A state legislator and five registered voters filed a federal lawsuit Friday charging that the state Reapportionment Plan violates the U.S. Constitution by excluding some 108,000 temporary residents who are military members, military dependents or university students from out of state.
The suit also alleges that even if the exclusions are permissible, the plan does not divide residents equally in setting the boundaries for the state Senate and House districts.
The suit asks for an injunction to prevent the state from implementing the plan, and to direct the state to come up with a plan that counts the excluded residents.
It asks for three federal judges to hear the case.
The lawsuit, if successful, could add another snag to preparations for the Aug. 11 primary election.
Victoria Marks, chairwoman of the Reapportionment Commission, said she had not seen the suit and would have to review it before commenting on it.
But she said, "My knee-jerk reaction is, what took them so long to file the suit?"
She said she doesn’t know if the suit will have any impact unless the court issues an order.
Attorney Robert Thomas, who represents the six plaintiffs, said the case wasn’t "ripe" for the filing of the suit until the plan was sent to state lawmakers on March 30.
He also said the lawyers had to conduct the "due diligence" to determine whether there was a basis to file the suit.
State Chief Elections Officer Scott Nago and Joshua Wisch, spokesman for the Attorney General’s Office, said they could not comment without reviewing the lawsuit.
The redistricting plan wasn’t adopted by the commission until March 8 after its earlier proposal was rejected by the Hawaii Supreme Court.
Also, some House members opposed to the leadership of House Speaker Calvin Say raised questions about gerrymandering — drawing the district lines to favor a person or a political faction.
Nago earlier said he wasn’t sure how the delays would affect his office’s ability to prepare for the election.
He had said his office needed the maps to allocate precincts and mail cards to inform more than 600,000 registered voters of their polling places.
Also, potential legislative candidates need to know the district boundaries to see where they would be running. June 5 is the last day candidates may submit nomination papers to run in the election.
State Rep. K. Mark Takai (D, Newtown-Pearl City), who was placed in a legislative district with another House incumbent, is among the six plaintiffs filing the suit against Nago, the Reapportionment Commission, Chairwoman Marks and commission members.
The suit said the plan violates the U.S. Constitution’s equal protection provision by excluding the residents and by the "malapportionment" of the districts.
The commission based its plan on the 2010 Census.
Its earlier plan was struck down Jan. 4 by the Hawaii Supreme Court, which ruled that it violated the state Constitution’s requirement of counting only "permanent residents."
The high court held that nonpermanent residents included members of the military and university students.
In March, the commission followed the high court’s ruling and adopted the plan that excluded 108,767 residents — nearly 8 percent of the 2010 Census population, the suit says.
"By discriminating against military personnel, military family members and university students who were ‘extracted’ from the 2010 Census resident population, the 2012 Reapportionment Plan violates the right to equal representation secured to plaintiffs by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution," the lawsuit says.
Thomas said Kansas is the only other state that uses a population base other than the U.S. Census resident count, but Kansas excluded far fewer from the census than Hawaii.
The census figures, he said, include minors, noncitizens and imprisoned felons.
"Hawaii continues to treat military personnel, military families and students as second-class citizens with representation even inferior to noncitizens," Thomas said.
The suit also said the ideal population under the plan is 50,061 people for a Senate district and 24,540 people for a House district.
But under the plan, Kauai’s Senate District 8 would have 66,805 residents, while Hawaii island’s Senate District 1 would have 44,666 residents, the suit said.
In the House, House District 5 would have 27,129 residents, while Kauai’s House District 15 would have 21,835, according to the suit.
The suit was on behalf of Takai; former military members Joseph Kostick, David Brostrom and Larry Veray; Manoa resident Andrew Walden; and Aiea resident Edwin Gayagas.
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