As we recognized earlier this week when the U.S. Supreme Court noted probable jurisdiction in a redistricting case out of Texas, Hawaii's current approach to state legislative reapportionment -- under which the Hawaii Reapportionment Commission does not count active duty military, their spouses and children, and university students who pay non-resident tuition (108,000, or nearly 8% of the census-counted population were expressly excluded from representation in the Hawaii Legislature) -- seems like it is back in play, even if a three-judge U.S. District Court ruled in 2013 that the scheme was constitutional, a decision that was summarily affirmed by the U.S. Supreme Court.
The Wall St. Jounal Law Blog today posts "Hawaii Military Carve Out May Play Role in Voting District Case," noting:
Hawaii may figure prominently when the Supreme Court this fall considers a case where plaintiffs are seeking to have legislative districts drawn based on a count of eligible voters rather than the total number of residents.That’s because for nearly half a century, the Aloha State has had the high court’s permission to ignore transients when drawing its political maps. While the Constitution requires equal population among legislative districts, a principle known as one-person, one-vote, a 1966 opinion said that Hawaii’s “special population problems” justified using registered voters as the baseline.
What is interesting to us is that the Hawaii Elections official quoted in the WSJ Law Blog states that a ruling by the Court that the Equal Protection Clause requires a count of "citizens" would be problematic for his office because "[i]t would be very, very difficult, because the census data the state used doesn't identify the citizenship of the people counted." But, he claimed, we have the data to easily exclude the military and students.
However, one of the reason why the State of Hawaii prevailed in the case was that it claimed it wasn't excluding the military as military (that would be facially unconstitutional under established SCOTUS precedent), but rather, it was merely counting "state citizens," a term never defined, but which just so happened to only result in the exclusion of military, their spouses, their children, and students who don't qualify to pay resident tuition. And how did Hawaii define "Hawaii citizen" for purposes of the case? Anyone who didn't say on a military form that they wanted to pay Hawaii income taxes, presuming their response meant they were "residents" elsewhere, a presumption that falls apart when viewed with anything greater than the "aliens conceivably did it" rational basis standard of review.
But the court rejected our call for a more rigorous review standard when a state chooses to count less than all persons. We based this argument on the fact that the Equal Protection Clause protects "persons," and doesn't mention "citizens," "voters," or "state citizens." See our Jurisdictional Statement below for more details on why we believe (and continue to believe) that this is the right standard.
In other words, if Hawaii would find it impossibly hard to count U.S. citizens, why does its claim that it easily counts Hawaii citizens not merit any scrutiny whatsoever?
The current Texas case, as noted by the Journal, may answer this question.
For more on the representational equality vs. voting equality issue, see "'One Man, One Vote' Keeps Changing, by Professor Noah Feldman at Bloomberg View.
Jurisdictional Statement, Kostick v. Nago, No. 13-456 (filed Oct. 8, 2013)