U.S. Supreme Court May Hear Appeal on Hawaii Reapportionment
Hawaii’s drawn-out process to settle on its political district boundaries isn’t quite finished.
On Friday, the plaintiffs who are suing the state Office of Elections over its 2011 reapportionment plan appealed their case to the U.S. Supreme Court.
The appeal was filed just one month after the U.S. District Court in Honolulu rejected the plaintiff’s claim that the plan is unconstitutional. The claim is based on the fact that the plan removed more than 100,000 military personnel, their dependents and out-of-state university students from district populations.
Five of the eight plaintiffs, including congressional candidate and state Rep. Mark Takai, are military personnel, dependents or veterans. Attorney Robert Thomas said his clients want to see district lines redrawn to include military personnel stationed in Hawaii.
“That’s the relief that we always sought,” Thomas told Civil Beat Tuesday. “If it is an unconstitutionally drawn district, then the state has the obligation to fix it.”
Reps. Sylvia Luke and Chris Lee testifying on reapportionment, state Capitol, Feb. 29, 2012.
Anne Lopez, special assistant to Hawaii Attorney General David Louie, said, “The team is reviewing the writ and will make a decision with respect to how to proceed after the review has been completed.”
It’s not clear what the high court will decide; while Kostick v. Nago is not a writ of certiorari case — it is a note of appeal — the court rejects most “writ” cases. But voting rights issues have been prominently featured in the news following the court’s decision in June to effectively strike down the heart of the landmark federal Voting Rights Act of 1965.
That decision allows mostly Southern states to now change their election laws without federal approval. In late July, the Obama administration’s Justice Department said it would challenge the court’s decision in Texas, where a lawsuit filed by Latino state lawmakers challenges a redistricting plan based on the 2010 census.
Bumpy Process
Thomas believes that the Supreme Court will decide this fall whether or not it will take up the case. Briefs are due before the court within 60 days. If it accepts the case, Thomas will head to Washington, D.C., early next year for oral arguments.
Oahu House reapportionment map.
Kostick v. Nago involves Joseph Kostick, one of the plaintiffs, and Scott Nago, the chief elections officer. Nago isn’t the only defendant; he is joined by the nine members of the Hawaii 2011 Reapportionment Commission.
In its July 11 decision, a three-member panel ruled that the commission did not violate the Equal Protection Clause of the U.S. Constitution when it “extracted” 108,767 active-duty military personnel, military dependents and all university students from Hawaii’s reapportionment population base.
At the core of Kostick v. Nago is the question of what constitutes a “population base.” As the District Court noted in its ruling, defining that base for Hawaii’s legislative districts “has long presented a dilemma, primarily because Hawaii’s population has historically contained a large percentage of military personnel — many of whom claim residency in other states and do not vote in Hawaii elections.”
Nearly all of those personnel work at military bases on Oahu, including Joint Base Pearl Harbor-Hickam, Schofield Barracks and Kaneohe Marine Corps Air Station.
“Regardless of whether these individuals claim residency in Hawaii, Hawaii’s elected officials still represent them — it is a fundamental constitutional principle that elected officials represent all the people in their districts, including those who do not or cannot vote,” wrote the District Court.
That said, the Hawaii Constitution says that representation in the Legislature is based on the total number of permanent residents in each of the four island counties.
Kostick v. Nago asks the court to declare the 2012 reapportionment plan unconstitutional and order the Reapportionment Commission to come up with a new plan using the 2010 Census count of “usual residents” of Hawaii as the population base. It also asks the court to require the use of the August 2011 proposed reapportionment plan that included the military and vets, their families, and students.
Yet Another Plan?
Hawaii’s 2011 reapportionment process did not go smoothly. Maps were revised several times amid public concerns, court rulings and accusations of gerrymandering. The final plan was approved in early March 2012, just three months before the candidate deadline to register for the primary.
If the legal challenge succeeds, Thomas was not clear on what the Supreme Court might tell the District Court to do.
Lawmakers and the public look over the latest maps proposed by the Reapportionment Commission on Feb. 27, 2012.
But, since the case involves the constitutionality of voting rights, he speculated that a new reapportionment plan would be the result, perhaps as early as the 2014 election. Other possibilities are to wait until 2016 or to follow the 2020 Census.
“The state says the sky will fall and it absolutely cannot do this without years of planning,” he said. “But we think the state can do great things when federal courts order it, and they have done it in the past. It may not be overnight, but it is not monumentally impossible. They could go back and resurrect the draft plan.”
Changing the reapportionment plan could be disruptive. The final 2011 reapportionment plan shifted an Oahu Senate seat to the Big Island and forced incumbents in a half-dozen House districts, including Takai, into new districts. (A rejiggered reapportionment plan would not affect county council and congressional races.)
David Rosenbrock, who was deeply involved in crafting the 2011 plan while at the computer services section for the elections office, declined to comment directly on Kostick v. Nago. But he said his office “stands ready” to respond to a court order — “hopefully not in an election year. But that is part of our responsibility.”
The candidate filing deadline for the Aug. 9, 2014, primary is June 3 of next year.1
Takai declined to comment on the appeal, explaining that, “At this point we can’t discuss the case because we are in litigation.”
But another plaintiff, Dave Brostrom, said he looks forward to hearing how the Supreme Court will view things.
“I’ve been watching this thing go back and forth,” said Brostrom, a retired Army colonel who works as a defense contractor on Oahu. “You have a large military population here, and they are hands-down the No. 2 economic engine. That deserves representation just by itself.”
Brostrom, who is registered to vote in Washington state, says it is “irrelevant” whether most military stationed in Hawaii also vote here.
“Most probably don’t, but so what?” he said. “A great majority are paying taxes, they are using the road networks to get to work, there are thousands of civilians working for the Department of Defense … There are spouses, teachers and doctors, all contributing … They are adding to the quality of life in this great state, and they deserve representation.”
