WSJ Law Blog: "Hawaii Military Carve Out May Play Role in Voting District Case"

by Robert Thomas, InverseCondemnation May 28, 2015

As we recognized earlier this week when the Supreme Court noted probable jurisdiction in a redistricting case out of Texas, Hawaii's current approach to state legislative reapportionment, under which the Hawaii Reapportionment Commission does not count active duty military, their spouses and children, and university students who pay non-resident tuition (108,000, or nearly 8% of the census-counted population was expressly excluded from representation in the Hawaii Legislature), seems like it is back in play, even if a three-judge U.S. District Court ruled in 2013 that the scheme was constitutional, a decision that was summarily affirmed by the U.S. Supreme Court.

The Wall St. Journal Law Blog today posts "Hawaii Military Carve Out May Play Role in Voting District Case," noting:

Hawaii may figure prominently when the Supreme Court this fall considers a case where plaintiffs are seeking to have legislative districts drawn based on a count of eligible voters rather than the total number of residents.

That’s because for nearly half a century, the Aloha State has had the high court’s permission to ignore transients when drawing its political maps. While the Constitution requires equal population among legislative districts, a principle known as one-person, one-vote, a 1966 opinion said that Hawaii’s “special population problems” justified using registered voters as the baseline.

What is interesting to us is that the Hawaii Elections Office official quoted in the WSJ Law Blog states that a ruling by the Court that the Equal Protection Clause requires a count of "citizens" would be problematic for his office because "[i]t would be very, very difficult, because the census data the state used doesn't identify the citizenship of the people counted." But we have the data to exclude the military and students, he noted.

However, one of the reason why Hawaii prevailed in the case was that it claimed it wasn't excluding the military as military (that would be facially unconstitutional under established SCOTUS precedent), but rather, it was merely counting "state citizens," a term never defined, but which just so happened to only result in the exclusion of military, their spouses, their children, and students who don't qualify to pay resident tuition. And how did Hawaii define "Hawaii citizen" for purposes of the case? Anyone who didn't say on a military form that they wanted to pay Hawaii income taxes, presuming that meant they were "residents" elsewhere, a presumption that falls apart when viewed with anything greater than the "aliens conceivably did it" rational basis standard of review.

But the court rejected our call for a more rigorous review standard when a state chooses to count less than all persons, because, after all, the Equal Protection Clause protects "persons" and not "citizens," "voters," or "state citizens." See our Jurisdictional Statement below for more details on why we believe (and continue to believe) that this is the right standard.

In other words, if Hawaii would find it impossibly hard to count U.S. citizens, why does its claim that it counts Hawaii citizens not merit any scrutiny whatsoever?

The current Texas case, as noted by the Journal, may answer this question.

For more on the representational equality vs. voting equality issue, see "'One Man, One Vote' Keeps Changing, by Professor Noah Feldman at Bloomberg View.

PDF: Jurisdictional Statement, Kostick v. Nago, No. 13-456 (filed Oct. 8, 2013)

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SCOTUS To Revisit One-Person-One-Vote: Representational Equality Or Voting Equality?

by Robert Thomas, InverseCondemnation.com, May 26, 2015

Followers of the blog recognize that in addition to our regular menu of regulatory takings, eminent domain, inverse condemnation, and land use related items, our practice also includes voting rights and election law issues. So every now and then we post up interesting cases and decisions, especially where the issues involved are related to cases which we've done in the past.

Thus, it was with great interest that we saw the Supreme Court today noting probable jurisdiction in a case we've been following, ordering full briefing and argument on an issue that is near and dear to us: the question of who exactly gets counted under the Fourteenth Amendment's Equal Protection Clause requirement that state legislative districts be of roughly equal size. See Evenwel v. Abott, No. 14-940. The question the Court has never squarely answered is equal size of who? Does the Equal Protection Clause require states to count the total population? To count only voters? Or is the question of whom to count left entirely up to the states?

What this issue comes down to is which of the Equal Protection Clause's two competing principles take precedence: (1) representation equality (the idea that elected officials represent everyone, not just voters), or (2) voting equality (the notion that voters are entitled to have an equal opportunity to elect representatives). Most states count everyone, but our home jurisdiction of Hawaii counts only those whom it considers "residents," those whom the state infers intend to remain in Hawaii permanently. By doing so, Hawaii excludes from the count (and thus from being represented) the nearly 8% of the actual population that are either associated with the active duty military or who are not eligible to pay resident tuition at local universities. 

In a recent case (Kostick v. Nago, No. 13-456), we argued that this scheme falls short of Equal Protection's requirements, and that representational equality is the overriding principle. Equal Protection requires a count of everyone, including local military and students, regardless of whether the state thinks they intend to remain in Hawaii forever. Or at least the state has a high burden if it wants to cut out some people from being represented equally, while it includes others without any meaningful inquiry.

We ended up on the short end of that case, with a three-judge panel concluding that the State has nearly unreviewable leeway to determine whom to count, and how to count them. The Supreme Court summarily affirmed. 

Bu the issue may be back. Here's the Question Presented in Evenwel:

In Reynolds v. Sims, 377 U.S. 533 (1964), this Court held that the Equal Protection Clause of the Fourteenth Amendment includes a “one-person, one-vote” principle. This principle requires that, “when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.” Hadley v. Junior Coll. Dist. of Metro. Kansas City, Mo., 397 U.S. 50, 56 (1970). In 2013, the Texas Legislature enacted a State Senate map creating districts that, while roughly equal in terms of total population, grossly malapportioned voters. Appellants, who live in Senate districts significantly overpopulated with voters, brought a one-person, one-vote challenge, which the three-judge district court below dismissed for failure to state a claim. The district court held that Appellants’ constitutional challenge is a judicially unreviewable political question.

The question presented is whether the “one-person, one-vote” principle of the Fourteenth Amendment creates a judicially enforceable right ensuring that the districting process does not deny voters an equal vote.

Like the three-judge District Court in Kostick, the lower court in Evenwel relied on Burns v. Richardson, 384 U.S. 73 (1966), a case originating in Hawaii, which both courts viewed as giving the states total leeway in how they define their reapportionment populations.

We'll be following along to see if anything has changed since then. In the meantime, here are the appeal briefs from SCOTUSblog (remember, reapportionment cases are one of the few areas left for Supreme Court mandatory jurisdiction), as well as a short summary from the Wall Street Journal.