Judge questions law tampering with districting plan

HELENA - A judge greeted with skepticism Thursday arguments by an attorney defending the Republican-run Legislature's effort to kill a Democratic-sponsored plan for redrawing legislative districts.

During a hearing, District Judge Dorothy McCarter challenged the assertion that legislators were acting within their constitutional power in changing the criteria for the plan after it was adopted by the Districting and Apportionment Commission in February.

She said constitutional provisions giving the commission its authority appear to be self-executing and, therefore, lawmakers cannot meddle by enacting laws contrary to the constitution.

''That's what they're doing here,'' McCarter told Rob Cameron, a lawyer representing Secretary of State Bob Brown and defending a law passed by the 2003 Legislature. ''Either the commissioners have the authority to act on their own or they don't.''

She said the Legislature appeared to be ''taking discretion away from a constitutional body'' and told Cameron to find any Montana court rulings to support his claim that it was proper.

The hearing was the latest development in the ongoing partisan fight over the political mapping of Montana following the 2000 census. Legislative districts get redrawn every decade to reflect population shifts.

The Republican majority has branded the plan as an effort by Democrats to fashion districts that will give party candidates an edge in future elections.

Democrats on the commission have acknowledged the plan gives Democratic candidates a better chance, but they insist the blueprint is legal.

The Legislaturee passed a law imposing new criteria on how much populations of districts can vary, and ordered Brown, a Republican, to reject any plan that did not comply.

The proposal developed by the Democratic-controlled commission exceeded the new population limit, so Brown complied with the law. He then asked McCarter to decide whether the law is constitutional.

Cameron argued the law was a proper exercise of the Legislature's duty to ensure fraud doesn't seep into elections. ''Fraud and partisan gerrymandering are very closely related,'' he said.

McCarter said the Legislature appears to be claiming for itself the power to tinker with districting plans for partisan reasons.

The apportionment commission appears to have a healthy representation of different political interests, she said. ''Can't they be trusted to do a good enough job without political gerrymandering?''

Cameron said authors of the 1972 Constitution had anticipated the Legislature would play a role in the districting process and nothing in that document prevents the kind of action taken by lawmakers this year. So long as the law doesn't conflict with anything in the constitution, it should be upheld, Cameron said.

Brian Morris, state solicitor, said the Legislature went too far. The constitutional creates a comprehensive process for crafting a districting plan and lawmakers have bestowed upon themselves the power to veto that procedure, he said.

The constitution provides ''the last word on redistricting,'' he told McCarter. ''This is something with which the Legislature cannot tamper.''

Legislators did not have the authority to transform Brown's constitutional obligation to merely file the plan submitted to his office into the power to reject any proposal he feels is illegal, Morris said.

McCarter said the Legislature put Brown in a tough position of having to choose between following conflicting directions in the constitution and a newly passed law.

Beth Brenneman, a lawyer for Montana's American Indian legislators and tribal leaders, said Brown made the wrong choice and should have carried out his constitutional duty to file the plan.

She said the Legislature is on shaky ground contending the population differences among districts was too large to be constitutional, since the average in this plan is less than in the previous three plans.