Is the Native Hawaiian election known as Na‘i Aupuni in trouble?
U.S. Supreme Court Justice Anthony Kennedy issued an order Friday blocking the counting and certification of election votes pending a further
order by Kennedy or the court.
The setback comes just three days before the scheduled end of the monthlong election and the announcement of winning convention delegates expected to consider
proposals for Native Hawaiian governance.
“It ends my campaign as a delegate, but I kind of knew this was going to happen,” said University of Hawaii law professor Williamson Chang, a candidate for an Oahu seat.
Chang said Kennedy’s order sends a strong signal about what judicial fate awaits the Native Hawaiian election, if not at the 9th U.S. Circuit Court of Appeals, certainly at the high court.
“In my view it’s pretty much dead,” he said.
But Na‘i Aupuni officials said they remain confident the election will ultimately be affirmed. They urged voters to continue casting votes through Monday.
A statement issued by the nonprofit Friday said, in part, “Na‘i Aupuni did not expect that creating a path for Native Hawaiians to formally discuss self-governance and create a proposed constitution would be unimpeded. Native Hawaiian self-governance has been discussed for over 120 years without tangible results.
“Reorganizing a government is not easy and it takes the courage and will of the candidates to take the first step in this historic process. It is every voter’s kuleana to help them by voting now.”
More than 89,000 certified Native Hawaiians are eligible to vote in the election, in which 200 candidates are vying to become delegates in a convention scheduled to commence in February.
If the process goes forward, 40 delegates will consider proposals for Hawaiian self-governance, with any recommendation going back to the voters for ratification.
Voting, which started Nov. 1, was scheduled to end Monday, with election results to be revealed Tuesday.
The Native Hawaiian election has been under attack both inside the court and out. There are those who claim the process has been rigged and rushed to meet the nation-within-a-nation proposal supported by the Obama administration. They also condemn the effort as a scheme to undercut the independence movement and take away Hawaiian lands.
In court, four Native Hawaiians and two non-Hawaiians filed a lawsuit in August accusing the state of running an election that is racially exclusive and unconstitutional.
U.S. District Court Judge J. Michael Seabright in Honolulu last month allowed the election to go forward, saying it is a private affair and not subject to constitutional restrictions on public elections.
The plaintiffs — led by Grassroot Institute of Hawaii President Keli‘i Akina — appealed and also filed an emergency motion to block the election. Last week the 9th U.S. Circuit Court of Appeals denied the emergency motion, prompting the appeal to the U.S. Supreme Court.
Kennedy is the justice assigned to oversee cases from the 9th Circuit Court of Appeals.
Chang, a Na‘i Aupuni candidate who planned to work against federal recognition within the convention, said Kennedy wouldn’t have issued his temporary order unless the challengers had met an extremely high standard of persuasiveness.
“It’s over,” he said of the election. “I’m confident it is the death knell for Na‘i Aupuni.”
But Robert Klein, Office of Hawaiian Affairs attorney and a former state Supreme Court associate justice, said Kennedy’s order probably only represents “a temporary, sort of taking a breather during the holiday” to allow the court time to take a closer look at the issues before it offers its next order.
William Meheula, the attorney for Na‘i Aupuni, agreed. He said it’s only been a few days since he received the application for the stay, and there was a lot of information to absorb.
“It’s a lot to take in in three days,” he said.
Honolulu attorney Michael Lilly, a former state attorney general who represents the plaintiffs locally, said Kennedy’s move is significant because emergency motions from the U.S. Supreme Court are rare.
“I personally anticipated the ruling despite the lower court decisions because I believed so strongly in the correctness of our position and the overwhelming case law against unconstitutional race-based elections,” he said in an email.
Kennedy, he said, “has generally been known to be the swing vote in tight cases before the Supreme Court, so it seems significant to me that it was Justice Kennedy who issued the order.”
Judicial Watch attorney Robert Popper said Kennedy’s order — and the fact that he asked for briefings from all sides before ruling — offers some hope to the challengers.
Popper said it shows Kennedy is interested, that he acknowledges the problem and that he believes the arguments in the case have merit.
“We’re pleased how this case is developing,” he said.
Akina called the Friday’s ruling a significant victory.
“The court would not have issued a temporary restraining order unless there was a potential for ultimate victory,” he said. “We are confident in our position, and excited at the possibility that it could go before the full court.”
In a statement, Akina said, “Today’s ruling from Justice Kennedy is not just a victory for us, but a victory for the many Native Hawaiians who have been misrepresented and overridden by government and special interests determined to create a government-recognized tribe. It’s a victory for all Hawaiians — and all Americans — in its affirmation of racial equality. Finally, it is a victory for the aloha spirit which enables people of all backgrounds to live and work together in harmony.”
According to the application for Supreme Court intervention, “Enormous political, social and economic consequences are at stake. The delegates chosen through this election will decide whether to adopt a new government that will affect every individual living in the state, as well as hundreds of thousands of individuals identified as
Native Hawaiians.”
The plaintiffs added that there will be “no remedy if the votes in this election are counted and the results certified. This election cannot be undone.”
It was Kennedy who wrote the court opinion in Rice v. Cayetano in 2000, ruling that the state could not restrict voting eligibility in OHA elections to Native Hawaiians.
Coincidentally, current Chief Justice John Roberts argued for the state in that case.
Lilly said he didn’t think Robert’s involvement in Rice v. Cayetano will have a bearing if the entire court gets involved in the current case.
“Justice Kennedy and Chief Justice Roberts have both expressed themselves generally against race-based classifications,” he said. “I don’t see a conflict here because although the constitutional principles are the same, the facts are entirely different.”
