Supreme Court Blocks Race-Based Election

by Ilya Shapiro, CATO Institute, December 3, 2015

Readers have surely been disappointed at this blog’s recent dearth of Hawaiian constitutional news, but not to fear: the Aloha State doesn’t go too long without generating legal controversies worthy of national attention. The latest development comes from the Supreme Court, which blocked an election with racial qualifications that could eventually establish a new government for so-called “native Hawaiians.” (See this background on the ongoing legislative and regulatory saga surrounding this movement for ethnic separatism.)

The voters in the disputed election, once they establish certain ancestral lineage and affirm their belief in the “unrelinquished sovereignty of the Native Hawaiian people,” are picking delegates to a convention that would write a new constitution for a new nation. The Obama administration supports this process as a prelude to the creation of a new government within but separate from the state of Hawaii, akin to an Indian tribe (which is an inappropriate analog).

A group of Hawaiians, led by Grassroot Institute president Keli’i Akina, sued to try to stop this election, which is being run by a private organization contracted by the state Office of Hawaiian Affairs. (Full dislosure: I’m on Grassroot’s very informal board of scholars.) While several of the plaintiffs have the qualifying ancestry, they complain that the race-based exclusion violates the Fifteenth Amendment. The election’s sponsors insist that it’s a private affair and therefore not subject to constitutional limitations. (See here and here for more background.)

The district court had inexplicably allowed the balloting to proceed and the U.S. Court of Appeals for the Ninth Circuit affirmed that ruling. Justice Kennedy, as the circuit justice for the Ninth Circuit, temporarily enjoined the counting and certification of ballots on Friday, and now the Court has issued a short order preserving the injunction pending the full appeal in the lower court.

Unfortunately, the vote on this emergency injunction application was 5-4, with Justices Ginsburg, Breyer, Sotomayor, and Kagan dissenting. This result presumably maps the underlying views on the merits of the case, regarding the constitutionality of this race-based election. That’s disappointing given some recent history: In the 2000 case Rice v. Cayetano, the Supreme Court ruled 7-2 against such “native Hawaiian” voting qualifications and in 2009, the Court reached a unanimous ruling against the state Office of Hawaiian Affairs (OHA) on a related property-rights dispute (in which Cato filed a brief). That era of good feelings is now apparently over.

Akina v. Hawaii will now continue on appeal and you can bet that Cato will be filing briefs. Perhaps a summary of our argument can be boiled down to the following: “While Hawaii is far away from the rest of the United States, the Constitution - including the 14th and 15th Amendments - still applies there.”

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