Opponents file injunction to stop Native Hawaiian election

The plaintiffs in a lawsuit challenging a Native Hawaiian voter roll and constitutional convention are asking a federal judge to halt an election of delegates while the case is being considered in court.

The motion for preliminary injunction, filed Friday in U.S. District Court, argues the plaintiffs likely are to succeed on the merits of their claims 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.

A spokesman for the state attorney general, who is defending the case, said the office has not yet had an opportunity to review the motion and can’t comment.

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 case was brought forward by the Washington, D.C.-based public interest law firm Judicial Watch, working with the Honolulu-based Grassroot Institute. Former Hawaii Attorney General Michael Lilly is providing local representation.

“There is no doubt that Hawaii is abusing tax dollars on a separatist campaign that discriminates on the basis of race and viewpoint,” Tom Fitton, Judicial Watch president, said in a statement. “Right now, U.S. citizens are being denied access to the right to vote explicitly because of their race and their points of view. This dangerous, divisive scheme can’t be halted soon enough by the courts.”

Thousands of people on the roll were listed without their consent when their names were transferred from other lists containing Native Hawaiians, the lawsuit said.

“Many Native Hawaiians have come forward to state their objections to being put on the roll without their permissions,” said Kelii Akina, president of the Grassroot Institute and one of the Native Hawaiian plaintiffs. “Others, like I, object to the roll’s effort to exclude those who do not endorse a specific set of beliefs about Hawaiian sovereignty. To pretend that this election represents an honest effort to embody the voice of Native Hawaiians is disingenuous.”

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 were 95,656 names registered as of Monday, according to Hawaii Island Commissioner Lei Kihoi.

“We’re continuing to add Native Hawaiians every day,” Kihoi said.

Kihoi, who is an attorney and a defendant in the lawsuit, said she wasn’t surprised by the injunction.

“We were expecting that,” she said Monday. “I’m surprised that it wasn’t filed sooner.”

Kihoi said she hopes the lawsuit helps bring the various factions of Native Hawaiians together.

The commission expects to issue a list of qualified delegate candidates by the end of this month. Voter registration is slated to end Oct. 15, with ballots sent to voters certified by the Roll Commission on Nov. 1. Voting will end Nov. 30, under the plan.

The convention, known as an “aha,” is scheduled to last eight weeks, beginning in February. Its purpose is to decide if a Native Hawaiian government should go forward, and if so, recommend a governance document to be ratified by eligible Native Hawaiian voters.

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