Neither Secretary of State Bob Brown, a Republican, nor Attorney General Mike McGrath, a Democrat, has announced intentions to run for governor, but neither has ruled anything out. Without a firm denial, rumors of Brown v. McGrath in 2004 had circulated the state. It is in the climate of these rumors that McGrath’s office and Brown’s office squared off in court on May 15 to argue over a plan that would redraw Montana’s legislative districts.
Both offices have downplayed the partisan nature of the debate, while admitting that politics do play a role in the process.
“This is inherently a political process,” says McGrath. “The U.S. Supreme Court has said, in a case out of North Carolina a year or so ago, that this is essentially a political process and that you can draw districts to favor one party over another.”
But redrawing districts in favor of one party usually doesn’t win friends across the aisle. Last week’s court hearing came about after Republican lawmakers passed House Majority Leader Roy Brown’s (R-Billings) House Bill 309. The bill challenges the plan developed by the Districting and Apportionment Commission and instructs Secretary of State Brown not to file the commission’s plan. The hearing is just the latest battle in a partisan war over redistricting that began shortly after the 2000 census—the state’s districts must be redrawn after every census according to the state constitution.
Republicans maintain that the plan drawn up by the commission in February will give the Democrats an upper hand in the elections of the next three Legislatures. Democrats, who control the commission by a 3-2 majority, don’t dispute that the plan favors their party, but say that doesn’t matter. They say that Republican-controlled commissions of the past have redrawn the state to favor their party, that the process has never escaped partisanship.
Democrats contend that HB 309, which is intended to block Brown from filing the commission’s plan, violates the state constitution. Democrats maintain that the Montana Constitution forbids the Legislature from tampering with the process. The party also believes that constitutional language compels Brown to file the commission’s plan, ignoring HB 309.
“The secretary of state faced a conflict,” says State Solicitor Brian Morris, who is handling the case for the attorney general’s office. “He could either comply with House Bill 309 or comply with the constitution. I guess he felt he was in a difficult spot, so he’s seeking direction from the court.”
Attorney General McGrath says that there is a very good reason that the constitution forbids the Legislature from tinkering with the redistricting process. Twice in its pre-1972 constitution history, the Legislature failed to solve its redistricting problems and federal courts had to divvy up the state, he says.
“If you look at what’s happening in Texas, well that’s a perfect example of what happens when legislators try to resolve these issues,” says McGrath. “To me, the Texas situation proves the genius of the Montana Constitution, because we have an independent commission under the constitution that has the sole authority to redraw district lines.”
McGrath refers to the Texas political battle over Congressional redistricting that led more than 50 Democratic Texas lawmakers to flee from Austin to Oklahoma last week, delaying the Legislature’s proceedings. The result was that Republicans were left without a working quorum and the deadline passed for the introduction of the new redistricting legislation.
“Our [Constitutional Convention] wanted to avoid what happened in Texas,” says State Solicitor Morris. “They had seen what happened in the ’60s, where redistricting issues took one entire session and they never resolved those issues.”
Janice Doggett, chief legal counsel for the secretary of state’s office, says it’s not the job of her office to determine if a law is constitutional. That’s why Bob Brown took the controversial issue to the courts for guidance, says Doggett.
“We knew that it would end up in court one way or the other,” she says. “So we decided to be proactive and ask the question [of whether or not the law is constitutional].”
Doggett also disagrees with McGrath on exactly how the constitution directs the redistricting process.
“There are [Constitutional Convention] transcripts that say the Legislature needs to flesh out this process,” she says. “And the Constitution isn’t specific about every different aspect of redistricting.”
But it appears that District Judge Dorothy McCarter disagrees. After both sides made their arguments, McCarter said that the constitution appears to give the commission authority to be self-executing, and that the Legislature can’t use HB 309 to interfere with the commission’s work. The judge has yet to make a ruling; instead, she has asked both sides for briefs addressing the appropriateness of the secretary of state’s involvement in the issue.
Montana ACLU lawyer Beth Brenneman, who entered the fray representing Montana’s Indian leaders and legislators, says that the case should be dismissed because Brown should have never gotten involved.
“He rejected his constitutional duty in favor of his statutory one,” she says.
Brenneman says that it is not Brown’s place to even approach the court with questions about the law’s constitutionality. His constitutional obligation is to file the commission’s plan—filing the plan with the secretary of state’s office is the last step in making it law—and that’s it, she says.
Both Brenneman and Morris are happy with Judge McCarter’s reaction to their arguments, but admit that the issue is far from settled. All parties involved have said they will appeal an unfavorable decision to the Montana Supreme Court. It’s likely that the proceeding could last months—well into warm-ups for the 2004 governor’s race.
But McGrath says that the case has nothing to do with either politician’s future.
“Brown filed a suit and we were asked to represent the commission,” says McGrath. “To read anything else into it would be silly.”