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Tuesday, May 22, 2012
Hawaii Reapportionment Case: Motion For Preliminary Injunction Denied
By Robert Thomas @ 2:47 PM :: 3471 Views :: Energy, Environment

Hawaii Reapportionment Case: Motion For Preliminary Injunction Denied

by Robert Thomas, InverseCondemnation.com

Here's the order, just issued by the three-judge district court denying the motion for preliminary injunction. More to come.

FULL TEXT: Order Denying Plaintiffs Motion for Preliminary Injunction, Kostick v. Nago

  *   *   *   *   *

From The Ruling:  

This electoral challenge asks us to consider the constitutionality of the reapportionment under the Equal Protection Clause of the United States Constitution. We do so here in the context of a motion for a preliminary injunction requesting that we enjoin implementation of the 2012 Reapportionment Plan and enjoin conducting the upcoming elections under that plan. This challenge raises an issue of significant importance to Hawaii residents. Following a hearing on this matter on May 18, 2012, we conclude that the request for an injunction should be denied. In light of Burns v. Richardson, 384 U.S. 73 (1966), at this preliminary stage of the proceedings, the plaintiffs have not established a likelihood of success on the merits of their claim that the permanent resident population basis violates equal protection. Nor do the equities and public interest weigh in favor of an injunction that risks jeopardizing the primary election scheduled for August 11, 2012, and even the general election scheduled for November 6, 2012.

We pause to emphasize what is not before us. To begin, we are not making any final determination of the merits of Kostick’s challenge, a decision that must await further proceedings. Further, this Order addresses only the legal considerations underlying the challenged actions -- not whether extracting certain “non-permanent” residents from Hawaii’s reapportionment population base is good public policy, and not whether Hawaii could or should use “usual residents” as that base. Hawaii has long-debated these questions and Hawaii’s legislature considered them again in its just-completed session. ... These are important and difficult questions, involving political judgments and requiring consideration and balancing of competing interests -- tasks for which courts are not suited.

In short, we express no opinion as to how Hawaii should define its reapportionment base, but instead examine only the challenged aspects of the 2012 Reapportionment Plan itself.

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HR: Motion Denied: Three Judge Panel Rules Against Plaintiffs in Hawaii Reapportionment Challenge 

SA: Judges deny reapportionment injunction; election will proceed

SA: Court backs state's plan, so elections will go on

Attorney Robert Thomas, representing the plaintiffs — state Rep. K. Mark Takai (D, Newtown-Pearl City) and five registered voters — said he probably will not appeal, but instead focus on strengthening his arguments before the court takes up the underlying lawsuit at a later date.

"Obviously, we're disappointed," Thomas said. "The court dug deep into the issues on a very short time frame, and it's really that, I think, that's driving this whole thing.

"Technically, we could appeal to the (U.S.) Supreme Court at this point, but we probably won't. We think it's more important to have a better rec­ord, better arguments, and then maybe the court will come to a different conclusion at the end of a trial."…

Judges also rejected claims of discrimination, saying there appeared to be no evidence that service members, their dependents and students were excluded for any reason other than their residency status, adding that the commission took reasonable steps to determine that status.

The lawsuit "provides no evidence that Hawaii's exclusion of nonresident service members, their dependents and nonresident students was carried out with any aim other than to create a population basis that reflects the state citizenry or state permanent residents," the ruling said.

Hawaii 24/7: State elections appear set as judges shoot down redistricting challenge

CB: Elections on Track as Court Rules Against Hawaii Redistricting Suit 

KITV: Federal judges rule against election injuction

Maui Now: Big Island Takes Senate Seat From Oahu in Reapportionment

Sen. Sam Slom, May 23, 2012: Reapportionment Hearing  

Last Friday, a three-judge 9th Circuit Court panel here heard a motion to issue an injunction stopping the "extraction" of 108,000 military personnel from this year's new reapportionment districting. Yesterday, the panel ruled against the motion. This isn't right. A trial-after this year's election-is still possible. Hawaii's word to the military: we want you to come here, buy here, and pay taxes but we won't recognize or represent you. Kansas is the only other state to exclude any military from reapportionment and they extract only about 900 personnel.

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