The US Supreme Court AP PHOTO
The US Supreme Court AP PHOTO

This morning, the Supreme Court released the order with the results of last Friday’s conference, revealing the Court has declined to review Lepak v. City of Irving, No. 12-777 (petition for cert. filed Dec. 21, 2012). We’re covering this issue here because as some of you might recall,  we represent the plaintiffs in a case challenging the 2012 Hawaii Reapportionment Plan, and Lepak raised related issues.

The Equal Protection Clause of the Fourteenth Amendment requires that state and local reapportionment and redistricting be accomplished so that the resulting districts are of roughly equal “population,” but the Supreme Court has never defined exactly what it means by “population.” Is it like Congressional reapportionment which requires that all persons get counted, i.e., the census count? Can some lesser population be counted? This is another way of describing the question of whether Equal Protection guarantees each person’s right to voteequally, or each each person’s right to be represented equally, and the Court has never determined which principle of Equal Protection trumps the other if they are in conflict.

In Burns v. Richardson, 384 U.S. 73 (1966), the Court upheld a reapportionment plan based on a count of less than all persons (in that case, Hawaii counted “registered voters”), but only because but there was no claim that doing so would result in an apportionment substantially different than one based on a count of a “permissible population basis” such as total  population, state citizens, or U.S. citizens.

Moreover, the state “need not count aliens, transients, short-term or temporary residents, or persons denied the vote.” Id. at 92. Since that time the Court has avoided further defining what it meant, although when a state elects to count less than all persons, it has the burden of showing that its choice passes “close constitutional scrutiny.” See Dunn v. Blumstein, 405 U.S. 330, 335 (1972). This requires the state to prove a “substantial and compelling reason,” id. at 336, supporting “[a]n appropriately defined and uniformly applied requirement.” Id. at 342.

The basic premise of the Lepak petition was that Equal Protection requires state and local redistricting to be on an “eligible voters” basis in order to protect the oft-quoted “one person, one vote” principle. The Question Presented by the petition was:

Whether a city violates the “one-person, one-vote” principle of the Fourteenth Amendment when it creates city council districts that, while roughly equal in total population, are grossly malapportioned with regard to eligible voters.

Lepak asserted that Equal Protection only protects those who are eligible to vote, and that if in conflict, voting equality trumps representational equality. Thus, he argued, states and local redistricting must, in some circumstances, be based on a count of eligible voters and cannot be based on population.

The city asserted that it is never a violation of Equal Protection to count everyone, even when doing so would result in districts that are not equal in numbers of eligible voters. The city had support in the Fifth Circuit’s decision in its case, as well as similar rulings from the Fourth and Ninth Circuits that redistricting either may or must be accomplished on a total population basis. The denial of cert seems to indicate that a majority of the Justices are content with the idea that it is never wrong for a state or local redistricting plan to use the Census count, even when doing so might impact voting equality. Indeed, nearly every jurisdiction nationwide does so.

Today’s ruling from the Court doesn’t upset the circuit court cases, nor does it directly impact the Hawaii reapportionment case, which challenges Hawaii’s 2012 Plan because it has not demonstrated a “substantial and compelling reason” under Dunn for excluding nearly 8% of the actual population from the population basis. Hawaii counts only “permanent residents” — a term the plaintiffs allege is not “appropriately defined and uniformly applied” — to exclude approximately 108,000 military personnel, their families, and university students who do not qualify to pay resident tuition from the counted population. The State asserts it counts only “permanent residents” (which it defines as those persons who are both physically present in Hawaii, and who have demonstrated an intent to remain permanently) in order to protect the equal voting power of its citizens.

A ruling in that case would not require a court to determine which population basis a state or local reapportionment plan must use, only that if it chooses deviate from counting everyone, it has an obligation to do so in such a way that protects the right of equal representation of all persons in Hawaii. Both sides have filed motions for summary judgment, and a decision is pending from the three-judge U.S. District Court, after which the losing party would be entitled to a direct appeal to the Supreme Court.

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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.