A week from Tuesday, on the morning of October 20, lawyers representing opponents of the scheduled election to select delegates to a Native Hawaiian political convention will be in federal court in Honolulu seeking a preliminary injunction to block the election from moving forward. Plaintiffs in the lawsuit, led by Keli‘i Akina, president and CEO of the conservative Grassroot Foundation, argue that the Hawaiian-only election violates several provisions of the U.S. Constitution by preventing non-Hawaiian from voting, and allegedly limiting eligible voters to those who agree with statements favoring Hawaiian sovereignty.

In part, the lawsuit tracks earlier cases which struck down Hawaiian-only voting for trustees of the Office of Hawaiian Affairs. But it goes further, arguing that the potential outcomes of the Hawaiian convention will have major repercussions for all Hawaii residents, and that therefore all residents should be eligible to vote.

For example, representatives of Na’i Aupuni have stated, among other things, that the convention will be about “possible nationhood” for Native Hawaiians, that the purpose of the convention is to draft “governance documents,” and even that convention delegates might take any plans they developed directly to the United Nations.

In these circumstances, it is manifestly obvious that non-Native Hawaiian citizens of the State have real and weighty interests in the outcome of this issue that has the potential for altering the way in which their State is governed. Plaintiffs’ exclusion from participation in the registration/election/convention process under Act 195 will deny them the opportunity to participate fully in the controversy over Native Hawaiian sovereignty. Because this is so, that exclusion is prohibited by constitutional and statutory protections of the right to vote.

The outcome of the case could depend on whether the state’s involvement in authorizing, funding, and administering the election is sufficient to require it to be treated as a public election, as a matter of law.

Plaintiffs point out that the whole election process and apparatus was established by the state legislature and funded by OHA, a state agency, which they say is enough to make election laws apply.

The state and other defendants, including trustees and staff of the Office of Hawaiian Affairs and the Native Hawaiian Roll Commission, along with two nonprofit groups contracted to conduct the election, the Akamai Foundation and Na‘i Aupuni Foundation, argue that this is purely a private election operated by private groups, will not result in the election of any state officials, and is therefore exempt from the election law precedents. To the extent that the legislature and OHA have been involved, they will not exert any power or control over the operation and outcomes of the convention.

Somewhat ironically, the view of the conservative challengers is consistent with views expressed by the more nationalist of Hawaiians, who reject the election and the convention as being creatures of the state and therefore by definition not truly independent.

Here are the main arguments on both sides, spelled out in a series of legal memos for and against issuing an injunction (links updated and corrected).

Memorandum in support of motion for preliminary injunction, filed by plaintiffs

Memorandum in opposition to motion, filed by state defendants (Gov. David Ige and members and staff of the Native Hawaiian Roll Commission)

Memorandum in opposition to motion, filed by the Akamai Foundation and Na‘i Aupuni Foundation

Memorandum in opposition to motion, filed by OHA trustees