Plaintiffs to Federal Panel: Minors, Felons, Aliens Counted in Hawaii’s State Reapportionment Plan, So Why Not Military?

US District Court - Hawaii
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US District Court - Hawaii

BY MALIA ZIMMERMAN – Minors, incarcerated criminals and aliens are represented in the 2012 Hawaii Reapportionment Plan, but non-permanent resident military and their “attached” spouses are not, so the plan is unconstitutional and discriminatory.

That is the claim by Hawaii attorney Robert Thomas, who represented six Oahu plaintiffs challenging the state’s reapportionment plan in federal court on Friday.


The 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), a Major in the Hawaii National Guard.

They don’t believe it is constitutional for the state Reapportionment Commission to have removed 108,000 “non-permanent” military and their families from the plan, because their children go to school here, they pay taxes here, and they are part of the community.

The 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, heard arguments from Thomas as to why they should grant an injunction to prevent the plan from being implemented.

They also heard from a deputy state attorney general, who argued granting the injunction would cause “chaos” this election season.

After nearly three hours of debate, the judges promised a swift decision. They could decide as early as Monday as to whether to grant the injunction. Even if they don’t, the case will still move to trial after the 2012 election, potentially impacting elections in 2014.

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. Since the plan is redrawn every decade based on the U.S. Census population count, the final decision has a lasting impact on every election to follow.

The state has the burden to show the 2012 plan does not deny equal protection to the 108,000 military members and students.

“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.”

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:

“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.”

Reapportionment Controversy Ongoing

Reapportionment 2011: Photos by Mel Ah Ching Productions

The 2012 Reapportionment Commission did not always exclude non-resident military, their dependants and students in such high numbers.

In September 2011, the 9-member Commission included nearly all of Hawaii’s non-permanent resident military and their spouses and students in the plan, which was supported by 8 of 9 commissioners.

Hawaii Island residents filed two court challenges in October 2012. Big Island Democrat Senator Malama Solomon filed one lawsuit, while Big Island Democrat Michael J. Matsukawa filed a second lawsuit.

Both plaintiffs alleged the Commissioners did not properly calculate the permanent resident population of the State because they did not extract the correct number of “non-permanent residents” – including students and military and their spouses – when reapportioning the State legislature.

On January 4, 2012, the Hawaii Supreme Court unanimously agreed the plan should be invalidated, and ordered the Commission to present a new reapportionment plan for the State legislature without non-permanent residents included.

The Commissioners had to redraw the plan and presented a final draft on April 4, 2012.

The federal challenge was filed on April 20.

What Now?

Retired Circuit Court Judge Victoria Marks, said the question is one of timing and whether the court grants the injunction or not.

Retired Judge Victoria Marks heads the Hawaii Reapportionment Commission

“If they do not grant the injunction, then obviously we have more time. The next question is whether they send it back to the commission and ask the commission to come up with other maps, or whether they go the route of a court appointed master. If they send it back to the commission, we will do whatever we are asked to do,” Marks said. “From my perspective, it is just a matter of when their decision will be issued,” Marks said.

Marks had expressed concern about a federal challenge, which is one reason the Commission had initially include the majority of non-permanent residents.

“Personally I was aware, I think the commission was aware, that there were federal constitutional issues and state constitutional issues, and the commission tried to deal with both of them as best we could. And here we are.”

Election Office Cries “Chaos”

Scott Nago, chief elections officer for the state, was the only witness called to testify before the 3-judge panel. He said it there may be as long as a 10-week delay if new maps need to be redrawn.

Brian Aburano, Hawaii Deputy Attorney General

Candidates for Hawaii’s legislature have until June 5 to file their paperwork with the elections office. But that could be delayed if the injunction is granted. That could lead to dual elections, state deputy attorney Brian 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 added: “I think they were quite mindful of Hawaii’s unique interests in this situation and hopefully they will keep that in mind when they make their final decision.”

Aburano maintained the decision to include non-permanent residents is a policy for the legislature to tackle, and not the courts.

“I don’t think there is a legal ground. There is no right to be included in reapportionment anywhere. It really does not affect your right to vote, your right to be represented, your right to petition your legislature. So while I am sympathetic with them, it is a policy matter and not a legal matter that the case should turn on,” Aburano said.

“It is up to them to become a permanent resident. If they do feel they are a permanent resident of Hawaii, there is a form they can fill out and file. And it is the same test for becoming a voter, it is the same test for becoming a citizen, it is the same test for paying your income taxes here, so I think it is a fair way for them to evidence their permanent residency here in Hawaii,” he added.

Should Military Be Singled Out?

Robert Thomas

Plaintiff’s attorney Robert Thomas countered: “Why do they single out the Military for that question? They don’t ask anybody else. They don’t ask the 100,000 aliens, legal and otherwise here in Hawaii, they don’t ask children, who otherwise cannot vote. Why is it they single out the Military for that test?”

Thomas said the form Aburano referred to is very limited: “The form is for the purposes of taxation. It does not say if you list someplace other than Hawaii, you will not get counted for purposes of reapportionment.”

“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.

Thomas also questioned why the Military turned over the information about non-permanent residents to the state in the first place, since in Kansas, the Military does not.

Thomas said the court was prepared and spent considerable amount of time on the issues: “We could not have asked for anything more – a very engaged court. It really appeared to me that they dug into the record – all in a very short time,” Thomas said. “However the decision, I think they really earned their pay today.”


For a detailed history and copies of the documents involved in these cases, see

And see the state documents here: