inversecondemnation.com

County: We're Short Of Housing, So Let's Do Rent Control! Court: Not So Fast.

Florida law makes it really difficult for municipalities to adopt rent controls. State statutes and the Florida Constitution erect all sorts of substantive and procedural hurdles that must be crossed. For example, a statute requires findings that any such measures are responding to an emergency, a "grave ... menace to the general public," and places the burden on the municipality to not just make findings, but back up those findings with facts, and show that rent control will actually "eliminate" the emergency. Single-family properties cannot be rent controlled. And any ordinance adopted by a municipality must be approved by the voters.

Facing what it concluded was a problem -- a shortage of 26,500 housing units and a population increase of 25% in the last decade - Orange County's County Commission voted, 3-2, to control rents. The measure limited the frequency and amount of rent increases.

After the measure was placed on the ballot for [today's] general election, the Realtors Association sued to declare the ordinance unconstitutional and to prevent the measure from being placed on the ballot. It sought an injunction, and even though the trial court concluded the Association had a substantial likelihood of winning on the merits, it declined to remove the measure from the ballot because even if invalid, a vote would allow the public to offer its opinion on rent control. Both parties appealed.

In Florida Ass'n of Realtors v. Orange County, No. 5D22-2277 (Oct. 27, 2022), the Florida District Court of Appeal agreed that the measure was likely to be illegal, but reversed the trial court's allowing it on the ballot. The court concluded that Orange County could not meet its burden to show that there is a housing emergency, nor its burden to prove that rent control would alleviate any such emergency. "Emergency" means a "sudden or unexpected" and temporary condition, and here, the housing shortage is the result of "historical structural issues" and not a surprise. Things like population growth, and longstanding housing shortages are not sudden. Moreover, the "County Attorney warned the County that these factors would be legally insufficient before it enacted the Ordinance." Slip op. at 18.

Even if the housing shortage qualified as an emergency, the County didn't prove that that it was "so grave as to constitute a serious menace to the general public." Slip op. at 19. To be a "menace," the threat must be a "grave threat or danger to the Orange County citizens as a whole." Slip op. at 20. "At most, the County cites to a low rental vacancy rate and low availability of affordable housing." Slip op. at 21. Yes, this affects renters in Orange County, but that isn't enough. It has to affect everyone.

Next, the court concluded that even if such conditions exist, the rent control measure would not address or remedy the problems. Not only would the measure not "eliminate" the problem as the statute requires, testimony at trial showed that it would have little effect, and even the County's consultant report conclude that rent control "may actually hurt rental conditions by 'imped[ing] the objective of speeding overall housing deliveries as well as creat[ing] a number of unintended consequences.'" Slip op. at 23.

"In sum, for this third and independent reason, the trial court correctly concluded that the Association satisfied its burden to demonstrate a substantial likelihood of success on the merits of its challenge to the Ordinance's validity." Slip op. at 24.

The court of appeal also concluded the ballot summary was misleading: "[t]he summary is misleading not because of what it says, but because of what it does not say." Slip op. at 27. The summary stated:

Rent Stabilization Ordinance to
Limit Rent Increase for Certain
Residential Rental Units

Shall the Orange County Rent Stabilization Ordinance, which limits rent increases for certain residential rental unites in multifamily structures to the average annual increase in the Consumer Price Index, and requires the County to create a process for landlords to request an exception to the limitation on the rent increase based on an opportunity to receive a fair and reasonable return on investment, be approved for a period of one year?

The summary "only advises the voter about the amount of rent control, but not its frequency," even though the actual ordinance limits increases to once in a twelve-month period. Slip op. at 27. The summary thus makes the measure appear less extensive than it actually is.

Finally, the court of appeal disagreed with the trial court's refusal to enjoin the election and keep the issue from the voters:

No public interest can be served by allowing the potential enforcement of a rent control ordinance that fails to meet the facial requirements of section 125.0103, and Article 8, section 1 of the Florida Constitution. We recognize that a local government's aim to enact legislation to address a complex, multifaceted issue is noble, and citizens might believe that rent control is a harmless was to accomplish that aim. But as we stated at the outset of this opinion, the power of local government is limited, and a critical limitation on this power is the Florida Constitution.

Similarly, no public interest can be served by having the electorate vote on a misleading ballot measure.

Slip op. at 32-33.

Fla. Ass'n of Realtors v. Orange County, No. 5D22-2277 (Fla. Dist. Ct. App. Oct. 27, 2022)

What Is A Kelo Reference Doing In An Opinion About Elections And Municipal Home Rule?

Come at me!
(Bolick, J., dissenting)

We have a Wexis alert for "Kelo," because that's one of the ways we keep up on the latest developments in this area. That alert doesn't ping all that often, so we were all excited when yesterday, we received an alert notifying us of the Arizona Supreme Court's opinion in State of Arizona v. City of Tucson, No. CV-20-0244-SA (Apr. 14, 2021)? Was it a case of government-to-government takings? Prior public use? 

So imagine our disappointment when in reading the opinion, it turns out to be a question of municipal home rule, and election law. Now don't get us wrong: we are muni law nerds as well as takings nerds, so we dig any opinion in which a court is looking at a local government's power to frame its own "constitution" and how (or whether) it conflicts with state law. But Kelo? What's eminent domain and public use got to do with this one?

It was only when we got to Justice Bolick's solo dissent that our patience paid off. Turns out that Kelo wasn't cited for its public use holding (good or bad, but knowing Justice Bolick, probably bad), but as an example of a court ignoring the plain text of the constitution:

In Kelo v. City of New London, the U.S. Supreme Court faced a similar dilemma in deciding whether to extend a line of cases that contravened constitutional text. 545 U.S. 469 (2005). Specifically, the Court long ago decided to abandon a literal application of the “public use” requirement of the Fifth Amendment’s Takings Clause, reasoning that “it proved to be impractical given the diverse and always evolving needs of society.” Id. at 479. Instead, the Court “embraced the broader and more natural interpretation of public use as ‘public purpose.’” Id. at 480. In dissent, Justice Sandra Day O’Connor, joined by three colleagues, warned that the practical impact of the Court’s opinion was to reduce the public use commandment to “hortatory fluff.” Id. at 497 (O’Connor, J., dissenting).

¶62 Also dissenting, Justice Thomas remarked that the Court “relies almost exclusively on . . . prior cases to derive today’s far-reaching, and dangerous, result.” Id. at 523 (Thomas, J., dissenting). “When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.” Id.

¶63 The current Court did not create the jurisprudential muddle that surrounds article 13, section 2. We inherited it. We should renounce that legacy in favor of the far richer inheritance bestowed upon us by the Arizona Constitution. For the foregoing reasons, and with great respect to my colleagues, I dissent.

Slip op. at 20 (Bolick, J., dissenting).

And we just can't leave without first noting this, the anecdote/joke that Justice Bolick starts off with on pages 15-16:

¶36 The Court’s convoluted jurisprudence over many decades brings to mind a story. A carpenter needed a new blade for his saw and set forth on foot toward a general store only a mile away down a straight road.

¶37 Shortly thereafter, a neighbor farmer pulled alongside in a wheezing, rusted pickup truck. “Where you headed?” he asked.

¶38 “General store,” replied the carpenter.

¶39 “Want a ride?” asked the farmer.

¶40 Somewhat doubtful about the old truck, the carpenter nonetheless agreed, opening the creaking door and sitting on a bench seat with torn upholstery and springs jabbing his rear. “How long have you had this truck?” the carpenter asked.

¶41 “Bought it new in ’51,” the farmer answered. “Never ran right; still doesn’t.”

¶42 The farmer pressed the accelerator to a loud backfire, then pulled the wheel sharply to the left, coaxing the old truck up a steep hill away from the nearby general store. “Where are we heading?” asked the puzzled carpenter.

¶43 “Don’t rightly know,” replied the farmer. “I go a different way every time. Never really know where I’ll end up ’til I get there.”

¶44 The carpenter felt it unneighborly to complain, even as the ride grew ever more bumpy and uncomfortable. The truck meandered up and down hills and around curves, belching exhaust fumes and kicking up dust. Minutes turned into an hour. An hour turned into two.

¶45 Finally, they arrived at a general store about fifty miles from where they started. The carpenter went inside, only to find the store did not stock the blade he needed.

¶46 Angry now over wasting so much time in a futile endeavor, the exasperated carpenter returned to the truck and asked the farmer, “Why did you drive fifty miles out of our way instead of just going a mile down a straight road?”

¶47 To which the farmer replied, “Because that’s the way I’ve always done it.” And then with a sly grin, he added, “You owe me for gas.”

That's something you don't see every day in a judicial opinion.

State of Arizona v. City of Tucson, No. CV-20-0244-SA (Ariz. Apr. 14, 2021)

Mass App: "Grandfathering" Is Term We're Not Going To Use Because "it has racist origins"

Nothing much to see in the Massachusetts Court of Appeals' opinion in Comstock v. Zoning Board of Appeals of Gloucester, No. 19-P-1163 (Aug. 3, 2020), a somewhat typical zoning dispute.

Neighbor vs neighbor, over whether permits issued by a municipality (and approved by the ZBA) to renovate and replace an existing -- but dilapidated -- residential garage, were valid. The replacement garage was to be built on the same footprint as the old garage, even though some elements of the design were different.

Issue: is the separate garage covered as a pre-existing nonconforming use under Massachusetts statutes? 

Short answer: yes, the nonconforming use statute covers separate buildings. The term "single-family residence" includes accessory structures. Nothing too surprising there.

But what caught our eye and makes us post this case here is footnote 11 on page 8 of the slip opinion, about the "certain level of protection to all structures that predate applicable zoning restrictions" -

Providing such protection commonly is known -- in the case law and otherwise -- as "grandfathering." We decline to use that term, however, because we acknowledge that it has racist origins. Specifically, the phrase "grandfather clause" originally referred to provisions adopted by some States after the Civil War in an effort to disenfranchise African-American voters by requiring voters to pass literacy tests or meet other significant qualifications, while exempting from such requirements those who were descendants of men who were eligible to vote prior to 1867. See Webster's Third New International Dictionary 987 (2002) (definition of "grandfather clause"); Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era, 82 Colum. L. Rev. 835 (1982).

Slip op. at 8 n.11.

In our experience, we haven't seen the term "grandfathering" used all that much in briefs or opinions. If used at all, it is primarily by "lay" persons since the term has worked its way into common parlance, separated from its historical use and meaning. We've always thought it was too vague a term for land users to employ meaningfully (our in-house rationalization for why we didn't see it being used that much.) Those in the land use and zoning business tend to use "vested right," "nonconforming use," "zoning [or equitable] estoppel" or similar terms. 

What's your experience? Have you seen that term used in technical situations in land use law? We always understood the original meaning of the term, but assumed -- rightly or wrongly -- that it had become somewhat generic outside of its meaning in voting rights. Let us know, please - we're curious.

Comstock v. Zoning Bd. of Appeals of Gloucester, No. 19-P-1163 (Mass. App. Aug. 3, 2020)

Why Eminent Domain Lawyers Should Read The Supreme Court's Census Case

Eminent domain lawyers know that even though the U.S. Supreme Court ruled against the property owner in Kelo, it acknowledged that there was a (slight?) hope in some cases where the condemnor's stated public use or purposes is actually "pretext" to private benefit.

