supreme court and the supreme court unanimously approves the thing, there’s nothing to stop anyone from the very next week bringing an action in the federal court. . . so involving the supreme court in it is not meritorious at all . . .”

Delegate Cate – Introducing amendment that becomes more reflective of eventual provision.

“It is the intent of this amendment that after a decennial census that this commission would be appointed and would, at the next session of the legislature, submit to them a plan for their consideration and suggestion, and that plan, within thirty days thereafter, would be filed with the secretary of state and become law, and it would take place in the year 1981.

Delegate Romney – Seeing that the legislature is the best positioned to make reapportionment and districting decisions.

“Mr. Chairman, there was a time when I thought that I was a flaming liberal, but now I’ve found that I am quite conservative. I still believe in representative government. I think that the tendency in this Convention to delegate authority to commissions and boards and one thing and another, is sapping at the roots of representative government and I dislike it. I think the closest thing we have to democracy is a representative government and our legislators, whether you have them in a bicameral or unicameral government, are elected by the people. They are the closest force in government to the mass of the electorate that exists. I think that they should be first, the initial force in providing reapportionment. I do not think under any of these plans . . . Is going to get away from partisanship of gerrymandering. People who are elected or named to commissions by political leaders are likely to have the same connection and faith and direction as the leaders who appointed them. So you are not getting away from it.”

Ratification

1972 Voter Information Pamphlet

Under the “Highlights” of the voter information pamphlet, a brief explanation on new provisions added included the following language:

“Legislators will be elected from single-member districts. Section 14.The legislature will be reapportioned by a special commission of five citizens to whom the legislature may submit recommendations. Section 14.”

In explaining the new provisions regarding, the voter information pamphlet under Art. V Section 14 included the following description:

“(1) New provision for single-member house districts. Two house districts constitute a senatorial district. (2); and (3); new provision which established a five member commission to recommend a reapportionment plan after each U.S. census.”http://www.umt.edu/law/library/files/1972voterspamphlet

1972 Montana Constitution newspaper supplement

“Another important innovation is section 14 w***** Reapportionment Commission to assist the legislature in legislative reapportionment. This five-member citizen commission is set up to be bipartisan and to function whenever the federal government provides new census data on the distribution of population within the state. In creating the commission the Convention recognized that the problem of reapportionment has been very difficult for the legislature to deal with because of the important political ramifications of apportionment. The apportionment commission will cease to function after the adoption of each apportionment plan.” (Page 3) https://www.umt.edu/media/law/library%5CMontanaConstitution%5CCampbell/1972MTConstNewspaperSupp.pdf</>

The New Montana Constitution: A Critical Look by Gerald J. Neely

“Districting and Apportionment:

Current: The legislature is required to be apportioned on the basis of population by the legislature after the federal census. There is a requirement that when a legislative district is composed of two or more counties, it is to be “compact.” And there is no requirement as to single member districts. (Art. VI, sec. 2,3).Proposed: Single-member districts are required, e.g. one legislator only from a district. Each Senate District, under the bicameral plan would consist of two adjoining house districts.

It is required that each district consists of “compact and contiguous territory” and be “as nearly equal in population as practicable.” (Art. V, sec. 14(1)).

Each Apportionment would be prepared by a five member commission whose chairman shall be a commission member selected by the other four commissioners who would be selected by the majority and minority leaders of the legislature.

The commission plan would be submitted to the legislature at its first session after its appointment or after federal census figures become available. The legislature, within thirty days, return the plan with “suggestions” and within thirty days thereafter, it is filed in final form by the commission and becomes law. (Art. V, sec. 14(2), (3)).” (Page 13) https://www.umt.edu/media/law/library%5CMontanaConstitution%5CCampbell/NeelyPamphlet.pdf<ref/>

Interpretation

Greely v. Mont. Districting & Apportionment Comm’n

After the 1980 census, the Attorney General sought a writ of mandamus to compel the Districting and Apportionment Commission to submit its plan to the 1981 Legislature. The District Court determined that the Commission must submit its plan to the first regular session of the Legislature following the Commission’s appointment or to the first regular session of the Legislature following the availability of census figure, whichever came later. In this case, the Commission was required to submit its plan to the 1983 Legislature meeting in regular session. State ex rel. Greely v. Mont. Districting & Apportionment Comm’n, First Judicial District, No. 46873 (Aug. 12, 1981).

