U.S. Supreme Court approves military exclusion from reapportionment plan

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

By Malia Zimmerman – HONOLULU — Minors, incarcerated criminals and illegal immigrants are represented in the 2012 Hawaii Reapportionment Plan.

Military members and their “attached” spouses, as well as non-resident students, are not.


A U.S. Supreme Court ruling, issued Jan. 21 in Kostick v. Nago, affirmed the constitutionality of the Reapportionment Plan, issued in 2012.

Attorney General David M. Louie, who represented the state in the federal challenge brought by six Hawaii residents, called the decision “a complete and timely victory for the state of Hawaii.”

“By summarily affirming the District Court’s decision, the United States Supreme Court has validated the Reapportionment Plan, a plan that reflects the understanding that Hawaii’s Constitution requires that the legislative districts respect the integrity of each island’s history, culture and concerns,” Louie said.

The battle over reapportionment lines and military exclusion began in September 2011, when the nine-member Reapportionment Commission included nearly all of Hawaii’s non-permanent-resident military and their spouses, as well as students, in the plan. Eight of nine commissioners supported the plan.

Hawaii Island residents filed two court challenges in October 2012. Big Island Democratic Sen. Malama Solomon filed a lawsuit, as did Big Island Democrat Michael J. Matsukawa.

Both plaintiffs alleged the commissioners failed to calculate the state’s permanent resident population because they did not extract the correct number of “non-permanent residents” – including students and military and their spouses — when reapportioning the Legislature.

Solomon maintained the plan denied Hawaii Island residents equitable representation — a new fourth state Senate seat for Hawaii Island — which, Solomon said, Hawaii Island needed because of the nearly 25 percent increase in resident population between 2000 and 2010. During that time Oahu saw only 8 percent growth, she said. The addition of a fourth Senate seat to Hawaii Island meant Oahu would lose a senator in the 25-member body.

On Jan. 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 Legislature — without non-permanent residents.

The commissioners redrew the plan and presented a final draft on April 4, 2012.

Six Oahu plaintiffs challenged the state’s reapportionment plan in federal court, saying the state’s removal of 108,000 non-permanent military and their families is “unconstitutional” and “discriminatory” because their children go to school here, they pay taxes here and are part of the community.

The plaintiffs, represented by Hawaii Attorney Robert Thomas, were: Joseph Kostick, who was medically discharged from the Army as a first 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 lieutenant colonel in the Hawaii National Guard.

On July 11, 2013, a three-judge panel for a U.S. District Court — which included U.S. District Judges Michael Seabright and Leslie Kobayashi from Hawaii and U.S. Circuit Judge Margaret McKeown from San Diego — upheld the Reapportionment Plan, saying the plan did not violate the U.S. Constitution. Plaintiffs appealed to the U.S. Supreme Court.

On Jan. 21 of this year, the U.S. Supreme Court granted Hawaii’s motion to affirm the District Court’s decision.

Thomas said their challenge was always headed “uphill.” In Burns v. Richardson, the court concluded that who Hawaii must include within its definition of “population” was a political question, and Hawaii could exclude the military as “transients.”

“What this means presently is that these exclusions will not be touched by the courts, at least until the next reapportionment cycle, and that the questions presented by the case will need to be debated and resolved in the political arena and elsewhere, if at all,” Thomas said.

For now, the court’s order ends the case.

But, Thomas said, “things are changing,” and Hawaii’s long-standing treatment of military and military families as outlanders “is arcing towards inclusion.”

“Which seems only fair, since Hawaii gladly accepts the massive benefits their presence brings: $18 billion per year to the Hawaii economy, and the additional population for a second seat in Congress, everyone is counted for purposes of congressional apportionment,” Thomas said. “The military who are stationed in Hawaii have become more integrated into the community than in the days of Burns, when most could realistically be treated as transients.”

Hawaii and Kansas are the only states to remove military and dependants from its State Reapportionment Plan. But unlike Hawaii, where more than 108,000 are removed, Kansas extracts only about 900 people.

While the military cooperated with the commission’s request for data, the military may not disclose it next time.

“If Hawaii wants to continue to exclude these groups of Census-counted residents, it will need to commission its own survey asking these people about their residency intentions (like Kansas does),” Thomas said.

Since the plan is redrawn every decade based on the U.S. Census population count, the final decision has a lasting effect on every election that follows.