Pretext may be present in at least three situations: (1) when eminent domain is used to transfer the private property of one party to another private party where the magnitude of public benefits outweighs the private benefit; (2) when eminent domain is used for a one-to-one transfer of private property without a comprehensive, integrated, and carefully considered development plan; and (3) where a particular private party is identified before the taking. See Kelo v. City of New London, 545 U.S. 469, 478 & n.6 (2005). 

But in the 15 years since Kelo, the Court has never agreed to take up the question of how a property owner goes about actually proving that the real reason for the taking isn't the stated reason. What kind of evidence is needed? What are the burdens of proof? Some lower courts have taken a deeper dive (see this, this, and this case, for example), but on the whole it is still uncharted territory at least as far as definitive guidance from the Supreme Court goes. 

In other areas of law, the courts regularly deal with pretext issues, concluding that a reviewing court must look to context to determine the motivations of government officials. See, e.g., Vill. of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266 (1977) ("Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.”). And our favorite, Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540 (1993) ("“[W]e may determine the city council’s object from both direct and circumstantial evidence," which includes "the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.").

Well today, the Court issued another opinion that might be useful to eminent domain lawyers grinding through a pretext issue. But it is not an eminent domain case, but one that involves the U.S. Census. 

The issue in Dep't of Commerce v. New York, No. 18-966 (June 27, 2019), Chief Justice Roberts, writing for a five-Justice majority in a challenge to the inclusion of questions on the upcoming census about a person's citizenship, concluded that it is permissible for the census to ask such questions, but that in this case, the Department could not adequately explain why it was including the citizenship questions, and it needed to justify it better. In other words, the Department's stated reasons looked pretextual. (For more on the decision, including a breakdown of the votes, see lawprof Jonathan Adler's post at Volokh Conspiracy.)

The entirety of the opinions is worth reading of course, but for the majority's pretext analysis, start on page 23. CJ Roberts writes, "in order to permit meaningful judicial review, an agency must 'disclose the basis' of its action." Slip op. at 23. And courts normally stick to the record which the agency generates. Id. at 23-24. Why? Because (like eminent domain), in reviewing these type of cases, that due to separation of powers concerns, courts are hesitant to making deep inquiries into why another branch is doing what it does. And a court cannot conclude that an agency's rationale is invalid "simply because the agency might also have had other unstated reasons." Id. at 24. Again, a lot like condemnation. And although courts don't normally inquire into the "mental processes of administrative decisionmakers," they can in some limited circumstances. 

The majority agreed with the District Court invoking that exception in this case. Starting on page 26 of the slip opinion, the Court laid out all of the facts which led the majority to conclude:

...we share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA.

Slip op. at 26. Noting a "mismatch" between the agency's decision to include the citizenship question, "and the rationale he provided," the majority concluded that "[w]e are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency's priorities and decisionmaking process." Slip op. at 28. 

Here's the majority's bottom line that resulted in the remand:

Altogether, the evidence tells us a story that does not match the explanation the Secretary gave for his decision.

Slip op. at 27. 

Eminent domain lawyers, take note. 

Dep't of Commerce v. New York, No. 18-966 (U.S. June 27, 2019)

Monday Reading: Pirates (Twice), Monet Land Use Pilgrimage

Here's what we're reading today:

• It isn't just us: "Kansas justice invokes 'Pirates of the Caribbean' in legal dissent." You know what they're talking about ("more like what you'd call 'guidelines' than actual rules"). We've done it too. Now you can cite it in your next brief. From the Wichita Eagle. 
• Speaking of pirates, a dude whose real name is Captain Jack Sparrow is running for Mayor of Minneapolis. A $20 filing fee is a pretty low barrier to entry. They should make it at least as much as bar dues. With photos, in case you are a doubter. 
• And here's the explanation for the photos above and below: "How Monet was almost thwarted by nimbys: Documents that show artist's neighbours objected to plans for lily pond in his garden set to go on display." Yes, it's a story from 2015 (remember, this post is what we're reading today, not what was written today), but it is still a worthy read. Even a guy as famous as Claude Monet ran into land use troubles. As the first comment writer noted, "Even the masters have to deal with an out of control condo board." As for the pictures, the first below is the diverted River Epte, noted in the article, in its present-day state. The second, a part of Monet's gardens is posted just because it's Monday, and tax day, and a big filing day for us. 

Hawaii Supreme Court: Election Law Appeal Timely Brought When Mailed

Here's the latest in a case we've been following (because we represent the Petitioner), an election law case about the timing of appeals in challenges to a voter's registration.

In Hyland v. Gonzales, No. SCWC-15-0000053 (Mar. 2, 2017), the unanimous court held that the appellant timely "brought" his appeal to the Hawaii County Board of Registration by mailing it within the statute's 10-day appeal window. The opinion was just issued, and we're reading it now. Here's the brief we filed in the case. 

While the case involved specific statutes under the Elections Code, Hawaii appellate lawyers should pay attention to this case because it involves how time is calculated for appeals, and what is considered a "holiday" for purposes of the calculation.

We'll have more once we've digested it.

Hyland v. Gonzales, No. SCWC-15-0000053 (Haw. Mar. 2, 2017) 

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Hawaii Supreme Court Oral Arguments: When Is Election Law Admin Appeal "Brought?"

Here's the recording of Hawaii Supreme Court oral arguments from last month in a case we first were following, and then later became involved in as counsel.

As we previewed here, the question which the court is reviewing is whether an appeal in a voter registration challenge case is timely brought when it is mailed by the appellant, or when received by the Board of Registration Appeals. Under the statute, challengers have ten days in which to "bring" an appeal, and the Intermediate Court of Appeals concluded that means to be timely brought, the appeal papers must be delivered to the Board within that time, not merely deposited in the mail.

If election or administrative law, or the timing of bringing appeals is your thing, you might want to listen along.  

Upcoming Election Law Hawaii Supreme Court Argument Preview: When Is A Registration Challenge "Brought?"

Our colleague Rebecca Copeland has posted a preview and the briefs in an election law case we're arguing next week in the Hawaii Supreme Court. See "Writ to Watch: Hyland v. Gonzales." We've written about the case earlier here and here. 

The question for the court's review is whether an appeal in a voter registration challenge case is timely brought -- when mailed by the appellant, or when received by the Board of Registration Appeals? Under the statute, challengers have ten days in which to "bring" an appeal, and the Intermediate Court of Appeals concluded that it must be delivered to the Board within that time, not merely mailed. The court's decision in this case could have an impact beyond the relatively rare election law context, because many administrative procedures and appeals are subject to similarly-phrased deadlines.  

Rebecca writes:

In the underlying case, Hyland challenged the voter registration of another Hawaii county voter. The challenge was filed with the Office of the County Clerk for the County of Hawaii. The Clerk denied the challenge, and Hyland appealed to the Hawaii County Board of Registration. The Board ruled that it lacked jurisdiction over the appeal because it had not been timely filed – according to the Board, an appeal must be received within the 10-day prescribed filing period. Hyland appealed to the ICA, and the court affirmed.

On certiorari, Hyland argues that the Board had jurisdiction to consider his appeal. The essence of the appeal is whether it was timely because, according to Hyland, he mailed it within the ten-day appeal window. Hyland was told that the appeal had to be mailed to Oahu, but he was not told that the delivery of the document to the Oahu was required to be within the ten days.

The Judiciary has also previewed the arguments on its web site: 

No. SCWC-15-0000053, Thursday, January 19, 2017, 8:45 a.m.

LANRIC HYLAND, Petitioner/Petitioner-Appellant, vs. RONALD GONZALES and STEWART MAEDA, in his official capacity as Hawai`i County Clerk, Respondents/Respondents-Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioner Lanric Hyland:

Robert H. Thomas and Mark M. Murakami

Attorneys for Respondent Board of Registration:

Patricia Ohara and Valri Lei Kunimoto, Deputy Attorneys General; Ewan C. Rayner, Deputy Solicitor General

Attorneys for Respondent Stewart Maeda:

Christopher P. Schlueter and Laureen L. Martin, Deputy Corporation Counsels

Attorney for Respondent Ronald Gonzales:

Lincoln S.T. Ashida

NOTE: Order accepting Application for Writ of Certiorari, filed 05/11/16.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

The petitioner in this case challenged the voter registration status of a voter by filing a challenge with the Office of the County Clerk of the County of Hawai`i. Following the county clerk’s decision that the challenged voter was properly registered, petitioner appealed the county clerk decision to the local Board of Registration (Board) for the County of Hawai`i. The challenged voter filed objections to the jurisdiction of the Board arguing that the appeal was untimely. The Board agreed, concluding that it was without jurisdiction to consider the appeal because the appeal was untimely as it was not received by the Board within the ten-day filing period.

Petitioner appealed the Board’s decision to the Intermediate Court of Appeals (ICA) contending that petitioner’s appeal was timely. In a memorandum opinion, the ICA affirmed the order dismissing the appeal, concluding that petitioner’s appeal was not timely as it was not filed until the date it was received by the local board in the mail. The ICA in its ruling also determined that the Board erred in concluding that Columbus Day was a holiday that tolled the appeal deadline, although the ICA concluded that the error was harmless because the appeal would have been untimely in any event. Petitioner filed an application for writ of certiorari with this court, which was granted. In his application, petitioner maintains that the Board had jurisdiction over his appeal because his appeal was timely filed with the Board based on the date of the mailing of his notice of appeal.

We'll bring you more down the road. 

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9th Cir: Restricting Voting To People Of Northern Marianas Descent Is Race-Based Voting Limitation

Here's the Ninth Circuit's opinion in a election law case we've been following, Davis v. Commonwealth Election Comm'n, No. 14-16090 (Dec. 27, 2016). 

The issue in the case is whether limiting voting on certain constitutional amendments in the Commonwealth of the Northern Marianas Islands to a "person who is a citizen or national of the United States and who is of at least one-quarter Northern Marianas Chamorro or Northern Marianas Carolinian blood or a combination thereof or an adopted child of a person of Northern Marianas descent if adopted while under the age of eighteen years" is a race-based limitation on voting, prohibited under the Fifteenth Amendment.

You know the answer, don't you? Of course it is, and the Ninth Circuit panel, in a short opinion, said so. Ancestry, as Rice v. Cayetano, 528 U.S. 495 (2000) held, can be a proxy for race, and "[j]ust as the definitions of Hawaiian and native Hawaiian in the Rice statute referred to specific ethnic or aboriginal groups, the definition of NMD in Article XII, section 4, ties voter eligibility to descent from an ethnic group." Slip op. at 12.

The court rejected the CNMI's argument attempting to distinguish Rice, holding that "full-blooded" and other definitions showed the true purpose and effect of the restriction (limiting participation in an election to people of a certain race). Slip op. at 13-14. Nor was the limitation a political classification. "The Rice Court held that the people of Hawaiian and Native Hawaiian descent were not a quasi-sovereign group distinct from the whole citizenry of the state and could not restrict voter eligibility in a statewide election only to themselves." Slip op. at 14. Citizens of the CNMI are not sovereign or quasi-sovereign like American Indian tribes (which can limit elections to tribal members). 

