Federal Court Challenge to Hawaii’s 2012 Reapportionment Plan

News Release from Plaintiffs Attorney, Robert Thomas

The State of Hawaii has a long history of refusing to count military personnel and their families for purposes of reapportioning the state legislature. A lawsuit filed today asks a three-judge federal court to enforce the Equal Protection Clause of the U.S. Constitution and require the State to count all residents of Hawaii.

The 2010 U.S. Census reported 1,360,301 residents as the total resident population of Hawaii. The Census includes military personnel, military families and students as residents of Hawaii. It also counts minors, non-citizens, and incarcerated felons.

In 1965, in Burns v. Richardson, the U.S. Supreme Court upheld Hawaii’s use of its count of registered voters as the population basis for apportionment, a population base which effectively excluded low- registration groups such as military personnel and students, many of whom were below the pre-26th Amendment voting age of 21. Contrary to popular opinion, the Burns case does not permit the State to ignore military personnel and their families. The Court allowed counting only registered voters because there was no evidence doing so would result in apportionment substantially different from that which would have resulted if the State had simply counted everyone.

The Hawaii Constitution was amended in 1992 to require the Reapportionment Commission to count only those deemed “permanent residents,” instead of registered voters. Only Hawaii and Kansas use a population base other than the U.S. Census count of residents. In the current reapportionment cycle, Kansas extracted far fewer Census-counted residents than Hawaii, and in its August 3, 2011 proposed plan, the Commission did not remove anyone. The Commission subsequently presented a second plan which extracted approximately 16,000 military personnel, military families, and students, but included non-citizens, minors, and incarcerated felons who cannot legally vote.

This wasn’t enough, and two separate lawsuits were filed in the Hawaii Supreme Court demanding the Commission exclude all active duty military personnel, military families and students whom it deemed not to be “permanent residents.” After a widely-criticized defense presentation, the State Supreme Court upheld the claims. As a result, the Commission did not court 108,767 Census-counted residents of Hawaii – nearly 8% of the state’s entire population. These people were not counted by the Census in any state.

The State’s choice to ignore them had palpable consequences: it shifted a seat in the state senate from Oahu to Hawaii Island and produces senate and house district which deviate grossly from the Constitutional requirement that representative district be of substantially equal population size. Hawaii continues to treat military personnel, military families, and students as second-class citizens with representation even inferior to non-citizens.

Commission chairwoman, former state judge Victoria Marks said, “I think you're opening yourself up to a federal lawsuit if you exclude (military) dependents on an across-the-board basis.” The federal legal challenge to the State’s reapportionment plan seeks to end this discrimination, and require the State to count military personnel, military families, and students. Based on the supremacy of the U.S. Constitution over state law, the federal court is being asked to uphold the Constitution’s equal protection clause, affirm the principle of equal representation for all persons, and end Hawaii’s long-standing and politically motivated exclusion of Census-counted residents.

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Federal Court Lawsuit: Hawaii Legislative Reapportionment Cannot Exclude Military, Military Families

by Plaintiffs’ Attorney Robert Thomas, InverseCondemnation

It may be Good Friday (an official State Holiday in Hawaii), but the federal courts are open, and today, on behalf of six plaintiffs including several veterans, we filed a lawsuit challenging under the Equal Protection Clause the State of Hawaii's practice of excluding military personnel, their families, and university students who pay nonresident tuition from the population count when reapportioning the state legislature .

The U.S. Census counts everyone who is a "usual resident" of Hawaii in its count of population -- including military, their families, and university students -- but the Hawaii Constitution requires the Hawaii Reapportionment Commission to only count "permanent residents." In an opinion issued in January 2012, the Hawaii Supreme Court held this means the Commission must "extract" active duty military, their families, and university students who pay nonresident tuition from the 1.3 million+ persons counted by the Census as usual residents of Hawaii. This renders invisible nearly 8% of the population. These folks are not counted by the Census in any other state, so Hawaii's "extraction" means that they are not being counted anywhere.

More here, from the Honolulu Star-Advertiser. Stay tuned.

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Full Disclosure: Hawai`i Free Press Editor Andrew Walden is a plaintiff in this suit

PDF: Full Text of Lawsuit

Star-Adv: Voters sue to block political redistricting plan

CB: Military Plaintiffs Take Hawaii Redistricting Plan To Federal Court

KHON: Federal lawsuit challenges Hawaii's voting maps as unconstitutional