The View Of The Nai Aupuni Election From Washington, D.C.

by Robert Thomas, InverseCondemnation, December 6, 2015

Hawaii is either 5 or 6 hours behind Eastern Time, depending on the time of year (we don't adhere to Daylight Savings Time), so we're a quarter-day behind the part of the country where a lot -- if not most -- of the important things legal, financial, and political occur. Scheduling conference calls can be a chore, too. But we're used to it, and sometimes, being outside the national attention range can work to our advantage, and we can get away with things which -- were they occurring elsewhere -- would attract more scrutiny, and a more skeptical eye. 

At least that is the way it appears once you step outside the Hawaii bubble, and find out how others view things that we do.

We're way outside the bubble this week in Washington, D.C. (a different sort of bubble altogether), doing some election law things -- we'll have some thoughts on the two big SCOTUS cases that are being argued on Tuesday in a separate post -- so naturally, the topic of the Nai Aupuni "Hawaiians only" election poll has come up when talking shop with our election law colleagues. These lawyers, many of them national experts in election, constitutional, and appellate law, come from both sides of the political spectrum. Nai Aupuni is our shorthand for a vote, limited to those with native Hawaiian ancestry, now being conducted by a non-profit organization, Nai Aupuni, which asks the voters to select delegates to a kind of constitutional convention to determine the steps to be taken to recognize Hawaiian sovereignty, in whatever form that might take.

The U.S. District Court of Hawaii in an oral ruling which has yet to be reduced to writing, refused to enjoin the election, concluding that the delegates chosen were not actual government officials, and the election was not going to make law or official government policy, and thus it was not an unconstitutional race-restricted election, but more like a private poll. See this post for more ("Tips From An Election Lawyer For Setting Up Private Racially-Exclusive Elections...er 'Opinion Polls'"). The court also held that the fact that the Nai Aupuni nonprofit was conducting the election -- despite being funded with taxpayer money by the State Office of Hawaiian Affairs -- meant that it was sufficiently removed from public funding to not be considered a public election. The Ninth Circuit refused to stay pending appeal, and the plaintiffs took their case to the U.S. Supreme Court.

As we noted here, Justice Kennedy issued an order putting a stop to the ballot counting and certification of the election, but otherwise didn't enjoin it. When the full court got a look after Thanksgiving, five Justices enjoined the election on similar terms pending resolution by the Ninth Circuit (with four Justices "dissenting"). That Justice Kennedy would stop it, and that a majority of the Court agreed, raised the profile of the case to a "red alert" level among election lawyers and Court followers, particularly here in Washington.

The universal query they have for us about the Nai Aupuni vote is "what the heck [or stronger] are you doing out there?"

When we explain about the arguments that this is an election beyond the reach of the Fourteenth and Fifteenth Amendments, their reaction is skeptical, to say the least. Follow the money, they suggest. Not an election to choose officials or make law? How can that be, when the election was designed to craft the relationship between a Hawaiian nation (in whatever form that might take) and the rest of us, meaning this is an election that we all have a stake in. Kind of like that statehood vote back in 1959, only the other way around. 

Richard Borecca has a column in today's Star-Advertiser ("Nai Aupuni's Hawaiian election unraveling at seam") which picks up some of the problems, and also picks up what we think is the major problem here:

The big issue that has the U.S. Supreme Court interested, however, is the whole idea of holding an election that limits voting to those who claim Hawaiian heritage.

Honolulu attorney Robert Thomas writes in his legal blog, Inversecondemnation.com, that holding an election that is paid for with public money runs into the Supreme Court prohibition from the 2000 Rice v. Cayetano decision.

Thomas says Na‘i Aupuni’s attempt to move the $2 million in OHA money for the election through a nongovernment group will not work.

“Yes, the money was washed through a nonprofit, set up for the purpose of supporting the argument that this is not a publicly funded election. But come on, the Court would have to be blind to not see the pretense,” Thomas writes.

Lawyers love to toy with the “The law is blind” metaphor, but in this case, it might not be blind at all.

In our view, that's what has happened in the past when those outside our Hawaii bubble are made to realize what is going on here. See Rice v. Cayetano, 528 U.S. 405 (2000), see Hawaii v. Office of Hawaiian Affairs, 556 U.S. 1623 (2009), for example.

We're not saying which side we think is eventually going to prevail, either in the Ninth Circuit, or the Supreme Court (to which the case is surely returning should the plaintiffs not prevail in the court of appeals), but we do know that the issues presented are going to get looked at with more than the accommodating review that they are used to locally. 

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