Message received, Ninth Circuit. 

Davis v. Commonwealth Election Comm'n, No. 14-16090 (9th Cir. Dec. 27, 2016) 

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New HAWSCT Brief In Election Case: Voter Registration Appeal Is Timely Brought When Mailed

Remember that decision by the Hawaii Intermediate Court of Appeals that we posted a few months ago, after the Hawaii Supreme Court granted discretionary review? The case involved a question of how appeals are brought and filed in cases challenging a voter's registration. In Hyland v. Gonzales, the ICA held that an appellant who was challenging another voter's registration did not timely "file" his appeal, because he mailed it after the ten day statutory limitations period, and did not ensure it was delivered in that window. 

When we posted that case here, we didn't have a dog in the hunt. But later, we were asked by the Hawaii Pro Bono Appellate Project to represent the losing appellant, now that the Supreme Court had agreed to hear the case. We signed on and asked the court for supplemental briefing and oral argument. The court agreed, and today, we filed our Supplemental Brief, which argues:

Petitioner, a resident of the island of Hawaii, timely brought his appeal to the Board of Registration by mailing it on Tuesday, October 14, 2014. This brief supplements Petitioner’s Application for Writ of Certiorari with three arguments:

1. Personal service, or registered mail. The statute required the Clerk to serve his decision on Petitioner personally or by registered mail. Haw. Rev. Stat. § 11-26(b) (“Service of the decision shall be made personally or by registered mail[.]”). The Clerk mailed his decision to Petitioner on October 2, 2014, but did not do so by registered mail. Instead, he chose to send it “by the standard United States Postal Service.” ICA Op. at 2 n.2. There is nothing presently in the record to show when Petitioner was personally served. Before dismissing Petitioner’s appeal for missing the statute’s ten day deadline, the Board and the ICA should have required the Clerk to satisfy his burden to introduce evidence of when the ten day period began (the day he “serv[ed] . . . personally” Petitioner with his decision). In the absence of such evidence, the Board and the ICA could not have concluded Petitioner’s appeal was untimely brought or filed.
2. Mailed = brought. Even if the Clerk opened the window by serving his decision on October 2, 2014, Petitioner timely brought his appeal because he mailed it to the Office of Elections on Oahu on Tuesday, October 14, 2014, twelve days later.[1] Section 11-26(b), when read in context of the entire statutory scheme of voter registration demonstrates that an appeal is “brought” and the case perfected, when the appellant mails the notice, even if it tales additional days for delivery. Emphasizing that point, the Office of Elections advised Petitioner that his appeal should be mailed to its Oahu address, and did not inform him he must ensure delivery to the Board within the appeal window. If the appeal window began when the Clerk mailed the decision, and not when received by Petitioner it should likewise have ended on the day Petitioner mailed his appeal, not when the Board received it.
3. Equal protection and due process. Finally, if the statute is read as requiring delivery within ten days, it could not be applied to Petitioner because doing so would trigger two constitutional problems: (a) there is no rational basis for Oahu challengers to have the full ten days, but their neighbor island counterparts who rely on the mail less time; and (b) the Clerk failed to inform Petitioner that mailing within the ten day limitations period would not perfect his appeal.

The ICA, however—interpreting the term “filed” in the Office of Elections’ regulations (and not the term “brought” in the statute itself)—concluded that mailing within the statute’s time limit wasn’t sufficient, because timeliness is measured from the date of delivery to the Board.[2] The ICA held that Monday, October 13, 2014 was the deadline for receipt. But that rationale deprived Petitioner of the full statutory appeal period, because Monday was Columbus Day and the postal service did not deliver mail. This means the ICA’s actual deadline for receipt was Friday, October 10, 2014. To ensure the Board received his appeal by that date, Petitioner needed to have mailed it by Wednesday, October 8, 2014.

The ICA’s opinion and judgment should be vacated, and this case remanded to the Board for a decision on the merits of Petitioner’s appeal.

--------------------------

[1] Section 11-26(b) required that an appeal be “brought” within ten days of service, and section 1-29 added two extra days because the tenth day was a Sunday. The following day was Columbus Day, a holiday when post offices were closed and there was no mail delivery.

[2] ICA Op. at 5-6 (“Thus, in order for Appellants’ appeal to be timely, Appellants were required to deliver their Appeal Letter to the Board within ten days of when the County Clerk properly mailed his adverse decision to them.”) (emphasis added) (footnote omitted).

The court permitted all parties to file supplemental briefs, and if any others do so, we'll post them here. Oral arguments in the case are set for January 19, 2017.  

Petitioner's Supplemental Brief, Hyland v. Gonzales, No. SCWC-15-0000053 (Haw. Nov. 18, 2016) 

NSFW (Maybe): A Chicago Statue

Are you like us and cannot type, write, or say "statue" without it coming out "statute?" That's an affliction we've had since law school days, and one we're probably never going to shake.  

As lawyers, we've all no doubt seen plenty of crappy statutes in our careers.

But, at the risk of being offensive, here's an actual s**t statue, located in the City of Chicago. Created by an artist tired of dog owners allowing their Fidos to do their business on the artist's front steps, he protested in the only way he knew how: by reproducing the offending items in bronze, larger than life, with water flowing out of the top.

Crass but apparently effective: evidence of actual dog doo was nowhere to be found during our recent visit.  

The artist.

Another angle on his work. 

 

 

Quo Warranto Fu: Does County Environmental Manager's Law Degree Qualify As "Engineering ... or related?"

We love quo warranto cases. Not just because "if it ain't Latin, it ain't the law' (as one of our favorite law school profs informed us), but because they are yet another means for citizens to challenge those holding and exercising power.  

Here's the latest from the Hawaii appellate courts, Ford v. Leithead-Todd, No. CAAP-15-0000561 (Sep. 8, 2016).

The case involved the requirement in the County of Hawaii Charter that the Director of the Department of Environmental Management possess "an engineering degree or a degree in a related field." The mayor and county council hired a lawyer who did not have an engineering degree -- only a bachelors with a major in English and a minor in Hawaiian studies, plus a JD -- and a citizen brought a quo warranto suit challenging her qualification for office.  

The circuit court granted the County's motion for summary judgment, concluding that the quo warranto plaintiff bore the burden of proving that the mayor and council abused their discretion in interpreting the "related field" provision. Agency decisions are entitled to judicial deference, after all.

The Intermediate Court of Appeals disagreed.

First, the court made short work of the burden being placed by the trial court on the petitioner. The ICA correctly noted that in quo warranto proceedings, once the writ is issued by the court ordering the respondent to respond, the burden is on the respondent to prove they are qualified for the office. 

Second, the ICA held that neither the mayor nor the council are "agencies," and thus "are not entitled to deference as political bodies or as agencies in their appointment of Leithead-Todd in this quo warranto action. In a quo warranto action, the circuit court is not acting as an appellate court, like it would in an appeal from an agency decision under HRS § 91-14(a) (2012 Repl.), but instead reviews whether a person who claims office has the authority to do so." Slip op. at 8-9.  

Finally, the court rejected the County's "cursory" argument that this issue is a nonjusticiable "political question." The question of the Charter definition hasn't been given to the political branches, nor is the term "related field" so beyond a court's competence that it simply cannot make a ruling.  

Judgment vacated, case remanded to apply the correct standards. 

This case illustrates the problems that can arise when the idealistic desire to raise the level of professionalism of county officials runs into the practical reality of a shallow gene pool. The Big Island population isn't that large, and sometimes you may not have someone who both possesses the prime qualification, and will take the job. 

Ford v. Leithead-Todd, No. CAAP-15-0000561 (Haw. App. Sep. 8, 2016)

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In The Bluest Of Blue States, 9th Circuit Rebuffs (For Now) Attempt To Bar Republican Voters From The Only Election That Matters

You may call us anti-Holmesian, but we're wary of any judicial opinion that has "clear and present danger" as its standard of review. Like "shouting fire in a crowded theater," this legal meme gives more heat than light in our estimation, and doesn't really tell you much.

But the phrase was at the heart of the Ninth Circuit's opinion in Democratic Party of Hawaii v. Nago, No. 13-17545 (Aug. 15, 2016), issued today in the case in which the DPH challenged Hawaii's "open primary" election.  

We've been following the case since its inception, and won't go into the background and details again except to say that Hawaii is really, really blue, and the goal of the lawsuit was to exclude those who have not sworn allegiance to The Party from the only election that truly matters in our one-party state, the Democratic Party Primary. As last Saturday's primary revealed yet again, choosing the Democratic Party standard-bearer -- with an isolated exception here and there -- pretty much decides who wins the general election. But that wasn't good enough, even though elected Democratic officials were not exactly enthusiastic about the lawsuit, at least on the surface, because The Party, apparently, desires a completely closed shop.

The Ninth Circuit rejected the challenge -- which was, importantly, a facial attack on the requirements of Haw. Const. art II, § 4 and Haw. Rev. Stat. ch. 12 -- concluding that the plaintiff had not introduced evidence (as in actual evidence, not merely its conclusions) to support its claim that an open primary severely burdens its associational rights by allowing outsiders to choose The Party's candidates. In order to succeed, the plaintiff would need to show that there are no circumstances in which Hawaii's open primary does not infringe on their associational right of Democrats to decide solely amongst themselves their anointed one. This is where the "clear and present danger" language came in:

Thus, unlike in Jones, the Democratic Party has provided no evidence showing a “clear and present danger” that adherents of opposing parties determine the Democratic Party’s nominees. See 530 U.S. at 579. As explained above, the lone statistic the Party cites is ambiguous at best. Likewise, the Party has not shown that Hawaii’s open primary system causes Democratic candidates to moderate their policy stances. See id. at 579–80. Absent evidence that Hawaii’s system affects the Party’s ability to select its nominees, the Party’s facial challenge fails.

Slip op. at 12.

To be fair, it wasn't the Ninth Circuit that imported Holmes' free speech phrase into election law, it was the U.S. Supreme Court in California Democratic Party v. Jones, 530 U.S. 567 (2000). The Ninth Circuit read that case as requiring actual evidence of associational harm, not merely an assertion of associational harm:

To reach this ruling, the Court relied on data showing that in California, 20% of registered Democrats and 37% of registered Republicans planned to vote in the other party’s primary in 1998. Id. at 578. An expert testified that it was “inevitable” under California’s system “that parties will be forced in some circumstances to give their official designation to a candidate who’s not preferred by a majority or even plurality of party members.” Id. at 579. According to the Court, the evidence showed a “clear and present danger” that adherents of an opposing party would determine their rival’s nominee. Id. at 578.

Slip op. at 8. 

Lawprof and election law guru Rick Hasen views it a bit differently. On his Election Law Blog (a must-follow for you election law junkies), he writes:

I had always read Supreme Court cases like Tashjian and CA Democratic Party v. Jones as standing for the principle that if the party objects to the open or closed nature of a primary, it is unconstitutional for the state to use that form of the primary for that party.

But today’s opinion says it is up to the party to provide actual evidence that the law severely burdens the party, namely with “evidence showing a ‘clear and present danger’ that adherents of opposing parties determine the Democratic Party’s nominees.”

