Our Latin cousins warned us long ago homo sapiens non urinat in ventum ("a wise man does not pee into the wind") but such wisdom doesn't prevent us from trying at times to buck the conventional thinking. Because sometimes, you don't know which way the wind is blowing until you go outside and actually feel the breeze.
Today, the U.S. Supreme Court told us. In a one-line order, the Court affirmed the three-judge U.S. District Court's ruling that the 2012 Hawaii Reapportionment Plan, which excluded active duty military, military families, and students who do not pay resident tuition from the population basis, did not fall short of Equal Protection's requirements. See also SCOTUSblog's "Hawaii Redistricting Upheld." The 2012 Plan treats these classes as residents who have not exhibited the intent to remain in Hawaii "permanently." The Court also affirmed the 2012 Plan's very large (44% and 21%) deviations from population equality.
Disclosure: we represent the challengers to the Plan.
This was always an uphill (upwind?) challenge because in Burns v. Richardson, 384 U.S. 73 (1966), the Court seemed to conclude that it was purely a political question about who Hawaii must include within its definition of "population," and it could thus exclude the military as "transients." What this means presently is that these exclusions will not be touched by the courts, at least until the next reapportionment cycle, and that the questions presented by the case will need to be debated and resolved in the political arena and elsewhere, if at all.
Things are evolving, and Hawaii's long-standing treatment of military and military families as outlanders is arcing towards inclusion. Which seems only fair, since Hawaii gladly accepts the massive benefits their presence brings: $18 billion per year to the Hawaii economy, and the additional population for a second seat in Congress (everyone is counted for purposes of Congressional apportionment). The military who are stationed in Hawaii have become more integrated into the community than in the days of Burns, when most could realistically be treated as transients. Something also tells us by the time the next reapportionment process rolls around, the military won't so readily surrender to the state data about the troops and their families (data it should have never turned over), and that if Hawaii wants to continue to exclude these groups of Census-counted residents, it will need to commission its own survey asking these people about their residency intentions (like Kansas does).
But for now, the Court's order ends the case.
