Motion For Preliminary Injunction: Hawaii Legislative Reapportionment Must Include All Residents, And Cannot "Extract" Military, Military Families

by Robert Thomas, InverseCondemnation (attorney for plaintiffs)

Here's the motion for preliminary injunction we filed yesterday in the federal lawsuit challenging Hawaii's exclusion of military personnel, their families, and university students who do not pay resident tuition, from the population count when reapportioning the state legislature.

The U.S. Census includes everyone who is a "usual resident" of Hawaii in its count of population -- this includes servicemembers, their families, and university students. The Hawaii Constitution requires the Hawaii Reapportionment Commission to only count "permanent residents," and 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 do not pay resident tuition from the 1.3 million+ persons counted by the Census as usual residents of Hawaii.

From the motion's Introduction:

The Supreme Court maintains the touchstone of a state legislative reapportionment plan is population. Reynolds v. Sims, 377 U.S. 533, 560-61 (1964). In Burns v. Richardson, 384 U.S. 73, 93 (1966), the Court noted that states may have leeway to use a population basis other than the Census, but only if the resulting plan is not “substantially different” than one based on population. Hawaii’s 2012 Plan is not just “substantially” different from population, it is grossly deviant.

In Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990), cert. denied, 498 U.S. 1028 (1991), the Ninth Circuit concluded that because local legislatures represent everyone, everyone must be included in the reapportionment basis. The Hawaii legislature represents everyone, not just those who vote, or who register, or who pay state income taxes, and Equal Protection requires legislative seats to be apportioned so that all persons are represented. A basis other than population would "dilute the access of voting age citizens in that district to their representative, and would similarly abridge the right of aliens and minors to petition that representative." Garza, 918 F.2d at 775. The same rationale prohibits Hawaii from using a basis that excludes some—but not all—persons selectively deemed by the state to not be "permanent residents."

Moreover, the massive overall ranges in ideal district size in both houses (Senate: 44.22%; House: 21.57%) reveal that even if Hawaii may exclude this many people, the 2012 Plan still does not pass muster because these ranges far exceed the 10% deviations the Supreme Court has established for presuming a plan is unconstitutional.

This case presents two issues that have dogged Hawaii since statehood: may the state reapportion using a basis that excludes nearly 8% of the actual population, and may it give priority to representing counties rather persons, especially when the resulting apportionment deviates wildly from statewide population equality? The last time the first issue was presented to this Court, it did not need to decide the issue, because the overall deviations in the plan were unconstitutionally large (although smaller than presented here). Travis v. King, 552 F. Supp. 554, 562 n.19 (D. Haw. 1982). Since that time, however, the Ninth Circuit established in Garza that representational equality prohibits states from using a population basis categorically excluding a huge part of its actual population.

By barring military, their families, and students from representation in the legislature, Hawaii has insured they are represented nowhere: because they are counted by the Census only as usual residents of Hawaii, they are not counted anywhere else.

Here is the complaint. The hearing on the motion is set for May 18, 2012 before a three-judge district court.

Full Text: Plaintiffs' Motion for Preliminary Injunction, Kostick v. Nago, No. 12-00184 KMS/RLP (filed Apr. 23, 2012)

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