Sunday’s post on the recent Supreme Court decision striking down the plan adopted by the Reapportionment Commission, and the resulting comments, drew this long and thoughtful response from Bart Dame, one of a handful of observers who carefully followed the commission’s work.

Dame is a progressive Democrat and longtime political activist with an interest in the election process. He has been monitoring the meetings of the Reapportionment Commission.

I expect his critical observations on the work of the Reapportionment Commission will spark lots of interest.

Aloha Ian,

Thanks for sponsoring this discussion.

I was a close observer and active participant in the PUBLIC portions of the reapportionment process and, while I appreciate your desire to hear about the “internal commission politics,” that is nigh impossible, as the commission’s deliberations were conducted almost entirely behind closed doors, in executive session.

Observers were forced to draw inferences from whatever comments or questions commissioners would offer in response to public testimony. On several occasions, I was able to draw from them hints of their thinking. But they rarely engaged each other’s ideas in open meetings.

Act 92, Hawaii’s Open Meetings Law, requires “the formation and conduct of public policy – the discussions, deliberations, decisions, and action of governmental agencies – shall be conducted as openly as possible.”
There are 8 permitted “exceptions” for discussions which are permitted to be conducted in closed session. But the law specifically says:

“The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.”

One permitted exception from openness is “To consult with the board’s attorney….”

Rather than construing this exception “strictly”, the commission conducted almost all substantive discussions and deliberations with their attorney present and offering comments. This frustrated public scrutiny in (at least) two ways. First, it allowed them to deliberate out of public view, which hindered public understanding of their reasoning and knowledge of which “facts” they were considering. But there was a second destructive consequence. Because the conversations in which the attorney participated were “privileged,” all commission members were barred from sharing what was discussed, what legal interpretation they were following, and what other commissioners were thinking.

This seriously impaired the ability of the public to offer testimony specific to the deliberations of the commissioners. In the hearings, they sat sphinx-like, afraid to say anything off-script, except for the few moments when they wanted to respond to someone’s testimony. Most testimony, they received without comment. A review of the minutes or video will show I was able to draw them out to engage some of my ideas, but those instances were the exception. There were a number of important questions I tried to elicit a response from them on and they refused to comment. Their attorney encountered some of these same questions during the oral hearing before the Supreme Court. He had no answers either.

On June 28, immediately prior to taking the vote on Dylan Nonaka’s motion to use the entire Census count as the population base for reapportionment, they each explained the rationale for their imminent vote. But that did not constitute a public “deliberation.” All such deliberations had already occurred. They simply were reporting what they had concluded from those private deliberations. And no member of the public was able to respond to their opinions or “facts” until the public comment period in the next meeting, long after the vote had been taken.

It was clear from their remarks that they had considered “facts” and theories which had never been introduced into the record during open meetings.

They repeated this approach on September 19th, when they voted to amend the motion on the population base and to exclude some 16,000 obvious non-residents under the Plan A extraction. They took public testimony. They then had staff explain the 3 population adjustment proposals they were considering, Plans A, B, and C. In addition, they had staff introduce new “facts” about the ethnicity of the military population, as well as whether there were “any” registered voters living in military housing areas. No opportunity was provided for the public to dispute either the “facts” or the proper way to interpret the facts. (Frankly, both the ‘facts” and the interpretation being drawn from them were “bogus,” to use a technical term.)

They then went into executive session to deliberate over which plan to adopt. When they returned, each commissioner reported what position they had arrived at. They then voted for Plan A.

I do not intend to imply the commission was monolithic in their thinking. Different commissioners had different ideas. Indeed, that was part of the problem. Two commissioners, Nonaka and Elizabeth Moore, made it clear they would not budge regardless of evidence or arguments. Harold Masumoto was convinced the methodology for determining the permanent population was too “sloppy” to be used, but may have been persuadable, in my opinion, had the commission allowed for full discussion of both the methodology AND the appropriate standard of accuracy to be used.