McBride v. Mahoney

This case involves three interpretations: the use of projected population as basis for reapportionment, application of 1983 Reapportionment Commission Criteria, and total population deviation over ten percent.

Projected Population as Basis for Reapportionment

A reapportionment plan will not be struck down for failure to consider projected population growth when the Reapportionment Commission did not consider population projections and it was not presented with data that would have enabled it to apply population projections in a systematic manner. McBride v. Mahoney, 573 F. Supp. 913, 40 St. Rep. 1907 (D.C. Mont. 1983).

Application of 1983 Reapportionment Commission Criteria — Balancing of Criteria

The 1983 Reapportionment Commission established five criteria to follow in redistricting that addressed governmental boundaries, geographic boundaries, communities of interest, consideration of existing district boundaries, and an attempt to stay within a 5% plus or minus deviation from the ideal district population. The court held that these criteria were considerations and that conflicts between them as they existed within a district or between districts must be balanced in arriving at a plan embracing the entire state. The Commission interprets its own criteria, such as what constitutes a community of interest and the possible ripple effects of any particular change; thus when the Commission made a good faith effort to balance the criteria, the reapportionment plan could not be struck down on the contention that it failed to exactly follow its own criteria. McBride v. Mahoney, 573 F. Supp. 913, 40 St. Rep. 1907 (D.C. Mont. 1983).

Total Population Deviation Over Ten Percent Upheld — Legitimate State Interests

In the 1983 reapportionment plan, the population deviation between the largest and smallest House districts was 10.94% and between the largest and smallest Senate districts was 10.18%, which created a prima facie case of discrimination because the totals exceeded 10%. To be upheld, the deviations must be justified by legitimate state objectives. The court determined that legitimate state objectives were stated in criteria established by the Reapportionment Commission. The criteria addressed governmental boundaries, geographic boundaries, communities of interest, consideration of existing district boundaries, and an attempt to stay within a 5% plus or minus deviation from the ideal population. McBride v. Mahoney, 573 F. Supp. 913, 40 St. Rep. 1907 (D.C. Mont. 1983).

Willems v. State

The Districting and Apportionment Commission is exempt from the public participation requirements of Art. II, sec. 8, Mont. Const., and statutes regarding participation in government because the Commission is attached to the Legislative Branch and is not an agency and thus not a part of the Executive Branch. Willems v. St., 2014 MT 82, 374 Mont. 343, 325 P.3d 1204.

Wheat v. Brown

The 2003 Districting and Apportionment Commission plan for redistricting House and Senate districts assigned holdover Senators who were elected under the old districting system to redrawn districts under the new system, and the Commission submitted the plan to the 2003 Legislature for recommendations. In response, the Legislature passed 5 1 116, granting to itself the power to assign holdover Senators to districts for the remainder of their terms and prohibiting the Commission from making those assignments. The Legislature then passed further legislation implementing its recommendations. Three of the holdover Senators challenged the legislative assignments. The District Court declared 5 1 116 and the implementing legislation unconstitutional, and the Supreme Court affirmed. Under this section, the mandate that the Districting and Apportionment Commission effect redistricting is self executing, and the power to assign districts for holdover Senators is historically an inherent part of the redistricting process. The constitutional grant of redistricting power to the Commission constitutes a denial of any latitude to the Legislature to invoke its plenary powers. Thus, the 2003 legislation designed to transfer the power to assign holdover Senators from the Commission to the Legislature was unconstitutional and of no force and effect. Wheat v. Brown, 2004 MT 33, 85 P3d 765 (2004).

