An appointed three-judge federal court has upheld a previous decision denying a challenge to the state’s 2012 reapportionment and redistricting plan, saying the new political maps do not violate the Equal Protection Clause of the U.S. Constitution.
An attorney representing the eight voters who sued to try to stop the 2012 elections from being held using that plan said he expects to appeal the case to the U.S. Supreme Court.
"We always believed that the issues in this case merited resolution by the U.S. Supreme Court," attorney Robert Thomas said in an email. "We were hoping that a favorable decision from the Hawaii District Court would save us from taking it further, but alas no."
The decision was issued Thursday by three judges appointed by the 9th Circuit Court of Appeals. By law, reapportionment cases can be appealed directly to the Supreme Court.
In May 2012 the same three judges denied a preliminary injunction being sought by plaintiffs that challenged the plan as unconstitutional because it excludes 108,000 so-called "nonpermanent" residents from the population base used to allocate legislative seats among islands and determine boundaries for voter districts.
Excluding nonpermanent residents, as the state Reapportionment Commission had to do because of a state Supreme Court ruling, shifted a state Senate seat to Hawaii island from Oahu. Nonresident military members and their dependents, along with students who pay nonresident tuition, were among those left out.
"The commission’s reliance on a permanent resident population base, as ordered by the Hawaii Supreme Court, is permissable under the Equal Protection Clause," the judges wrote. "Likewise, the disparities in the size of the commission’s legislative districts pass constitutional muster."
Attorney General David Louie said the ruling validates the work done by the Reapportionment Commission.
"The court recognized the significant public policies which underlie the Reapportionment Plan and are embodied in the Hawaii State Constitution," Louie said in a statement.
"The court also recognized that the plan does not exclude the entire military population, but only nonresident military personnel and students who do not register to vote or pay taxes in Hawaii," he added. "The court further noted that this was a policy choice made by the people of Hawaii, because whether the commission included or excluded nonresident military and students could lead to issues of underrepresentation or overrepresentation in either case."
Reapportionment occurs every 10 years to redraw voter district boundaries to reflect changes in the population recorded in the most recent U.S. Census.
The attorney general’s office had argued against the injunction, citing previous federal cases that said the state may exclude certain residents from the population base to prevent distortions that might occur if large numbers of temporary residents were counted. State attorneys also argued the election planning process was too far along to start over, and having to draw new district maps could cause extensive delays and jeopardize the Aug. 11 primary and potentially the Nov. 6 general election.
Thomas argued that excluding nonpermanent residents violated the Equal Protection Clause of the U.S. Constitution. The lawsuit also contends the commission created districts of unequal size, leading to disproportionate representation in the state Legislature.
"Everything I’ve read so far leads me to believe that the Supreme Court will be interested in reviewing this decision, and in resolving the issues in our favor," Thomas said.
The three-judge court consisted of U.S. District Judges J. Michael Seabright and Leslie Kobayashi of Honolulu and 9th Circuit Judge M. Margaret McKeown of San Diego.
