Thursday, May 28, 2020
Hawai'i Free Press

Current Articles | Archives

Wednesday, September 30, 2015
Hawaii AG on Reapportionment: We Want to Count Everybody--But only in Texas
By Robert Thomas @ 4:05 PM :: 2409 Views :: Office of Elections

Chutzpah, Exhibit "A"

by Robert Thomas, InverseCondemnation, September 30, 2015

We don't want to take too much time away from our usual land use, takings, and eminent domain fare, but we just couldn't let this one go by without comment.

Last Friday, we posted our amici brief in Evenwel v. Abbott, No. 14-940, the reapportionment case which the U.S. Supreme Court is considering. The issue in the case is whether Texas' use of total population when it reapportions its state legislature is consistent with the Equal Protection Clause, or whether districts must be apportioned to consider voting power. After all, the phrase is "one person, one vote," not "one person, one ... constituent." Our brief argues that both voting equality and representational equality are valid Equal Protection principles, but the representational equality principle is the more important. Thus, it is never a violation for a state to count its entire Census-counted population, which includes those who cannot vote (aliens, minors, felons, and the like), as well as those who do vote or are eligible to vote. We filed the brief on behalf of two individuals who were plaintiffs in a case we took up recently, in which we challenged Hawaii's reapportionment plan because it did not include the entire Census-counted population, but counted "permanent resident" in such a haphazard way so that it excluded active-duty military and their families who live in Hawaii.

So imagine our surprise when the State of Hawaii -- the very state which counted less than all of its residents, and did so by a method that was guaranteed to be both over- and under- inclusive (it didn't ask anyone where they resided, it just applied a series of assumptions) -- joined an amici brief in Evenwel supporting Texas, which counts everyone.

So how does Hawaii's brief deal with the fact that it supports a state which, in stark contrast to Hawaii, argues for counting everyone? Here's how:

Other States moved towards using the federal Census’s total-population count after court rulings expressed doubt as to the constitutionality of other metrics. For example, although this Court had approved an interim redistricting plan in Hawai‘i that equalized the population of registered voters because it “substantially approximated” the results of equalizing total population or state citizen population, Burns v. Richardson, 384 U.S. 73, 96 (1966), Hawai‘i stopped using a registered-voter metric after a federal court determined that its redistricting plan no longer approximated the result of using a permissible population base. See Travis v. King, 552 F. Supp. 554, 564-66 (D. Haw. 1982); see also Kostick v. Nago, 960 F. Supp. 2d 1074, 1083-84 (D. Haw. 2013), aff’d, 134 S. Ct. 1001 (2014) (upholding use of permanent resident population base).

Br. at 5. While technically correct, this quote certainly gives the misimpression that Hawaii is on board with the "move towards using the federal Census's total-population count."

It decidedly isn't, and Hawaii continues to count only "permanent residents" which it defines as someone who is physically present in Hawaii, and intends to remain there permanently. This, Hawaii argues, is the same thing as "state citizen" which the Supreme Court long ago said was a permissible population to count. Hawaii is one of only two states that does not count everyone, and like it has for over 50 years, Hawaii's metric somehow always ends up not counting military personnel, while at the same time it counts others who pretty clearly couldn't be "state citizens."

And how does Hawaii determine someone's intent? Does it ask them? Take a poll? Nope, it assumes that military personnel who fill out a federal form declaring where they want to pay state taxes who (rationally) choose a state other than Hawaii do not intend to remain in Hawaii permanently. It assumes that the spouses and children of those servicemembers have the same intent. It assumes that Hawaii college students who do not qualify to pay resident tuition do not intend to remain permanently.

That wouldn't be so bad if Hawaii also made similar assumptions about similarly large populations of other folks who may not have an intent to remain permanently, or who don't pay Hawaii state taxes, or who otherwise should not be included as "Hawaii citizens" -- aliens (both legal and undocumented) and COFA migrants, for example. But it doesn't. Those people are automatically included, without any inquiry whatsoever.

So what we end up with is a count which systematically excludes military personnel from being represented in any state legislature (Hawaii's military personnel are not included in any other state legislative apportionment, because they are not counted elsewhere on Census Day), while it automatically includes aliens as "Hawaii citizens." And the federal court had no problem with that, because "rational basis" review meant that whatever the state says was good is good.

We think that there should be a more skeptical judicial eye cast on such schemes, which is what our brief argues.  

Now back to your regularly scheduled programming.

PDF: Brief for the States of New York, Alaska, California, Delaware, Hawaii, et al., in Support of Appellees, Ev...

Links

TEXT "follow HawaiiFreePress" to 40404

Register to Vote

2aHawaii

808 Silent Majority

808 State Update AM940

ABCDEFG Blog

ACA Signups Hawaii

ACCE

ALEC

Alliance Defending Freedom

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii

AMVETS-Hawaii

AntiPlanner

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

ChinaTownWatch.com

Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

CSIS Pacific Forum

DAR Hawaii

DeedySupport.com

DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii

FIRE

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

Habele.org

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

HIEC.Coop 

HiFiCo

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

HPACC

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

KeyWiki

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

MentalIllnessPolicy.org

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

NARTH

Natatorium.org

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

Obookiah

OHA Lies

Opt Out Today

OurFutureHawaii.com

Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii

P.U.E.O.

RailRipoff.com

Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

School Choice in Hawaii

SenatorFong.com

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

Waagey.org

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii

Yes2TMT