SCOTUS Brief In Hawaii Reapportionment Case: Exclusions From Population Are Not Reviewed Under “Rational Basis”

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Robert Thomas

BY ROBERT THOMAS – Here’s the Brief Opposing Motion to Affirm, filed today in Kostick v. Nago, No. 13-456.

That’s the appeal currently pending in the Supreme Court challenging a ruling by a three-judge U.S. District Court upholding the 2012 Hawaii Reapportionment Plan against an Equal Protection challenge.


The Plaintiffs assert that the 2012 Plan’s exclusion of 108,767 military, military families, and university students from Hawaii’s population count falls short of Equal Protection’s requirement of representational equality, and that the Plan’s 44% and 21% deviations from district population equality far exceed the Supreme Court’s 10% threshold for presumed unconstitutionality. Disclosure: we represent the Plaintiffs-Appellants.

The Brief in Opposition responds to the State of Hawaii’s Motion to Affirm (remember, this is an appeal, not a cert petition):

“Nothing to see here folks, move along” is the State’s central theme in its response to this appeal. In Hawaii’s view, Burns gives it the unreviewable discretion to define and apply “permanent resident” virtually any way it chooses. And 44.22% and 21.57% deviations―percentages that blow by this Court’s 10% threshold, and make the existing high-water mark of 16% look downright amateurish? Pshaw! Hawaii is just so different from the other 49 states, it posits, we won’t tolerate canoe districts, and these deviations are the best we have to do.Belying this narrative is the fact the State believed it necessary to add to its response a platoon of heavy-hitters, even though its arguments remain essentially unchanged from those it advanced in the District Court. But beyond the Motion to Affirm’s marquee, the State adds nothing new, and avoids the two fundamental issues presented by this appeal which challenges Hawaii’s 2012 Supplemental Reapportionment Plan (2012 Plan).

Next up: the Court will get the briefs, and then let us know whether the District Court will be summarily affirmed, or whether the case is set for full briefing and argument. Stay tuned.

Brief Opposing Motion to Affirm, Kostick v. Nago, No. 13-456 (Dec. 26, 2013)

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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.