Hawaii's reapportionment commission
Reapportionment commission listens to testimony from the public

BY ROBERT THOMAS – The State of Hawaii has a long history of refusing to count military personnel and their families for purposes of reapportioning the Hawaii State Legislature. A lawsuit filed today asks a three-judge federal court to enforce the Equal Protection Clause of the U.S. Constitution and require the State to count all residents of Hawaii.

The 2010 U.S. Census reported 1,360,301 residents as the total resident population of Hawaii. The Census includes military personnel, military families and students as residents of Hawaii. It also counts minors, non-citizens, and incarcerated felons.

In 1965, in Burns v. Richardson, the U.S. Supreme Court upheld Hawaii’s use of its count of registered voters as the population basis for apportionment, a population base which effectively excluded low-registration groups such as military personnel and students, many of whom were below the pre-26th Amendment voting age of 21. Contrary to popular opinion, the Burns case does not permit the State to ignore military personnel and their families. The Court allowed counting only registered voters because there was no evidence doing so would result in apportionment substantially different from that which would have resulted if the State had simply counted everyone.

The Hawaii Constitution was amended in 1992 to require the Reapportionment Commission to count only those deemed “permanent residents,” instead of registered voters. Only Hawaii and Kansas use a population base other than the U.S. Census count of residents. In the current reapportionment cycle, Kansas extracted far fewer Census-counted residents than Hawaii, and in its August 3, 2011 proposed plan, the Commission did not remove anyone.

The Commission subsequently presented a second plan which extracted approximately 16,000 military personnel, military families, and students, but included non-citizens, minors, and incarcerated felons who cannot legally vote.

This wasn’t enough, and two separate lawsuits were filed in the Hawaii Supreme Court demanding the Commission exclude all active duty military personnel, military families and students whom it deemed not to be “permanent residents.” After a widely-criticized defense presentation, the State Supreme Court upheld the claims. As a result, the Commission did not court 108,767 Census-counted residents of Hawaii – nearly 8% of the state’s entire population. These people were not counted by the Census in any state.

The State’s choice to ignore them had palpable consequences: it shifted a seat in the state senate from Oahu to Hawaii Island and produces senate and house district which deviate grossly from the Constitutional requirement that representative district be of substantially equal population size. Hawaii continues to treat military personnel, military families, and students as second-class citizens with representation even inferior to non-citizens.

Commission chairwoman, former state judge Victoria Marks said, “I think you’re opening yourself up to a federal lawsuit if you exclude (military) dependents on an across-the-board basis.”

The federal legal challenge to the State’s reapportionment plan seeks to end this discrimination, and require the State to count military personnel, military families, and students.

Based on the supremacy of the U.S. Constitution over state law, the federal court is being asked to uphold the Constitution’s equal protection clause, affirm the principle of equal representation for all persons, and end Hawaii’s long-standing and politically motivated exclusion of Census-counted residents.

Robert Thomas is a regular contributor to Hawaii Reporter and filed this lawsuit.

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.