Final Brief: Everyone's A Winner - Seating All Candidates In Cancelled Hawaiians-Only Election Was "Certification" Of The Election Result

by Robert Thomas, InverseCondemnation, January 7, 2016

Here's the final brief relating to the challengers' motion for civil contempt, which asks the U.S. Supreme Court to hold in contempt the State, the Governor, OHA and its trustees, and Nai Aupuni, for violating the Court's earlier injunction that no ballots were to be counted, and the results were not to be certified prior to a ruling on the merits by the Ninth Circuit.

After the Court's order, Nai Aupuni called off the election (after previously extending the deadline by three weeks), and promised to never, never, never count the ballots that had already been submitted. Nai Aupuni then invited all of the (former) candidates to attend the convention.

The plaintiffs' brief argues:

The oppositions to the Motion for Civil Contempt (“Mot.”) submitted by Respondents Na’i Aupuni and the Akami Foundation (“Na’i Aupuni Opp.”) and State of Hawaii and the Office of Hawaiian Affairs (“State Opp.”) are long on indignation but short on substance. Instead of addressing Movants’ arguments as to why they have violated the Temporary Injunction, Respondents suggest that the Motion seeks to newly enjoin them from holding a private gathering. But that is not now—nor has it ever been—the issue in this case. From the outset, the issue has been the state-run, race-based process that Respondents used to select convention delegates in violation of the Constitution. Respondents’ ingenious plan to seat all delegates instead of some of them does not alter this basic set of facts.

Reply at 1.

We posted the motion here, and Nai Aupuni's opposition here.

The contempt motion is on the Court's January 15, 2016 conference calendar, so we should know the results soon after that.

PDF: Reply in Support of Motion for Civil Contempt, Akina v. Hawaii, No. 15A551 (Jan. 6, 2016)

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Nai Aupuni's Response To SCOTUS Contempt Motion

by Robert Thomas, InverseCondemnation, January 7, 2016

Nai Aupuni and the Akamai Foundation, the proponents and organizers of the Native Hawaiians-only "Oprah" election for delegates to a convention to organize a new Hawaiian government, have responded to the election objectors' SCOTUS motion for contempt.

The Motion for Civil Contempt asked the Supreme Court to slap the State, the Governor, OHA and its trustees, and Nai Aupuni, for violating the Court's earlier injunction that no ballots were to be counted, and the results were not to be certified prior to a ruling on the merits by the Ninth Circuit. After the Court's order, Nai Aupuni called off the election (after previously extending the deadline by three weeks), and promised to never, never, never count the ballots that had already been submitted. Nai Aupuni then invited all of the (former) candidates to attend the convention.

The contempt motion argued that this was too clever by half, and asserted that calling off the election and declaring that all candidates would be invited was the same as saying that all 196 candidates had won (the election was for 40 seats). Hence, the "Oprah" designation.

Nai Aupuni's response highlights the key issue -- was the election "terminated" as Nai Aupuni claims, and thus the Court's orders were not violated, or was inviting all (former) candidates to attend a sleight-of-hand workaround to reaching the same result which the Court prohibited?

After this Court granted the injunction, and even before the deadline for casting ballots, Naʻi Aupuni terminated the election, and it has not counted the ballots or certified any winners of that election. Instead to take advantage of the heightened interest within the Native Hawaiian community generated by the aborted election, Naʻi Aupuni decided to organize an ʻaha, or gathering, of Native Hawaiians who formerly were candidates in the now canceled election, as is their right under the First Amendment. Naʻi Aupuni’s actions are in complete compliance with this Court’s injunction order.

Op. at 1.

Nai Aupuni claims that it has a right to asssemble, independent of its (former) efforts to organize an (arguably illegal) election, and thus the Court cannot enjoin its present efforts.

The contempt motion is on the Court's January 15, 2016 conference calendar, so we should know the results soon after that.

Respondents Nai Aupuni and the Akamai Foundation's Opposition to Applicants' Motion for Civil Con...