A new test on Hawaii’s future?

by Lyle Denniston, SCOTUSBlog, December 18, 2015

Lawyers for a group of Hawaiian residents challenging a move to create a new nation of native Hawaiians within the state have told a lower court that they may make a return trip to the Supreme Court to deal with a major shift in the other side’s tactics.  An election interrupted by the Supreme Court early this month has now been cancelled, and plans are moving ahead for a constitutional convention in February.

The fight over a significant alteration in the culture and governance of the fiftieth state had been focused on an election of delegates to such a convention, but voting was to be limited to those who could claim native ancestry.  The challengers, contending that such an arrangement violated voter equality guaranteed by the Fifteenth Amendment, persuaded a Supreme Court majority to temporarily block the counting and approval of the balloting results.  The sponsors of the election have contended that the entire matter was a private effort, affecting only native Hawaiians, and was not an official state project.

Because the Court’s order had not blocked the final days of balloting, the election continued for several days.  However, on December 15, the private firm that had been handed the task of staging the election (Na’i Aupuni) abruptly cancelled the election.  Leaders of the group cited “the ongoing litigation” over the plan to create an entity like an Indian tribe with full sovereign status among native Hawaiians.

The group said it would move ahead with plans for a four-week convention in February, to ponder the next move, perhaps including the writing of a constitution.  They invited all 196 candidates who ran as candidates for delegate seats to become delegates without anything further except their consent.

Meanwhile, the validity of the election has continued, at least nominally, as a live dispute in the U.S. Court of Appeals for the Ninth Circuit, with the challengers’ opening brief scheduled to be filed on December 23.  Citing the cancellation of the election by Na’i Aupuni, the challengers have now asked for a two-week postponement of the due date for their brief.

At a minimum, their lawyers said, the shift in tactics will require changes in that brief and, they added, “may change the litigation in ways more fundamental than alteration of briefs.”  One of the possible responses, the lawyers said, will be to ask the Supreme Court to take new action to stop the process.  They also said they would consider the option of dismissing the pending appeal in the Ninth Circuit.  They did not indicate what might follow such a dismissal.

“Determining the appropriate course of action,” the filing in the Ninth Circuit said, “will require (and already has required) time-consuming and substantive consultations between and among counsel and their clients.”  They indicated that they would make up their minds within the next two weeks.

The motion for more time to consider the next move was made on Thursday.  Attached to the motion is a press release issued by Na’i Aupuni announcing the cancellation of the election.

PDF: Motion to Extend