This may not stand. First, I’m not sure the Supreme Court would agree such evidence is necessary. Second, the standard seems wrong. Suppose the evidence shows that open primaries lead to more moderate candidates (that’s a contested point, I know) and the party does not want to nominate more moderate candidates.  Isn’t that a big burden too?

So keep an eye on this case.

So which is it: the actual evidence standard that the Ninth Circuit discerned from Jones, or Professor Hasen's read of Tasjian and Jones?  As someone with only an academic stake in the case, we're of two minds (or at least we can see both arguments). As we wrote back in 2007 when the challenge to the open primary was first floated, "[t]he question posed by the lawsuit being considered is whether the U.S. Constitution mandates a particular form of primary election, one that allows the parties to determine who votes in their primaries, rather than having the state dictate the process. The Court has held that California's blanket primary system unconstitutionally restricted political parties' First Amendment freedoms of association. California Democratic Party v. Jones, 530 U.S. 567 (2000). However, the Court has also held that a closed primary system was unconstitutional, since it infringed upon the associational rights of a party that wished to open its primary to non-party voters. Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986)."

On one hand, it makes sense to require some kind of proof and not invalidate a state constitution and statute upon mere allegations, even in the context of a facial challenge. This is a publicly-funded election, after all, and the public should be able to set the standards of who gets to vote, especially where the primary for all intents and purposes selects the eventual winner. On the other, shouldn't a private political association be free to select its own standard-bearers?

As we wrote earlier, we think this turns on the mandatory nature of the open primary. If there's no other way than the open primary for the Democratic Party to choose its candidate for the general election, there may be a problem: "The philosophical heart of the case is whether a primary election is about a voter's choice or a party's choice, but nothing we've read in the briefing so far has changed our initial prediction that the case is going to turn on the mandatory nature of the open primary. Our read of Hawaii law is that there's no other way for a political party to choose its general election standard-bearer. Thus, however odd it may seem in an overwhelmingly Democratic state where the primary in many cases serves as the de facto general election, the Party's right to pick whom it wants as its candidate to stand before the public in a meaningless election has a good shot at winning out over the State's argument for a voter's choice of whom he wants to serve as his representative."

Finally, this was only a rejection of a facial challenge. Can the Democratic Party come up with the necessary evidence and try again? Will it take the case up to the Supreme Court, as Professor Hasen suggested might be fruitful? 

Stay tuned folks, this one isn't likely over.   

Democratic Party of Hawaii v. Nago, No. 13-17545 (9th Cir. Aug. 15, 2016)

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Hawaii Supreme Court: Some Office Of Election Ballot Practices Are "Rules," Some Maybe Not

Like many high-profile cases, the legal challenge to the actions of the State Office of Elections tracks two threads. On one hand, the Office's travails are well known and frequently reported. The public understands only too well the difficulties the Office encountered when it failed to print enough ballots, and had other problems in recent Hawaii elections. The media reports in the wake of the disastrous oral argument (from the Office's perspective) focused on how upset the Justices seemed to be with the way the Office approached the situation, and its arguments in the case. We had a similar view when we wrote, "After A Judicial Feeding Frenzy, The Hawaii Supreme Court Searches For Rules To Fix The Office Of Elections." 

On the other hand, judicial opinions (particularly by a unanimous court) tend to focus on the legal nuances which a case presents, by detailing things like precedent, the statutory language, and standards of review that don't really make for interesting reading for anyone but lawyers. Even if the underlying case is "ripped from the headlines."

So even though we predicted after oral argument that the Hawaii Supreme Court would conclude that the Office of Elections practices regarding ballot printing and delivery are administrative rules that must have been adopted via the rulemaking process in the Administrative Procedures Act, we were not sure how strongly the opinion would come out of the gate about the non-legal stuff. How "tart" would the opinion be?

Well today we got our answer. In Green Party of Hawaii v. Nago, No. SCWC-14-0001313 (July 19, 2016), Justice Pollack, writing for a unanimous court, kept the benchslaps to a minimum. A quick read of the opinion reveals that the court ruled as narrowly as it could: it determined that some of the policies and practices are rules, and that they should have been adopted under the APA's procedures. And, despite giving the Office of Elections a real grilling at oral argument, it also concluded that other practices were not rules, or at least the plaintiffs hadn't introduced enough evidence into the record to prove that they were. So this was technically speaking, a split decision.   

We think any lawyer with an interest in Hawaii administrative law (that includes you, land users) should read and understand this opinion. Even if you don't cover election law, the court's differentiation between those things that are rules -- and those that aren't -- is an important distinction you need to understand. The opinion is replete with discussion of past decisions, and the nuances of what is a "rule" and what isn't. 

We lawyers dig these sort of things of course, but the real bottom line question the public probably wants to know is whether the Office of Elections has righted the ship (with or without the Supreme Court's prodding), and whether the Office's assurances that these problems won't crop up again at the next election should be believed.

On that, the opinion gives no overt answer. The relief the court granted was, as we mentioned above, narrow: it did not require the Office to adopt rules, and only determined that the agency should have adopted rules and because it had not, the specific practices were invalid. But given the tenor of the oral arguments, and the resulting unanimous opinion (even if it is dry legal text), we'd be surprised if the Office didn't get the message.  

Green Party of Hawaii v. Nago, No. SCWC-14-0001313 (Haw. July 19, 2016)

9th Circuit Arguments In Nai Aupuni/OHA Case: Mooted On Appeal, Or Likely To Recur?

The oral argument heard this morning in the  "Nai Aupuni" cases (Akina v. Hawaii, No. 15-17134, and No. 15-17453) by a panel of the Ninth Circuit (Chief Judge Thomas, and Judges Callahan and Murguia, riding circuit in Honolulu), was a study in contrasts.

On one side, representing the plaintiffs-appellants, was a lawyer from Washington D.C.'s Judicial Watch, who argued against the case being rendered moot on appeal by the machinations of the main defendant, Nai Aupuni, which in response to the U.S. Supreme Court earlier ordering it to halt the putatively private election to choose delegates to a native Hawaiian convention to frame a constitution, called off the election and dissolved. This, he argued, was a mere litigation strategy, and the "cognizable danger of a recurrent violation" remains, even though this defendant doesn't legally exist any more. Having been busted by the Supreme Court, Nai Aupuni has adopted its actions to purposefully make the appeal moot. Appearing to understand that he was up against a skeptical court, his argument allowed careful listeners to see the analogy to Jim Crow southern governments (without ever expressly making that connection), which, when confronted by civil rights plaintiffs and adverse court injunctions, changed their behavior and tried to alter the ground rules. The appeal wasn't moot, he argued, because the Office of Hawaiian Affairs -- the main problem, in his view -- could simply fund another putatively private organization and conduct another unconstitutional election by proxy.

On the other side, OHA also hired outside help, SCOTUS litigator and potential future federal judge Kannon Shanmugan, also from D.C., whose arguments, coupled with his smoothly efficient delivery (he delivers arguments in complete sentences with nary an "um" or an "ah"), are going to be difficult for the plaintiffs-appellants to overcome. Beginning his arguments by reminding the panel who he was, and what firm he's with (which could be important in circles such as these), he coolly set out why there was really no "there" left for the court to do anything about, and how the plaintiffs could always try again should there ever be.  

Chief Judge Thomas seemed inclined to agree, and his few questions mostly reflected his concern that there wasn't anything left to enjoin, at least on a preliminary injunction as the plaintiffs request, or by the appeals court. He noted that the district court could consider a permanent injunction request by the plaintiffs, so they are not foreclosed from a remedy. Judge Murguia for her part asked few questions, but those which she posed seemed to indicate agreement with Judge Thomas, and a skepticism that the court of appeals could do much against an entity that does not exist any more. 

In our view, if the plaintiffs/appellants are going to win here, it would most likely be up to Judge Callahan -- who asked the most questions by far, and who seemed to probe Mr. Shanmugan's arguments more deeply than her fellow judges -- to come up with an opinion that will take her colleagues past the fact that the main player and event (Nai Aupuni and the now-cancelled election) are defunct, and bring another panel member along with her. In our view, that's going to be a tough hurdle to overcome.

Other counsel argued, all of them local to Hawaii -- a deputy attorney general for the State of Hawaii, counsel for Nai Aupuni, and the lawyer for  five Native Hawaiians who want to intervene and restrict voting even further than Nai Aupuni did by limiting it to those, like them, with a higher blood quantum -- but the questions directed at them were of similar character to the two main combatants.

So now we wait. 

More On The Election Office Snafu Case, Awaiting Decision By The Hawaii Supreme Court

More on that case we reported on earlier this week, recently argued at the Hawaii Supreme Court:

• Journalist Ian Lind posts "Hawaii Supreme Court skeptical of Office of Elections" which has links to the merits briefs in the court of appeals. These help us to understand the arguments better. Recall that with most cases granted review by the Hawaii Supreme Court, no additional briefing is taken. All the court reviews are the cert-stage briefs, the lower court briefs, and, of course, the lower court's opinion and record. 
• Civil Beat also has a column by Mr. Lind, "Justices Aren't Buying That Voting Rights Weren't Violated" ("However, the attorney representing the Office of Elections at the May 18 Supreme Court hearing ran into an unusual barrage of critical questions from all five Supreme Court justices in what Honolulu attorney and law blogger Robert Thomas called 'as close to a feeding frenzy as you might witness in the usually decorous air of the state’s high court.'"
• "Defending the indefensible: Supreme Court hears the Office of Elections try to justify its handling of 2012 election ballot errors" from Disappeared News ("I’ve learned long ago that I can’t divine the thought processes of judges by listening to their questions in the oral arguments. If you skip ahead as I suggest, you might think this case is a slam dunk. But we’ll have to wait for the final decision."). 

More, after the court renders its decision. 

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After A Judicial Feeding Frenzy, The Hawaii Supreme Court Searches For Rules To Fix The Office Of Elections

"Mistakes Were Made"

During last week's oral arguments (also streaming below) in Green Party of Hawaii v. Nago, No. SCWC 14-0001313 (May 18, 2016) -- arguments that ran nearly 50% over the scheduled one hour length -- the justices of the Hawaii Supreme Court appeared to be searching for a practical answer to the central question in the case: since the State Office of Elections admittedly goofed up the delivery and printing of ballots during the 2012 general election (and had other well-publicized problems), what, if anything, could the court do to make sure these problems don't recur?      

Mea Culpa, Mea Culpa

All the lawyer for the agency could offer was the Election Officer's mea culpa, and assurances that 2012's problems wouldn't be repeated. She opened her portion of the arguments like this:  

At the outset I want to acknowledge the mistakes that were made -- that mistakes were made during the 2012 general election. No one, least of all the State, wants a repeat of the mistakes that occurred in 2012, and as the Chief Election Officer acknowledged in a written statement, which is in the record, the idea is to do better in the future. 

A One-Off?

The agency's biggest problem was caused by what it and Intermediate Court of Appeals characterized as a one-off bad decision by a lone bureaucrat to base the amount of blank ballots ordered on the number of voters in the last election, and not on the number of registered voters, as the governing statute requires. The plaintiffs argue that this bad decision was a "rule," and the agency should have gone though the rulemaking process in the Administrative Procedures Act before going forward.

