Court voids voting districts plan

The Hawaii Supreme Court struck down the state Reapportionment Commission’s plan Wednesday and ordered the panel to come up with new boundaries for state Senate and House districts based on Hawaii’s permanent resident population.

The new plan would also reallocate Senate and House seats among the islands.

The court’s two-page unanimous order said the commission’s plan was "constitutionally invalid."

The court said the state Constitution requires that only permanent residents be counted in the population base in setting the district boundaries and allocating legislative seats.

But the commission disregarded that mandate by including nonpermanent residents in its population base, the justices said.

The court upheld challenges by Hawaii island state Sen. Malama Solomon and other residents who contended the commission’s plan violated the Constitution.

"I’m impressed with the Supreme Court leadership; that the chief justice and the associate justices are being very responsible," said the plaintiffs’ Big Island attorney, Stanley Roehrig.

"This is a nice situation to have where the Supreme Court plays a timely role in important public affairs," he said.

Former state Judge Victoria Marks, the commission’s chairwoman, said the panel will come up with a new plan, but said it is unclear how many nonpermanent residents will be excluded.

She said if the commission follows two proposals eliminating about 73,000 and 80,000 nonpermanent residents, it could come up with a new plan quickly.

But if the commission cannot adopt those numbers or must consider the figure of 120,000 nonpermanent residents the challengers request, it would be like "starting completely anew" and could pose problems meeting deadlines for this year’s election.

One looming deadline is Feb. 1, when nomination papers will be made available for House and Senate seats.

But candidates won’t know whether they can run for certain districts until the boundaries are set.

Opponents of the plan said counting nonpermanent residents shifted the population base in a way that denied Hawaii County from gaining an additional Senate seat, and which would take one away from Oahu.

State officials adjust political district boundaries every 10 years, following the census, to reflect population shifts.

The court’s order followed within hours a hearing on the redistricting plan that came under sharp questioning by the justices that the plan didn’t go far enough in excluding nonpermanent residents.

Roehrig argued that the commissioners should have excluded an estimated 120,000 nonpermanent residents, which includes the military, their dependents and out-of-state college students.

But Russell Suzuki, deputy attorney general representing the commission, said the commission didn’t have reliable data on the number of nonpermanent residents.

Suzuki, however, agreed with Associate Justice Simeon Acoba, one of the justices who raised concerns about the plan.

Acoba suggested that the test for the plan should not be "mathematical precision," but that the commission makes an "honest, good faith" effort in drawing up the boundaries to reflect equal representation.

Deputy Attorney General Charleen Aina, on behalf of Gov. Neil Abercrombie, told the justices that the governor thinks the plan is in error and that nonpermanent residents should be excluded.

"The fact that it is hard does not allow the commission not to do it," Aina said.

Abercrombie issued a statement after the court’s ruling, saying "the population growth on the neighbor islands needs to be recognized legislatively. The Supreme Court’s decision affirms that."

Joshua Wisch, spokes­man for the Attorney General’s Office, said the department is pleased the high court acted quickly considering the February deadline.

The court’s order said an opinion will be issued later that presumably will provide more explanation for the decision and may give the commission a better idea on how to proceed.

Wisch said state lawyers are awaiting that opinion to determine what happens next.

The department was in the unusual position of having one deputy, Suzuki, representing the commission and defending the plan, while another, Aina, represented the governor in urging the court to invalidate the plan.

After the hearing, Solomon said she thought the proceedings went well and thought the justices’ questions were "reasonable."

"I think we did our homework," she said.

Marks, however, expressed frustration.

"I wish the lawyer that represented the commission had understood the record better and had responded to some of the questions with better data," she said.

She said the commission understood the constitutional mandate, but had concerns about basing the exclusion on unreliable data.

"I think you’re opening yourself up to a federal lawsuit if you exclude (military) dependents on an across-the-board basis," she said, noting that some dependents are licensed nurses and public school teachers here.

The commission excluded about 16,000 nonpermanent residents, active-duty military living in barracks and some out-of-state college students, Marks said.

But the court essentially found the panel didn’t exclude enough nonpermanent residents, she said.

After the morning hearing, the high court issued its order at 3 p.m.

The order was signed by Chief Justice Mark Recktenwald and the four associate justices.