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REAPPORTIONMENT


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Court could erase map of new state legislative boundaries

A lawsuit challenges redrawn districts, but it is too late to start over, an official says

By B.J. Reyes

POSTED:



With the primary election just three months away, preparations are nearly complete.

The state Office of Elections has established voter precincts, and county clerks are assigning more than 600,000 registered voters to polling places, a process expected to wrap up by mid-June.

Potential candidates have until June 5 to file nomination papers so voters have an idea of who will be on their ballots.

But by Friday it may all prove to be for nothing. A three-judge panel of the U.S. 9th Circuit Court could decide to throw out the political district boundary maps created by the state Reap­por­­tion­ment Commission.

Chief Election Officer Scott Nago said the state is too far along in the planning process to start over and that because the state Constitution sets the election timeline, any order to redraw the maps would not leave adequate preparation time.

The worst-case scenario: A delay in the Aug. 11 primary election with a carry-over effect that could compromise, or put at serious risk, the Nov. 6 general election.

While all of that might sound dire, to attorney Robert Thomas it also sounds fairly standard.

"The classic government response is that we can't do it," Thomas said. "There's always time problems in these kinds of cases, but A, it's of their own making, and B, the federal courts have pretty strong remedial power to correct constitutional violations."

Thomas represents six plaintiffs challenging the plan approved in March by the Reapportionment Commission, an appointed panel formed every 10 years to allocate state legislative seats among islands and redraw the state's political boundaries to account for shifts in population documented by the most recent census.

At issue is whether the commission was right to exclude 108,000 so-called "nonpermanent residents" — nonresident military members and their dependents, along with students who are from out of state — from the population count used for drawing the new maps.

The lawsuit's overarching claim is that the plan is discriminatory and unconstitutional because it violates the U.S. Constitution's equal-protection clause. It seeks an injunction preventing the use of the current plan and asks for a new plan based on the actual 2010 U.S. Census population for Hawaii of 1,360,301 people.

"Every person in Hawaii who's in Hawaii on more than a transient basis is entitled, under the 14th Amendment of the Constitution, to be represented equally in the Hawaii Legislature — regardless of where they pay taxes, regardless of where they vote, regardless if they vote at all," Thomas said.

The panel is scheduled to hear arguments Friday and could issue a decision soon after.

The decision will have an impact from Hono­lulu to Hilo, particularly for the state Senate. Using the actual census count would maintain the current allotment of 18 Senate seats on Oahu, three each in Hawaii and Maui counties and one for Kauai.

Removing the nonpermanent residents, as the commission has done since at least 1990, would remove a sizable chunk of residents from Oahu and give more weight to population growth that has occurred on Hawaii island during the past decade. Hawaii island would gain a state Senate seat while Oahu would lose one. The practical impact would be felt greatest in areas near military bases, where districts would have more people represented by a lawmaker with the same amount of resources as one with substantially fewer people.

"Constituents' needs are still constituents' needs," said Rep. Aaron Ling Johanson (R, Mapunapuna-Foster Village). "If they live in your district, they live in your district, and those needs don't necessarily go away just because they are counted or not counted for apportionment purposes."

Johanson said he has about 46,000 people physically living within his district, according to 2010 U.S. Census figures. Under the current reapportionment plan, which excludes most military members, the target number for each House district on Oahu is about 24,000.

"You have a disproportionately higher number of people to serve," he said.

The state Constitution says "permanent residents" should be considered for reapportionment purposes, but it does not define the term.

The state attorney general's office, representing Chief Election Officer Nago and the 10 members of the Reapportionment Commission, argues that previous Hawaii cases have allowed for the use of base lines other than the actual census population.

"As is shown in the history of the Hawaii's reapportionment base, the point of the permanent resident population base is not to discriminate or disenfranchise the military, it is to prevent distortions in representation that would occur if the once-in-every 10-year reapportionment had to include large and fluctuating populations such as transient military and students," the defense motion states.

The attorney general's office says the commission acted properly and took all reasonable efforts, with the information available, to extract only those residents who listed somewhere other than Hawaii as their legal state of residence.

That still is not good enough for David Brostrom, one of the plaintiffs in the lawsuit.

"To me it's biased," said Brostrom, 59, a retired Army colonel. "It's prejudiced against the military here in Hawaii. … The military are a big part of this community. Why would you even want to think about saying we don't exist for representation?"

Proposed remedies by the plaintiffs include using an August draft plan by the commission that was based on the actual census population. After a series of statewide public meetings and the receipt of additional residential data from the military, the commission made revisions and approved in September a plan that excluded about 17,000 nonpermanent residents.