No Harm, No Foul

The agency argued that its failure to print the correct number of ballots and to deliver them to the correct precincts is an internal matter that wouldn't be repeated, and we'll fix our internal problems internally. No need for rulemaking, nor is judicial intervention necessary. Besides, in this case, no-harm, no-foul: the plaintiffs weren't denied the opportunity to vote -- the Office's problems just made it more difficult for them to have voted than it should have been. There was, as counsel repeatedly tried to explain, a lack of "proximate causation." That is, an actual link between the agency's mistakes and any ills the plaintiffs say they suffered. And since the relief the plaintiffs seek -- declaring the agency's practices to be illegally-adopted rules, and requiring it to adopt rules properly -- would not impact the outcome of the election, there's nothing for the court to do here.

The court of appeals agreed and let the agency off the hook, concluding with the same passive voice that "mistakes were made,' but that the problems with the ballot were the result of internal operating procedures, and thus were not administrative "rules" that must have been subject to official rulemaking and not a stand-alone bureaucrat.

Two Main Questions

The Supreme Court's questioning focused on two main threads:

• First, was there really no foul, no downside to the agency's goofs? No question that the agency's screw ups didn't alter the election results as the ICA noted, but did they impact the plaintiffs' rights to cast their votes?
• Second, beyond the assurances of the agency that it would not happen again, what does the statute require and what remedy should the court impose should it decide to do so? We saw this as a question of how detailed the court's mandate should be (our read of the arguments is that there isn't too much question in the justices' minds about the agency's liability).

A Judicial Feeding Frenzy

The agency's arguments may have satisfied the ICA, but as a listen to the recording after the 31:30 mark reveals, they were the like blood in the water at the Supreme Court. The immediate onslaught of questions, incredulity, and downright scorn directed from the bench towards the agency's counsel was as close to a feeding frenzy as you might witness in the usually decorous air of the state's high court. No doubt, a very long half-hour-plus for the Election Office's advocate.

It began when Justice Pollack interrupted her opening confessional and promise "to do better in the future" with an obvious question: "Well how are we going to do better? I mean, it looks like to me the same thing could happen again." She had no answer to that question, either for Justice Pollack or in response to the similar questions the other justices continued to hurl her way.

Rocket Science And Common Sense

The court seemed incredulous. How could the agency allow a single bureaucrat to make the decision when the statute says otherwise, and how was this not a "rule?" Besides, how hard could it be to adopt rules to guide the number of ballots printed, and their distribution to the precincts -- Justice McKenna remarked that this certainly wasn't "rocket science." Counsel didn't agree that it was necessary to undertake rulemaking, because the 2012 election was a reapportionment cycle and not your usual election, and this was a "one time calculation/miscalculation of what would be a sufficient number of blank ballots" (as the ICA opined). To "set in stone" a formula to determine the number of ballots to be printed and delivered in future elections isn't necessary.

If the justices appeared skeptical of the agency's arguments against its actions being "rules," what really seemed to get them going was the agency's claim that voting rights weren't impacted. Chief Justice Recktenwald even asked counsel if her argument comported with "common sense." The plaintiffs indeed had alleged that in some cases, they couldn't vote properly.

Declaratory Judgments On The Validity Of An Agency's Rules Are Not Election Contests

It is true that their votes would not have changed the outcome of the election, but this case was not set up as an election challenge (which requires a showing of a different outcome). Rather, the plaintiffs seek a declaratory judgment about the validity of the agency's rules. In those kind of cases, all the plaintiffs need show is that they are "interested persons," and that the agency rule "violates constitutional or statutory provisions, or exceeds the statutory authority of the agency, or was adopted without compliance with statutory rulemaking procedures." 

After these unrelenting attacks, it is hard to envision that the Supreme Court will simply affirm the ICA. 

No Roadmap

This leads us to believe that the major question is exactly what the court is going to order the agency to do, and how detailed its order will be.

Unfortunately, neither lawyer had much of a roadmap for the court, and the justices were mostly left on their own. All of the questioning, searching, and probing of counsel didn't yield any clear answer about what rule the court should fashion, even if it was pretty clear that there is a majority willing to impose a remedy and order the agency to do something other than make promises of doing better in the future.

The cert briefing, posted on journalist Ian Lind's blog here, doesn't offer much help either:

• Application for a Writ of Certiorari
• State of Hawaii Office of Election's Opposition to Certiorari
• Petitioners' Reply to Opposition to Certiorari

Predictions?

So here's what we think:

• The procedures and methodologies employed by the Elections Office may not have been statements of future effect, but they sure do seem to be ones of general applicability that interpreted law.
• So we're thinking that they are "rules" and should have been adopted by APA rulemaking, not a lone bureaucrat.
• Thus, the plaintiffs have met their burden to be both "interested persons," and of demonstrating that the policy was "adopted without compliance with statutory rulemaking procedures."
• The big question is now what? What will the court order the agency to do, and how detailed will it get?  

Unfortunately, the briefing and arguments were not very helpful in figuring that out, leaving it up to the court to fashion a remedy (if any could be, other than to order the Election Office to adopt some rules). The court, of course, didn't render a decision from the bench, so we probably won't know for a while what it will do. 

But if we were counsel for the Elections Office, we'd get started drafting those rules on Monday. 

HAWSCT To Decide On Timing Of Voter Registration Appeals: When Is An Appeal "Filed?"

Cinematic Rude Awakenings from Roman Holiday on Vimeo.

If there's one thing that makes lawyers sit bolt upright in a sweat at 3 am, it's the prospect of missing a jurisdictional deadline. A statute of limitations, a notice of appeal. Come on, you know you've been there. Keep your carrier's number on speed dial. 

Well here's one that might help you sleep better by making the rules for when and how to file more clear, at least in voter registration challenges.

On May 11, 2016, the Hawaii Supreme Court accepted certiorari and agreed to review the Intermediate Court of Appeals' unpublished memorandum opinion which upheld the dismissal by the Big Island's Board of Registration of a voter registration challenge. The ICA held that the appeal to the BoR was not timely filed even though the challenger mailed the appeal to the state's Office of Elections (located on Oahu) within the 10-day time limit, because it was not received in that window. 

This is a challenge to a candidate's voter registration for not being a resident of the district. In these cases, the County Clerk makes the initial determination, reviewed by a county's BoR, with appeal to the ICA. The Big Island clerk determined that the candidate was indeed a resident of the district in which he registered. The challengers filed an appeal with the BoR by putting it in the mail addressed to the Office of Elections' Pearl City, Oahu, office. It arrived after the deadline. Nightmare time.

We put it in the mail within the deadline, the challengers argued, and in civil litigation, putting something in the mail gives you a couple of extra days. Nope, concluded the ICA, the statute requires the appeal be "filed" within 10 days, and filed means received by the Office of Elections, not sent. That rule of civil procedure which gives extra time in civil cases? Not applicable here, this isn't civil litigation subject to the Rules of Civil Procedure, but is governed by the statute. And the statute says "filed" with no mention of any mailbox rule. And that extra day because of Discoverers' Day? Not a state holiday, so that doesn't help either.   

The Supreme Court's order accepting cert did not schedule oral argument, so unless one party requests it and the court agrees, we're probably not going to get an early sense of why the justices took up this case, or which way they might be leaning. But it does seem like two threads intersect in this case. On one hand, the need for quick resolution and repose in election law cases. The court tends to view election-related challenges through a very narrow lens, with the idea that they need to be resolved quickly and subject to exacting standards. A rule that the 10-day deadline must be strictly complied with would further that. On the other, however, the court might be bothered by the practicalities here: there was no place on the Big Island where the appellants could file in person, so what were they supposed to do, get on a flight and bring it over to Oahu? Or do non-Oahu challengers just have less time to appeal? This seems like an unfair and unequal burden on neighbor island challengers. 

Stay tuned, and sleep tight. 

Hyland v. Gonzales, No. CAAP-15-0000053 (Haw. App. Feb. 10, 2016)

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Hawaii Supreme Court Election/Admin Law Case To Watch

In this order, the Hawaii Supreme Court agreed to review ("accepted certiorari" in the local appellate lingo) the Intermediate Court of Appeals' opinion in Green Party of Hawaii v. Nago, No. CAAP-14-0001313 (Dec. 18, 2015). That decision answered in part the often elusive question of "what is an agency 'rule' that triggers the rulemaking requirements?" 

There, the ICA held that certain practices by the State Office of Elections were not "rules," and thus need not have been adopted via the rulemaking procedures in the Hawaii Administrative Procedures Act.

For more, see our post on that decision, "'Mistakes Were Made' - Elections Office Practices Were Not 'Rules.'" 

The Supreme Court will be hearing oral arguments later this month (Wednesday, May 18, 2016, at 8:45 a.m.). Here is a summary of the issues from the Judiciary's web site:

This case involves an action by the Green Party of Hawaii and seven registered voters who voted in the 2012 General Election (Petitioners) seeking a declaratory judgment pursuant to HRS § 91-7 (2012) that certain methodologies and procedures used by Scott Nago, Chief Election Officer, and the State of Hawai`i (collectively “Respondents”) in the 2012 election are invalid under the Hawaiʻi Administrative Procedure Act (HAPA). Specifically, Petitioners contend that Respondents violated rule-making requirements for failing to adopt administrative rules pursuant to HAPA regarding the methodology and procedures used to determine the number of ballots to be delivered to the precincts, request additional ballots when a precinct runs out of paper ballots, and address the situation where a voter votes on a ballot that includes some races in which the voter is not entitled to vote.

The Circuit Court of the First Circuit (circuit court) granted summary judgment in favor of Respondents holding that the challenged methodologies and procedures were regulations concerning only the internal management of the agency. On October 24, 2014, the circuit court entered final judgment, which was timely appealed by Petitioners. In a December 18, 2015 published opinion, the Intermediate Court of Appeals (ICA) affirmed the circuit court’s judgment. The ICA concluded that none of the procedures challenged by Petitioners were rules as defined in HAPA.

Petitioners filed an Application for Writ of Certiorari with this court on January 27, 2016, which was granted on March 10, 2016. Petitioners present five questions in the application: (1) whether the ICA gravely erred by applying a standard in an election contest for overturning an election result based upon Petitioners’ claim of deprivation of voting rights and holding that such claims were immaterial because it would not have affected the outcome of the election in regard to ballot shortage procedures; (2) whether the method used for ordering ballots was a one-time occurrence that would not affect future public rights or procedures; (3) whether the improper handling of ballots is a matter of internal management and thus exempt from rulemaking requirements; (4) whether the ICA misinterpreted Hawai`i appellate precedent; and (5) whether the ICA erred in finding that Petitioners failed to cite to the record showing the circuit court determined the obligation of the agency was mitigated or relieved by failure to apply to the agency to engage in rulemaking procedures pursuant to HRS § 91-6. Petitioners maintain that the challenged procedures and methodologies are rules as defined in HAPA and that the rules are invalid as they were not adopted pursuant to HAPA. Respondents assert that the challenged procedures are not rules as defined by HAPA and, accordingly, the ICA did not err in affirming the circuit court’s judgment.

We're not sure what it is about this case that made the Supreme Court interested -- the elections law or the admin law questions -- but guess we'll have more of an idea after oral arguments. 

