Sunday, July 21, 2019
Hawai'i Free Press

Current Articles | Archives

Wednesday, November 09, 2011
Attorney: Why is Hawaii Getting Free Pass on Voting Rights Act Violations?
By Selected News Articles @ 1:46 PM :: 5769 Views :: Energy, Environment, National News, Ethics

The Problem With Hawaii

By JACK PARK on 11.8.11 American Spectator

Why give it a free pass for its violations of the Voting Rights Act while continuing to punish select states that abide by it better than most?

Hawaii is a very pretty place. I know because I've been there. But, pretty as it is, it belongs in the penalty box.

The penalty box I'm talking about is Section 5 of the Voting Rights Act. In 1965, Congress put nearly all of the Southern States under the thumb of Section 5 of the Voting Rights Act because they were good at discriminating against their African-American citizens when they tried to vote. Congress devised a formula that captured only those States that it wanted to penalize, states like Mississippi, Alabama, and Georgia. That formula has two parts (a) whether the jurisdiction used a "test or device," like a literacy test administered in a biased manner, as a way of discriminating against minorities who wanted to register to vote or vote on November 1, 1964; and (b) whether less than 50 percent of the voting age population was registered to vote on November 1, 1964 or voted in the elections in 1964, 1968, and 1972.

Covered jurisdictions cannot change their voting laws and practices without permission. That permission can be obtained either judicially from the U.S. District Court for the District of Columbia or administratively from the U.S. Department of Justice. But if permission is not obtained, the covered jurisdiction is stuck, even if it wants to do something that non-covered jurisdictions are already doing.

Things have changed for the better in the almost 40 years since 1972. When Congress was thinking about extending the life of Section 5 in 2006, two scholars, Keith Gaddie of Oklahoma and Charles Bullock of the University of Georgia, used the 2000 voter registration data to show that the average registration and turnout rates for minority voters for the six covered Southern states were not just better than 50 percent, those average rates were better than the national average. In Georgia and South Carolina, the black registration and turnout rates were higher than the white registration and turnout rates, and the registration rate was higher for black voters in Mississippi. In short, none of the six covered Southern states meets the second part of the Section 5 formula today.

They don't meet the first part of the Section 5 formula any more either. In fact, nobody has for some time, given that Congress prohibited the use of tests or devices temporarily in 1965 and permanently throughout the country several years later.

So, an apples-to-apples comparison of states would look at voter registration and participation data. That's where Hawaii comes in. If we looked at only the last three presidential elections before 2006 instead of looking at 40-year old elections, Hawaii would be the only state covered.

Congress brushed aside the suggestion that the coverage formula be updated when it extended Section 5 for another 25 years. Some said it was inappropriate to compare Hawaii with the covered jurisdictions, thinking that Hawaii doesn't have a history of voting discrimination.

But, that's not entirely true. In 2000, the Supreme Court held that Hawaii violated the 15th Amendment by allowing only those that it defined as being of Hawaiian "ancestry" to vote for the trustees of the Office of Hawaiian Affairs. In Rice v. Cayetano, the Supreme Court concluded that Hawaii was improperly using "ancestry as a racial definition and for a racial purpose."

That's not all. For the past several years, Congress has been considering the proposed Native Hawaiian Government Reorganization Act, also known as the "Akaka Bill," whose co-sponsors include Senators Akaka and Inouye of Hawaii. That bill would end-run Rice v. Cayetano and treat native Hawaiians like Indian tribes. As National Review pointed out, an effect of the bill would be to "partly disenfranchise a portion of the state's residents …." "[P]artly disenfranchis[ing]" some of a state's residents in violation of the 15th Amendment got the covered jurisdictions into trouble in 1965. Somehow, trying to do that isn't enough to put Hawaii into the penalty box.

Moreover, with the proposed Akaka Bill stalled in Congress, Senator Inouye is apparently working on a fix. A paragraph in the Senate Appropriations Committee's draft bill for Interior, Environment and Related Agencies Appropriations would pave the way for making Native Hawaiians an Indian tribe, even though Hawaiians belonged to a kingdom, not an Indian tribe. Senator Inouye's current move comes after he called allegations that he was trying to sneak the Akaka Bill into a 2009 Defense Appropriation bill "nonsensical" and claimed that the process for enacting the Akaka Bill was "fully transparent."

Maybe, the Voting Rights Act is really about politics, not whether Hawaii should be a covered jurisdiction. There is no way that reliable Democrats like Senators Akaka and Inouye, who apparently believe it's OK to "partly disenfranchise" some of Hawaii's residents, would make Hawaii submit all changes in its voting standards, practices and procedures to the Department of Justice for approval. The same holds true for any other Democratic Senators from non-covered jurisdictions; they could never vote for a formula that would include their home states. It's far easier for them to tell other states to do it.

Capturing states that have long since improved and leaving out states that should be included is a serious geographic mismatch that runs afoul of what the Supreme Court has called "the fundamental principle of equal sovereignty." The States enter the Union on an equal footing and must be treated equally afterwards unless Congress has a good reason not to. Congress had such a reason in 1965, but it's not 1965 anymore. Even so, Congress still treats Alabama differently from Tennessee and Mississippi differently from Hawaii.

Some suggest that, when Congress decides to treat States differently, it doesn't have to act with surgical precision. Maybe they're right, but a surgeon who removed six good toes and left one bad one would be guilty of malpractice.

Right now, at least one challenge to the constitutionality of the coverage formula is working its way through the courts. The district court did not side with the challengers, but perhaps the Court of Appeals or the Supreme Court will tell Congress that it's no longer 1965.

---30---

 

Jack Park is an attorney with the Atlanta law firm Strickland Brockington Lewis LLP.

RELATED: Sneak Attack: Inouye hides Akaka Bill in Policy Rider -- just after “Grazing Permits”

Disenfranchisement is a tradition: Star-Bulletin comes out against voter registration drive

Voting Rights? Star-Advertiser pushes to disenfranchise Military Personnel

Military to be Disenfranchised so Meth dealer’s friend can keep Senate Seat?

Links

TEXT "follow HawaiiFreePress" to 40404

Register to Vote

2aHawaii

808 Silent Majority

808 State Update AM940

ABCDEFG Blog

ACA Signups Hawaii

ACCE

Affordable Hawaii Coalition

ALEC

Alliance Defending Freedom

Aloha Conservative Alliance

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

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust

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

Conservative Forum for Hawaii

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

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

Judgepedia Hawaii

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

Salvage The Rail

Save the Plastic Bag

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

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