A comment yesterday regarding the reapportionment issue mentioned the U.S. Supreme Court decision in the case of Burns v. Richardson, decided in 1966. The case goes directly to the question of whether the exclusion of the military population in the reapportionment process can pass constitutional muster.
A quick check shows that the Supreme Court opinion, as well as a recording of the 90 minutes or so of oral arguments, are readily available. Amazing.
Here are a couple of points from the summary of the decision.
• Although both houses of the legislature must be apportioned substantially on a population basis, the Equal Protection Clause does not require the use of total population figures derived from the federal census as the only standard to measure substantial population equivalency.
• Hawaii’s special population problems, including large concentrations of military and other transients centered on Oahu, suggest that state citizen population, rather than total population, is the appropriate comparative guide.
And here’s a longer section from the opinion itself on the question of excluding nonresident military from the population base.
Hawaii’s special population problems might well have led it to conclude that state citizen population, rather than total population, should be the basis for comparison. The District Court referred to the continuing presence in Hawaii of large numbers of the military:
“Hawaii has become the United States’ military bastion for the entire Pacific, and the military population in the State fluctuates violently as the Asiatic spots of trouble arise and disappear. If total population were to be the only acceptable criterion upon which legislative representation could be based, in Hawaii, grossly absurd and disastrous results would flow. . . .”
Similarly, the court referred to the distortion in census figures attributable to “the large number of tourists who continually flow in and out of the State and who . . . , for census purposes, are initially, at least, counted as part of Hawaii’s census population. . . .”
Both the tourists and the military tend to be highly concentrated on Oahu, and, indeed, are largely confined to particular regions of that island. Total population figures may thus constitute a substantially distorted reflection of the distribution of state citizenry. If so, a finding that registered voters distribution does not approximate total population distribution is insufficient to establish constitutional deficiency. It is enough if it appears that the distribution of registered voters approximates distribution of state citizens or another permissible population base.
Because state citizen population figures are hard to obtain or extrapolate, a comparison of the results which would be obtained by use of such figures with the results obtained by using registered voter figures is difficult. But the District Court found that military population of Oahu, and its distribution over that island, was sufficient to explain the already noted differences between total population and registered voters apportionments, both as among Hawaii’s four counties and as among Oahu’s representative districts. The District Court noted “that there is nothing in the State Constitution or the Hawaii statutes which per se excludes members of the armed forces from establishing their residence in Hawaii and thereafter becoming eligible to vote. This court finds no scheme in Hawaii’s Constitution or in the statutes implementing the exercise of franchise which is aimed at disenfranchising the military or any other group of citizens.”
One thing that has changed is voter registration. At that time, the District Court was presented data showing extremely high voting rates, with about 90% of registered voters casting ballots in the elections from 1958-1962. Today’s voting rates are certainly substantially lower. Would that make a legal difference in a future challenge? I don’t know.
In any case, I’m intrigued by the chance to listen to the argument being made before the Supreme Court back in 1966. Access to these recordings is pretty priceless.
They’ve been made available by the Oyez Project, a wonderful resource.
The Oyez Project at Chicago-Kent is a multimedia archive devoted to the Supreme Court of the United States and its work. It aims to be a complete and authoritative source for all audio recorded in the Court since the installation of a recording system in October 1955. The Project also provides authoritative information on all justices and offers a virtual reality Tour of portions of the Supreme Court building, including the chambers of some of the justices.
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I don’t know if the census methodology has changed since then, but according to the 2010 census website, tourists who happen to be here on the day of the census should be counted at their home, not here.
Again, military residents are not transient, they live here, work here, register cars here, send their kids to school here, pay excise taxes on purchases here, are subject to criminal and traffic laws, family courts, and more. They live here.
As a population, in numbers, they are quite permanent, permanent enough for 50-year housing construction/maintenance contracts, in the $billions, to be let and administered here.
While they may not lose the ‘franchise,’ being eligible to vote either here or at their home, they are residents here, are represented by their legislator, and, if not counted, are under-represented. If they vote at home, where they were also not counted, they are also under represented.
Like a shady stockbroker ‘watering the stock’, issuing more shares to dilute the ones already out there, these apportionment shenanigans dilute the military vote, and, even for those not voting, allow large populations under one legislator versus smaller populations under others. This is not equal protection of the laws. Even the Supreme Court can be wrong, if this 1966 decision means we can under-represent our military residents. If this must stand, the Census needs to change procedure and start counting them in their home towns. Otherwise our Hawaii military become second class citizens.
Let’s picture a specific district with a large military population. I grew up in Kailua and my father worked on the base, so it is the natural example which comes to mind when I try to visualize the impact of this decision in real terms.
MCBH Kaneohe is located within the proposed HD 50, which also includes most of Kailua, minus Lanikai and Enchanted Lakes.
The US Census reports an on-base population of 9517 people living on base. In addition, there is an unknown number of military personnel and dependents living in the district off-base, probably numbering in the hundreds. The draft plan for HD50 had a total population of 25,702, including non-resident military.
