Can you name the state trying to place racial restrictions on voting?

by Michael Barone, Washington Examiner, December 30, 2016

Should participation in American elections be restricted to members of a particular race or races? If you assumed that no significant number of Americans today believe the answer should be yes, you assumed wrong. Actually, the governments of the state of Hawaii and the Commonwealth of the Northern Marianas Islands have passed and have been defending in court their laws which do exactly that.

The CNMI law restricts voting in certain elections to those of "Northern Marianas descent." That was struck down in 2014 by a federal district judge and his decision was affirmed last Tuesday by a unanimous three-judge panel of the Ninth Circuit Court of Appeals.

By the way, the district court judge and two of the three circuit court judges were appointed by Democratic presidents. The courts ruled that the CNMI provision violates the Fifteenth Amendment of the Constitution, which guarantees that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude."

Sounds pretty straightforward, doesn't it? Not to the state of Hawaii, which for almost two decades has been defending state laws limiting voting for certain offices to members of a particular race. Back in 2000, the U.S. Supreme Court in Rice v. Cayetano ruled invalid a Hawaii law limiting voting for trustees of the Office of Hawaiian Affairs, a state agency, to persons of Native Hawaiian descent. The justices, 7 to 2, ruled against the state, which was represented by a Washington lawyer named John Roberts.

Despite this decision, in 2011 the Hawaii legislature passed a law creating a Native Hawaiian Roll Commission to enroll certain voters who could then submit amendments to a convention to revise the state constitution and to vote on the sovereignty of the "Native Hawaiian people." In 2012 the Office of Hawaiian Affairs launched a campaign to enroll people of Native Hawaiian descent with a view toward creating a race-based sovereign government. To gain voting status, people had to affirm not only that they had Native Hawaiian ancestry, but also that they believed in "the unrelinquished sovereignty of the Native Hawaiian people" and that they had "a significant cultural, social or civic connection to the Native Hawaiian community."

In August 2015 Judicial Watch filed a lawsuit seeking to enjoin this process as a violation of the Fifteenth Amendment. A federal district judge and a Ninth Circuit panel declined to issue an injunction blocking the reporting of the results of the election (which had been delayed from November to Dec. 21), but on the day after Thanksgiving 2015 Justice Anthony Kennedy, author of the opinion in Rice v. Cayetano, issued a temporary injunction and on Dec. 2 the full Court voted 5-4 to enjoin any further action by the state, pending a Ninth Circuit decision on the merits of the lawsuit.

That made it sound like a majority on the Supreme Court thought this was an open-and-shut Fifteenth Amendment case; the death of Justice Antonin Scalia removed one member of that majority, but it's likely that any likely nominee of President-elect Trump will be of similar views.

Backers of Native Hawaiian sovereignty say they want Native Hawaiians to have the same sovereign status as federally recognized Indian tribes. But their circumstances are far different. There are very few people — perhaps fewer than 1,000 — of entirely Native Hawaiian descent, and most people of Native Hawaiian descent live intermixed with other Americans in family relations, neighborhood residence and work situations. From 2000 until his retirement in 2013, Hawaii Senator Daniel Akaka championed a Native Hawaiian sovereignty bill, but it never reached the floor of the Senate.

There's an appalling irony here. When Hawaii was seeking statehood in the 1950s, many Southern Democrats opposed it because of the territory's multiracial population and its traditions of toleration and colorblindness. Now, many Hawaiian politicians are promoting racial separateness and divisiveness, and sponsoring legislation limiting voting rights to those of a particular racial ancestry who in addition must certify that they share certain beliefs and lifestyles.

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