The Native Hawaiian self-governance campaign run by Na‘i Aupuni came under attack once again Tuesday as foes formally asked the U.S. Supreme Court to block its election end run.
The plaintiffs in the lawsuit against Na‘i Aupuni filed a motion against the Office of Hawaiian Affairs, the Native Hawaiian Roll Commission, Na‘i Aupuni and other defendants in the case, urging the high court to hold them in civil contempt.
The motion argues that the cancellation of Na‘i Aupuni’s election violates the letter and spirit of the court’s Dec. 2 temporary injunction, which blocked the counting of votes and certification of winners while the 9th U.S. Circuit Court of Appeals considers the lawsuit filed in the case.
But Na‘i Aupuni said it was confident it could fight off the latest challenge. In a statement, the nonprofit said nothing in the Supreme Court order prohibits Na‘i Aupuni from terminating its election and offering all candidates an opportunity to gather and discuss a path to self-governance.
“Civil contempt is only appropriate where the court order clearly and unambiguously prohibits the proposed action,” the Na‘i Aupuni board said. “(The) motion is without merit and we will oppose the motion to ensure that the February gathering will go forward.”
Office of Hawaiian Affairs attorney Robert Klein agreed, saying Na‘i Aupuni complied with the court’s order and therefore cannot be held in contempt.
“As far as my client OHA is concerned, OHA has done nothing to offend the court’s order. OHA neither counts ballots, seats elected delegates nor conducts the election,” he said.
Tuesday, meanwhile, was the last day for candidates to declare their intention to join the aha, or constitutional convention, scheduled for February.
The four-week convention was scheduled last week after the Na‘i Aupuni board ended the election to avoid a potentially lengthy delay while defending its constitutionality in court. The board said it would seat all 196 candidates who sought election as delegates to the convention.
On Monday, Na‘i Aupuni said nearly 100 candidates had agreed to attend the convention, and urged more to sign up before the Tuesday night deadline. The final field of delegates is expected to be announced today.
But the event could be doomed for now if the court agrees with Tuesday’s motion.
The plaintiffs, who include Keli‘i Akina, president of the Grassroot Institute of Hawaii, asked the court to take all steps necessary to enforce the temporary injunction.
“It’s outrageous that Na‘i Aupuni and state agencies such as OHA and the Native Hawaiian Roll Commission have ignored and defied the Supreme Court of the United States,” Akina said in a statement.
“All citizens of Hawaii, including native Hawaiians, should be appalled at the contempt our own state government is showing to the U.S. Constitution. The majority of Native Hawaiians, in particular, have made it clear that they do not support and are not represented by those trying to push through a state-sponsored, racially discriminatory government-creation process,” he said.
The case against Na‘i Aupuni is being argued by Washington, D.C.-based Judicial Watch. The conservative foundation, which describes itself as a government watchdog, is being assisted by Grassroot Institute, which had enlisted the plaintiffs — four Native Hawaiians and two non-Native Hawaiians.
In their lawsuit the challengers contend that a Hawaiians-only election violates voter equity guaranteed by the 15th Amendment. Na‘i Aupuni has countered that the entire matter is a private affair, affecting only Native Hawaiians, and is not an official state project.
U.S. District Court Judge J. Michael Seabright agreed with Na‘i Aupuni, but the case was appealed to the 9th Circuit Court of Appeals.
The 9th Circuit, meanwhile, refused to temporarily halt the election. The request was moved up to the U.S. Supreme Court, where a court majority agreed, issuing a temporary injunction against the election three weeks ago.
In their motion Tuesday the challengers charge election sponsors with using “gamesmanship” to accomplish a “willful circumvention” of the purpose of the court’s order.
The motion asks the court to order the defendants to withdraw the Dec. 15 certification of delegates and prevent any further effort to send delegates to the convention. It asks that the order be enforced with monetary sanctions strong enough to ensure compliance before the convention begins in February.
In addition, the motion asks the court to require Na‘i Aupuni to “preclear” any other steps it might take with regard to selection of delegates or holding of a convention while the injunction remains in force.
It also asks for attorney’s fees and costs.
Robert Popper of Judicial Watch, lead attorney in the case, said the election was based on “a trick” using a nonprofit that was really a state agent to accomplish what the state could not.
“It was all an attempt to get around prior Supreme Court precedent. This latest move of certifying all the candidates as winners is simply another trick. This time it’s an attempt to get around the Supreme Court’s Dec. 2 injunction,” Popper said in a news release.
Michael Lilly, former Hawaii attorney general and an attorney for the plaintiffs, said Na‘i Aupuni erred when it canceled its election and certified delegates without first asking the Supreme Court whether it was in violation of its temporary injunction.
