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Joseph Kostick, Kyle Mark Takai, David P. Brostrom, (Three-Judge Court v. Scott T. Nago

May 22, 2012



Before: M. Margaret McKeown, Circuit Judge; J. Michael Seabright and Leslie E. Kobayashi, District Judges.

The Hawaii Constitution specifies the use of permanent residents as the relevant population base in apportioning state legislative seats. In a 2012 decision, the Hawaii Supreme Court laid out the appropriate method for determining permanent residents by extracting non-resident military personnel and their dependents, and non-resident students from the base count. The Reapportionment Commission adopted a new plan to comply with that directive.

This electoral challenge asks us to consider the constitutionality of the reapportionment under the Equal Protection Clause of the United States Constitution. We do so here in the context of a motion for a preliminary injunction requesting that we enjoin implementation of the 2012 Reapportionment Plan and enjoin conducting the upcoming elections under that plan. This challenge raises an issue of significant importance to Hawaii residents. Following a hearing on this matter on May 18, 2012, we conclude that the request for an injunction should be denied. In light of Burns v. Richardson, 384 U.S. 73 (1966), at this preliminary stage of the proceedings, the plaintiffs have not established a likelihood of success on the merits of their claim that the permanent resident population basis violates equal protection. Nor do the equities and public interest weigh in favor of an injunction that risks jeopardizing the primary election scheduled for August 11, 2012, and even the general election scheduled for November 6, 2012. Although we recognize that the right to representation is fundamental, "a federal court cannot lightly interfere with or enjoin a state election." Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam).


Hawaii reapportions its state legislative and federal congressional districts every ten years, after the decennial United States Census ("the Census"), based upon changes in population. See Haw. Const. art. IV, § 1. The Hawaii Constitution as amended in 1992 requires reapportionment of Hawaii's legislative districts to be based upon "permanent residents," id. § 4, as opposed to the Census' count of "usual residents." And to pass constitutional muster, any resulting reapportionment must comply with the principles of "one person, one vote." Reynolds v. Sims, 377 U.S. 533, 558 (1964) (quoting Gray v. Sanders, 372 U.S. 368, 381 (1963)).

In this action, Plaintiffs Joseph Kostick, Kyle Mark Takai, David P. Brostrom, Larry S. Veray, Andrew Walden, Edwin J. Gayagas, Ernest Laster, and Jennifer Laster (collectively, "Kostick") challenge aspects of the March 30, 2012 Supplement to the 2011 Reapportionment Commission Final Report and Reapportionment Plan ("the 2012 Reapportionment Plan"), which Hawaii has begun implementing for its 2012 primary and general elections. The 2012 Reapportionment Plan -- upon direction from the Hawaii Supreme Court in Solomon v. Abercrombie, 126 Haw. 283, 270 P.3d 1013 (2012) -- "extracted" 108,767 active-duty military personnel, military dependents, and university students from Hawaii's reapportionment population base. Kostick claims that this extraction by itself, or the 2012 Reapportionment Plan's subsequent apportionment of the resulting population base, violates the Equal Protection Clause of the Fourteenth Amendment and "one person, one vote" principles.

Kostick moves for a preliminary injunction, seeking:

(1) to enjoin Defendant Scott T. Nago, in his official capacity as the Chief Election Officer of the State of Hawaii ("Nago"), from "further implementation" of the 2012 Reapportionment Plan, and thus to enjoin conducting the upcoming elections in accordance with that Plan;

(2) to order the 2011 Hawaii Reapportionment Commission ("the Commission") to formulate and implement a reapportionment plan using the 2010 Census' count of "usual residents" of Hawaii as the population base; and

(3) to order the use of an August 2011 proposed reapportionment plan, which utilized a population base that includes the now-extracted 108,767 people.

Secondarily, Kostick seeks an order requiring an apportionment of state legislative districts that are "substantially equal in population."*fn1

We pause to emphasize what is not before us. To begin, we are not making any final determination of the merits of Kostick's challenge, a decision that must await further proceedings. Further, this Order addresses only the legal considerations underlying the challenged actions -- not whether extracting certain "non-permanent" residents from Hawaii's reapportionment population base is good public policy, and not whether Hawaii could or should use "usual residents" as that base. Hawaii has long-debated these questions and Hawaii's legislature considered them again in its just-completed session. See Doc. No. 50-7, Pls.' Ex. AAAA (S.B. No. 212, 26th Leg. Sess. 2012) (proposing to define "permanent resident" as a "usual resident" under the Census). These are important and difficult questions, involving political judgments and requiring consideration and balancing of competing interests -- tasks for which courts are not suited. See, e.g., Perry v. Perez, 565 U.S. __, 132 S. Ct. 934, 941 (2012) ("Experience has shown the difficulty of defining neutral legal principles in this area, for redistricting ordinarily involves criteria and standards that have been weighed and evaluated by the elected branches in the exercise of their political judgment.") (citations omitted).

