Judicial Watch Asks Appeals Court to Halt Race-Based, Separatist Election in Hawaii

State Uses “One Drop of Blood” Rule to Define Voter Eligibility in “Native-Hawaiian”-Exclusive Vote

News Release from Judicial Watch November 05, 2015

(Washington, DC) – Judicial Watch announced today that it has filed an Urgent Motion for Injunction with the U.S. Court of Appeals for the Ninth Circuit to stop a race-based, state-sponsored, Hawaiians-only election that violates the “fundamental constitutional rights” of American citizens (Keli’i Akina, et al. v. The State of Hawaii, et al. (No. 15-17134)).

The motion asks that the Appeals Court enjoin the counting of ballots, now scheduled for November 30, until the resolution of a Judicial Watch appeal of an earlier district court ruling in the case (Keli’i Akina, et al. v. The State of Hawaii, et al. (No. 1:15-cv-00322)).

In August, Judicial Watch filed a lawsuit on behalf of the five Hawaiian residents who have joined with a Texas resident to oppose voter registration requirements instituted under Act 195, which became a Hawaiian state law in 2011.  Judicial Watch sought a preliminary injunction to stop the vote, scheduled for the month of November 2015, arguing that its clients injunction are denied the right to vote either because of their race or their political views in direct violation of the U.S. Constitution and the Voting Rights Act of 1965.  Act 195 authorizes the Native Hawaiian Roll Commission (NHRC) to create a list of “Native Hawaiians” who would be eligible to elect delegates to a planned constitutional convention, which would then prepare “governance documents” for a separate Native Hawaiian entity.

The Obama administration supported the race-based election in this litigation despite the fact that the State of Hawaii limits eligible voters in the election to those who have at least one drop of Native Hawaiian blood.  Judicial Watch notes that this “one drop of blood” rule is like other laws last seen in the racist Jim Crow era: “It also has an unfortunate resonance in American history.  See, e.g., Loving v. Virginia, 388 U.S. 1, 5 n. 4 (1967) (discussing Virginia statute holding that ‘[e]very person in whom there is ascertainable any Negro blood shall be deemed and taken to be a colored person’).”

The lower court declined to issue a preliminary injunction, ruling that the election was being conducted by the Na’i Aupuni foundation (NA), a “private actor holding a private election,” which would allow for race-based qualifications that would be obviously unconstitutional in any government-run election.  Judicial Watch argues to the Ninth Circuit that the lower court erred on the facts and the law.  Judicial Watch attorneys point out that it is undisputed, that the allegedly “private” foundation was organized in late 2014 for the sole purpose of carrying out the election set in motion by Hawaii’s Act 195.

The brief cites to a mass of evidence suggesting the foundation is merely a front for the State of Hawaii:

NA was formed, three years after Act 195 was passed, for no other purpose than to hold the election that [the State Office of Hawaiian Affairs, or “OHA”] could not. NA’s bylaws refer to OHA’s legislative goals. OHA was, at least for a time, a member of NA. NA’s vice-president is married to the CEO of the NHRC. NA was given millions of dollars of public money to hold an election described in a state law, Act 195, in a series of contracts with OHA, wherein OHA retains all sorts of special rights and privileges. NA “decided” to use the race-based Roll the NHRC had been developing for years, and that OHA is statutorily required to use…Indeed, it is particularly telling that NA gave OHA assurances that it would use the race-based Roll to hold a race-based election before the two parties entered into contracts awarding NA millions of dollars to hold that election.

As Judicial Watch attorneys argue, the “historic” election is about important public issues, including whether to change the government under which Hawaiians live:

The delegates who win will attend a convention at which they may draft “governance documents” for an all-Native Hawaiian entity. Their decisions could affect the legal, social, and financial relationships of huge numbers of Americans. In 2010 there were 1.36 million people in Hawaii. The Department of the Interior estimates that there are 527,000 Native Hawaiians in the United States, of whom 290,000 reside in Hawaii. Indeed…Plaintiffs here have “views as to whether a change is appropriate and, if so, what that change should be.” They should not be shut out because they are the wrong race.

On July 20, 2012, using taxpayer funds from the State’s Office of Hawaiian Affairs, the NHRC launched the Kana’iolowalu campaign, opening a registration process strictly confined to Native Hawaiians – and even then only those who were also willing to “affirm the unrelinquished sovereignty of the Native Hawaiian people” and who desired to vote for a new race-based sovereign government.

Judicial Watch represents citizens harmed by the discriminatory Hawaii election process.  Keli’i Akina and Kealii Makekau are descendants of Native Hawaiians, who cannot register to vote because they will not affirm that they favor Native Hawaiian sovereignty and self-governance.  Joseph Kent and Yoshimasa Sean Mitsui are citizens and residents of the State of Hawaii, who are prevented from registering to vote because of the race-based ancestry requirements of Act 195. Melissa Leina’ala Moniz and Pedro Kana’e Gapero are Native Hawaiians who were registered to vote without their knowledge or consent.

The Grassroot Institute of Hawaii, a Hawaii-based think tank, has been assisting Judicial Watch in its investigation of Hawaii’s plan for a race-based election. “Every day that this unconstitutional election is allowed to proceed is another day that Native Hawaiians are misled, people’s rights are bypassed, and the will of the thousands of Hawaiians who have voiced their opposition to the state’s nation-building scheme are ignored,” said Keli’i Akina, Ph.D., President of the Grassroot Institute and one of the Plaintiffs in the case. “We must stop wasting time, money, and good will on a divisive and unconstitutional race-based election and begin looking for ways to improve the lives of everyone who lives in our state.”

“As symbols of the Confederacy are removed from public display, the political left is pushing for a racist separatist campaign in Hawaii with the help of Barack Obama’s administration,” said Tom Fitton, Judicial Watch president. “The federal courts cannot put an end this constitutional abomination soon enough. This Hawaii race-based election is a comeback for segregation. The Office of Hawaiian Affairs and the Native Hawaiian Roll Commission are both hiding behind private parties in order to circumvent the U.S. Constitution and get around the civil rights protections afforded every American through the First, Fourteenth, and Fifteenth Amendments.”

Robert Popper, director of Judicial Watch’s Election Integrity Project, is Judicial Watch’s lead attorney on the lawsuit.  Mr. Popper was formerly deputy chief of the Voting Section of the Civil Rights Division of the Justice Department.  Michael Lilly of the Honolulu law firm Ning, Lilly & Jones is serving as Judicial Watch’s local counsel for the plaintiffs.

In separate litigation, Judicial Watch forced the release of the actual enrollment list, which includes the names of Hawaiian residents placed on that list without their permission.  The Obama administration took controversial executive action towards “the reestablishment of a government-to-government relationship with the Native Hawaiian community.

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LINK: Amicus from American Civil Rights Union