Tom Williams/CQ Roll Call via AP Images
Rep. Matt Rosendale (R-MT) is seen during a group photo with freshmen members of the House Republican Conference on the steps of the Capitol, January 4, 2021. Montana will soon have a second U.S. representative, following population growth reflected in the 2020 census count.
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 recall the seven-member Tribal Council had come down to a single vote, and a lawsuit claimed one vote had been fraudulently cast. Future management of the 1,400-member tribe and their 681,000-acre reservation hung in the balance. “There was some angst involved in that decision because I knew I was going to piss off half the population whichever way I went,” Smith says. She dismissed the suit and the tribe eventually held a new election.
Thirty years later, Smith has an even bigger decision on her hands: who will be included in a new congressional district projected to include half a million residents and 350,000 eligible voters. As chair of Montana’s Districting and Apportionment Commission, she has authority over the boundaries of one of seven new congressional districts created after the 2020 census and one of 429 congressional districts in 44 states that must be redrawn this year.
But Montana is different from most of these states. The state’s five-person, bipartisan redistricting commission is the oldest in the country and one of only ten commissions in the U.S. that are not controlled by a single party. Consequently, Smith has the chance to create new electoral boundaries for congressional and state legislative districts that are legal and fair to both major parties, a rare occurrence.
Her decision could also put a competitive district in play during the 2022 midterm elections and boost Democrats’ long-odds bid to hold their slim majority in the U.S. House. If Smith succeeds, then Montana could set an important example for a polarized country and show that both major parties can do something they hate: compete on a level playing field.
Independent or bipartisan redistricting processes are mandated in just 28 percent of congressional districts nationwide, including Montana.
“I think that redistricting in this country is a uniquely American screwup,” says Dave Wasserman, a senior editor and lead analyst for redistricting at the Cook Political Report. “Other countries don’t run into this problem of gerrymandering or manipulating boundaries that cause the aggrieved party to feel that elections are rigged.” In Canada and the U.K., for example, redistricting is handled by independent commissions that are more insulated from political influence than the partisan institutions that draw electoral boundaries in most U.S. states.
In America’s six least populous states (Alaska, Wyoming, North Dakota, South Dakota, Vermont, and Delaware), at-large congressional district boundaries match state borders. Voters in most of the other 44 states, however, are pawns on partisan maps. This year, Republican state legislators will draw electoral boundaries in 17 states. Democratic legislators will do the same in six states. Legislative control and the power to draw districts is temporarily split between the parties in six other states. In the remaining 15 states, appointed commissioners draw electoral boundaries, but partisan influence over these commissions varies greatly.
According to Wasserman, five of these commissions are controlled by a single party: three by Republicans (Utah, Iowa, and Ohio) and two by Democrats (Nevada and New York). Four are independent citizen commissions designed to give nonpartisan commissioners a plurality of votes, and six are bipartisan commissions like Montana. Altogether, he concludes that Republicans control 187 districts, Democrats control 71 districts, and control is temporarily split in 46 districts. That leaves just 121 districts in the hands of independent or bipartisan commissions. Put another way, independent or bipartisan redistricting processes are mandated in just 28 percent of congressional districts nationwide, including Montana, where a new congressional seat is about to emerge.
This bipartisan tradition creates a small but meaningful opportunity for Democrats in a state that Trump won by 16 percentage points in 2020. Democrats dominated Montana’s western district when the state had two congressional seats, but they haven’t won the at-large seat in 25 years. However, if new district boundaries include the Democratic strongholds of Missoula, Helena, Butte, and Bozeman, then Democrats have a fighting chance. In most red states, partisan lawmakers would have diced these blue cities into political irrelevancy. Montana lawmakers, however, were denied this opportunity nearly half a century ago: In 1973, Montana voters ratified a new constitution and created the first bipartisan redistricting commission in the country.