Using the boundaries of the September plan is another suggested remedy by the plaintiffs. The September plan was tossed out by the Hawaii Supreme Court after Hawaii island plaintiffs successfully sued, arguing the inclusion of too many nonpermanent residents violated the state Constitution, denying their island a fourth state Senate seat.

A final option would be to hold the 2012 elections using the former boundaries — the 2001 reapportionment plan — until a new plan can be drawn for the 2014 elections, similar to what was done this year in Pennsylvania. There a reapportionment plan also crafted by a legislative commission was thrown out by the state Supreme Court. The state high court ordered in January that legislative districts revert to their old boundaries until new districts could be drawn, but that was unlikely to occur in time for the state's April 24 primary. A federal judge upheld the ruling and declined to delay the primary.

None of those proposed options gives the Hawaii Office of Elections enough time to restart the precinct process, assign voters and notify them in time for an Aug. 11 primary, Nago said in a court filing. Further, a delay of the primary for some or all races would require suspension of certain state laws and cause logistical problems such as having to recruit additional volunteers to work polling sites and finding suitable locations for voting. Depending on timing, a delayed primary might also require the purchase of additional voting machines.

Plaintiffs' attorney Thomas is not persuaded by the argument and calls it unfair to blame the lawsuit for any election problems.

"Nobody said it was going to be easy," Thomas said. "Having painted themselves into this time corner, they're pointing the finger at us, saying, ‘You're the ones throwing us all off the tracks.'

"We didn't create the mess."






