Political Radar

ConAm needed

April 25th, 2013

A proposal to count military members and their dependents in the total population base used for reapportionment and redistricting is likely dead at the Legislature.

The measure, Senate Bill 286, was deferred indefinitely on Thursday.

Sen. Clayton Hee (D, Heeia-Laie-Waialua), the Senate judiciary and labor chairman, said the conference committee received a letter from the deputy attorney general stating that the bill would not have the desired effect.

SB286 would require reapportionment to be based in part on population data of the total number of permanent residents in the state and it defines "permanent resident" as any individual counted as a "usual resident" in the last preceding U.S. Census.

The state constitution requires reapportionment to be based on the total number of "permanent residents" in the state, but it does not define the term. Because the requirement is set in the constitution, Hee said, the letter from the deputy AG states that a constitutional amendment is required to change the definition to include usual residents.

Based on that, lawmakers shelved the bill.

Last year, after many delays and two lawsuits, the state Reapportionment Commission ultimately set new districts and boundaries based on a population count that excluded about 108,000 "non-permanent" residents, defined as military members and their dependents along with non-resident students. Those residents had initially been included in the base.

Their exclusion shifted a seat in the state Senate to the Big Island, giving it four Senators. Oahu lost a Senate seat.

7 Responses to “ConAm needed”

  1. Bart Dame:

    Congratulations to Senator Hee on this one. The bill was unconstitutional on its face. The meaning of "permanent residents" in this context was well understood. When the legislature proposed the constitutional amendment in 1992, they explicitly stated they were adopting the meaning as articulated in the report of the 1991 Reapportionment Commission. Each commission since that time has had the same interpretation, as have Hawaii's courts.

    So they argument this bill was introduced to "clarify" the term is disingenuous.

    Rather than introduce a constitutional amendment to change how the constitution was interpreted, the authors of the bill attempted to impose a new definition of their own preference, despite the fact Total Population had been explicitly rejected by the 1992 legislature.

    Some legislators claimed they have a right to draft laws to implement constitutional amendments. Yes, but they do NOT have the authority to write implementing legislation which goes against the clear intent of that amendment.

    The entire matter was further complicated because some legislators were saying passage of this bill would result in the challenge in federal court being dropped. Such an argument never made much sense. But even if it did, you cannot amend the constitution merely by imposing a new meaning on the words. You must draft a proposed constitutional amendment, secure enough legislative votes and present it to the voters for their agreement or rejection. This bill attempted to deprive the voters of our right to decide on constitutional amendments and was an abuse of legislative power.

  2. Chicken Grease:

    Trying to wrap a Grease's mind around this. Also, thanks for the addition description/opinion, Bart Dame.

    How many other states have this "problem." Have a feeling that there IS no problem. They just couint 'em, include 'em. You know? As in . . . what's the problem?

  3. Bart Dame:


    We can have two separate conversations. One could be on what is the proper population base to be used for state-level reapportionment. The US Supreme Court has long held that is a political question to be left to each state, provided they do not discriminate against protected classes. Hawaii voters in 1992 decided to base reapportionment on "permanent residents," defined as the Total Population as reported by the Census, minus identifiable non-residents.

    Some people advocate we should change the policy and base reapportionment upon Total Population. But such a change would require voters approve a change to the state constitution. There is a federal lawsuit which argues the exclusion if non-resident military and students violates the federal constitution. So it is possible a federal court would rule the state constitution violates the federal constitution. Should that happen, the court might order a new reapportionment, possibly in time for the 2016 election.

    A 3 judge panel has heard the arguments and, apparently, is ready to issue a ruling. But they appear to have held back to allow a chance for negotiations for an out-of-court settlement. This bill may have impacted such a settlement. With the bill being held, I expect a ruling will be issued fairly soon.

  4. ohiaforest3400:

    BD, what is the other, separate conversation?

  5. Goober:

    Permanent resident lives in Hawaii all year round.
    Does not live in the north and in the winter fly south
    where it is warmer. That is a transient that migrates.
    One who transplants.

    The census of Hawaii is not accurate. One can see that there
    are more than one family in one house or per room one family.
    One house with 6 cars for each family? Certain families go back home to get work visas to work in Hawaii. That or become an American citizen, which they don't and they should become dual citizens. Some do it legal.

    Two separate conversations is when either side talks to an empty chair.

  6. Bart Dame:


    I apologize for not writing more clearly. The two conversations would be the policy question: what population base should be used for reapportionment? Second, what is the proper means for changing that policy?

    One can believe non-resident military and students should be counted for reapportionment while still recognizing it would require an amendment of the state constitution for that change to occur.

    Thanks for seeking the clarification.

  7. Goober:

    Wording, Period!

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