A small percentage of the on-base population are undoubtedly permanent residents of Hawaii. If it is consistent with the statewide figures, about 2% of the military personnel are residents. Past reapportionment commissions have estimated 98% of the dependents share the same residency as the military member.
All combined, about half the population of the proposed HD50 are probably non-residents. Or, put another way, the approximately 13,000 permanent residents of HD50 would get one elected representative in the state legislature, while permanent residents who live in a district with no military must have 26,350 permanent residents per representative.
In our comments yesterday, you said not counting the military was a violation of the “one person, one vote” standard. I think the example I cite demonstrates that it would be counting non-residents which leads to the violation of the principle.
Switching to the question of Under-representation of uncounted, non-resident military and students. What specific rights or benefits do you think they will be deprived of if they are not counted? Are there other ways in which they currently ARE represented as a alternate means of meeting their needs?
Need I reiterate the litany of laws taxes courts police roads public utilities bar closing hours health department rules etc that our ‘non-resident’ military, while RESIDING here for, usually, several years, are SUBJECTED to, without proportionate representation.
Why are the permanent resident citizens, in your example, represented, but the military members are not? The problem is the overly flexible definition of ‘permanent resident,’ vs. simply, the constitutional concept, ‘resident.’ Where you sleep, eat, cohabit with family, shop, entertain, procreate, sicken, fight, get thrown in jail, die in an auto accident, or suffer a depression or experience an elation, is where you reside. Our military residents live here.
They are not counted anywhere else. I looked it up, it’s in the field manual for census workers. It’s not about voting, it is about proportionate representation.
The specific right or benefit they lose by not being counted? They are part of a much larger population, served by the an elected representative, Senator, or Council person, than persons in a district not full of non-permanent yet resident citizens.
‘One person, one vote,’ is a slogan associated with the struggle for equal or proportionate representation. You can’t have small farm communities with a representative each ganging up on big urban districts with a representative for a much larger group. Remember the ‘rotten boroughs’ of English politics of yesteryear—the country gentry ruled by lording it over a smaller, dependent population, while the urban masses had to make do with 1 representative for a huge number.
More specifics: constituent services; laws, rules, and administrative protocols militating against access and participation by military member and their dependent.
We are a republic organized as a representative democracy. When we local ‘permanent residents’ combine to water down the representation of our long term military resident population, we are unfair to fellow citizens who sacrifice for us but, when it comes to the nitty gritty of courts laws taxes auto registration auto shipping procedures insurance rules etc, literally do not count as much as the rest of us.
Get it?
Non-resident military personnel and their dependents do not pay taxes at the same level as residents. The overwhelming majority, 98%, have declared themselves to be legal residents of other states and the DoD payroll office withholds income taxes based upon the rate of that other residence. Many of them chose states with low (or no) income tax. Federal law was changed in 2009 to make it easier for a spouse to declare the same residence as the active duty member.
Non-resident service members are EXEMPT from the motor vehicle weight tax you keep citing as evidence of their tax burden.
Yes, they pay the GET and gasoline taxes, but not for purchases at the exchange, which greatly reduces their contribution to state revenue.
They are subject to state laws, so you say they deserve representation, presumably to give them a say in those laws? The main mechanism for having “a say” in our laws is to vote for legislators whose views you agree with or to punish those with whom you disagree.
The colonists in 1776 had Governors appointed over them who could hear their petitions, but that would scarcely qualify as “representative” government if the colonists were not able to chose them for themselves. Is that the relationship you wish for military personnel in Hawaii?
Read the second bullet point in the excerpt of Burns v Richardson Ian has quoted above. The Court held that reapportioning based upon the state citizen population was the appropriate standard. Almost all active duty military personnel are citizens of the United States. But very few of them have chosen to become citizens of Hawaii.
The right to “representation” without having the right to vote for (or against) those representatives is a pretty hollow “right.”
The Court also found there are no legal obstacles to military personnel becoming citizens of Hawaii, registering to vote and participating fully in Hawaii’s self-governance. Unless, or until they decide to join us as Hawaii citizens, it is not improper for the state to regard them, and out-of-state students, as people here on an extended visit, but citizens of another place.
“One person, one vote.”
In another landmark voting rights case, Gray v Sanders, the US Supreme Court held:
(d) The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing — one person, one vote.
And
(b) The Equal Protection Clause requires that, once a geographical unit for which a representative is to be chosen is designated, all who participate in the election must have an equal vote — whatever their race; whatever their sex; whatever their occupation; whatever their income, and wherever their home may be in that geographical unit.
The “one person, one vote” standard applies to “all who participate in the election.” This is why my example of HD50, the Kailua area including the Kaneohe Marine base, demonstrated inclusion of non-resident military would CLEARLY violate the “one person, one vote” standard. The weight of a permanent resident voter in Kailua, Oahu would have about twice the weight of a permanent resident voter in Kailua-Kona.
