Federal court says military can go unrepresented in HI reapportionment

US DISTRICT COURT: Hawaii’s reapportionment plan does not violate the U.S. Constitution.

By Malia Zimmerman | Watchdog.org

HONOLULU — Not all Hawaii residents are created equal.

That’s what a three-judge federal panel said when it ruled last week that  non-permanent resident military, their “attached” spouses and non-resident students were rightly excluded from the state’s 2012 reapportionment plan.

The three-judge panel — U.S. district judges Michael Seabright and Leslie Kobayashi from Hawaii and U.S. Circuit Judge Margaret McKeown from San Diego — ruled the state’s redistricting plan did not violate the Equal Protection clause under the U.S. Constitution.

Six Oahu plaintiffs challenged the state’s plan in federal court in April 2012, saying the state’s removal of 108,000 non-permanent military and their families is “unconstitutional” and “discriminatory” because their children go to school here, pay taxes here and are part of the community.

The plaintiffs, Joseph Kostick, who was medically discharged from the Army as a 1st lieutenant; retired Army Col. David P. Brostrom; retired U.S. Navy Master Chief Petty Officer Larry S. Veray; Hawaii Free Press publisher Andrew Walden, Aiea resident Edwin J. Gayagas and state Rep. K. Mark Takai, D-Aiea-Pearl City, a lieutenant colonel in the Hawaii National Guard, were represented by Hawaii attorney Robert Thomas.

THOMAS: Will appeal the reapportionment case to the U.S. Supreme Court

Thomas said his clients will appeal the ruling to the U.S. Supreme Court.

“We always believed that the issues in this case merited resolution by the U.S. Supreme Court. We were hoping that a favorable decision from the Hawaii District Court would save us from taking it further, but alas no,” Thomas said.

“While we have not finished reviewing the Hawaii District Court’s rationale in detail, everything we’ve read so far leads us to believe that the Supreme Court will be interested in reviewing this decision, and in resolving the issues in our favor.” he said.

Reapportionment debate splits community

In September 2011, the Legislature’s nine-member Reapportionment Commission included nearly all of Hawaii’s non-permanent resident military and their spouses and students in the plan, which was supported by eight of the nine commissioners.

Hawaii Island residents filed two court challenges in October 2012. Big Island Democrat Sen. Malama Solomon filed one lawsuit, while Big Island Democrat Michael J. Matsukawa filed a second.

Both plaintiffs alleged the commissioners did not properly calculate the permanent resident population of the state because they did not extract the correct number of “non-permanent residents” — including students and military and their spouses — when redrawing legislative district lines.

On Jan. 4, 2012, the Hawaii Supreme Court unanimously agreed the plan should be invalidated, and ordered the commission to present a new reapportionment plan. Commissioners presented a final draft on April 4, 2012, and the federal challenge was filed on April 20, 2012.

PALCIC: Events around the debate have been underhanded.

Michael Palcic, chairman of the Oahu Apportionment Advisory Council, said the events surrounding the reapportionment debate have been underhanded.

“Early on in its proceedings, the Hawaii State Reapportionment Commission, upon recommendation of the Oahu Apportionment Advisory Council, voted 8 to 1 to include the entire United States Census count in the apportionment of Hawaii’s legislative districts. Then in secret meetings, a subcommittee of the commission extracted over 8 percent of Hawaii’s population. They arbitrarily removed two large groups while ignoring others that were harder to identify,” Palcic said. “This malfeasance deserves scrutiny by the United States Supreme Court where, I believe, a proper reading of the 14th Amendment guaranteeing individual citizens equal protection of the laws will overturn the injustice done here.”

However, Attorney General David Louie, whose department represented the commission in both the state and federal cases, said the federal court acknowledged the military is a significant and welcome presence in Hawaii’s population, while also recognizing it is the state’s right to exclude non resident military and include only permanent residents in the population count.

“The attorney general says the military are not ‘permanent residents,’ without saying what constitutes permanent residency. His advocacy deprives them of any representation,” Palcic said.

Hawaii stands alone

Hawaii is the only state other than Kansas to remove military and dependents from its redistricting plans, but unlike Hawaii’s 108,000-plus that are taken out, Kansas eliminated only about 900 people.

“The equal protection clause of the U.S. Constitution protects everyone. So it protects you whether you are a citizen, whether you are a taxpayer, whether you are an alien, whether you are a child. It does not matter whether you vote, it protects people,” Thomas said.  “What we are saying is the state deviates from that, which no other state does.”

Since the plan is redrawn every decade based on the U.S. Census population data, the final decision has a lasting impact on every election to follow.

Contact Malia Zimmerman at [email protected]

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