UPDATE New Deadline Dec 12, 2013: AG Louie Requests 1 Month Delay, Supreme Court grants

SCOTUS Jurisdictional Statement In Hawaii Reapportionment Case: Circuit Split On Who To Include In The Body Politic; Canoe District Deviations Too Large

by Robert Thomas, InverseCondemnation.com  October 8, 2013

Today, on behalf of the people challenging the 2012 Hawaii Reapportionment Plan for excluding military personnel, their families, and out-of-state students from Hawaii's population, we filed this Jurisdictional Statement, arguing that there are substantial questions meriting the U.S. Supreme Court's full consideration in our appeal of a three-judge U.S. District Court decision upholding the Plan.

We won't go into the details of the argument, but here's the short story, and earlier briefs.

Here are the Questions Presented, which should give you a flavor of the issues:

1.  Equal representation. At the direction of the Hawaii Supreme Court, the 2011 Hawaii Reapportionment Commission (Commission) determined that 108,767 residents—nearly 8% of Hawaii’s Census-counted population—were not "permanent residents," and thus could be excluded from Hawaii’s body politic because they did not intend to remain permanently: (1) active duty military personnel who indicated on a federal form that another state should withhold taxes, (2) their spouses and children, and (3) students who did not qualify for in-state tuition. The Commission acknowledged those whom it "extracted" were not counted anywhere else, and that they were not represented equally in Hawaii. The District Court refused to apply close constitutional scrutiny, and concluded Hawaii’s "permanent resident" population basis was a rational means of protecting other residents’ voting power, which superseded the extracted classes' right to equal representation. The Commission counted others who could not intend to remain permanently (e.g., undocumented aliens), or whose inclusion diluted voting power because they were not qualified to vote (prisoners, minors). The first question presented:

Does the Equal Protection Clause’s requirement of substantial population equality mandate that representational equality take precedence over voting power as held by the Ninth Circuit, or is the choice of whom to count left entirely to political processes, as held by the Fourth and Fifth Circuits and the District Court, and has Hawaii appropriately defined and uniformly applied "permanent residents" to deny the extracted persons equal representation?

2.  Extreme deviations. The Commission recognized that with overall deviations of 44.22% in the Senate and 21.57% in the House of Representatives—the product of Hawaii’s prohibition of "canoe districts" (districts spanning more than a single county)—the 2012 Reapportionment Plan was presumptively discriminatory. This Court has never upheld a reapportionment plan with deviations in excess of 16%, which "may well approach tolerable limits." The District Court accepted these substantial departures from population equality because Hawaii is geographically and culturally different. The second question presented:

Is Hawaii’s prohibition on legislators representing people in more than one county a "substantial and compelling" justification rendering the 44.22% and 21.57% deviations "minor," or are these deviations too large to be constitutionally acceptable?

The State now has a few weeks to respond or to move to dismiss. Stay tuned, folks.

Jurisdictional Statement, Kostick v. Nago, No. ___ (filed Oct. 8, 2013)