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Wednesday, April 10, 2013
Testimony: Passage of SB286 Will Lead to State Court Challenge
By Selected News Articles @ 1:13 PM :: 4097 Views :: Office of Elections

Editor’s Note: Progressive Democrat Activist Bart Dame has sent the following message to Legislators as Conferees are appointed to consider SB286 which would change the basis of Legislative Apportionment in Hawaii to US Census population and eliminate the extraction of students and military personnel.


I am writing to request you vote against SB286, Relating to Reapportionment.

Here is the short reason for voting against the bill, it is blatantly, and unashamedly, UNCONSTITUTIONAL.

The bill is an attempt to change the population base used for calculating reapportionment. The state Constitution mandates that reapportionment be based upon “the total number of permanent residents.” The advocates for SB286 would pretend the meaning of “permanent residents” is unclear and propose to “clarify” the meaning by imposing a definition which had been explicitly rejected by the authors of the 1992 constitutional amendment, as well as Hawaii voters who approved the amendment. SB286 would require future reapportionments be based upon the Total Population, as reported by the United States Census. Since the approval of the 1992 constitutional amendment, all state reapportionments have been conducted based upon a count of “permanent residents,” defined as the Total Population as reported by the Census, adjusted to exclude identifiable non-residents, particularly non-resident military, their dependents and out-of-state college students.

Those who oppose the exclusion of non-residents from the population base for reapportionment should have proposed a constitutional amendment towards that end. But they apparently fouled up and missed the deadline. Instead, they insist it falls within the authority of the Legislature to “clarify” the meaning of constitutional amendments. But it is dishonest to say SB286 would “clarify” the meaning of the constitutional amendment as it would impose a very different meaning upon the term “permanent residents” than that intended by the legislators who drafted the proposed amendment. In addition, public debate, as reflected in editorials and news articles at the time, made it clear adoption of the amendment would exclude non-resident military.

The Attorney General’s Office, in its testimony to the Senate JDL hearing on this bill, makes the same point, citing State v. Kahlbaun. 64 Haw. 197,206.638 P.2d 309, 3 17 (1981) :

“A legislative construction implementing a constitutional amendment cannot produce an absurd result or be inconsistent with the purposes and policy of the amendment.”. We believe that a constitutional amendment would be necessary in order to amend the definition of ‘permanent resident” as has been defined by the Hawaii Supreme Court.

The correct way to change the population base used for calculating reapportionment would be to convince Hawaii voters to ratify a constitutional amendment. It is an abuse of legislative power to try to accomplish this end through adopting a statute.

Even if it is unconstitutional, maybe it makes sense to adopt this law for short term, PRACTICAL reasons, i.e., its passage will lead to conditions conducive to a settlement of the Federal challenge to the current Reapportionment Plan, postponing until 2021 any new redistricting plan.

This suggestion strikes me as credible only if one does not think it through very much. What incentive do the plaintiffs have to withdraw their challenge IF they think they have a chance of prevailing in Federal Court? Is the attorney, Robert Thomas, not WANTING to appear before the Supreme Court? I do not know the man, but having observed him in the court, as well as having read some of his online writings, I believe the man DREAMS about arguing a case before the Supreme Court. Are the plaintiffs reluctant to have their case argued before the Supreme Court? I do not know all the plaintiffs, but my sense of the plaintiff who appears to be leading the effort– to the extent it is the plaintiffs rather than the attorney who are calling the shots– is that he seems to think this is his moment in the limelight, “fighting the good fight” and that he also DREAMS about being a plaintiff in a case before the Supreme Court.

So why would they withdraw their challenge if they think they are likely to win?

I have been told they might lose on the count they most care about, the inclusion of non-resident military, while winning on the second count, the large variation in population in different districts caused by our prohibition on using canoe districts. So, in broad outline, the deal being proposed is that the State will agree to count non-resident military and students in future reapportionments and, in exchange, the plaintiffs would withdraw their legal challenge, allowing the state to continue to avoid having to return to canoe districts and, not incidentally, to avoid having to redistrict until 2021. I can see why most legislators would jump at such a resolution. Even if it means adopting an unconstitutional law, even if it means selling out neighbor island residents by agreeing to a plan which will artificially inflate Oahu’s population base far above its actual share of state citizens and deprive neighbor islands of some House and Senate seats.

If SB286 is adopted, the plaintiff’s attorneys MAY decide to withdraw their challenge in the belief they have a pledge from the leaders of the legislature that a constitutional amendment will be adopted at the earliest possibility in order to prevent this law, and any plan based upon it, from being overturned by the Hawaii Supreme Court. But how can the leaders our legislature make such a pledge in the absence of having heard any testimony on the merits (or demerits) of such a plan? Since when does a secret, backroom deal like this determine whether the state constitution will be amended?

This is NOT the way legislation should be passed. This is not the way the State Constitution should be amended. I ask you to vote against passage of this bill. Just because the public is unaware of what is going on behind the scenes on this bill does not mean it is not wrong.

I have attached the very thorough explanation of the term “permanent residents” and the rationale behind its adoption by the 1992 legislature. I recommend you read it and determine for yourself if the definition of “permanent resident” in SB286 is consistent with the intent of the constitutional language or in obvious conflict with it.

Thank you for your consideration.

Bart Dame


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