The commission was divided going into the September 19th meeting. I believe 5 members were willing to exclude enough non-residents to shift a senate seat to the Big Island. Tony Takitani wanted to exclude all non-residents possible. 3 others went into the meeting supporting the Plan B adjustment, which would have subtracted some 73,000 non-residents, with almost all coming from Oahu. Another commissioner probably would have supported the deduction of the 47,000 known non-resident military “off the top” for the purpose of reapportionment. Because the commissioners were unable to agree upon a common approach for deducting more non-residents, they would have only had 4 votes for Plan B, which would have gridlocked them. So they were able to cobble together a majority only for the Plan A extraction. In my opinion, it was not a willful conspiracy to avoid shifting a senate seat to the Big Island.

Unfortunately, the “off the top” or “Two Step” approach had never been seriously considered by the commission. It was first suggested to them in my testimony of June 28. It was again presented at the Maui hearing by the Maui Advisory Council, but that hearing was only attended by two commissioners. I proposed the idea again at the public hearing in Kailua, at the hearing in the Capitol auditorium, and at the final “road show” public hearing at Kalani High School. It was only after the Kalani hearing that a commissioner finally heard the idea, telling me I had introduced “something new.” He consulted another commissioner who had also failed to hear the idea on the previous occasions and thought the idea merited more consideration. But that consideration never came.

Immediately prior to the vote to adopt Plan A, Judge Marks felt a need to respond to the “Two Step” approach, which had been advocated by Rep Herkes and myself earlier in that meeting. She said it was unconstitutional, but her explanation caused Rep. Herkes to object that she was misrepresenting what he had said. She allowed Herkes to give his own explanation. I then jumped in to fine tune what Herkes has said. Regardless, the Judge said she did not believe it would be constitutional to use the “Two Step approach. (Once it got to the Hawaii Supreme Court, they ruled it was unconstitutional for the Commission to NOT use the Two Step approach. I wonder if the judge might be willing to transfer her law license to me?)

In order to divine the deliberations of the commissioners, I had to employ methods damn closed to espionage, relying upon “leaks’ and slips (intentional or not) in confidentiality. As someone who knows his way around the Capitol and has longstanding Democratic Party connections, I have better access than that available to your typical citizen.

A normal legislative body can be lobbied. The representatives have set offices, with public phone numbers and email addresses. And they are willing to share their thinking. So the public can, admittedly with some effort, interact with them and, hopefully, influence them. On the other hand, a jury will be shielded from public input, except that which is offered under oath and subject to cross examination. Only evidence introduced in open court can be considered in making their determination. And the jury members are instructed to not deliberate outside of the jury room.

The way the commission operated adopted the weaknesses of the two other models, while not the benefiting from their strengths. They clearly considered “evidence” as well as legal interpretations, which had never been introduced in open session. While their votes were done in public, their deliberations were not.

In the course of the commission’s work, several people tried to get them to open up their process to standards of transparency. Particularly heroic on this were Nikki Love of Common Cause, Jean Aoki of the League of Women Voters, Barbara Polk of the Americans for Democratic Action and Larry Geller of the Disappeared News blog. While they were able to get the commission to agree to posting agendas and meeting noticed in advance of the meetings, they were not able to get them to honor the Act 92 requirements for open deliberations.

I believe the commission’s inappropriate secrecy prevented effective public input and contributed to their failure to consider alternative ideas in a timely and thorough way. Bad process led to bad, and expensive, decisions. And wasted a lot of time. Transparency in the conduct of public business is not only an end in itself. It is a means for making better decisions.

Sorry for my lengthy post.

Just a few quick responses to points raised by others here.

First to Hugh Clark, for whom I have a lot of respect. I was not at the Hilo hearing, but I did watch the video of Stan Roehrig’s interaction with the Commission. I have to disagree with his characterization of Judge Marks’ behavior. Stan Roehrig can be a bit “contentious” at times. He quickly threatened to sue the commissioners and go after them individually, not a good way to make an introduction. His central argument, one he repeated at the Supreme Court oral hearing, was that the plan resulted in an unpermitted population deviation in excess of 17% between an Oahu senate district and those proposed for Hawaii County. That argument was off-point, unnecessary and plainly wrong, unless it was Stan’s intention to force the Court to re-introduce “canoe districts,” as that would be the only means of avoiding deviations of that order. The weakness of his argument did not undermine Stan’s adamant insistence his position was the only one any sane person could subscribe to. In short, he was much more abrasive than was appropriate. Let me be clear. I appreciate Stan’s willingness to step into the breach and defend Hawaii County interests in this. I strongly agree with him the Oahu-centric commission was ignoring the damage they were willing to impose on Big Island voters out of a single-minded concern they might accidentally extract a small number of Oahu-based service members. In my view, Judge Marks was in a very uncomfortable, perhaps even untenable position, trying to forge a consensus from a very divided commission, some members of which, in my opinion, were beyond reasoning with.

