An election for delegates to a Native Hawaiian constitutional convention will proceed as planned, despite a challenge in federal court.
“Our plan is to keep to the schedule,” Bill Meheula, attorney for Na‘i Aupuni, a nonprofit organization that is organizing the election and will oversee the aha, or convention, said Friday.
Deadline for Native Hawaiians to register to vote is Oct. 16 and voting is scheduled to begin Nov. 1 for delegates to the convention. Registration information is on the group’s website, http://www.naiaupuni.org/.
Forty delegates, once elected in a postal and email election, will spend eight weeks in Honolulu beginning in February, deciding what type of nation or government, if any, will be created or reorganized. Half of the delegates will come from Oahu, seven from Hawaii Island, seven representing out-of-state Hawaiians, three from Maui, two representing Kauai and Niihau and one representing Molokai and Lanai.
The process and convention is funded by the state Office of Hawaiian Affairs, with the election handled by the New York-based election management company Election-America.
Meheula said Na‘i Aupuni is taking no stance on what form, if any, of government Native Hawaiians should create.
“We don’t have a preconceived or desired result,” he said. “Na‘i Aupuni is just providing a path for Native Hawaiians to vote in leaders … broadly relating to self-determination and self-governance.”
Meheula said the delegates could decide whether to work with the U.S. Department of the Interior, which is currently drafting a rule that establishes an administrative procedure to use if the Native Hawaiian community forms a unified government that seeks a formal government-to-government relationship with the United States.
The Native Hawaiian Roll Commission was launched in 2012 as part of a state law recognizing Native Hawaiians as the only indigenous people of the islands. The roll is a list of Native Hawaiians interested in participating in their own government. There are more than 95,000 names on the list to date.
The election has been challenged in U.S. District Court in Honolulu by a group of Hawaiians and non-Hawaiians who contend a race-based election is contrary to the federal Voting Rights Act and the Constitution. The case was filed by the Washington, D.C.-based public interest law firm Judicial Watch, working with the Honolulu-based Grassroot Institute.
U.S. District Judge Michael J. Seabright has scheduled an Oct. 20 hearing on a motion for preliminary injunction, which asks that the election be halted until the case in chief can be decided.
The plaintiffs include two non-Hawaiians who aren’t eligible for the roll, two Native Hawaiians who say their names appear on the roll without their consent and two Native Hawaiians who don’t agree with a declaration to “affirm the un-relinquished sovereignty of the Native Hawaiian people, and my intent to participate in the process of self-determination,” that is part of the registration process.
The Aug. 28 motion argues that the plaintiffs are likely to succeed on the merits of their claims that the election violates the First, Fourth and 15th Amendments and the Voting Rights Act. They contend the election will cause the citizens of the state “irreparable harm” because their constitutional protections will have been infringed upon simply by the vote taking place.
In addition, the lawsuit contends, exclusion of non-Native Hawaiians from voting violates the 14th Amendment’s Equal Protection Clause.
“It is axiomatic that the Equal Protection Clause prohibits discrimination on the basis of race in voting,” plaintiffs said in filings supporting the injunction.
But Na‘i Aupuni contends the enrollment process satisfies concerns raised in the 2000 Rice v. Cayetano case. It’s based, the organization says, on valid law, including Act 195 and the Apology Resolution affirming that Native Hawaiians have a special political and legal status under state and federal law.
“Na‘i Aupuni states that although its election of delegates and its convention process is limited to Native Hawaiian voters and delegates, the election of delegates itself is not a state election because Na‘i Aupuni is not performing a state function, the state does not control Na‘i Aupuni, and the federal government has authorized the state to assist Native Hawaiians in their self-determination efforts,” attorneys said in an answering brief filed Tuesday.
In addition, attorneys said, any harm to the plaintiffs “is less than the continued harm Native Hawaiians have suffered from lack of self-governance since the overthrow.”
