Tuesday, June 02, 2020
Hawai'i Free Press

Current Articles | Archives

Friday, September 25, 2015
Hawaii Apportionment Plaintiffs to Supreme Court: ‘Count Everyone’
By Robert Thomas @ 12:56 PM :: 2519 Views :: Office of Elections

Amici Brief In SCOTUS Reapportionment Case: Close Scrutiny For Anything Less Than Total Population

by Robert Thomas, InverseCondemnation, September 25, 2015

Please forgive the deviation (a pun for our election law colleagues) from the blog's usual land use and takings fare, but frequent readers understand that we also have an interest in election law, and occasionally post up items of interest.

Today we filed this amici brief in Evenwel v. Abbott, No. 14-940, the case on appeal to the Supreme Court which asks which "population" states must use when reapportioning their state legislatures and drawing district boundaries. We've covered this case, as well as our own case in which we (unsuccessfully) challenged Hawaii's practice of basing reapportionment on  "permanent residents" and excluding military personnel and their families.

Our brief argues:

The parties in this case suggest answers to a deceptively simple question: who constitutes the body politic in the states? This question is one the Court has avoided answering explicitly for nearly half a century. Amici respectfully suggest that the Court may continue to do so, but at the same time should provide guidance to state legislatures and reapportionment commissions by holding that it is always permissible under the Equal Protection Clause for states—like Texas and 47 others—to include all Census-counted usual residents in their reapportionment populations, even when this means that non-citizens and non-voters are represented in state legislatures as equally as citizens of voting age. Doing so upholds the first and overriding principle of the Equal Protection Clause, representational equality.  At first blush, it may seem odd to conclude that those who are not United States citizens and those who are not eligible to vote, are deserving of representation in our state legislatures—at least until one reads the text of the Equal Protection Clause and studies its subsequent history and understands that elected officials represent all “persons,” not only citizens or those who can elevate them to office.

But this Court has never required states to apportion their legislatures using total population, although it is “the de facto national policy.” Thus, amici also note that the Equal Protection Clause and the “one-person, one-vote” principle do not require that a state include non-citizens and non-voters in the reapportionment population, if a state chooses to favor the voting equality principle instead of representational equality. What the Equal Protection Clause requires is that if a state decides to do so, it must meet a more exacting standard than the “rational basis” test. Thus, if a state bases reapportionment on some population other than total Census-counted usual residents, it must under Burns demonstrate that the resulting plan is “substantially similar” to one based on a “permissible population basis” such as total population, state citizens, or U.S. citizens.  It does so by employing “[a]n appropriately defined and uniformly applied requirement”  when deciding whom to count and whom to exclude.

This issue has been addressed in various ways by the lower courts. The Ninth Circuit favors representational equality over voting power and requires use of total population, while the Fourth and Fifth Circuits, allow states to freely choose whom to count and whom, or whether, to exclude.  In other words, the Ninth Circuit held that states must use total population, while the Fourth and Fifth Circuit held they merely may. Amici do not suggest that states must use one or the other, but urge a more pragmatic rule: they ask this Court to hold that if a state chooses to include less than all of its Census-counted usual residents, then a reviewing court must apply heightened scrutiny and the state should be required to show a well-defined and uniformly applied standard supporting its choice and prove that it approximates a plan that is based on a “permissible population basis” such as total population or U.S. or state citizens, before it may to deprive any person—voter or not, citizen or not—of representational equality. In the absence of such a compelling showing, states must use the total Census-counted population as their reapportionment population basis.

Stay tuned if this sort of thing is your cup of tea. We'll post up the other merits and amici briefs, and have a preview of the issues soon.

PDF: Brief of Hawaii Reapportionment Plaintiffs (David Brostrom, Andrew Walden) as Amici Curiae Supporting Appel...



TEXT "follow HawaiiFreePress" to 40404

Register to Vote


808 Silent Majority

808 State Update AM940


ACA Signups Hawaii



Alliance Defending Freedom

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii



Antonio Gramsci Reading List

A Place for Women in Waipio

Astronomy Hawaii

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust 

Build More Hawaiian Homes Working Group

CAFR Hawaii

Castaway Conservative

Children's Alliance Hawaii

Children's Rights Institute


Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

CSIS Pacific Forum

DAR Hawaii


DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii


Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

Grassroot Institute


Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crime Victims' Rights

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Families for Educational Choice

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii Meth Project

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation

HI Coalition Against Legalized Gambling



Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Homeless Crisis

Honolulu Navy League

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus YouTube


Hump Day Report

I Vote Hawaii

If Hawaii News

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes


Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group


Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii



National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii


OHA Lies

Opt Out Today


Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii



Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Save Dillingham Airfield

School Choice in Hawaii


SIFE Remington

SIFE W. Oahu 

Sink the Jones Act

Smart About Marijuana--Hawaii

St Marianne Cope

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu


West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii