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Ian Lind • Online daily from Kaaawa, Hawaii

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Court upholds exclusion of nonresident military from reapportionment

July 12th, 2013 · 2 Comments

The plaintiffs who challenged the state’s latest reapportionment plan, arguing it is unconstitutional to exclude nonresident military and students, got no relief when a three-judge panel issued its decision yesterday.

In an 83-page unanimous decision, the judges ruled that the state’s position was reasonable, data-based, and met constitutional requirements. I’m still wading through the decision, but the judges said the facts in this case were all in the state’s favor.

The court dismissed the idea that Hawaii should have to use the census methodology and definition of “usual residents” to define the population for reapportionment purposes, holding that the state’s use of “permanent resident population” is constitutionally sound. And it upheld the exclusion of those who live here but maintain permanent residence elsewhere as long as these distinctions aren’t vehicles for discrimination.

In the case of the military, those who choose to become Hawaii residents have no problem registering to vote and being included in the resident population base considered in reapportionment, the court noted.

Here’s one key section of the decision:

To summarize, the 2012 Reapportionment Plan resulted from a careful and comprehensive process free from any taint of arbitrariness or invidious discrimination against minority groups or the military. And the record is likewise clear that the Commission faced a mathematical reality—the inclusion or exclusion of non-permanent military and military dependents causes an equal imbalance in either representational equality or electoral equality.

Over and over, the Supreme Court has explained that reapportionment involves fundamental choices about the nature of representation, where states have discretion (absent discrimination) to exercise political judgment to balance competing interests. Given the record presented to us,
we simply have “no constitutionally founded reason to interfere.”

In the absence of discrimination, this principle of deference is dispositive. Daly was apt in applying this “overriding theme in the Court’s prior apportionment cases weighing against judicial involvement,” when it reiterated that “[t]his is a decision that should be made by the state,
not the federal courts, in the inherently political and legislative process of apportionment.” The choice facing the Commission—between representational or electoral equality—was quintessentially political, requiring “the sort of policy judgments for which courts are, at best, ill
suited.”

It is a very long decision, with much discussion of each particular type of decision made by the Reapportionment Commission.

And although the decision doesn’t give much to the plaintiffs, the case is not over if they follow-through with an appeal to the U.S. Supreme Court.

Stay tuned.

The full decision can be found here.

Robert Thomas, one of the attorneys for plaintiffs, has collected earlier documents from the case on his InverseCondemnation.com blog.

I’m looking forward to reading his analysis and assessment of this latest ruling.

Tags: Campaigns · Court · Elections · Politics

2 responses so far ↓

  • 1 Hugh Clark // Jul 12, 2013 at 1:22 pm

    Need to think hard on any appeal to this court, which could nullify statehood or remove women’s voting rights based on recent actions.

  • 2 Bart Dame // Jul 12, 2013 at 4:14 pm

    I spent much of last night reading the decision and enjoyed doing so. I believe it is both well-reasoned and well-written. I think the strongest argument the plaintiffs had going for them was the disparity in the populations between districts, which is the result of the state constitutional prohibition against canoe districts.

    But on the argument they cared about the most, the exclusion of non-resident military and students, Thomas’ argument always struck me as weak.

    While I share Hugh’s disdain for the recklessness of the current US SUpreme Court majority, I am inclined to believe they would uphold that state on this, at least on the question of “permanent residents.” As Ian has laid it out, a core argument is whether the state has a right to base reapportionment upon a count of “citizens of the state” rather than “usual residents.” This court, like the earlier Supreme Court ruling in Burns back in the sixties, has established this is a political question best left to each state’s legislature. So I think the Roberts court may see this primarily as a question of states’ rights, as they did the recent DOMA and the unfortunate ruling against the Voting Rights Act.

    While it is not yet over, I certainly feel vindicated by the ruling. While it is much more eloquent and better organized than anything I have written, the arguments closely parallel those I have been making for about two years, often in the face of stiff and sometimes mean-spirited opposition.

    If/when we win at the Supreme Court, I am uncorking a bottle of the good stuff. And if we lose, I’ve got a half-drunk bottle of half-decent whiskey for that.

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