In short, we express no opinion as to how Hawaii should define its reapportionment base, but instead examine only the challenged aspects of the 2012 Reapportionment Plan itself. And we certainly do not pass on what no one here disputes: Hawaii's military personnel constitute a significant and welcome presence in Hawaii's population.

For the reasons that follow, we conclude it is unlikely Kostick will succeed on the merits of the constitutional claim regarding the population base. The equities and public interest weigh heavily against Kostick. We do not consider the likelihood of success on Kostick's mal-apportionment claim, as he acknowledged there is no realistic or effective remedy that could be accomplished before the primary election. Accordingly, Kostick's Motion for Preliminary Injunction is DENIED.


This reapportionment challenge raises issues that are best understood by first examining the historical context. We begin by reviewing some of the historical and legal factors that the Commission faced in crafting the 2012 Reapportionment Plan. We then set forth specific details -- many of which are stipulated facts -- of Kostick's challenge to the Plan, and recount the procedural posture of the current Motion.

A. The Basic Historical and Legal Context

The Census counts the "usual residents" of a state. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 804-05 (1992) ("'Usual residence' . . . has been used by the Census Bureau ever since [the first enumeration Act in 1790] to allocate persons to their home States."). The 2010 Census counted people at their usual residence as of April 1, 2010. Doc. No. 26, Parties' Stipulated Facts re: the Motion for Preliminary Injunction ("Stip. Facts") ¶ 2. According to the 2010 Census, Hawaii has a population of 1,360,301 usual residents. Doc. No. 32, First Am. Compl. ("FAC") ¶ 30; Stip. Facts ¶ 32.

The Census defines "usual residence" as "the place where a person lives and sleeps most of the time" and "is not necessarily the same as the person's voting residence or legal residence." Stip. Facts ¶ 1. The definition thus excludes tourists or business travelers. Id. ¶ 5; Doc. No. 28-16, Pls.' Mot. Ex. H ("Ex. H"), at 3. Active duty military personnel who were usual residents of Hawaii on April 1, 2010 were or should have been counted by the 2010 Census as part of its count for Hawaii. Stip. Facts ¶ 3; Ex. H, at 8-9. Similarly, students attending college away from their parental homes are counted where they attend school (i.e., where they "live and sleep most of the time"). Ex. H, at 5. Students enrolled at a Hawaii university or college who were usual residents of Hawaii on April 1, 2010 were or should have been counted by the 2010 Census as part of the 2010 Census count for Hawaii. Stip. Facts ¶ 4.

After each Census, Hawaii establishes a Reapportionment Commission to implement a reapportionment. See Haw. Const. art. IV, § 2; Haw. Rev. Stat. § 25-1. The Defendants in this action are the members of the Commission in their official capacities; the Commission itself; and Nago, who serves as secretary of the Commission in addition to his duties as Hawaii's Chief Election Officer. See Haw. Const. art. IV, §§ 2, 3; Haw. Rev. Stat. § 11-2. Where appropriate, we refer to all Defendants as "the Commission," although we sometimes refer to Nago separately.

The Commission uses the Census' "usual residents" figure as Hawaii's total population for purposes of apportioning Hawaii's federal congressional districts. See Haw. Const. art. 4, § 9; Haw. Rev. Stat. § 25-2(b) (requiring use of "persons in the total population counted in the last preceding United States census" as the relevant population base). But the Commission does not necessarily use the Census figure as the population base for State legislative reapportionment. Instead, Hawaii uses a count of "permanent residents" as the relevant population base. Specifically, the current Hawaii Constitution provides:

The commission shall allocate the total number of members of each house of the state legislature being reapportioned among the four basic island units, namely: (1) the island of Hawaii, (2) the islands of Maui, Lanai, Molokai and Kahoolawe, (3) the island of Oahu and all other islands not specifically enumerated, and (4) the islands of Kauai and Niihau, using the total number of permanent residents in each of the basic island units[.]

Haw. Const. art. 4, § 4 (emphasis added). After such allocation, the Commission is then required to apportion members of the Hawaii Legislature within those "basic island units" as follows:

Upon the determination of the total number of members of each house of the state legislature to which each basic island unit is entitled, the commission shall apportion the members among the districts therein and shall redraw district lines where necessary in such manner that for each house the average number of permanent residents per member in each district is as nearly equal to the average for the basic island unit as practicable.

In effecting such redistricting, the commission shall be guided by the following criteria:

1. No district shall extend beyond the boundaries of any basic island unit.

2. No district shall be so drawn as to unduly favor a person or political faction.

3. Except in the case of districts encompassing more than one island, districts shall be contiguous.

4. Insofar as practicable, districts shall be compact.

5. Where possible, district lines shall follow permanent and easily recognized features, such as streets, streams and clear geographical features, and, when practicable, shall coincide with census tract boundaries.

6. Where practicable, representative districts shall be wholly included within senatorial districts.

7. Not more than four members shall be elected from any district.

8. Where practicable, submergence of an area in a larger district wherein substantially different socio-economic interests predominate shall be avoided.

