A lawsuit challenges redrawn districts, but it is too late to start over, an official says
POSTED: 12:59 a.m. HST, May 20, 2012
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."