The 2020 census nudged Montana ahead of Delaware into the position of 43rd most populous state, making it one of six states that gained a congressional seat, alongside Oregon, Colorado, Florida, North Dakota, and Texas, which gained two seats. This redistribution of political power delivered two seats to blue states and five to red states. But among these red states, Montana sticks out like a sore thumb because it has a bipartisan redistricting process that is mandated by law, a significant abnormality in states with Republican majorities.
The majority and minority leaders of the Montana House and Senate each appoint two members, none of whom can be current officeholders. These four are responsible for selecting a fifth person to chair the commission and provide a tiebreaking vote. Disagreements tend to arise when the four partisan commissioners fail to agree on a chairperson. In those cases, the state supreme court steps in, which is exactly what happened this year.
In December, the seven justices selected Smith after partisan commissioners deadlocked. Republican leaders quickly attacked the decision, citing her history of donations to the Democratic Party. Smith responded by emphasizing her dedication to the law. After serving as a tribal judge for the Southern Ute Tribe, where her children are enrolled members, she directed the Margery Hunter Brown Indian Law Clinic at the University of Montana for 25 years. Now, she serves as the civil prosecutor for the Confederated Salish and Kootenai Tribes on the Flathead Indian Reservation.
Ten months later, Smith seems to have found common ground with commissioners on both sides of the aisle. Since June, they have taken 28 votes, and Smith has broken a tie on just four occasions, siding twice with each party. Commissioners have also agreed to keep each of Montana’s seven American Indian reservations intact. This represents a significant zone of agreement 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—left-leaning but politically diverse—that has successfully sued to enforce the Voting Rights Act in the past. Montana is required to maintain Indian-majority state legislative districts to ensure fair representation of American Indian voters (currently six House and three Senate districts), and the possibility of a lawsuit from Native communities regarding the new congressional district is likely on commissioners’ minds.
These early signs of cooperation raise some hope that Montana could counter the national trend of gerrymandered districts, which currently dictate electoral outcomes in more than 30 states.
A handful of other states are also working together toward that goal. In 2018, voters created commissions in the blue states of Colorado and Michigan, and Virginia voters did the same in 2020. In 2018, voters in the red states of Utah and Missouri also approved redistricting reforms. In both states, however, these reforms were quickly watered down by GOP legislators eager to defend red districts that were gerrymandered after the 2010 Tea Party wave.
Not surprisingly, says Nathaniel Rakich, senior elections analyst at FiveThirtyEight, “Republican politicians overall aren’t as keen on independent [and] bipartisan redistricting as Democratic ones.” The Democrats have effectively become “the anti-gerrymandering party,” he adds, a position reflected in the For the People Act, Democrats’ proposal to overhaul the nation’s electoral system. The bill, which Republicans have successfully blocked, would require states to form bipartisan citizen commissions with independent members who cast tiebreaking votes, similar to Montana, Washington, and New Jersey.
Until that bill passes, the partisan game of drawing partisan maps will persist. Whether Montana can effectively play by a different set of rules and secure a fair outcome remains to be seen. Last month, the commission received 231 proposed maps submitted by Montanans or proposed by members of the commission and 145 pages of public comments. In early October, commissioners selected nine of these maps to frame their debate and prompt a second round of public comment. They must submit a final map to the secretary of state on November 5.
But the state’s 50-year-old commission hasn’t drawn a congressional district in 30 years, and Republican disapproval of Smith signals trouble ahead. “The jury’s still out on Montana,” Wasserman says, but “a commission process is much different from a purely partisan legislative process” because it affords more room for agreement between parties. Of course, reaching this agreement is a difficult standard for any commission to meet regardless of its structure. Litigation has become a routine part of the redistricting process in America since 2010, and legal challenges will be filed against maps in Montana and many other states with a wide range of redistricting processes.
The difference in Montana—and other states where redistricting reforms have succeeded—is that disputed districts will be the product of a bipartisan process that mitigates 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 perceived by party officials and more interested in how the new district empowers voters. “I’ve worked in areas of law where people feel unheard. It’s not just Indian people. It’s poverty, it’s rural versus urban areas,” she told me. “I want to give people who normally don’t have a voice—a voice.”
