At the end of the first week of December, Caleb Shields stood in front of a five-person commission in Helena that meets once a decade to redraw Montana’s voting districts and tried to crack a small joke.
As chief of staff for the Assiniboine and Sioux tribes of Fort Peck, Shields was there to speak in favor a plan that would make Montana’s politics look more like Montana’s people, who are between six and eight percent Indian, depending on who’s counting.
Republican leaders have criticized the plan as blatantly anti-Republican. In late November, Sen. Fred Thomas from Stevensville claimed one senate district—which he said looked like a “gigantic muskrat” with a head near Havre and a tail stretching along the main highway of northern Montana to Wolf Point—was a dead giveaway for gerrymandering.
Democrats admit the plan favors their candidates in the next election, but say they deserve it. State leader Bob Ream has blamed a Republican-dominated commission in 1992 for his party’s subsequent loss of 14 seats in the House and 11 seats in the Senate.
Shields, a voter from the “muskrat” district, has not been impressed with the partisan bickering that has plagued the commission since it was convened in 1999 in anticipation of the 2000 census results.
“The districts could very well be in the form of an elephant or a donkey,” Shields said. “There’ll always be controversies over appearances.”
Only Janine Pease Pretty On Top, commission chairwoman and one of a handful of Indians in the room, smiled. The four political appointees on Pretty On Top’s commission, two Democrats and two Republicans, either kept their faces in their notes or stared blankly back at Shields.
The commission is made up of five members—two selected by the majority party leaders of both legislative bodies, two selected by the minority party leaders, and one agreed upon by the other four. So in a way, Pretty On Top herself—appointed by the Supreme Court to the commission three years ago when these same four political appointees couldn’t agree on a leader—was the set-up for the joke. If appearance is important, would Republicans prefer a voting district shaped like an elephant instead of a muskrat? If not, then the fact that the commission successfully balanced four constitutional mandates should be enough.
The mandates are to create districts that don’t deviate more than five percent from an average of 9,022 persons, to keep districts compact with respect to transportation and other issues, and to protect minority voting rights while not allowing race to become a predominant factor.
And if redrawing districts is about wresting control of the legislature from Republicans, would Democrats mind if Indians were first in line to get their fair share? In January, a record number of six Indian representatives and one Indian senator, all of whom are Democrats, will travel to Helena. Ten years ago, the legislature held only three Indians. Two more Indians in the next election could make the face of the legislature reflect the demographic face of Montana.
After the commission voted along party lines to approve the plan, two Democrats and Pretty On Top against the two Republicans, Pretty On Top closed the meeting with a statement similar to the joke told by Shields. She cut through the partisan bickering that obscures the political struggle beneath and said, “Our actions do not constitute a takeover of the legislature by Indians.”
But Jack Rehberg, a two-time Republican appointee to the commission, focused his closing speech on a 9th Circuit Court of Appeals decision handed down just three days earlier. That decision ruled against a claim that voting districts drawn in 1992 discriminated against Indians by diluting their voting power.
The previous commission was “collegial” and “not partisan,” Rehberg claimed, and still managed to redraw districts that met constitutional muster and, as demonstrated by the recent ruling, satisfied the Voting Rights Act. By contrast, he said, the current commission had been rigged by Democrats.
Jack Pinsoneault, a former Missoula County sheriff who served with Rehberg a decade ago, agrees. Last week Pinsoneault said the prior commission rarely had a split vote decided by the fifth member, and as a group they didn’t act on behalf of their political parties. Or on behalf of Montana’s Indians either.
“There was a lot of cordiality,” Pinsoneault said. “But the fact is the Native Americans didn’t like us. It started that way and didn’t get better.”
Ream pointed out another difference between the 1992 commission and the 2002 commission. Pinsoneault may have been a Democrat, but he was appointed by minority senate leader Bill Norman who later defected to the Republican party. That defection, according to Ream, demonstrates that the “collegial” atmosphere was really a strategic silence by Jim Pasma, who was essentially the only true Democrat on the commission.
But the biggest difference between the two commissions is Pretty On Top, both who she is and how she got there. She’s the first Indian ever to serve on the commission, and in the 1980s she was one of the original plaintiffs in Windy Boy v. Big Horn County, the first legal test of the Voting Rights Act in Montana.
Also, Pretty On Top was appointed to the commission by the state Supreme Court in a unanimous but strange decision. In a 41-page order, the justices spent 40 pages explaining why their closed-door selection session should have been open to the public, and one page explaining why Pretty On Top was the right person for the job.
The result is a divided commission that will dictate the fate of the Democrats and Republicans in the next election, with an Indian more interested in minority rights than partisan politics holding the crucial swing vote.