CWD’s comments…. First off, her claim Oahu comprises “more than three-quarters of the state’s population” is not true. If we include the non-resident military, dependents and students, Oahu has about exactly 70% of the state population. If we use the state constitutional standard of “permanent residents,” Oahu has about exactly 2/3 rds of the state population. Had the 9 member commission’s composition reflected this, there would have been 3 neighbor island members on the commission.

The rest of her disagreement is with the language of the state constitution. The commission was NOT free to ignore the constitution. Nor was the state Supreme Court. She apparently believes the state constitution is in conflict with the federal constitution.

Some commissioners made remarks indicating they may agree. But the commission spent no time laying out the basis for such an argument. They only insinuated. The only “evidence” they introduced was a last minute presentation on the ethnicity of military personnel. Among the insinuations made was that whites were present in the military in higher percentages than in the civilian population, implying the exclusion might trigger a civil rights claim based upon discrimination against haoles. They also mentioned African Americans and Hispanics, but it was the haole variation I found fascinating. I DO find it ironic that the two commissioners most vocal about hypothetical civil rights violations are Republicans. I can only assume they are using their Republican connections to rein in the efforts of Republican legislators nationwide to pass voter ID laws which will have the likely impact of suppressing voter participation from African Americans, Latinos, Native Americans, the elderly and the poor. Perhaps they can pass a resolution to their national leadership at their upcoming state convention? I won’t hold my breath.

CWD’s sense of the REAL reason to the opposition to the adopted plan is also way off the mark. It may be a factor in Senator Solomon’s opposition. But it did not figure into my thinking nor that of any of the many non-Big Island people I spoke to during the many months I was engaged in fighting this plan. She should go to the Big Island and tell Hawaii County residents they only care about Malama and Lorraine Inouye’s political careers and not their own rights to fair representation. Her “realism” would get her laughed off the island. Prominent Big Isle Republicans Richard Henderson and Elroy Osorio were involved in helping organize opposition to the plan to deny them a fourth senator. Tell them they were motivated by a concern over either Senator Solomon or Senator Lorraine Inouye.

I am hoping the commission will now invite input from the public on how to adjust the population count fairly, in keeping with the instructions from the Court. I am a bit discouraged by Judge Marks’ comments about the need for more guidance. Had the commission been willing to entertain such a discussion months ago, when some of us tried to start such a discussion, we would be further along. I do not deny locating the residences and estimating the numbers of non-resident military and dependents for the Step Two stage, redistricting, will be complicated. There is no way they can “extract” all non-residents at that stage. Nor, as I testified, would it be fair to assume all people living in military housing areas are non-residents. We know a small percentage, about 2%, of service members ARE Hawaii residents. In previous reapportion calculations, it was assumed military dependents “Follow the residency” of the active duty member. Judge Marks told a reporter some spouses are nurses and teachers. Apparently nurses must be Hawaii residents to work off-base. Teacher do NOT need to be Hawaii residents, though it does give them marginal priority in getting appointments, transfers, etc, within the DOE– ALL OTHER FACTORS BEING EQUAL (education level, seniority, credentials, etc.)

Fine, so how many military spouses does Judge Marks think might be residents because they are teachers or are employed as nurses in non-military hospitals or doctor offices. Let me suggest the number is “de minimus,” meaning too small to be significant.

Instead of engaging in these sort of necessary adjustments to the non-resident status of military housing areas, the majority of the commissioners adopted the attitude the small degree of uncertainty introduced means they have to err on the side of assuming ALL military personnel might be permanent residents.

The Court ruling, as I read it, does not discount the difficulty. They do say the difficulty should not cause the commissioners to throw their hands in the air and refuse to make a good faith best effort to come up with estimates which they are confident represent a relatively close approximation of the number of qualified permanents residents. They should strive to not extract too many. But they should strive EQUALLY to not leave too many in.