New move to block Hawaii tribal nation (UPDATED)

by Lyle Denniston, SCOTUSBlog, December 23, 2015

UPDATED at 1:10 p.m. (in the final paragraph) to clarify how the motion will be handled by the Supreme Court.  ————-

A group of Hawaiians challenging the move to set up a new “native Hawaiian” nation within the state returned to the Supreme Court Tuesday, seeking an order to hold the organizers in contempt and further orders to stop the entire process toward establishing sovereignty.

The motion followed cancellation a week ago by the sponsors of an election to select delegates to a constitutional convention for the new tribe-like nation, and the sponsors’ decision to seat all of those who ran in the election as delegates to a convention starting February 1.  That, the challengers argued, directly disobeys the Supreme Court’s December 2 order interrupting the election.

Accusing the sponsors — the private organization Na’i Aupuni — and state officials of “gamesmanship,” the challengers noted that going ahead with delegate seating and with the convention itself would continue the race-based process of which the election was only the first part.  The challengers’ ultimate goal, they reminded the Court, was to have full participation by Hawaiians in general in the decision about creating a new sovereign entity within Hawaii.  The Supreme Court’s order early this month was aimed at the entire process, even if it was technically limited only to barring the counting of the ballots cast and certifying the choice of delegates, the new motion contended.

Although Na’i Aupuni was the chosen sponsor and manager of the election, and made the decision to cancel it, the motion filed on Tuesday also named the state of Hawaii, its governor, other state officials, and others involved in the sovereignty movement.

The motion specifically asked the Justices to take three actions:

First, to order those named in the motion to be in civil contempt, to cure the violation that the challengers claimed had occurred.  The Court should order a withdrawal of the appointment of delegates from those who ran in the election, block any further effort to convene the February convention, and order a monetary penalty “strong enough” to ensure that the Court’s orders are carried out.

Second, to require those it cited to get a court’s official clearance before they take any further steps to name delegates and hold the convention, while the challengers go forward with their pending constitutional challenge, now before the U.S. Court of Appeals for the Ninth Circuit.  Such preclearance, under the federal Voting Rights Act, is one of the remedies the challengers are now seeking in the lower courts, they noted.

Third, to order those it cited to pay for the challengers’ attorney’s fees and costs for the filing of the contempt motion. as part of the remedy for the “willful disobedience” of the Court’s December 2 order.

UPDATED: The motion was filed with the full Court and, like other motions, it will go to the full Court for consideration at a future Conference.  It is not being treated as an emergency matter with a single Justice having authority to resolve it.