Deputy Attorney General Brian Aburano says the plaintiffs are trying to nullify a recent Supreme Court decision and do away with a 1992 constitutional amendment that requires Hawaii count “permanent residents” for reapportionment.

He says starting over “would cause a chaotic scene and affect voter turnout.”

Aburano goes after the plaintiffs’ claim that excluding military violates the equal protection clause, arguing that in Burns v. Richardson, “the Supreme Court clearly said states such as Hawaii do not have to use total Census population for reapportionment.”

“Under Burns, it’s clear that exclusion of short-term or temporary populations is permissible,” he said.

Judge McKeown asks if Aburano believes that excluding nonresident military is unconstitutional.

“I think that is appropriate,” he replied. He said military personnel represent a large population that can regularly fluctuate. He likened the population to the stock market, saying there’s no guarantee from year to year on what their populations will look like in the islands. 

Aburano also calls the plaintiffs’ claim of lack of representation “theoretical.” He said, for example, he thinks it’s highly unlikely a lawmaker would turn away a military member from testifying at the Capitol just because they’re not counted in reapportionment.

Judge Seabright countered that lack of representation is more about dilution of that person’s voice.

— Nanea Kalani