The Hawaii Reapportionment Commission and the chief elections officer filed a motion for reconsideration on January 13, asking the Hawaii Supreme Court to review its January 6 ruling, which said the commission’s redistricting plan is “constitutionally invalid.” The commissioners, who could be forced to redraw district lines, also asked Hawaii’s five Supreme Court justices for clarification on the ruling.
Two sets of Big Island plaintiffs challenged the commission over the number of non-resident military members and dependents removed from the population count on Oahu in the final plan.
Commissioners, who took out 15,000 non resident military and dependents who they could identify, said they could not obtain reliable information to remove more non-resident military from the correct districts without being inaccurate and possibly illegally excluding registered voters and thereby violating federal law. They feared an inaccurate count could lead to a federal lawsuit.
The commission, which first met in May 2011 with a plan to wrap up by September 26, created its first draft of the 2012 redistricted map on U.S. Census data. The commission voted 8-1 to include all non resident military as the federal government does and as is the practice in 48 other states (Kansas has certain limitations on the counting of military).
The issue is important because in 1992, the voters of Hawaii approved a state constitutional amendment excluding certain military personnel when counting for reapportionment purposes only. The specific issue is the definition of “permanent residence.”
Commissioners met behind closed doors before taking another vote in September, which ended in a 5-3 decision to compromise and remove a portion of the non resident military, or 15,000 people.
Big Island Democrats, Senator Malama Solomon, Hawaii County Democratic Party Chairman Steve Pavao and party committee members Louis Hao and Patti Cook, sued in October to force the commission to remove 70,000 non resident military members and their dependents. A second lawsuit was filed by Kona attorney Michael Matsukawa shortly afterward.
The plaintiffs note the Big Island had a population that grew 24.5 percent in 10 years, more than the state’s other four counties, but when including Hawaii’s non resident military in the total population count, they said they were prevented them from being fairly represented in the Senate.
Oahu would lose a senate seat to the Big Island if more non-resident military are removed from Oahu’s population count.
Complicating legal matters, Democrat Governor Neil Abercrombie, who was named as a defendant in the lawsuit with the commissioners, sided with Big Island Democrats.
The Hawaii Supreme Court ruled on January 6,
[T]he petition for a writ of mandamus and judicial review is granted. The 2011 Final Reapportionment Plan for the state legislature is hereby invalidated. The 2011 State of Hawai’i Reapportionment Commission shall prepare and file a new reapportionment plan that: (1) allocates the members of the state legislature among the basic island units by using a permanent resident population base, and then (2) apportions the members among the districts therein as provided by article IV, section 6. The Chief Election Officer shall rescind the publication of the 2011 Final Reapportionment Plan for the state legislature. An opinion will follow.
The Hawaii Reapportionment Commission is now taking a second shot with the Supreme Court because many members do not believe the commission was fairly represented before the Hawaii Supreme Court either during oral arguments or in court filings.
In fact commissioners requested private representation before the Supreme Court hearing, but the attorney general denied their request.
The commission was represented by Deputy Attorney General Russell Suzuki during oral arguments. Some commissioners told Hawaii Reporter he was supposed to stand up for the commissioners and their reapportionment plan, but instead appeared apologetic, condescending toward commissioners, and even inaccurate in at least one statements. He also failed to make several key points.
Upon questioning from Hawaii Reporter, a spokesperson for the Hawaii Attorney General defended Suzuki and the department’s representation.
However, commissioners, led by respected Retired State Judge Victoria Marks, were disappointed by Suzuki’s weak performance, which some believe caused them to lose the case in a unanimous vote.
After a running dispute with the state attorney general, the commission tried to hired private council on its own, but the attorney general told commissioners they had to cover the expense and go through proper procurement procedures.
Deputy Attorney Generals Diane Erickson, Brian Aburano and Sarah Hirakami were assigned to replace Suzuki until the matter can be resolved and they filed the motion for reconsideration on the commission’s behalf.
Time is short with a February 1 candidate registration deadline looming.
The commission will meet Friday at 3 p.m. at the capitol to discuss its next course of action.