US District Court - Hawaii
US District Court - Hawaii

BY MALIA ZIMMERMAN– A three-judge panel, which included U.S. District Judges Michael Seabright and Leslie Kobayashi from Hawaii and U.S. Circuit Judge Margaret McKeown from San Diego, has refused to grant a motion for preliminary injunction that would have forced the Hawaii Reapportionment Commission to redraw its 2012 plan so it included 108,000 non permanent resident military and their dependents and non permanent resident students. (See the ruling here)

Six Oahu plaintiffs include Joseph Kostick, who was medically discharged from the Army as a 1st Lieutenant; retired Army Col. David P. Brostrom; retired U.S. Navy Master Chief Petty Officer Larry S. Veray; Hawaii Free Press publisher Andrew Walden, Aiea resident Edwin J. Gayagas and state Rep. K. Mark Takai, (D-Aiea-Pearl City), filed the federal challenge to the 2012 plan on April 20.

Hawaii attorney Robert Thomas argued for the Oahu plaintiffs in U.S. District Court last Friday, said minors, incarcerated criminals and aliens are represented in the 2012 Hawaii Reapportionment Plan, but non-permanent resident military and their “attached” spouses are not. The plaintiffs claimed the Hawaii plan is unconstitutional and discriminatory.

Takai, who in addition to being a state representative is a Major in the Hawaii National Guard, said: “While we’re disappointed the court did not see it our way for the 2012 election, we understand that time was short and everyone was operating under time restrictions. When we and the Court have more time to look at the issues, we remain confident that our position is the right one. We have some time since reapportionment plans are done in a 10 year window. If we don’t get it right for 2014, we’re stuck with what we think is an unconstitutional plan until 2020.”

Hawaii is the only state other than Kansas to remove military and dependants from its State Reapportionment Plan, but unlike Hawaii’s 108,000 plus that are taken out, Kansas extracts only about 900 people.

The state has the burden to show the 2012 plan does not deny equal protection to the 108,000 military members and students, Thomas said: “The equal protection clause of the U.S. constitution protects everyone. So it protects you whether you are a citizen, whether you are a taxpayer, whether you are an alien, whether you are a child, it does not matter whether you vote, it protects people,” Thomas said.  “What we are saying is the state deviates from that, which no other state does.”

Brian Aburano, Hawaii Deputy Attorney General, argued if the judges granted the motion, it would create “chaos” this election season.

Candidates for Hawaii’s legislature have until June 5 to file their paperwork with the elections office, but that would be delayed for state races if the injunction was granted, possibly leading to dual elections, Aburano said, with state elections potentially held after federal and county elections.

“The chaos that it causes … is no doubt that the primary election for state office of election would be much delayed,” Aburano said after the hearing. “By my calculations, it would be into October before you could have a state election and of course then you are only a month away from the November General Election. You might have to have that delayed as well.”

“And if you have to have two sets of elections, different polling places that voters have to go to for each election. We don’t know if we can keep the voter registration lists accurate for two elections, it would quite frankly, more than likely, be a mess,” Aburano said.

Aburano admitted the court faces a “very difficult issue of potential conflicts between the state and federal constitutions,” but said after the Friday hearing that the decision to include non-permanent residents is a policy for the legislature to tackle, and not the courts.

The judges wrote in their 73-page decision: “This electoral challenge asks us to consider the constitutionality of thereapportionment under the Equal Protection Clause of the United StatesConstitution. We do so here in the context of a motion for a preliminary injunctionrequesting that we enjoin implementation of the 2012 Reapportionment Plan andenjoin conducting the upcoming elections under that plan. This challenge raises anissue of significant importance to Hawaii residents. Following a hearing on thismatter on May 18, 2012, we conclude that the request for an injunction should bedenied. In light of Burns v. Richardson, 384 U.S. 73 (1966), at this preliminarystage of the proceedings, the plaintiffs have not established a likelihood of successon the merits of their claim that the permanent resident population basis violatesequal protection. Nor do the equities and public interest weigh in favor of aninjunction that risks jeopardizing the primary election scheduled for August 11,2012, and even the general election scheduled for November 6, 2012.”

They added: “We pause to emphasize what is not before us. To begin, we are not makingany final determination of the merits of Kostick’s challenge, a decision that mustawait further proceedings. Further, this Order addresses only the legalconsiderations underlying the challenged actions — not whether extracting certain“non-permanent” residents from Hawaii’s reapportionment population base is goodpublic policy, and not whether Hawaii could or should use “usual residents” as thatbase. Hawaii has long-debated these questions and Hawaii’s legislature consideredthem again in its just-completed session. … These are important and difficult questions,involving political judgments and requiring consideration and balancing of competing interests — tasks for which courts are not suited.”

“In short, we express no opinion as to how Hawaii should define itsreapportionment base, but instead examine only the challenged aspects of the 2012 Reapportionment Plan itself.”

Thomas said it comes down to Hawaii’s 1992 Reapportionment Commission being anti military and actively looking for a way to exclude Hawaii’s military and their dependants from the count:

“That is the big issue in the case: If they (Military and dependents) are not counted in Hawaii, they are not counted anywhere.  If they are not counted here, but the Census counts them here, why shouldn’t they be counted?” Thomas asked.

“Fifty years of doing it and some how over the course of 50 years, whether it is registered voters or permanent residents, the state always finds a way to exclude these folks and their families. After a while you begin to think, well maybe it is pre-textual – maybe it is just a back door way of saying that military folks and their families are not true members of our community.”

The judges took time to address that issue in their ruling: “And we certainly do not pass on what no one here disputes: Hawaii’s military personnel constitute a significant and welcome presence in Hawaii’s population.”

Thomas said his clients believe in the pursuit for equal treatment and inclusion of Hawaii’s military, and they are looking at their options.

“Future plans? Not exactly sure at the moment. However, please keep in mind that this is only a denial of preliminary relief, not a judgment on the merits.  The three-judge district court held only that we were not entitled to a preliminary injunction, and it left open the question as it pertains to a permanent injunction, now that the 2012 election can go forward.  We think that once the evidence and law is presented on a more developed record, our position remains the right one, and Hawaii cannot “extract” military from its population base using the methods it does now.”

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