Haw. Const. art. IV, § 6 (emphasis added).*fn3 The "basic island units" correspond to Hawaii's Counties: Hawaii County (the island of Hawaii or "the Big Island"); Kauai County (the islands of Kauai and Niihau); Maui County (the islands of Maui, Molokai, Kahoolawe, and Lanai); and the City and County of Honolulu (the island of Oahu).

Defining the reapportionment population base for Hawaii's legislative districts has long-presented a dilemma, primarily because Hawaii's population has historically contained a large percentage of military personnel -- many of whom claim residency in other States and do not vote in Hawaii elections. See, e.g., Burns, 384 U.S. at 94 (referring to "Hawaii's special population problems" stemming from "the continuing presence in Hawaii of large numbers of the military"). Burns noted that "at one point during World War II, the military population of Oahu constituted about one-half the population of the Territory." Id. at 94 n.24. More recently, well after statehood, the 1991 Reapportionment Commission found that non-resident military constituted "about 14% of the population of Hawaii" with "[a]bout 114,000 nonresident military and their families resid[ing] in this state, primarily on the Island of Oahu." Doc. No. 34-20, Defs.' Ex. 30, at 5 (State of Hawaii 1991 Reapportionment Comm'n, Final Report and Reapportionment Plan, at 23); Solomon, 126 Haw. at 285, 270 P.3d at 1015.*fn4

The vast majority of military and their families live on Oahu because of its many military installations including Joint Base Pearl Harbor-Hickam, Schofield Barracks, and Kaneohe Marine Corps Air Station. But, whatever their percentage, Hawaii elected officials still represent them -- it is a fundamental Constitutional principle that elected officials represent all the people in their districts, including those who do not or cannot vote. See, e.g., Garza v. Cnty. of L.A., 918 F.2d 763, 774 (9th Cir. 1990).

A dilemma thus arises because imbalances of potential constitutional magnitude are created whether or not Hawaii's non-resident military and family members are factored into the apportionment base.

If they are included in the population base but vote elsewhere, Oahu voters potentially have greater "voting power" than residents of other counties. See, e.g., Reynolds, 377 U.S. at 568 ("[A]n individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State[.]"). That is, a vote of an Oahu voter could count more than that of a non-Oahu voter. See, e.g., Bd. of Estimate of City of N.Y. v. Morris, 489 U.S. 688, 698 (1989) ("[A] citizen is . . . shortchanged if he may vote for . . . one representative and the voters in another district half the size also elect one representative."); Chen v. City of Houston, 206 F.3d 502, 525 (5th Cir. 2000) ("If total population figures are used in an area in which potentially eligible voters are unevenly distributed, the result will necessarily devalue the votes of individuals in the area with a higher percentage of potentially eligible voters.").

But if this group is excluded, then Oahu residents (and residents in an Oahu district with large concentrations of non-resident military) may have diluted representation. See, e.g., Garza, 918 F.2d at 774 ("Residents of the more populous districts . . . have less access to their elected representative. Those adversely affected are those who live in the districts with a greater percentage of non-voting populations[.]"); Chen, 206 F.3d at 525 ("[T]he area with the smaller number of voters will find itself relatively disadvantaged. Despite the fact that it has a larger population -- and thus perhaps a greater need for government services than the other community -- it will find that its political power does not adequately reflect its size.").

There are also political dimensions. Excluding large numbers of non-residents, most of whom live on Oahu, from the population base can -- as it did in this instance -- result in a gain or loss of legislators between the basic island units (here, the Big Island gained a State senate seat that Oahu lost). Stip. Facts ¶ 40. Thus, including or excluding non-resident military and dependents could contribute to a subtle shift in power among the Counties. Historically, residents of each basic island unit "have developed their own and, in some instances severable communities of interests" resulting in "an almost personalized identification of residents of each county -- with and as an integral part of that county." Burns v. Gill, 316 F. Supp. 1285, 1291 (D. Haw. 1970). Forty-two years after Gill, many individuals still identify themselves in relation to their Island. County residents "take great interest in the problems of their own county because of that very insularity brought about by the surrounding and separating ocean." Id. See, e.g., Doc. No. 39-12, M. Solomon Decl. ¶ 9 ("There were also socio-economic and cultural differences between the two parts of my canoe district [on Maui and the Big Island] that predated statehood.").*fn5

Notably, the Hawaii Constitution in Article IV, § 6, "recognizes the geographic insularity and unique political and socio-economic identities of the basic island units." Doc. No. 28-3, Pls.' Mot. Ex. A, at 35 (2012 Reapportionment Plan, at 23). And thus the Hawaii Constitution requires that in apportioning a population base "[n]o district shall extend beyond the boundaries of any basic island unit." Haw. Const. art. IV, § 6. The Commission articulated this interest as a justification for population deviations among state districts -- avoiding bi-County districts (often referred to as "canoe districts" because they are separated by water) where a legislator represents people in different Counties. Doc. No. 28-3, Pls.' Mot. Ex. A, at 33 (2012 Reapportionment Plan, at 21).*fn6

The Commission considered these and other factors in creating the 2012 Reapportionment Plan, the ...

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