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loquaciousone wrote:
Ancient Chinese saying, "The blind should not draw lines, the deaf should not sing karoke, and the mute should speak for Abercrumbie".
on May 14,2012 | 03:04AM
MalamaKaAina wrote:
Excellent! laquaciousone for Governor!
on May 14,2012 | 01:17PM
poidragon wrote:
In point of fact, yes, indeed you, the plaintiff's did create this mess, knowingly and intentionally! How 6 people can hold up the whole state during election time is mind boggling beyond measure or common sense! How is this for a solution then, why not have the plaintiff's put up the costs of the election from their own pockets, if they truly feel that they must go through with this BS and pay the court costs for both sides, while they are at it, so that the state tax payers won't have to foot their legal bills!
on May 14,2012 | 03:18AM
bender wrote:
Perhaps you are blaming the wrong people. Maybe it was the Reapportionment Commission who were remiss, and perhaps the Hawaii State Supreme Court as well.
on May 14,2012 | 05:50AM
loquaciousone wrote:
Ditto
on May 14,2012 | 06:43AM
poidragon wrote:
So, you mean to tell me that your fine with those 6 people blocking the democracy works in Hawaii, because they don't like what they see? Democracy should not be held hostage to one person's whims or actions; the needs of the many outweigh the needs of the few or the one! There are other ways of going about getting re-apportionment done and if these 6 people don't like it then, they should try and do the job that the re-apportionment committee were charged with and see if they could do a better job of it! The worst part is, these 6 people probably won't even have to pay their own lawyers fee's, and will be asking the state to pick up their legal bill!
on May 14,2012 | 02:15PM
Changalang wrote:
These six people will be liable to the new harmed class of ALL Hawaii voters being disenfranchised of election rights as this process and the appeals to follow will end up cancelling all of Hawaii's right to vote.
on May 14,2012 | 03:19PM
Changalang wrote:
There will be a cornucopia of counter suits for damages perpetuated upon the people of Hawaii. It is not who is right today, or tomorrow; but who still has a life worthy of living after their wealth is drained. Bet five Republicans can be turned into democrats appreciating welfare. Kind of like that movie 'Trading Places'. Payback s a "B" Mortimer. :)
on May 14,2012 | 07:07PM
copperwire9 wrote:
I agree completely, poidragon.
on May 14,2012 | 12:31PM
wiliki wrote:
We need to delay the primary.... or just use the new boundaries in the next election.
on May 14,2012 | 04:12AM
loquaciousone wrote:
Round and round we go. Where it stops nobody knows. Even when we try and try. All that is left is to laugh or cry.
on May 14,2012 | 07:59AM
wiliki wrote:
It stops with a court decision. That's the American, very American way....
on May 14,2012 | 02:54PM
Changalang wrote:
It starts with a full panel appeal and ends at the U.S. Supreme Court; for 5 Republicans and a disgruntled Democrat Rep. who swore loyalty to the State Constitution, and now changed his mind. This is pure Federal intrusion onto State rights, whereas the Hawaii Supreme Court has unanimously supported the maps and original challenge to these plaintiff's position in accordance to the Hawaii State Constitution.
on May 14,2012 | 03:16PM
Changalang wrote:
As if the panel of 3 have any final say. The Federal Court interfering in State's rights opens a whole new definition of harmed class as the State must defend their Constitution through an expedited appeals process all the way to the U.S. Supreme Court. If Hawaii needs to go beyond 3 panel just to have our election; then POTUS has every excuse he needs to defend Hawaii against the overreach of the Federal bench and start using Executive Order as FDR did to preserve Constitutional balance. That is one way to keep Obamacare. Let the games begin; and let them start over Hawaii, for Hawaii's favorite son. Forward Obama. :)
on May 14,2012 | 05:30AM
bender wrote:
I think Scott Nago better start making his plans now. This is probably doable without overtime and without bringing a lot of temporarys.
on May 14,2012 | 05:53AM
copperwire9 wrote:
You've never worked an election, have you?
on May 14,2012 | 12:32PM
gsr wrote:
Sheesh, people are either registered voters here or somewhere else, not both places - one person, one vote. If they are registered here they count in the permanent resident population, if registered somewhere else they are non-permanent residents here. "Equal representation" is satisfied, so why are the feds involved at this level.
on May 14,2012 | 06:47AM
Wonderful_World wrote:
I agree-such a simple concept but yet they need to make it so complicated!
on May 14,2012 | 07:48AM
ready2go wrote:
Question re State of Hawaii income taxes. Do Military personnel stationed in Hawaii pay State of Hawaii income taxes? If they do, then they should be eligible to vote.
on May 14,2012 | 07:17AM
WEATHER wrote:
And who counts the military members, who under federal law are allowed to retain their Hawaii domicile (and can absentee vote, etc) even though they are assigned by the military to live somewhere else.
on May 14,2012 | 09:15AM
Changalang wrote:
They pay it back to the source. All government workers create no private capital. They consume free market capital and regurgitate it back to the orginators through their payment of a share of funds they had no part in creating. Government work is a pyramid scheme based on taxes collected on free enterprise capital.
on May 14,2012 | 05:49PM
loquaciousone wrote:
We need a GIANT eraser to erase those lolo lawmakers.
on May 14,2012 | 07:54AM
Larry01 wrote:
The people being excluded are those who listed another state as their legal state of residence. Seems pretty cut and dry to me - keep them excluded!
on May 14,2012 | 08:37AM
Mediocrates wrote:
The case definitely has merit but it would be WAY worse to just keep the 2001 plan - this would continue to disenfranchise military and students while also completely disenfranchising the Ewa Plain where the State has experienced exponential growth. That would surely be a case of the cure being worse than the problem. Better to go with an updated map based on a one person one vote. Even the ban on canoe districts is unconstitutional in my opinion because this gives people in outer islands a MUCH larger voice in State politics than anyone on Oahu.
on May 14,2012 | 09:43AM
marilynblee wrote:
I agree with Mr. Brostrum that "this is a mess" but why did he wait for so long to do something about it????
on May 14,2012 | 10:57AM
loquaciousone wrote:
You cannot eat an apple until it gets ripe.
on May 14,2012 | 12:05PM
atilter wrote:
there seems to be a hidden agenda or an unspoken ulterior motive behind this gerimandering of voting district lines. given the recent activities of our elected legislators, it would not surprise me in the least. these "rascals", and i am most generous in word choice, who are handsomely paid, generally have not been forth-coming in satisfying their campaign promises to their constituents. even freshmen legislators are not immune to caving to their own special interests and/or personal agendas. how can we continue to keep them in office? they have not managed the public affairs in a manner fitting their being retained. some have! but for the most part, many have not. just check their individual voting records in making your ballots count!! that's the ONLY WAY to bring back some semblance of sanity this year. we voters certainly have our work cut out for ourselves.
on May 14,2012 | 01:55PM
saywhatyouthink wrote:
waste of time and taxpayer money
on May 14,2012 | 08:49PM
Kapuna wrote:
Thomas is dead wrong. Elections are not a census to count bodies for government entitlements. Elections are for hawaii residents to vote for their representatives so the objective from the census is totally different. The district should not include out of state residents who are registered to vote in another state and intent to and will vote in their own state. Why should they dilute of hawaii people representation and our democratic from of govt.
on May 14,2012 | 10:01PM
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