Convention suit to be decided on Friday

A U.S. District Court judge will decide Friday whether an election will go forward next month to choose delegates to a convention that aims to consider proposals for Native Hawaiian self-governance.

Judge J. Michael Seabright heard arguments Tuesday in a lawsuit that argues that the state is illegally supporting an election that is race-based, discriminatory and a violation of the U.S. Constitution and the Voting Rights Act.

But state attorneys argued that while the state initiated the process, it is no longer involved in an election being overseen by the nonprofit group Na‘i Aupuni.

Honolulu attorney Bill Meheula, representing Na‘i Aupuni, said his client is a private entity running a private election and is therefore judged by different standards.

“What we’ve got here is indigenous people trying to pursue self-determination, which is their inherent right under federal law,” he said.

Attorneys for four Native Hawaiians and two non-Hawaiians who filed the suit in August are seeking to block the election while the case continues.

Seabright said considering the timing of the injunction request, he would rule from the bench Friday and issue a detailed written order later.

More than 95,000 Native Hawaiians were included on a list of eligible voters put together by the Native Hawaiian Roll Commission, the group established by the state Legislature in Act 195 in 2011.

Na‘i Aupuni, a group of five volunteer and unpaid directors with ties to Hawaiian royalty, is overseeing the election and convention with nearly $2.6 million given to it by the Office of Hawaiian Affairs.

Voting will take place during November with more than 200 candidates seeking to become delegates to a governance aha, or constitutional convention, planned to start in February.

Robert Popper, a Judicial Watch attorney who represents six people who object to the election for different reasons, argued that Na‘i Aupuni is essentially a “government actor” carrying out the mandate of Act 195, which makes it a public election.

While Na‘i Aupuni may be considered an independent group, the election is nevertheless public in its effect, he said, because it will have sweeping consequences for hundreds of thousands of Hawaiians and others in the state.

“To create a government-to-government relationship is going to change so many things in these islands, with respect to how people live their lives,” Popper said. “There is going to be so much that is under a different government.”

The fact that the federal Department of Interior, in a brief filed with the court last week, said it would consider the results of the election as the basis for creating a Native Hawaiian self-governing entity adds even more weight to the argument, he said.

“This may actually turn out to be the ballgame,” Popper said. “If this election goes forward and there’s a ratification of a (Interior Department) rule and that rule is applied, there will be a Native Hawaiian governing entity, and this will have been my plaintiffs’ opportunity to say something about it, and it will be gone.”

Seabright, the judge, shot back that the argument is speculation and it’s not clear the Interior Department will accept the results of what comes out of the convention. He said he was leaning toward the view that the election is private.

The lawsuit offers objections based on laws in any number of areas. It argues that the election violates the First, 14th and 15th Amendments and the Voting Rights Act.

It further argues that to allow the election to move forward would cause both the plaintiffs and the citizens of the state irreparable harm, citing the 9th U.S. Circuit Court of Appeals’ opinion that “an alleged constitutional infringement will often alone constitute irreparable harm.”

The plaintiffs are Keli‘i Akina, president of the Grassroot Institute, plus Kealii Makekau, Joseph Kent, Yoshimasa Sean Mitsui, Pedro Kana‘e Gapero and Melissa Leina‘ala Moniz.

According to the suit, Akina and Makekau, both Native Hawaiian, are excluded from the roll because they cannot affirm the political declaration required for registration. Along with proving Native Hawaiian ancestry, a registrant must “affirm the unrelinquished sovereignty of the Native Hawaiian people and my intent to participate in the process of self-governance.”

Gapero and Moniz contend they were registered on the Native Hawaiian Roll without their consent. Kent and Mitsui say they were racially discriminated against when excluded from the roll because of race.

All six are Hawaii residents, except Moniz, who lives in Texas.

The Native Hawaiian Roll Commission launched its registry campaign in 2012 and signed up more than 40,000 people before incorporating names from previous Native Hawaiian registries.