Federal District Court Panel Rules Hawaii Can Exclude Military, Students from Reapportionment Plan; Plaintiffs Will Appeal to U.S. Supreme Court

HONOLULU – Minors, incarcerated criminals and aliens are represented in the 2012 Hawaii Reapportionment Plan, but non-permanent resident military and their “attached” spouses as well as non-resident students are not.

A three-judge Federal District Court panel ruled Thursday, July 11, the state of Hawaii and its 2011 Reapportionment Commission’s 2012 Reapportionment Plan could continue to exclude these non-residents without violating the Equal Protection under the U.S. Constitution. The three-judge panel included U.S. District Judges Michael Seabright and Leslie Kobayashi from Hawaii and U.S. Circuit Judge Margaret McKeown from San Diego.

Six Oahu plaintiffs challenged the state’s reapportionment plan in federal court in April 2012 saying the state’s removal of 108,000 non-permanent military and their families is “unconstitutional” and “discriminatory” because their children go to school here, they pay taxes here, and they are part of the community.

The plaintiffs, Joseph Kostick, who was medically discharged from the Army as a 1st Lieutenant; retired Army Col. David P. Brostrom; retired U.S. Navy Master Chief Petty Officer Larry S. Veray; Hawaii Free Press publisher Andrew Walden, Aiea resident Edwin J. Gayagas and state Rep. K. Mark Takai, (D-Aiea-Pearl City), a Lt Colonel in the Hawaii National Guard, were represented by Hawaii Attorney Robert Thomas.

Thomas said his clients will appeal the ruling to the U.S. Supreme Court.

“We always believed that the issues in this case merited resolution by the U.S. Supreme Court. We were hoping that a favorable decision from the Hawaii District Court would save us from taking it further, but alas no.  While we have not finished reviewing the Hawaii District Court’s rationale in detail, everything we’ve read so far leads us to believe that the Supreme Court will be interested in reviewing this decision, and in resolving the issues in our favor,” Thomas said.

Reapportionment Debate Splits the Community

In September 2011, the 9-member Reapportionment Commission included nearly all of Hawaii’s non-permanent resident military and their spouses and students in the plan, which was supported by 8 of 9 commissioners.

Hawaii Island residents filed two court challenges in October 2012. Big Island Democrat Senator Malama Solomon filed one lawsuit, while Big Island Democrat Michael J. Matsukawa filed a second lawsuit.

Both plaintiffs alleged the Commissioners did not properly calculate the permanent resident population of the State because they did not extract the correct number of “non-permanent residents” – including students and military and their spouses – when reapportioning the State legislature.

On January 4, 2012, the Hawaii Supreme Court unanimously agreed the plan should be invalidated, and ordered the Commission to present a new reapportionment plan for the State legislature without non-permanent residents included.

The Commissioners had to redraw the plan and presented a final draft on April 4, 2012.

The federal challenge was filed on April 20.

Michael Palcic, Chairman of the Oahu Apportionment Advisory Council, said the events surrounding the reapportionment debate have been underhanded.

“Early on in its proceedings, the Hawaii State Reapportionment Commission, upon recommendation of the Oahu Apportionment Advisory Council, voted 8 to 1 to include the entire United States Census count in the apportionment of Hawaii’s legislative districts. Then in secret meetings, a subcommittee of the commission extracted over 8% of Hawaii’s population. They arbitrarily removed two large groups while ignoring others that were harder to identify.” Palcic said. “This malfeasance deserves scrutiny by the United States Supreme Court where, I believe, a proper reading of the 14th amendment guaranteeing individual citizens equal protection of the laws will overturn the injustice done here.”

However, Attorney General David Louie, whose department represented the Reapportionment Commission in court in both the state and federal cases, said in the recent ruling the federal court recognized the significant public policies, which underlie the Reapportionment Plan and are embodied in the Hawaii State Constitution.

“The (federal) court noted that the military is a significant and welcome presence in Hawaii’s population.  The Court also recognized that the Plan does not exclude the entire military population, but only non-resident military personnel and students who do not register to vote or pay taxes in Hawaii. The Court further noted that this was a policy choice made by the people of Hawaii, because whether the Commission included or excluded non-resident military and students could lead to issues of underrepresentation or overrepresentation in either case,” Louie said.

Palcic said the Hawaii Attorney General’s claim that inclusion of these people in our legislative apportionment would lead to over representation “is a complete falsehood.”

“The attorney general says the military are not “permanent residents,” without saying what constitutes permanent residency. His advocacy deprives them of any representation,” Palcic said.

Hawaii Alone in Exclusion Policy

Hawaii is the only state other than Kansas to remove military and dependants from its State Reapportionment Plan, but unlike Hawaii’s 108,000 plus that are taken out, Kansas extracts only about 900 people.

“The equal protection clause of the U.S. constitution protects everyone. So it protects you whether you are a citizen, whether you are a taxpayer, whether you are an alien, whether you are a child, it does not matter whether you vote, it protects people,” Thomas said.  “What we are saying is the state deviates from that, which no other state does.”

Since the plan is redrawn every decade based on the U.S. Census population count, the final decision has a lasting impact on every election to follow.

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