Brief: Hawaii’s 2012 Reapportionment Plan Denies Equality to Military and Families

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Robert Thomas

ROBERT THOMAS – The State of Hawaii has a long history of refusing to count military personnel and their families for purposes of reapportioning the state legislature. A brief filed this week in the federal court case challenging Hawaii’s 2012 Reapportionment Plan asks a three-judge federal court to enforce the Equal Protection Clause of the U.S. Constitution. The 2010 U.S. Census reported 1,360,301 as the total resident population of Hawaii. The Census includes military personnel, military families and students as residents of Hawaii.

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. Burns was based on the “special population problems” created by a “transient” military, which in the early 60’s was primarily draftees, as the armed services geared up for the conflict in Vietnam. Contrary to popular opinion, the Burns case does not permit the State to ignore military personnel and their families. The Court allowed Hawaii to count 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 counted “state citizens.” At that time, unlike today, Hawaii’s voter registration and voter participation levels were the highest in the nation, so a count of registered voters would have produced an apportionment substantially similar to a count of state citizens.


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 Hawaii Reapportionment 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.

After the Hawaii Supreme Court ruled that the Commission did not exclude enough people, the Commission “extracted” 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 other state but Hawaii. The State claims that military personnel excluded from the count do not intend to remain in Hawaii, a conclusion the State reaches only because of a federal tax form (DD2058) in which servicemembers asked a different state to withhold taxes from their pay. Providing information on DD2058 forms may violate the Privacy Act, and the State’s apportionment process cannot be predicated on a violation of federal law. The State also assumes that military family members lack the same intent to remain as their military sponsor.

As set out in the brief, the State has a high burden to show that the conditions that existed in 1965 in the Burns case have not changed. Today, however, the nature of military service has changed: populations are much more stable, we have an all-volunteer force, and military personnel and their families are much more integrated into the community than they were 50 years ago. Additionally, voter participation in Hawaii is now the country’s lowest, and excluding servicemembers and their families from the count does not approximate a count of “state citizens.”

The Plaintiffs’ brief is available here:




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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 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.