A retired colonel told me a few months ago, “We DO have representation. It’s called the ‘chain of command.'” That struck me as a bit harsh, but the military has different way of organizing itself than the civilian world. Military personnel who decide to forgo becoming legal residents of Hawaii, have other means to influence the “bar closing hour” laws (?), to grumble about the schools, traffic laws, etc. Like the rest of us, they can write letters to the editor, rant online, grumble to the guy next to them in a bar, write or visit a legislator, testify at a hearing.
A legislator whose district contains large numbers of non-residents will probably have more demands for constituent service. Because military families receive so many services through the federal government, military families are not clients of states services to the same extent as civilians. They get healthcare from the feds, social services and counseling, they get substantial housing allowances, etc. All of which suggest they would place fewer demands upon the legislator than a civilian resident. If this is a significant factor in real life, I suggest the most appropriate remedy is to make an adjustment to the office budget for legislators whose district includes large numbers of non-residents. That would deal directly with this particular concern much better than distorting the district boundaries under reapportionment.
The majority of military do not have children, but there is a significant population of military dependent children in our schools. State law provides for the appointment of a military officer to the Board of Education to represent their interests.
This abstract talk about “representation” clouds the real world tangible impact of including non-residents in the population for redistricting and reapportionment. Most of the political benefit to counting non-residents does NOT go to the non-resident military, but to their civilian neighbors. Because it is the civilian neighbors whose political strength can be greatly exaggerated as a result. And the civilian neighbor might not have the same attitude towards “bar closing hours” as a young Marine.
Wow. Looks like I’m tangling with a pro, or an amateur with a lot of time on his hands. Good dialogue.
Written rather quickly, naturally.
I never said weight tax, I said auto registration.
If the measure is participating VOTERS that’s a lot different than ‘permanent residents’ or ‘Hawaii citizens’ as so many don’t vote. If the measure is ‘residents counted by the Census’ you’ve acknowledged the military are counted as residing in the place at the time of the census. And as the bases persist (we have, effectively, a standing army), the numbers who reside tend to stay much the same year over year.
Again, it seems rather an oxymoron to call the resident military ‘non-resident,’ though their ‘declared residence’ for tax and voting purposes may very well be their home town (if our taxes were lower that might change!). As I’ve written before, they are living here, dwelling, residing, in the practical, domiciliary sense of the term. It’s where they hang their hat, as they say. Are we counting residents, or citizen-declarants…., voters, or just how many people are living here?
It may seem ‘appropriate’ to under count our military residents, but, as they are not counted elsewhere, it does skew their representation.
And whether they vote or not, they are represented, or under-represented, in our form of government, as the apportioned districts are chosen.
The extra weight given to the non-military local populations voters in your Kailua example is an effect of equal proportionate representation and that is, well, too bad. The under weight given by not counting the resident military, in their representation is, given their also not being counted in their home districts, creates a kind of ‘invisible man’ syndrome for our volunteer soldiers, sailors, and airmen.
Note similarly how their ability to participate in primaries and elections when deployed was, in many cases, effectively nullified by slow and cumbersome election procedures, attacked recently by Federal law to give them an effective franchise.
The military, I believe, should not be treated as incidental, nor unrepresented, nor uncounted, nor effectively denied the vote.
Why are Hawaii and Kansas the only states in the nation to do this sort of miscount or under count when apportioning districts?
Begging your patience with these ‘abstractions,’ let’s watch that our ‘practical’ considerations aren’t wiping out our military’s equal protection of the laws. The youthful military-man’s preference for bar closing hours is influenced primarily by others, and not his fellow soldiers, and will forever be that way if these ‘appropriate’ under counts get established in law.
Thank God our military do refrain, in their uniformed capacity, from politics. As individuals, I believe in protecting their rights.
Hey Ian,
Great find on the audio tape of Burns v Richardson. I had read the case, but being able to listen to the actual hearing makes a policy wonk’s heart flutter!
I posted an Oahu map of the district plan which was in effect at the time of the hearing. Anyone who listens to the audio will benefit by viewing the map. Or folks interested in seeing how a multi-member districting map actually looked like. I know a lot of people are fond of multi-member districting and were disappointed when the commission eliminated the possibility early on. but listening to the audio of the hearing, I started getting a sense of the downside.
Here’s a link to the old map on the PDH blog:
http://pd-hawaii.com/blog/?p=810
A note on the map: I had gone to the Hawaiian Collection at the UH Hamilton Library several months ago to read the Final Reports from the 1991 and 2001 commissions. I also searched the newspaper morgue for articles to get a sense of the debates of the time.
I tried to find a copy of the old districting maps. But some of these maps were destroyed in the big flood several years ago, so my search turned up empty.
I went to the State Archives to find the committee reports of the legislature when they adopted the constitutional amendment which defined the population base as “permanent residents.” While there, I also searched for relevant maps.
I found the map of the early sixties legislative districts. It was a huge thing, about 4′ x 6′. To copy it, it spread it out on a table, then, standing on a chair, I took multiple shots of the map with my camera phone. I then imported the pictures into Photoshop, lined them up and, voila!
So this is a hard to find map. And a PERFECT complement to the audio of the actual hearing. Again, good find!