By David P. Brostrom, Mark Takai and Andrew Walden, December 8, 2015
“We the People.”
The familiar opening of the U.S. Constitution, announcing our most cherished principles.
Big words, for sure.
But just who are “We the People?”
The U.S. Supreme Court is now considering that question in a Texas case in which Hawaii’s decades-long exclusion of active-duty military and families from the body politic is front and center.
In Evenwel v. Abbott, the court will determine who gets counted when drawing district lines for state legislatures, a process known as reapportionment.
Reapportionment is based on population. In 1964, the Supreme Court ruled that state legislatures must be reapportioned based on “one-person, one-vote,” meaning that under the Equal Protection Clause, each district must contain a roughly equal number of people.
But the court avoided explaining what “population” must be counted. All persons? U.S. citizens? Voters?
Two years later, in Burns v. Richardson, a case from Hawaii, the court held that states need not count everyone, but may measure alternate “populations” — either all Census-counted residents, U.S. citizens, or state citizens.
It also noted, “aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime” can be excluded, because “one-person, one-vote” is not meant literally, but protects two competing principles.
“Voting equality” protects voters’ equal opportunity to elect representatives, while “representational equality” protects every person’s right — regardless of their voting eligibility — to access those officials.
After all, officials represent everyone in their districts, not just voters.
Last year, a diverse coalition of civilian and military Hawaii residents challenged the exclusion of service members and families from Hawaii’s reapportionment.
This skewed districts, and violated one-person, one-vote’s representational equality principle.
The federal court disagreed, because the Burns ruling allows Hawaii to count state citizens. Military and their families are not Hawaii citizens because they elect to pay taxes in another state.
But Hawaii never asked anyone else where — or even if — they pay taxes. This means non-U.S. citizens are treated as “Hawaii citizens,” while military residents and families are not.
Despite this surreal outcome, the U.S. Supreme Court summarily affirmed.
In Evenwel, the court is revisiting that ruling. (Arguments will be heard today before the high court.) Texas draws legislative districts to equalize its Census population, which includes undocumented immigrants.
Voters argue that Texas should also consider whether districts contain an equal number of voters. The court will decide whether states must count everyone (including non-citizens, non-voters and military), only those eligible to vote, or some other population.
The question posed by the case is straightforward: What “population” must be counted, and if less than everyone is included, what one-person, one-vote principle must states follow when determining whom to eliminate?
A ruling requiring counting everyone would bring Hawaii’s reapportionment practice in line with 48 other states and with congressional apportionment, which, like Texas, is based on the Census count of all persons, regardless of their citizenship, taxpaying, or voting status. It wasn’t always so, and prior to adoption of the Fourteenth Amendment, African-Americans counted as three-fifths of a person in congressional reapportionment. It took a civil war and amendments to our Constitution to exorcise the demon of not counting every- one equally.
While the situation here is much less dramatic, the stakes are no less important, and excluding service members and their families is no less repugnant. Under federal law, they are counted by the Census only as Hawaii residents, and only in Hawaii’s Legislature.
Excluding them here means they are not represented anywhere.
Evenwel is vitally important because the Supreme Court may finally force Hawaii to stop excluding our military and their families from “We the People.”
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David P. Brostrom is a retired U.S. Army officer and Hawaii resident; Mark Takai represents Hawaii’s 1st District in the U.S. House; and Andrew Walden is editor/publisher of Hawaii Free Press. They were among the plaintiffs in the 2014 case that challenged Hawaii’s reapportionment for excluding military personnel and their families. This piece was co-signed by Robert H. Thomas, their lawyer in the case, who is with Damon Key Leong Kupchak Hastert in Honolulu.