Final Brief In Reapportionment Challenge: Hawaii's Exclusion Of Military Does Not Survive "Close Constitutional Scrutiny"

by Robert Thomas, InverseCondemnation.com May 9, 2012

Here is the final brief (the Plaintiffs' reply to the Chief Election Officer and Reapportionment Commission's Memorandum in Opposition to the Plaintiffs' Motion for Preliminary Injunction) in the federal court lawsuit challenging Hawaii's use of "permanent resident" as its reapportionment population basis. Kostick v. Nago, No. 12-00184 (complaint filed Apr. 6, 2012).

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.

The lawsuit argues that the Equal Protection Clause guarantees representational equality as well as voting equality, and by "extracting" nearly 8% of Hawaii's census population because they do not qualify as "permanent residents," the reapportionment plan fails to account for the right of all persons who are present in a state to be represented in the legislature. The state's brief argues that because the military population of Hawaii "fluctuates violently," the state is justified in treating them as "transients," even though the Census does not.

The motion will be heard on May 18, 2012 before a three-judge district court. Disclosure: we represent the plaintiffs in this case.

FULL TEXT: Reply Memorandum in Support of Plaintiffs' Motion for Preliminary Injunction, Kostick v. Nago, CV 1200184-J...

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State's Brief In Hawaii Reapportionment Case: Military Stationed In Hawaii Are "Transients"

by Robert Thomas, InverseCondemnation.com May 6, 2012

The Hawaii Chief Election Officer and the Reapportionment Commission have filed their Memorandum in Opposition to the Plaintiffs' Motion for Preliminary Injunction in the federal court lawsuit challenging Hawaii's use of "permanent resident" as its reapportionment population basis. Kostick v. Nago, No. 12-00184 (complaint filed Apr. 6, 2012).

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.

The lawsuit argues that the Equal Protection Clause guarantees representational equality as well as voting equality, and by "extracting" nearly 8% of Hawaii's census population because they do not qualify as "permanent residents," the reapportionment plan fails to account for the right of all persons who are present in a state to be represented in the legislature. The state's brief argues that because the military population of Hawaii "flutuates violently," the state is justified in treating them as "transients," even though the Census does not.

The motion will be heard on May 18, 2012 before a three-judge district court. Disclosure: we represent the plaintiffs in this case.

FULL TEXT: Memorandum in Opposition