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"Election contests" in Hawaii are pretty narrow cases, and are subject to strict rules regarding subject matter jurisdiction (the Hawaii Supreme Court has original jurisdiction), content, timing,and remedy. For more, see our earlier post "HAWSCT Confirms Election Contests Are Tough!" Thus, even when an election challenge may have merit, the road is an uphill one. 

But when it makes allegations like this, there's not going to be much doubt about the outcome, is there? -- 

...that the Republican Party is attempting to “subvert, remove, and over[]throw the constitutional powers of the office of the [P]resident,” that Presidential candidate Ted Cruz is not qualified to run for President of the United States and, therefore, the Republican Party “is guilty of election fraud [by] knowingly entering an illegal candidate,” that the Office of Elections sponsors racism by serving “whites only,” and that Governor David Ige is “responsible for bigotry and discrimination being rampant within the [S]tate of Hawaii.”

Findings of Fact, Conclusions of Law and Judgment, Smallwood v. Hawaii, No. SCED-16-0000330 at 2 (Apr. 21, 2016).  

Sure enough, the court concluded that it doesn't have jurisdiction, so even "[t]aking Smallwood's allegations as true and viewing them in the light most favorable to him, Smallwood fails to demonstrate that this court has jurisdiction over his complaint or the relief that he seeks." Id. at 3-4. Election contests are cases where someone is challenging the outcome of an election, and can show that a ruling in her favor would change the outcome. And this isn't that. 

The court, however, tempered justice with mercy: "The clerk of the supreme court shall process the election contest without payment of the filing fee." 

Smallwood v. State of Hawaii, No. SCEC-16-0000330 (Haw. Apr. 21, 2016)

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Friday Reading: SCOTUSblog's Shout-Out; 9th Circuit Says Church Bogarted Evidence In Cannabis Claim; Are Agencies To Blame For Telescope Delay?; WWII Guam Land Seizures Case Moves Forward

Here's what we are reading today: 

• Here's the equivalent of law blogger nirvana: a link to one of your pieces by SCOTUSblog: "There is still more commentary on Monday’s ruling in Evenwel v. Abbott, holding that states and local governments may use total population to draw legislative districts. In posts at casetext, Robert Thomas asserts that the ruling “reaffirmed the principle that we the people mostly get to choose who will be included in ‘We The People,’ and when all are included, the federal courts will not interfere.”
• In Oklevyeha Native American Church of Hawaii, Inc. v. Lynch, No. 14-15143 (9th Cir. Apr. 6, 2016), a panel of the Ninth Circuit concluded that a Hawaii church which uses marijuana as part of its doctrine did not have a claim under RFRA to prevent it from being prosecuted under the Controlled Substances Act. The court held that the church was not forthcoming with evidence that the federal prohibition forced it to act contrary to its religious beliefs, which hold that weed is a substitute for peyote. Because it didn't show that peyote was not available, it doesn't have to choose between practicing its religion and obeying the law. And there's no requirement in doctrine for church members to use weed. "Nothing in the record indicates [the church] face[s] such a dilemma, because they have expressly told us that foregoing cannabis is not contrary to their religious beliefs." Slip op. at 8-9. Next case: look for the Church to amend its doctrine to require weed. I'm just sayin, man.
• In this piece, the editorial board of Honolulu Civil Beat asserts "The State Must Be Held Accountable On TMT Process." This editorial is in reaction to the Hawaii Supreme Court's recent opinion on the Thirty Meter Telescope, and argues, "[l]est any telescope supporter point the finger of blame at Native Hawaiian opponents, let’s be clear: This is a problem of the state’s own making." We can't agree totally. Yes, the court did rightly conclude unanimously that the State Board of Land and Natural Resources denied the objectors due process when it issued a conditional permit before it conducted the contested case hearing. But as we wrote here, agency incompetence or being driven by a desire to approve the project no matter what does not explain the entire picture as the Civil Beat piece argues. The editorial states, "[t]he whole affair is a classic example of state leaders cutting corners to ensure the outcome they want rather than trusting the legal process to yield the best result. Had the board simply followed usual — and legal — procedures in evaluating the permit application, it might well have ended up with a properly granted permit; and construction of the telescope might already be well underway." Not quite, in our view. First, make no mistake, the procedural objections raised were not the end goal, only the means (as such claims are in most cases), and the goal was always (and remains) to stop the project permanently. So the objectors will not be blameless should the TMT pack up and head for Chile or India instead. Second, the cart-before-the-horse process was most probably the result of the unclear and confusing procedures that agencies follow when a quasi-legislative body like the BLNR is required by Hawaii's administrative statutes and rules to switch hats midstream and transform into a quasi-judicial tribunal and afford anyone who wants to intervene with due process. Due Process is hardly a bad thing, but come on, you can't solely blame the agency for making what appears to be a good-faith effort to afford process while moving the TMT's application forward.        
• In Crawford v. Antonio B. Won Pat International Airport Auth., No. 15-000001 (D. Ct. Guam Mar. 31, 2016), the District Court of Guam (a federal court for the Territory under Article IV -- yes, and Article IV court) rejected the defendants' motion to dismiss a class action claim for the takings of ancestral lands. As this story notes, "[a]ncestral landowners in Guam  ... claim they were never fully compensated for property confiscated during World War II will have their day in court, a federal judge has ruled." A case to watch. 

Enjoy the weekend. 

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What Does Evenwel v. Abbott Mean For "One Person, One Vote?"

Yet another detour back to our second favorite topic, election law.

Casetext asked us to provide some commentary and analysis of the Supreme Court's recent Evenwel opinion, and we produced this piece ("What Does Evenwel v. Abbott Mean For 'One Person, One Vote?'"), which is a refinement of our earlier blog post containing our initial thoughts on the decision.  

It's not a long piece and we hope you read it (even you land users and takings mavens, who may be asked about this big case at your next cocktail party -- all lawyers, after all, must be prepared at such events to respond to inquiries about every recent Supreme Court decision, even if they are far afield from your usual area of practice). The short answer to the question posed in the title is: 

Evenwel has transformed the "one-person, one-vote'" rule in reapportionment cases into more of a "one-person, one-representative" principle.

What this means is that the Court unanimously affirmed the paramount role of representational equality in state reapportionment, concluding that "the body politic in the states is comprised of all persons present, regardless of citizenship or voting status," and that while voting power may have a role, it is secondary to the principle of equal representation for everyone:  

At first blush, it may seem odd to conclude that those who are not U.S. citizens and those who are not eligible to vote are deserving of representation in our state legislatures—at least until one reads the text of the Equal Protection Clause and understands its long-standing judicial interpretation and sees that elected officials represent all “persons” in their jurisdictions, not only citizens or those who can elevate them to office. Evenwel thus was not a close call, and the unanimous Court held that "the rule appellants urge has no mooring in the Equal Protection Clause." Slip op. at 19.

We hope you check it out. 

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Who must may be counted for reapportionment purposes?

Everyone!

A slight detour from our usual fare, to post some thoughts about today's big  U.S. Supreme Court opinion on election law in Evenwel v. Abbott, No. 14-940. Evenwel is the sleeper case of the Term, and opened the possibility that the we might finally get an answer to a question the Supreme Court has dodged for over fifty years, involving the seemingly mundane issue of who can states count when they reapportion their legislatures: All Census-counted residents? U.S. citizens? Those eligible to vote? And who must they count? 

In today's ruling the Court didn't cast the net wide, but instead (as we urged it to do in our amicus brief) drew a narrow rule: states may count everyone, but they are not required to. Thus, Texas's plan, and the plans of those states which count total population (an overwhelming majority of states do just that) survive. The states which exclude a portion of their total population (Hawaii being the most prominent), still have a bit of work. Elections law lawyers rejoice. 

But like many things, there is a kernel of takings law in the decision. We takings lawyers know that just because the Supreme Court says something in an opinion, and repeats it incessantly for decades, doesn't necessarily mean the statement is an accurate recounting of "the law," when the Court finally gets around to applying the statement.

We know, for example, that from 1980 to 2005, we all operated under the assumption that the Court meant what it said in Agins v. City of Tiburon, 477 U.S. 255 (1980), when it held that a regulation may work a taking when it either (1) deprives the owner of all economically beneficial use, or (2) fails to substantially advance a legitimate state interest. And for years, taking the Court at its word, we all tried to apply the "substantially advance" in takings cases, repeating the Agins two-part test as a mantra, much like "one-person, one-vote." Until 2005, when the Court in Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005) issued a huge mea culpa, and held that the language in Agins about substantially advance was just inartful writing, and that wasn't a takings test at all. We know that we should be wary of relying too much on the Court's mantras because what the Justices sayeth, they can later disclaimeth. 

Evenwel cast a similar vibe, because it involved Equal Protection's "one-person, one-vote" standard, first enunciated in Reynolds v. Sims, 377 U.S. 533 (1964). The rule requires state legislatures to be apportioned based on "population." Prior to Reynolds, the houses of many state legislatures were set up like the U.S. Senate, where each county or other political subdivision was entitled to representation. But after Reynolds, population was the required metric. That decision rewrote American politics by shifting the locus of power to urban population centers. 

In the intervening decades, "one-person, one-vote," like "substantially advance a legitimate state interest," became a kind of a mantra, but one without any concrete meaning, at least in cases involving reapportionment and not actual voting rights challenges. Election law lawyers on both sides of arguments routinely invoke the mantra, even though it has defied judicial explication.

The plaintiffs in Evenwel based their argument on this mantra, and asked the Court to uphold the plain meaning of the "vote" part: they argued the "population" states are required to count is limited to the citizen voting-age population. Total Census-counted population, after all, includes undocumented aliens, felons, minors, and others who cannot vote. How can "one-person, one-vote" include them, the plaintiffs asked? The principle, they concluded, is about voting, not anything else.  

Today, the Court (as we argued in the amicus brief we filed in Evenwel in support of Texas) soundly rejected the notion that the "one-person, one-vote" standard requires states to count citizen voting-age population. As we predicted, this wasn't a close call, and the Court held that "the rule appellants urge has no mooring in the Equal Protection Clause." Slip op. at 19. The Court really didn't address, however, whether the appellants' rule had a mooring in the "one-person, one-vote" mantra (which it clearly did), other than to say:

For every sentence appellants quote from the Court’s opinions, one could respond with a line casting the one-person, one-vote guarantee in terms of equality of representation, not voter equality.

Slip op. at 16. Agins and Lingle, revisited. We believe that Justice Thomas was correct when he noted, "[t]here is no single 'correct' method of apportioning state legislatures." States may count total population, or they may count some other lesser population, provided they are counting "nondiscriminatory population bases." What that latter phrase means is left for future resolution.

In other words, "one-person, one-vote" is a mantra without meaning, at least in reapportionment cases. 

We'll have more on this decision for those of you who are interested after we have had a chance to digest it in detail. Meanwhile, the spin machine has predictably spun up, with many of the parties who filed amicus briefs -- many of which presented "Chicken Little" arguments that the whole system would collapse if the Court accepted the plaintiffs' arguments (arguments that we takings lawyers are also very familiar with, and which were soundly rejected by the Court in Brandt and Koontz) -- applauding the Court for doing what it plainly didn't do: holding that the Equal Protection Clause requires the states to count everyone.

