Native Hawaiian Gov't Vote Could Still Happen, Opponents Say
by Andrew Westney
Law360, New York (May 18, 2016, 7:36 PM ET) -- Six individuals challenging a process to potentially establish a Native Hawaiian government told the Ninth Circuit on Tuesday that their suit is still viable, despite claims by the state of Hawaii and other defendants that the dissolution of the foundation behind the movement made the appeal moot.
The group sparred with the state of Hawaii, its Office of Hawaiian Affairs and the Na‘i Aupuni Foundation, who argued Tuesday May 17 in separate briefs that the challengers can no longer seek to block the ratification of a proposed constitution for a Native Hawaiian government because the foundation, which had once planned to conduct a vote on ratification, was dissolved in April after saying it wouldn’t hold the vote. The appeals court had ordered briefing from the parties on the question.
The challengers, who includes Native Hawaiians, Native Hawaiian descendants and state residents, said the issue hasn’t been resolved, arguing it’s not clear that Na‘i Aupuni or the other defendants wouldn’t try again to conduct a ratification vote based on an allegedly race-based voter roll at some point.
“If the appellees truly were willing to forgo holding a ratification vote using the roll, the way to properly resolve the claims in this matter would be by agreeing to the issuance of a permanent injunction to that effect,” they said.
Na‘i Aupuni originally planned to hold a vote-by-mail election of delegates to a convention known as an ‘aha to discuss a path to Native Hawaiian self-determination and potentially draft a constitution, but it terminated the election in December, saying the suit initiated by the six individuals — which primarily alleges the election process excludes non-natives in violation of the U.S. Constitution — could drag on for years.
Instead, the group offered seats at the convention to all 196 candidates, approximately 150 of which ultimately planned to attend the ‘aha, which began on Feb. 1 and concluded Feb. 26 with the approval of the proposed constitution.
U.S. District Judge J. Michael Seabright decided in October not to block the then-upcoming election, and Kelli Akina and the other plaintiffs appealed to the Ninth Circuit, arguing that the election was a public function because Na‘i Aupuni was working with the state of Hawaii, including using a race-based list of Native Hawaiian voters created by state agencies.
The challengers said in a Feb. 19 filing that their suit wasn’t rendered moot when the election was canceled, arguing that the anticipated vote to ratify “governing documents” emerging from the event would unconstitutionally rely on the same race-based voter roll.
But the Na‘i Aupuni Foundation on March 16 announced that it wouldn’t conduct the ratification vote in favor of allowing convention participants to pursue that goal. The foundation then filed papers to dissolve itself on April 14.
On Tuesday, Na‘i Aupuni said that the appeal must be considered moot since the foundation doesn’t exist anymore and therefore can’t conduct the ratification vote the challengers seek to block.
If a ratification vote happens later, the challengers can contest it then, and there isn’t a reasonable expectation that the foundation would conduct a ratification vote since it stated specifically that it wouldn’t, the foundation said.
In its Tuesday brief, the state of Hawaii said that although participants in the convention appeared to be organizing a ratification vote, how that would take place hasn’t been determined, and neither the governor nor the state’s Native Hawaiian Roll Commission are planning to organize or conduct such a vote.
The challengers’ contention that Na‘i Aupuni is a state actor isn’t relevant any longer, given the foundation’s dissolution, the state said.
The Office of Hawaiian Affairs in its brief said that a potential ratification process is “presently the subject of private fund-raising activity by a group of Native Hawaiians” but the appeal is moot because Na‘i Aupuni has shut down. The office said that since the election to the convention was originally challenged, the appellants “have been shooting at new targets, untethered either to any argument they made before the district court or to any evidence in the record.”
But the challengers said that Na‘i Aupuni’s decision not to conduct a ratification vote didn’t mean the foundation or some other entity wouldn’t conduct one later.
They said Na‘i Aupuni’s statement announcing the cancellation of the vote indicated that the foundation thought its direct involvement could be detrimental to its case and that it had used up its grant money — indicating that it might get involved later if one of those circumstances changed.
They also contended that four “high officers” in the OHA and the roll commission named as defendants in the suit were delegates to the convention, along with other current or former employees of the agencies, contradicting the office’s claims during the suit that Na‘i Aupuni conducted the disputed process privately.
“Particularly with respect to mootness, the fact that OHA was so intimately involved with the work of the convention supports the inference that it will invest time, effort, and funds to have the product of that effort ratified,” the challengers said.
An injunction on OHA is needed to prevent it from “funneling millions of government dollars to another supposedly private entity under its de facto control for the purpose of holding a ratification vote using the race-based roll,” the brief said.
Representatives for the parties were not immediately available for comment Wednesday.
The challengers are represented by Robert D. Popper, Paul J. Orfanedes, Lauren M. Burke and Chris Fedeli of Judicial Watch Inc., Michael A. Lilly of Ning Lilly & Jones and H. Christopher Coates.
The state of Hawaii is represented by Donna H. Kalama, Girard D. Lau and Robert T. Nakatsuji of the state Department of the Attorney General.
The Office of Hawaiian Affairs is represented by Eli Schlam, Ellen E. Oberwetter, Kannon K. Shanmugam and Masha G. Hansford of Williams & Connolly LLP and Robert G. Klein of McCorriston Miller Mukai MacKinnon LLP.
The Na‘i Aupuni Foundation is represented by David J. Minkin, Troy J.H. Andrade and Jessica M. Wan of McCorriston Miller Mukai MacKinnon LLP. Na‘i Aupuni and The Akamai Foundation are also represented by William Meheula and Nadine Y. Ando of Sullivan Meheula Lee LLP.
The case is Keli'i Akina et al. v. State of Hawaii et al., case number 15-17134, in the U.S. Court of Appeals for the Ninth Circuit.
--Additional reporting by Vidya Kauri, Christine Powell and Hannah Sheehan. Editing by Brian Baresch.