Hawaii elections will proceed as scheduled this year as a federal panel of judges Tuesday refused to intervene and stop the state from moving forward with a reapportionment and redistricting plan approved in March.
A three-judge panel of the U.S. District Court in Honolulu denied a preliminary injunction sought by a group that challenged the plan as 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.
Previous courts have affirmed the state’s authority to legitimately exclude certain citizens to obtain an accurate population base of "permanent" residents, the panel said in its written ruling.
Judges also agreed with the state’s contention that planning for the Aug. 11 primary is too far along, and that any order to redraw districts or use another plan would cause delays that might compromise the primary and the Nov. 6 general election.
The plan was approved March 8, and the state Office of Elections began preparing for the primary election soon after. The deadline for candidates to file nomination papers is June 5.
"Spawning chaos rather than confidence in the election process is a result we cannot endorse," the court said. "Absent compelling evidence that the election will not be interrupted, we find that the equities and public interest weigh decisively against granting the preliminary injunction."
Attorney Robert Thomas, representing the plaintiffs — state Rep. K. Mark Takai (D, Newtown-Pearl City) and five registered voters — said he probably will not appeal, but instead focus on strengthening his arguments before the court takes up the underlying lawsuit at a later date.
"Obviously, we’re disappointed," Thomas said. "The court dug deep into the issues on a very short time frame, and it’s really that, I think, that’s driving this whole thing.
"Technically, we could appeal to the (U.S.) Supreme Court at this point, but we probably won’t. We think it’s more important to have a better record, better arguments, and then maybe the court will come to a different conclusion at the end of a trial."
Attorney General David Louie said the state was pleased with the ruling and that it would continue to "vigorously defend" the plan.
"The court concluded that the Reapportionment Commission acted appropriately regarding the extraction of nonresident military and students from the population base for purposes of reapportionment," Louie said in a statement. "At this late date, requiring the state to use any reapportionment plan other than that approved in March, would disrupt, delay and adversely affect the state’s pending elections."
Chief Election Officer Scott Nago said the ruling allows his office to move ahead with plans for the August primary. "We’re just continuing in our work and getting ready for the election," Nago said.
Reapportionment occurs every 10 years to redraw voter district boundaries to reflect changes in the population recorded in the most recent U.S. census.
The state Constitution says "permanent" residents should be used as the population base, but it does not define the term.
The state Supreme Court already has ruled in favor of excluding the nonpermanent residents — nonresident military members, their dependents and students who pay nonresident tuition — leading to the current plan, which shifts one Oahu seat in the state Senate to Hawaii island.
Thomas argued the population count should include all residents counted by the 2010 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.
The panel disagreed, noting that the method for arriving at the population base used for the 2012 maps was essentially the same as the method used in the landmark Burns v. Richardson case of 1966, which established the state’s ability to determine the appropriate population base.
Judges also rejected claims of discrimination, saying there appeared to be no evidence that service members, their dependents and students were excluded for any reason other than their residency status, adding that the commission took reasonable steps to determine that status.
The lawsuit "provides no evidence that Hawaii’s exclusion of nonresident service members, their dependents and nonresident students was carried out with any aim other than to create a population basis that reflects the state citizenry or state permanent residents," the ruling said.
Thomas said his focus is to ensure that new maps can be drawn for the 2014 elections and beyond.
"Our concern has always been more long term," he said. "If we don’t get some permanent relief, Hawaii has to live with this plan for at least 10 years.
"We continue to believe that on the merits we’re right."
The judicial panel consisted of U.S. District Judges J. Michael Seabright and Leslie E. Kobayashi of Honolulu and 9th Circuit Judge M. Margaret McKeown of San Diego.
Three judge panel denies reapportionment injunction
