Supreme Court Upholds Hawaii Redistricting Plan

by Robert Thomas, InverseCondemnation, January 21, 2014 

Our Latin cousins warned us long ago homo sapiens non urinat in ventum ("a wise man does not pee into the wind") but such wisdom doesn't prevent us from trying at times to buck the conventional thinking. Because sometimes, you don't know which way the wind is blowing until you go outside and actually feel the breeze.

Today, the U.S. Supreme Court told us. In a one-line order, the Court affirmed the three-judge U.S. District Court's ruling that the 2012 Hawaii Reapportionment Plan, which excluded active duty military, military families, and students who do not pay resident tuition from the population basis, did not fall short of Equal Protection's requirements. See also SCOTUSblog's "Hawaii Redistricting Upheld." The 2012 Plan treats these classes as residents who have not exhibited the intent to remain in Hawaii "permanently." The Court also affirmed the 2012 Plan's very large (44% and 21%) deviations from population equality.

Disclosure: we represent the challengers to the Plan.

This was always an uphill (upwind?) challenge because in Burns v. Richardson, 384 U.S. 73 (1966), the Court seemed to conclude that it was purely a political question about who Hawaii must include within its definition of "population," and it could thus 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 resolved in the political arena and elsewhere, if at all.

Things are evolving, 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). 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. Something also tells us by the time the next reapportionment process rolls around, the military won't so readily surrender to the state data about the troops and their families (data it should have never turned over), and that 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).

But for now, the Court's order ends the case.

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UNITED STATES SUPREME COURT UPHOLDS THE CONSTITUTIONALITY OF HAWAII’S REAPPORTIONMENT PLAN

News Release from Hawaii Attorney General January 21, 2014 

HONOLULU – Today, the United States Supreme Court affirmed the constitutionality of the Reapportionment Plan issued by the 2011 Reapportionment Commission in 2012. The Reapportionment Plan provided that non-permanent residents would be excluded from the population base to be used for drawing state legislative districts and for state legislative districts to be completely contained within a single county.  

Attorney General David M. Louie said that “this decision is 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.”  

The constitutionality of the Reapportionment Plan was challenged in federal court in Kostick v. Nago, Civ. No. 12-00184. In Kostick, the plaintiffs argued that the Hawaii State Constitution violated the equal protection clause of the United States Constitution with respect to the population base and drawing of legislative district lines. In July 2013 a three-judge panel for the United States District Court for the State of Hawaii upheld the Reapportionment Plan, stating that the plan did not violate the United States Constitution.  Plaintiffs appealed this decision directly to the United States Supreme Court; in its response to the plaintiffs’ appeal, the State of Hawaii asked the Supreme Court to affirm the decision of the District Court. On January 21, 2014 the U.S. Supreme Court granted the State of Hawaii’s Motion to Summarily Affirm the decision of the District Court.

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