That's what we love about election law: it's all politics in the end.  

Evenwel v. Abbott, No. 14-940 (U.S. Apr. 4, 2016)d9g

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Final Brief: Everyone's A Winner - Seating All Candidates In Cancelled Hawaiians-Only Election Was "Certification" Of The Election Result

Here's the final brief relating to the challengers' motion for civil contempt, which asks the U.S. Supreme Court to hold in contempt the State, the Governor, OHA and its trustees, and Nai Aupuni, for violating the Court's earlier injunction that no ballots were to be counted, and the results were not to be certified prior to a ruling on the merits by the Ninth Circuit.

After the Court's order, Nai Aupuni called off the election (after previously extending the deadline by three weeks), and promised to never, never, never count the ballots that had already been submitted. Nai Aupuni then invited all of the (former) candidates to attend the convention. 

The plaintiffs' brief argues:

The oppositions to the Motion for Civil Contempt (“Mot.”) submitted by Respondents Na’i Aupuni and the Akami Foundation (“Na’i Aupuni Opp.”) and State of Hawaii and the Office of Hawaiian Affairs (“State Opp.”) are long on indignation but short on substance. Instead of addressing Movants’ arguments as to why they have violated the Temporary Injunction, Respondents suggest that the Motion seeks to newly enjoin them from holding a private gathering. But that is not now—nor has it ever been—the issue in this case. From the outset, the issue has been the state-run, race-based process that Respondents used to select convention delegates in violation of the Constitution. Respondents’ ingenious plan to seat all delegates instead of some of them does not alter this basic set of facts.

Reply at 1.

We posted the motion here, and Nai Aupuni's opposition here.

The contempt motion is on the Court's January 15, 2016 conference calendar, so we should know the results soon after that. 

Reply in Support of Motion for Civil Contempt, Akina v. Hawaii, No. 15A551 (Jan. 6, 2016)

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Latest On The Hawaiians-Only Oprah Election: Nai Aupuni's Response To SCOTUS Contempt Motion

Nai Aupuni and the Akamai Foundation, the proponents and organizers of the Native Hawaiians-only "Oprah" election for delegates to a convention to organize a new Hawaiian government, have responded to the election objectors' SCOTUS motion for contempt.

The Motion for Civil Contempt asked the Supreme Court to slap the State, the Governor, OHA and its trustees, and Nai Aupuni, for violating the Court's earlier injunction that no ballots were to be counted, and the results were not to be certified prior to a ruling on the merits by the Ninth Circuit. After the Court's order, Nai Aupuni called off the election (after previously extending the deadline by three weeks), and promised to never, never, never count the ballots that had already been submitted. Nai Aupuni then invited all of the (former) candidates to attend the convention. 

The contempt motion argued that this was too clever by half, and asserted that calling off the election and declaring that all candidates would be invited was the same as saying that all 196 candidates had won (the election was for 40 seats). Hence, the "Oprah" designation.

Nai Aupuni's response highlights the key issue -- was the election "terminated" as Nai Aupuni claims, and thus the Court's orders were not violated, or was inviting all (former) candidates to attend a sleight-of-hand workaround to reaching the same result which the Court prohibited?

After this Court granted the injunction, and even before the deadline for casting ballots, Naʻi Aupuni terminated the election, and it has not counted the ballots or certified any winners of that election. Instead to take advantage of the heightened interest within the Native Hawaiian community generated by the aborted election, Naʻi Aupuni decided to organize an ʻaha, or gathering, of Native Hawaiians who formerly were candidates in the now canceled election, as is their right under the First Amendment. Naʻi Aupuni’s actions are in complete compliance with this Court’s injunction order.

Op. at 1.

Nai Aupuni claims that it has a right to asssemble, independent of its (former) efforts to organize an (arguably illegal) election, and thus the Court cannot enjoin its present efforts.

The contempt motion is on the Court's January 15, 2016 conference calendar, so we should know the results soon after that. 

Respondents Nai Aupuni and the Akamai Foundation's Opposition to Applicants' Motion for Civil Con...

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"Mistakes Were Made" - Elections Office Practices Are Not "Rules"

Here's one that combines two of our practice areas, election and admin law. Land users should also pay attention because admin law issues frequently arise there, also. 

In Green Party of Hawaii v. Nago, No. CAAP-14-0001313 (Dec. 18, 2015), the Hawaii Intermediate Court of Appeals concluded that certain practices by the State Office of Elections were not "rules," and thus need not have been adopted via the rulemaking procedures in the Hawaii Administrative Procedures Act. 

The procedures complained of were reactions to the shortage of printed ballots and other well-known difficulties the Elections Office had during the 2012 General Election. The ICA acknowledged "[i]t is undisputed that mistakes were made." Slip op. at 2. See also slip op. at 24 ("In sum, mistakes were made in conjunction with the 2012 General Election."). 

Election law types know that courts are generally pretty reluctant to intervene when the plaintiff can't show that the complained-about actions made a difference in an election. Here, no different. The use of the passive-voice cliche tells you where this one was going (the Elections Office really goofed, but no-harm, no-foul), and indeed, "none of the races that could have been impacted by the ballot mix-up were close enough to have been affected," even if the Elections Office's "execution of the 2012 General Election fell short of the electorate's reasonable expectations." Slip op. at 2. 

Admin law types should really read the opinion in detail, because it details the tests for when an agency procedure must be adopted by rulemaking. We won't spell the details out here, because the opinion does a good job of it, in our view.  Short version: the procedures and methodogies employed by the Elections Office were not statements of general applicability or future effect that interpreted law. Consequently, they were not "rules," as defined by the Admin Procedures Act, and it was not error for the Elections Office to not have adopted them by the usual rulemaking process.

Only time -- and the next election -- will tell whether "mistakes [will continue to be] made."

Green Party of Hawaii v. Nago, No. CAAP-14-0001313 (Haw. App. Dec. 18, 2015)

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More SCOTUS Action In Oprah/Everyone Wins Election

Here's your daily dose of election law action (don't worry, land users, we've got one of those in the hopper for today as well), the latest on what has been labeled the "Costco" election and the "Oprah" election. The former premised on the notion that a seat at the convention now has all the worth of a Costco membership, the latter on the action by the purportedly private organization holding the election calling it off and declaring that all candidates could participate after the Supreme Court enjoined ballot counting and result certification.   

Well the other shoe has dropped, and the latter action has resulted in a Motion for Civil Contempt, filed yesterday in the U.S. Supreme Court, asking the Court to slap the State, the Governor, OHA and its trustees, and Nai Aupuni (and others, including the ironically-named Akamai Foundation) for violating the Court's injunction that no ballots were to be counted, and the results were not to be certified prior to a ruling on the merits by the Ninth Circuit.

But wait, you say, Nai Aupuni called off the election (after previously extending the deadline by three weeks), and promised to never, never, never count the ballots that had already been submitted. Too clever by half, argues the motion, declaring that all 196 candidates could attend (the election was for 40 seats), was counting the ballots and certifying the election (everyone won):

The Temporary Injunction prohibited Respondents from "certifying the winners" of "the election" to choose convention delegates. Respondents’ announcement that it would seat every delegate candidate violates the letter of that order. Respondents also have violated the spirit of the Temporary Injunction. The Court issued that order to preserve the status quo and thus ensure that Applicants are not denied the right to participate in the process (including the convention) based on their racial ancestry before the Ninth Circuit adjudicates their challenge. Respondents are not permitted to defeat the purpose of the Court’s order through gamesmanship.

Announcing that “[a]ll 196 Hawaiians who ran as candidates will be offered a seat as a delegate to the ‘Aha,” Supp. App. 432a, is certification of those candidates as winners of the election. First, these delegates are “winners” of the election. As Na’i Aupuni has acknowledged, all delegates that will be seated at the convention “ran as candidates” in the election that is a subject of this challenge. Id. The fact that Na’i Aupuni expanded the number of available delegate spots from 40 to equal the number of candidates—rendering the counting of votes unnecessary—does not mean these candidates are not winners. It means that they are all winners. Under Respondents’ reasoning, Texas could have evaded Terry v. Adams—which held that the “Jaybird primary” violated the Fifteenth Amendment by excluding African Americans—by allowing every candidate in that primary to run “in the Democratic primaries and the general elections that followed,” 345 U.S. 461, 463 (1953), instead of counting the ballots and nominating only one winner. It is inconceivable that the Court would have deemed such gamesmanship to constitute compliance with an order preventing the Jaybirds from nominating a candidate through an electoral process pervaded with racial discrimination. So too here.

Motion at 8-9. 

A better summary and more analysis from SCOTUSblog here: "New move to block Hawaii tribal nation (UPDATED)."

And this, today: Nai Aupuni doubled down and announced the list of "participants" (i.e., the winners of the election). Good thing, because the suspense was just killing us.    

Motion for Civil Contempt, Akina v. Hawaii, No. 15A551 (U.S., filed Dec. 22, 2015)

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What Is The Office Of Hawaiian Affairs, Asks Op-Ed. Short Answer: A "Public Agency"

An op-ed piece in today's Star-Advertiser by Judge (Ret.) Walter Heen and U. Hawaii lawprof Randy Roth asks "What is OHA?"

For those of you who don't already know, "OHA" is the Office of Hawaiian Affairs, a governmental entity created by the 1978 amendments to the Hawaii Constitution. But what the acronym stands for is not the question they are asking. Rather, they ask whether OHA is a state agency, or is some kind of quasi-governmental trust:

The Hawaii State Constitution has established an Office of Hawaiian Affairs to own and manage property "in trust." The Constitution further provides for an elected board of trustees.

In "Regulating Paradise," University of Hawaii law professor David Callies has described OHA as "operating as a public trust."

In "Who Owns the Crown Lands of Hawaii?", the late Jon Van Dyke pointed out that OHA is "self-governing" and "independent from all branches of government."

A state statute implies that OHA is not a state department or instrumentality of state government by declaring a "duty and responsibility of all state departments and instrumentalities of state government … to cooperate with and assist wherever possible the Office of Hawaiian Affairs."

In short, one could reasonably conclude that OHA is a trust or some other kind of self-governing entity, and not a state agency.

But another statute includes in OHA’s purposes that it serves as a "public agency." And many courts, including the United States Supreme Court, have called OHA a state agency, or treated it as such, at least for selected purposes.

Read the entire piece here (hyperlinks added). 

