Reapportionment heading to court


By NANCY COOK LAUER

Stephens Media

A lawsuit over the 2011 drawing of political boundaries that resulted in Hawaii Island getting a fourth state senator will be heard next month in U.S. District Court.

The lawsuit, filed by an Oahu group that includes three veterans and state Rep. K. Mark Takai, contends the state Reapportionment Commission violated the Equal Protection Clause of the 14th Amendment of the U.S. Constitution when it removed nonresident military and students from population counts that determined district lines.

A three-judge federal panel is scheduled to hear motions from the plaintiffs and the state at 10 a.m. Jan. 14 in Honolulu. Each side wants the court to rule for its side based on its arguments about the agreed-upon facts and law without having the case go to trial.

Although it’s too late to affect state legislative districts that were voted on last month, if his lawsuit is successful, the court could require the state to redraw the boundaries before the 2016 elections, said Honolulu attorney Robert Thomas, who represents the plaintiffs.

“The federal court has broad powers to require a redo, with or without court supervision,” Thomas said Wednesday.

If the Oahu group prevails at the federal level, the Big Island could lose the seat to the more populous Oahu.

In addition to denying equal representation to military and students, the state’s plan also violates the Equal Protection Clause by creating districts that don’t have approximately the same number of people in each one, Thomas said.

The Supreme Court has presumed a plan is unconstitutional if districts are 10 percent larger or smaller than the ideal population, which is derived by dividing the total population by the number of districts.

Hawaii’s new Senate districts have a 42.2 percent deviation and House districts have a 21.6 percent deviation, Thomas said.

“(Previous case law) does not allow Hawaii to deny all usual residents legislative representation because it deems them not to be ‘permanent’ using standards that are vague, underinclusive, and based on assumptions, and admittedly do not result in a plan even coming close to one based on population,” Thomas said in his Oct. 1 court filing. “The most obvious impact of the 2012 plan is that it deprives Oahu residents of a Senate seat.”

The state Attorney General’s Office is preparing for the case to go to the U.S. Supreme Court. It’s already gotten permission to retain a “well-regarded U.S. Supreme Court practitioner who specializes in constitutional law as it pertains to reapportionment,” according to a request for exemption from state procurement laws approved in October.

Attorney General’s Office spokesman Joshua Wisch declined comment on the case, saying the pleadings speak for themselves.

“The point of the permanent resident population base is not to discriminate against or disenfranchise the military; it is to prevent distortions in representation that would occur if the once-in-every 10 year reapportionment had to include large and fluctuating populations such as transient military and students,” the state says in its Oct. 1 court filing.

The state points to Hawaii’s government structure, where a centralized state government performs many functions typically conducted by municipalities in other states. The government structure, combined with physically separated islands holding widely varied populations, requires a structure of representation that differs from a strict adherence to the “one man, one vote” concept, the state says.

Adhering strictly to that structure has in the past resulted in “canoe districts,” where a state legislator represents parts of two or more islands. This has been unsatisfactory to both the lawmakers and the residents, who feel their representation is diluted in comparison to having a state lawmaker represent a single island, the state argues.

Hawaii Island won the fourth Senate seat after challenging the state Reapportionment Commission’s first maps in the Hawaii Supreme Court. Sen. Malama Solomon, a Democrat representing North Hawaii, and island Democratic Party officials, said including the military and students violated the state constitution, which requires maps be drawn based on permanent residents, not census counts.

New districts are drawn every 10 years following the census. Hawaii Island, with its 24.5 percent population increase, is the fastest-growing island in the state.

The Reapportionment Commission extracted 42,332 active duty military who listed another state as their usual residence, along with 53,115 military dependents. In addition, the commission extracted 13,320 students who paid nonresident tuition or had a home address outside Hawaii.

Email Nancy Cook Lauer at ncook-lauer@westhawaiitoday.com.

 

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