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Ian Lind • Online daily from Kaaawa, Hawaii

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Bill seeks end run in reapportionment debate

February 25th, 2013 · 6 Comments · Legislature, Politics

Oahu legislators stand to gain if a Senate bill calling for a major change in the state’s reapportionment process becomes law.

SB286, introduced by Sam Slom, the Senate’s lone Republican, would define “permanent resident” as “any individual counted as a usual resident in the last preceding U.S. census within the State of Hawaii.”

Currently, Hawaii does not count military personnel, dependents, and students who do not choose to become Hawaii residents for purposes of defining legislative districts. This practice has prevented districts from being skewed by the presence of large numbers of people who do not vote in Hawaii and consider themselves residents of another state. It was upheld by the Hawaii Supreme Court in a challenge to the latest reapportionment maps used for the 2012 elections.

However, it is also the subject of a pending federal lawsuit which alleges the exclusion of military and other non-residents violates the U.S. Constitution.

I’m told the bill appears to have the backing of other senators, reps and perhaps the AG’s office as part of a deal with the plaintiffs in the federal lawsuit against the reapportionment plan. There are apparently negotiations going on behind the scenes to have the plaintiffs withdraw their suit in exchange for a promise all future reapportionments will be based upon total population, including non-resident military, their dependents and out-of-state students.

Dropping the lawsuit would also mean the ban on canoe districts would remain in place.

Bart Dame, who has been an active observer of the election process for years, offered this observation:

Oahu-based legislators, who benefit from the inflated power given to Oahu if non-resident military are counted, are trying to accomplish through legislation what should be changed through a constitutional amendment. They are playing word games. While the term “permanent resident,” which appears in the state constitution, has often been a source of contention, it is established law that it means, and was intended to mean, Hawaii residents minus military and students who decline to establish residency here.

If the Oahu legislators want to change the law, they should seek a constitutional amendment. Not because all questions should be decided by a constitutional amendment, but because attempts to amend the state constitution, or how it has been consistently interpreted, should be subject to approval by the voters of the whole state. Not by a legislative body which has an inherent, structural bias in favor of Oahu County.

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  • Mr. Mike in Hilo

    Hawai`i has a significant number of Micronesians from three Micronesians nations: The Republic of the Marshall Islands, The Federated States of Micronesia, and The Republic of Palau. The compacts of free association (COFA) between those nations and the United States allow their citizens to live and work in the United States for extended periods of time

    Many thousands of Micronesians reside in Hawaii because of the COFA agreements. I wonder whether they counted as residents for the purposes of current and proposed reapportionment laws?

    I do want to make it clear that I welcome our Micronesian brothers and sisters to Hawai`i, and that I work closely with Micronesians United-Big Island, a 501(c)3 organizaiton.

  • Robert Thomas

    [Disclosure: we represent the plaintiffs in Kostick v. Nago, the federal court challenge to the 2012 Reapportionment Plan.]

    To answer the above commentator, yes, the 2012 Reapportionment Plan included Micronesians as qualifying as “permanent residents” of Hawaii. They were also counted in Hawaii’s 2010 Census population as “usual residents” of the state.

    In the federal reapportionment challenge, the State argued that “permanent residents” is a proxy for counting “state citizens,” which means that according to the State, aliens (both documented and undocumented), and Micronesians present in the state pursuant to COFA are counted as Hawaii state citizens, while military and families are not.

    Testimony supporting SB 286 is posted here:

    http://www.inversecondemnation.com/inversecondemnation/2013/02/testimony-on-hawaii-defining-permanent-residents-for-state-reapportionment-as-census-count.html.

  • Bart Dame

    Robert Thomas remains an eloquent and forceful advocate for his clients. But his arguments are more appropriately assessed by a federal court than the members of the Senate Judiciary Committee. More relevant for the committee should be that the state Supreme Court has already discounted his arguments.

    It is clear Mr. Thomas is not happy with that provision of the State Constitution which mandates reapportion be conducted on the basis of “permanent residents” rather than “total population.” The proper venue for changing or overturning the state constitution is either via the Fedrral Court or through a voter approved constitutional amendment. Not through the legislature overstepping its role by re- defining words whose meanings it now finds inconvenient.

    I will agree with Mr. Thomas that the AG’s office should not be wasting taxpayer money on outside counsel. I was present at the recent 3 judge panel and Mr. Thomas greatly outperformed the state’s imported “outside talent,” who was totally unable to explain why Hawaii residents are so hostile to “canoe districts.” Had he bothered to interview residents of Kauai, he would have received cogent, practical reasons why Kauai’s population is adamantly opposed.

    Again, the proper means for deciding this either through a constitutional amendment to remove the requirement or the federal court. Not via a legislature dominated by interests who benefit from the continued over-representation of Oahu at the Lege.

  • Hugh Clark

    My gosh, Oahucentrics remain fixed in their N-Isle bias. Reminds me of national GOP jut not facing 2013 reality.

    Guess that is why bill is sponsored by the last GOP soldier in senate.

  • charles

    So what is the status of the federal lawsuit?

  • Bart Dame

    I need to correct a couple of points I had made. The AG’s office did not support this bill and submitted testimony saying it was improper for the legislature to try to seek to frustrate the clear intention of the state constitution by trying to re-define “permanent resident.” The proper route would have been to propose a constitutional amendment, to be decided by the voters. Their testimony can be found on the bill’s status page, is direct and to the point:
    http://www.capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=286&year=2013

    They are, however, engaged in negotiations with the plaintiffs’ attorneys to see if there may be a basis for settlement.

    I also was mistaken when I said the State’s case had been argued by a poorly prepared out-of-town outside counsel. It was a state deputy attorney general who was unable to explain why neighbor islanders hate “canoe districts.”

    To Charles’ inquiry, I think the 3 judge panel is granting the parties an opportunity to reach a settlement before issuing a ruling. Otherwise, I think the ruling could have been issued by now.

    If the plaintiffs lose on the core argument over the exclusion of non-resident military, I expect they will appeal tdirectly o the US Supreme Court. Given how activist this court is under the rightwing justices, they may very well overturn the previous Supreme Court rulings and side with the plaintiffs.

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