Some major parts of the Na‘i Aupuni election designed to set the stage for recognition of a Hawaiian government appear to be seriously unraveling.
Last week, the U.S. Supreme Court blocked the counting of ballots in the election at the request of six Hawaii and mainland residents, claiming the election only for Hawaiians is an illegal race-based election. The lower courts had ruled it was a private, not government, election and was proper. The top court said the entire Ninth Circuit Court should take another look at that.
Meanwhile, other questions are popping up.
First, after starting the election for delegates to a Hawaiian convention, the sponsoring group, Na‘i Aupuni, extended the closing date of the election to Dec. 21, because as William Meheula, the group’s attorney said, “voters may not have cast their ballots over concerns and questions on the recent U.S. Supreme Court’s decision to temporarily stop the vote count.”
Changing vote dates and times is almost always a big no-no and fiddling with the date because of speculation that voters need more time is questionable.
Also Na’Aupuni has a somewhat fluid definition of who can vote in the election.
The rules said it was supposed to be an election open to those who registered as Native Hawaiian voters and also “affirm the unrelinquished sovereignty of the Native Hawaiian people, and my intent to participate in the process of self-governance.”
But, Na‘i Aupuni says on its website that if you disagree with that, it is OK and you can still vote because you can register to vote via the Office of Hawaiian Affairs, “which does not include this declaration.”
Interestingly, one of the reasons cited by those suing to stop the election — according to local attorney Michael Lilly, who is representing the group — is that the pledge would violate the U.S. Constitution’s First Amendment free speech clause.
“If those qualifiers did not exist and the election was open to all citizens regardless of race or point of view, there would have been no constitutional basis to challenge and thus no order stopping the counting of votes,” Lilly said in an interview.
Here is another part of the election rules that, while not part of the lawsuit, is just funky, as in smells bad. Na‘i Aupuni candidates must report who gives them campaign money, but it only has “to be reported after the election.” So much for educating the voters.
The big issue that has the U.S. Supreme Court interested, however, is the whole idea of holding an election that limits voting to those who claim Hawaiian heritage.
Honolulu attorney Robert Thomas writes in his legal blog, Inversecondemnation.com Opens in a new tab, that holding an election that is paid for with public money runs into the Supreme Court prohibition from the 2000 Rice v. Cayetano decision.
Thomas says Na‘i Aupuni’s attempt to move the $2 million in OHA money for the election through a nongovernment group will not work.
“Yes, the money was washed through a nonprofit, set up for the purpose of supporting the argument that this is not a publicly funded election. But come on, the Court would have to be blind to not see the pretense,” Thomas writes.
Lawyers love to toy with the “The law is blind” metaphor, but in this case, it might not be blind at all.
Richard Borreca writes on politics on Sundays, Tuesdays and Fridays. Reach him at rborreca@staradvertiser.com
