Equal representation, extreme deviations

October 8th, 2013
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The attorney for eight voters challenging the state's reapportionment plan will file a brief on Tuesday before the U.S. Supreme Court.

The voters -- which include state Rep. K. Mark Takai -- want the high court to reject the plan because it excluded 108,767 military personnel, military spouses and children, and out-of-state college students from the pool of permanent residents when drawing state House and Senate district boundaries. The boundaries are redrawn every decade to reflect population changes after the census.

The group of voters is appealing to the Supreme Court after losing in U.S. District Court in Honolulu.

The brief from attorney Robert Thomas makes two main arguments: excluding the voters was a violation of equal protection; and there are extreme deviations in the size of districts to avoid so-called "canoe districts" that cover more than one island.

On equal representation:

At the direction of the Hawaii Supreme Court, the 2011 Hawaii Reappor tionment Commission (Commission) determined that 108,767 residents—nearly 8% of Hawaii’s Census- counted population—were not “permanent residents,” and thus could be excluded from Hawaii’s body politic because they did not intend to remain permanently: (1) active duty military personnel who indicated on a federal form that another state should withhold tax- es, (2) their spouses and children, and (3) students who did not qualify for in-state tuition. The Commission acknowledged those whom it “extracted” were not counted anywhere else, and that they were not represented equally in Hawaii. The District Court refused to apply close constitutional scrutiny, and concluded Hawaii’s “permanent resident” population basis was a rational means of protecting other residents’ voting power, which superseded the extracted classes’ right to equal representation. The Commission counted others who could not intend to remain permanently (e.g., undocumented aliens), or whose inclusion diluted voting power because they were not qualified to vote (prisoners, minors). The first question presented:

Does the Equal Protection Clause’s requirement of substantial population equality mandate that representational equality take precedence over voting power as held by the Ninth Circuit, or is the choice of whom to count left entirely to political processes, as held by the Fourth and Fifth Circuits and the District Court, and has Hawaii appropriately defined and uniformly applied “permanent residents” to deny the extracted persons equal representation?

On extreme deviations:

The Commission recognized that with overall deviations of 44.22% in the Senate and 21.57% in the House of Representatives— the product of Hawaii’s prohibition of “canoe districts” (districts spanning more than a single coun- ty)—the 2012 Reapportionment Plan was presumptively discriminatory. This Court has never upheld a reapportionment plan with deviations in excess of 16%, which “may well approach tolerable limits.” The District Court accepted these substantial departures from population equality because Hawaii is geographically and culturally different. The second question presented:

Is Hawaii’s prohibition on legislators representing people in more than one county a “substantial and compelling” justification rendering the 44.22% and 21.57% deviations “minor,” or are these deviations too large to be constitutionally acceptable?

3 Responses to “Equal representation, extreme deviations”

  1. Escpecially Incognito:

    Grass shacks and TVR owners.
    Paying cash for workers to avoid taxes
    and for them to live "offshore".


  2. Especially Incognito:

    People take advantage when one
    thinks they are educated.


  3. Bart Dame:

    I appreciate Robert Thomas' clearly-stated arguments. I think the matter in dispute would be even clearer if Thomas is willing to stipulate, as previous courts have found, that the phrase "permanent resident" in this context is a proxy for "citizen of the state." Because that is a key element of the State's argument. The Hawaii constitution mandates that reapportionment be conducted on the basis of a count of the citizens of the state, as best determined and not on the basis of everyone present, irrespective of their citizenship in another state.

    In the case of non-resident students and non-resident military, they are legal residents of other states. In the case of military personnel and their spouses, their legal residency is something THEY get to determine. Unlike other people present in the state, they get to choose which state they are legal residents of. And over 98% of them have declared themselves to NOT be legal residents of Hawaii.

    According to Thomas' arguments, we should disregard their own declaration of legal residence and count them as if they were legal residents of Hawaii.Rather than have a consistent definition of legal resident, Thomas prefers he and his supporters get to pick and choose.

    The US Supreme Court, in previous rulings, has declared a count of the citizens of a state is a permissible population base for calculating reapportionment. The recent 9th Circuit ruling, which Thomas is appealing, held that counting non-resident military would create districts which do not result in an equal distribution of state citizens in each district, which would dilute the votes of residents in districts far from military bases (and college campuses).

    Thomas asserts not counting the non-resident military and students dilutes THEIR right to representation and asks if the right to an equal vote trumps the right to equal representation. That is a helpful framing of the dispute. The court, and previous Supreme Court rulings, has held in a conflict between these two rights, since one must triumph over the other, this is a political decision, best decided by the legislature and people of the state affected, rather than dictated by a Federal court. And the Legislature and people of Hawaii have already made that policy decision, when we amended the constitution in 1992 to exclude non-resident students and military, thereby exercising our self-determination as a state. As a conservative attorney, one might think Thomas would appreciate the "state's rights" determination of the court.

    I disagree that non-resident military and students actually have a legal right to representation in the Hawaii Legislature.Those military who have explicitly declared themselves to be legal residents of another state have signed away their right to be considered citizens of the state. So I disagree they can assert a "right to equal representation" claim in conflict with the claim of Hawaii citizens that our votes must carry equal strength regardless of which district we reside in.

    It is unclear how this Supreme Court is likely to rule. Despite their claim to be judicial conservatives, including explicit pledges from some during their confirmation hearings, the "conservative" majority is fairly radical and "activist," very willing to discard precedents established by previous Court rulings in their zeal to re-make society according to their conservative ideology.So even if a decision consistent with previous rulings would uphold the right of the Hawaii State Constitution to exclude identifiable non-resident students and military, this Court may decide to usurp the State's prerogative and insist on a uniform FEDERAL definition of population base for reapportionment.


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