Old Person v. Brown

Plaintiffs contended that the 1992 redistricting plan for the Montana House of Representatives and Senate diluted the voting strength of American Indians in violation of section 2 of the Voting Rights Act of 1965, 42 U.S.C. 1973. The plaintiffs also alleged that the redistricting plan was adopted with a discriminatory purpose in violation of section 2 of the Voting Rights Act. The federal District Court rejected both claims. The Ninth Circuit Court of Appeals determined that the District Court’s finding that the plan did not dilute the voting strength of American Indians was based upon two errors. The errors were that white bloc voting in majority white House districts was not legally significant and that American Indians were proportionally represented under the 1992 redistricting plan. The Ninth Circuit Court of Appeals reversed and remanded with instruction to determine whether, in light of the totality of the circumstances, vote dilution had occurred. Old Person v. Cooney, 230 F3d 1113 (2000). On remand, the District Court held that the plaintiffs had limited standing and to prevail had to show, but did not show, vote dilution in the specific legislative districts where they resided. Also, the District Court held that even if the plaintiffs had shown vote dilution, their claim failed because of the unavailability of an adequate remedy. The District Court reasoned that the state would be redistricting in 2003, and the 2002 elections (the last elections to be conducted under the 1992 plan) were fast approaching. The plaintiffs appealed. The Ninth Circuit Court held that under the totality of the circumstances, it was not clearly erroneous for the District Court to determine that there was no vote dilution. The District Court’s ruling dismissing the Voting Rights Act of 1965 claim based on the conclusion that there was no vote dilution was affirmed. Old Person v. Brown, 312 F3d 1036 (2002).

Commentary

The Montana State Constitution: A Reference Guide; by Larry M. Elison and Fritz Snyder (Page 122)

“Subsection (1) is a new provision creating single-member house districts, and senatorial districts composed of two house districts for each senator. Subsections (2), (3), and (4) are also new. They create a five-member commission to prepare, submit, and file a plan for redistricting and reapportioning after each U.S. census. The language of Article V, section 14 was the result of Constitutional Amendment Number 14, which passed in 1984. This section is derived from the former Article V, section 4 of the 1889 Montana Constitution and Article VI, which replaced Article V. Section 2 of Article VI was passed in response to the decision by the U.S. Supreme Court in the case of Reynolds v. Sims (1964), requiring that state legislatures reflect population: one person-one vote.

The provision arranges for legislative districts coinciding as nearly as possible to both existing geographical configuration and commands of equal protection of the U.S. Constitution.

The section removes the power of redistricting and reapportioning from the legislature and the judiciary, placing legislative redistricting in the hands of persons other than the affected public officials. Persons entrusted with the power to redistrict and reapportion are selected anew, prior to each national census. This salutary policy decision minimizes both personal political control and party control, thereby increasing the likelihood of fair, objective redistricting and reapportionment. Without such a commission, the Montana Supreme Court or a federal district court could end up performing the task of redistricting and reapportionment (MCC Tr. 694). Commission reapportionment criteria were challenged in 1983. The U.S. District Court, District Court of Montana, held that the criteria would have to be balanced; that the commission was judge of its own criteria; and that failure to keep the population deviation within 5 percent of the ideal did not invalidate the reapportionment plan. Some population deviations were over 10 percent (McBride v. Mahone, 1983). The criteria established by the reapportionment commission included governmental boundaries, geographic boundaries, communities of interest, consideration of existing district boundaries, and an attempt to stay within a 5 percent plus-or-minus deviation form the ideal district population.

An Attorney General Opinion concluded that the adoption of the new constitution divested the legislature of all power concerning apportionment of the legislature, except for the power of recommendation in Article V, section 14 of the 1972 Montana Constitution (35 Op. Att’y Gen. 24 (1973)). That same opinion added that the “Commission to Redistrict and Reapportion” has the exclusive power to determine the size of the legislative houses and the geographical makeup of the legislative and congressional districts, subject only to the restrictions of Article V of the 1972 Montana Constitution.”

Montana Constitution