Voter apathy, confusion and "chaos" could result if the state is forced to redraw political district maps because of a court challenge, attorneys for the Office of Elections and state Reapportionment Commission told a federal panel of judges Friday.
The state is asking the panel to accept the reapportionment and redistricting plan approved in March by the commission and allow the Office of Elections to complete preparations for the Aug. 11 primary. Any further delay could compromise the primary and potentially affect the Nov. 6 general election, officials said.
Arguments were made Friday on a preliminary injunction being sought by seven voters who say the plan is unconstitutional because it excludes 108,000 so-called "nonpermanent" residents from the population base used to allocate legislative seats among islands and determine boundaries for voter districts.
The panel of U.S. District Judges J. Michael Seabright and Leslie E. Kobayashi of Honolulu and 9th Circuit Judge M. Margaret McKeown of San Diego did not immediately issue a ruling, but said it is aware of the time constraints facing the Office of Elections and that it would rule soon.
Robert Thomas, representing the plaintiffs, argued that excluding nonpermanent residents — nonresident military members and their dependents along with students who pay nonresident tuition — violates the equal protection clause of the U.S. Constitution. The lawsuit also contends the commission created districts of unequal size, leading to disproportionate representation in the state Legislature.
Chief Election Officer Scott Nago, the only witness called to testify, explained the elections timetable and the planning process.
While the effort of creating precincts is mostly complete — maps still need to be drawn and other technical details taken care of — the office still is recruiting 4,000 precinct workers for the Aug. 11 primary and Nov. 6 general election.
Having to start over with new maps would cause uncertain delays, Nago said, because it is unknown whether those workers would still be available if the elections are held on dates other than Aug. 11 or Nov. 6. Additionally, it is unknown whether more than 200 polling sites also would be available on alternate dates.
Thomas characterized the task as "mission difficult, not mission impossible," if the three-judge panel were to grant an injunction.
Thomas contends the population count should include all residents counted by the U.S. Census as "usual residents," about 1.3 million people for Hawaii.
He acknowledged that previous case law allows a "permissible" population base that may exclude nonpermanent residents, but argued that the burden is on the state to show that doing so would result in a set of maps similar to maps that would be generated if the actual base population was used.
"It’s up to the state to tell us," Thomas said. "The state has deprived us of the tools by which to analyze their choice."
The state Constitution says "permanent" residents should be used as the standard, but it does not define the term.
The state Supreme Court already has ruled in favor of excluding the nonpermanent residents, leading to the current plan, which shifts one Oahu seat in the state Senate to Hawaii island.
Deputy Attorney General Bryan Abruano, representing the commission and the state Office of Elections, cited previous case law that says the state may define the population base to exclude certain residents to prevent distortions that might occur if large numbers of temporary residents were counted.
Abruano also keyed on the harm that could come to citizens and the election process if any further delays were to occur.
"There’s going to be confusion. There’s going to be an adverse effect on voter turnout," he said. "It’s next to impossible to have this election in a timely manner without potential chaos."
The hearing lasted about two hours with judges asking pointed questions of both attorneys.
Seabright noted that any decision was likely to affect the fundamental rights of the losing side, adding that "sometimes life isn’t perfect." But he also said the court was not looking to throw chaos into the system.
McKeown noted that finding in favor of Thomas’ first claim — that the actual population should be used — would merely redistribute people on existing maps and be less disruptive than requiring a new set of maps, as called for in the lawsuit’s second claim on districts of unequal size.
Thomas acknowledged that if the court agreed with his actual population count, the second claim could be addressed at a later time.
"Ultimately there’s a reason count one is count one, because it’s obviously the most pressing issue in the case," Thomas said. "You just can’t not count 100,000-plus people who are here."
