Star-Advertiser: Hawaii "Is Exception To Constitutional Law" In State Reapportionment

by Robert Thomas, InverseCondemnation, June 2, 2015

Here's a recent piece from Richard Borreca, the Honolulu Star-Advertiser's political reporter, about the Texas reapportionment case recently set for full briefing and argument by the U.S. Supreme Court.

"In Hawaii, eligible voters count more than people" is behind a partial pay wall, but here's the key points in the event you are not a subscriber:

Hawaii has never counted the entire census-counted resident population for purposes of apportioning its state legislature. It has always relied on a method that somehow excludes active duty military and their families who reside in Hawaii from the reapportionment count. 

Hawaii is one of two states which does not base reapportionment on total census-counted population (Kansas being the other). 

When voter registration and participation was high in the years following statehood in 1959, Hawaii counted registered voters, which due to the high percentage of Hawaii residents who registered to vote, was an accurate approximation of what the Supreme Court in Burns labeled a "permissible population basis."

When voter registration and participation declined and could no longer be relied upon to approximate population, however, the Hawaii Constitution was amended to count "residents," a term not defined in the constitution.

The most recent reapportionment "extracted" 108,000 military, families, and university students from the census-counted resident population, to arrive at what the Reapportionment Commission determined was a count of Hawaii "residents."

Although we lost the latest reapportionment challenge to this approach, the Texas case may open up future Hawaii reapportionments to legal challenge if Hawaii persists in applying the same or similar standards.

Here's what the piece has to say:

"Back in 2011, local attorney Robert Thomas sued on behalf of then-state Rep. K. Mark Takai and others claiming the Hawaii interpretation violated the Equal Protection Clause in the U.S. Constitution. The real political questions were that if adding everyone who lived in Hawaii as compared to just registered voters would determine whether the Big Island would get another seat in the state Senate and if someone on Oahu would likely lose a seat in the reapportionment process."

"Hawaii is the only state other than Kansas that subtracts military and dependents from its state reapportionment numbers."

"'As a consequence of Hawaii not counting them, they end up without any representation in any state legislature,'" Thomas said in an interview last week."

"'We argued that the Equal Protection Clause of the 14th Amendment, which protects all persons' rights to be treated equally, means that the state must start by counting all persons, and if it desires to exclude some people, then it has a high burden to justify those exclusions.'"

"Failing to do that, Thomas argued, leaves the reapportionment process up to "'political whims.'"

Stay tuned folks, this one is going to get interesting if this issue is your cup of tea.

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