For what it's worth, in our view, OHA is pretty clearly a state agency. Here's why:

• OHA was created by an amendment to the state constitution. We're not sure the people of the State of Hawaii (who ratified the amendments) have the power to create anything other than an instrumentality of government. As a creature of state law, OHA is not sui generis. The drafters of the constitutional amendment made it pretty clear that "independent" and "separate" meant financial independence, like the University of Hawaii: "The committee intends that the Office of Hawaiian Affairs will be independent from the executive branch and all other branches of government although it will assume the status of a state agency. The chairman may be an ex officio member of the governor’s cabinet. The status of the Office of Hawaiian Affairs is to be unique and special… . The committee developed this office based on the model of the University of Hawaii. In particular, the committee desired to use this model so that the office could have maximum control over its budget, assets and personnel. The committee felt that it was important to arrange a method whereby the assets of Hawaiians could be kept separate from the rest of the state treasury." 1 Proceedings of the Constitutional Convention of Hawaii of 1978, Standing Committee Rep. No. 59, at 645. 
• As the op-ed points out, the U.S. Supreme Court sure thinks OHA is a state agency. In Rice v. Cayetano, 528 U.S. 495 (2000), the majority opinion referred to OHA as a "state agency" no less than 8 times, and the question of whether OHA elections were state elections was the central question to be resolved. If OHA was not an instrumentality of state government, the decision would very likely have turned out differently, because the Court concluded: "Although it is apparent that OHA has a unique position under state law, it is just as apparent that it remains an arm of the State." As a consequence, the election of OHA trustees could not be race-restricted. Of course, assumptions the U.S. Supreme Court made in one decision about state law may not definitively resolve a question of state law in all instances. But as a practical matter, it would be very difficult for a lesser court to conclude otherwise, at the risk of getting the Court's attention yet again. 
• The statute which implements the constitutional amendment, Haw. Rev. Stat. § 10-1, et seq., provides that OHA shall be "the principal public agency in this State responsible for the performance, development, and coordination of programs and activities relating to native Hawaiians and Hawaiians[.]" Id. § 10-3. The principal "public agency" -- can't get much more clear than that. Yes, OHA is "independent," but only "independent of the executive branch." Id. § 10-4. 

 

Latest On The Hawaiians-Only-Oprah/Costco-Everyone-Wins Election

Here's the latest on the now-cancelled "Nai Aupuni" Hawaiians-only poll/election, described by one local commentator as having "the integrity of a Costco membership," and by Election law maven Rick Hasen as the "Oprah" theory of elections after the organization cancelled the extended vote and invited all candidates to come to the convention once the U.S. Supreme Court enjoined the counting of ballots and certification of the election (in other words, all candidates were elected):

• Update - two new links worth reading:  from the Wall Street Journal, Kelii Akina, President of the Grassroot Institute and the lead plaintiff in the case writes,"The Racial Spoils System Invents a Tribe for Native Hawaiians," while in the Honolulu Advertiser has published this op-ed: "Nai Aupuni’s convention unlikely to craft anything credible or legal."
• Lyle Denniston at SCOTUSBlog reports that the plaintiffs have asked the Ninth Circuit for a two-week extension of time to file their merits briefs. See the motion here. In the motion, the plaintiffs outline their possible responses to the new development (the cancellation of the election and the seating of all candidates): "Moreover, this factual development may change the litigation in ways more fundamental than alteration of briefs. In particular, possible responses and outcomes range from seeking further injunctive relief from the Supreme Court to dismissal of the appeal and/or the litigation." ("A new test on Hawaii's future?"). 
• At least one observer, U. Hawaiil lawprof Williamson B.C. Chang, thinks that holding the convention with all delegates invited is the "ultimate, 'in-your-face' insult" to the U.S. Supreme Court, because Justice Kennedy's injunction "was clearly intended to prevent the formation and gathering of any 'winners,' no matter how selected (and even if there are no 'losers'), that could comprise a constitutional convention." He sees an agenda here. 
• "Dueling Lawsuits: Did Nai Aupuni Allow Too Few Voters? Too Many?" (by Anita Hofschneider at Honolulu Civil Beat). 
• The stipends that the organization is offering to those candidates/delegates who show up to the convention. Just whose money is this?  

Although Nai Aupuni said the Ninth Circuit appeal was moot ... maybe not, so stay tuned. 

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You win the election, and you win the election! and ...

We can't take credit for the pithy headline because we cribbed it from elections law guru, lawprof Rick Hasen ("Hawaii Election Subject to #SCOTUS Stay Cancelled") ("(It’s the Oprah rule: You get elected! You get elected! Every-body-gets-elected!)").

Coming up with lines like this is why Professor Hasen earns the big bucks.

We appropriated it because it accurately captures the end result of the announcement this morning by Nai Aupuni, the NGO set up to conduct the election -- funded with millions of dollars of taxpayer money -- of delegates to a convention whose purpose it will be to settle on a way forward for Hawaiians to have some sort of sovereignty (or maybe not, since all options are professed to be open). Nai Aupuni announced this morning that the election was "terminated," and that the outfit actually doing the ballot counting has been instructed to stop taking ballots, and never, never, never to count those that it has already received. 

And here's the Oprah part: Nai Aupuni also announced that the "aha," the quasi-constitutional convention for which the now-terminated election was choosing delegates, is going to happen in February 2016 anyway, and every candidate who was in the race -- all 196 of them -- is invited to be a delegate.  

In other words, in effect they all got elected.

After Thanksgiving, the U.S. Supreme Court had enjoined the counting of ballots and certification of the election pending a decision by the Ninth Circuit in the appeal from the District Court's denial of an injunction. The central issue is whether the "election," was a private affair, and thus insulated from the requirements of the Fourteenth and Fifteenth Amendments, or whether the public funding and questions involved meant that this could not be a race-restricted election. On the challengers' motion for a preliminary injunction, the District Court upheld the private nature of the election, and the Ninth Circuit refused to issue a stay on appeal.

Supreme Court Justice Anthony Kennedy, however, as Circuit Justice, issued a stay pending review by the entire Court, and when the rest of the justices got a look, they split 5-4 and prohibited the counting of ballots and the certification of the election. In response, Nai Aupuni announced that the closing date of the election would be extended for three additional weeks, which resulted in a lot of cringing in the peanut gallery since that's the sort of thing that is supposed to happen only in a banana republic.  

But now that doesn't appear to matter, as the election has been called off, and according to the press release, we should expect a motion by the defendants to dismiss the appeal as moot. 

Op-Ed: In SCOTUS One-Person, One-Vote Case, Hawaii Might Finally Be Forced To Include Military Among ‘We The People’

Today, the Honolulu Star-Advertiser published an op-ed by me, Col. David Brostrom (U.S. Army, retired), Rep. Mark Takai, who represents Hawaii's First Congressional District in the U.S. House of Representatives, and Andrew Walden, editor and publisher of Hawaii Free Press, about the case, argued this morning in the U.S. Supreme Court about who gets counted when state legislatures get reapportioned:

Hawaii might finally be forced to include military among ‘We the People’

By David P. Brostrom, Mark Takai and Andrew Walden

December 8, 2015

“We the People.”

The familiar opening of the U.S. Constitution, announcing our most cherished principles.

Big words, for sure.

But just who are “We the People?”

The U.S. Supreme Court is now considering that question in a Texas case in which Hawaii’s decades-long exclusion of active-duty military and families from the body politic is front and center.

In Evenwel v. Abbott, the court will determine who gets counted when drawing district lines for state legislatures, a process known as reapportionment.

Reapportionment is based on population. In 1964, the Supreme Court ruled that state legislatures must be reapportioned based on “one-person, one-vote,” meaning that under the Equal Protection Clause, each district must contain a roughly equal number of people.

But the court avoided explaining what “population” must be counted. All persons? U.S. citizens? Voters?

Two years later, in Burns v. Richardson, a case from Hawaii, the court held that states need not count everyone, but may measure alternate “populations” — either all Census-counted residents, U.S. citizens, or state citizens.

It also noted, “aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime” can be excluded, because “one-person, one-vote” is not meant literally, but protects two competing principles.

“Voting equality” protects voters’ equal opportunity to elect representatives, while “representational equality” protects every person’s right — regardless of their voting eligibility — to access those officials.

After all, officials represent everyone in their districts, not just voters.

Last year, a diverse coalition of civilian and military Hawaii residents challenged the exclusion of service members and families from Hawaii’s reapportionment.

This skewed districts, and violated one-person, one-vote’s representational equality principle.

The federal court disagreed, because the Burns ruling allows Hawaii to count state citizens. Military and their families are not Hawaii citizens because they elect to pay taxes in another state.

But Hawaii never asked anyone else where — or even if — they pay taxes. This means non-U.S. citizens are treated as “Hawaii citizens,” while military residents and families are not.

Despite this surreal outcome, the U.S. Supreme Court summarily affirmed.

In Evenwel, the court is revisiting that ruling. (Arguments will be heard today before the high court.) Texas draws legislative districts to equalize its Census population, which includes undocumented immigrants.

Voters argue that Texas should also consider whether districts contain an equal number of voters. The court will decide whether states must count everyone (including non-citizens, non-voters and military), only those eligible to vote, or some other population.

The question posed by the case is straightforward: What “population” must be counted, and if less than everyone is included, what one-person, one-vote principle must states follow when determining whom to eliminate?

A ruling requiring counting everyone would bring Hawaii’s reapportionment practice in line with 48 other states and with congressional apportionment, which, like Texas, is based on the Census count of all persons, regardless of their citizenship, taxpaying, or voting status. It wasn’t always so, and prior to adoption of the Fourteenth Amendment, African-Americans counted as three-fifths of a person in congressional reapportionment. It took a civil war and amendments to our Constitution to exorcise the demon of not counting every- one equally.

While the situation here is much less dramatic, the stakes are no less important, and excluding service members and their families is no less repugnant. Under federal law, they are counted by the Census only as Hawaii residents, and only in Hawaii’s Legislature.

Excluding them here means they are not represented anywhere.

Evenwel is vitally important because the Supreme Court may finally force Hawaii to stop excluding our military and their families from “We the People.”

--------------------------------

David P. Brostrom is a retired U.S. Army officer and Hawaii resident; Mark Takai represents Hawaii’s 1st District in the U.S. House; and Andrew Walden is editor/publisher of Hawaii Free Press. They were among the plaintiffs in the 2014 case that challenged Hawaii’s reapportionment for excluding military personnel and their families. This piece was co-signed by Robert H. Thomas, their lawyer in the case, who is with Damon Key Leong Kupchak Hastert in Honolulu.

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Who gets counted for reapportionment purposes?

Everyone!

Tomorrow, the Supreme Court is hearing oral arguments in two election law cases, Evenwel v. Abbott, No. 14-940, and Harris v. Arizona Ind. Redistricting Comm'n, No. 14-232.  We've covered the issues presented by these cases several times, so please forgive the continuing detour from takings law that we take whenever we get into our other favorite area, election law.

Evenwel is the sleeper case of the Term,  and may finally answer a question the Supreme Court has dodged for over fifty years, involving the seemingly mundane issue of who can states count when they reapportion their legislatures: all residents? U.S. citizens? Those eligible to vote? And who must they count? Think back to your Con Law I class, and the "one-person, one-vote" rule from Reynolds v. Sims, 377 U.S. 533 (1964), the case which first announced that rule, and the resultant Equal Protection requirement that both houses of state legislatures be apportioned according to population. That decision totally rewrote American politics (some states had set up one house of their legislature to mirror the U.S. Senate, with at least on representative for each county), and moved the locus of power to urban population centers.

That decision was followed closely by Burns v. Richardson, 384 U.S. 73 (1966), a case originating in Hawaii, in which the Court reaffirmed that rough equality of "population" is the measure of constitutionality, but again refused to define which "population" it meant. There, the Court upheld Hawaii's count of registered voters, concluding that it was a rough proxy for both total population and state citizens because Hawaii's voter registration numbers were so high. Because there was no proof the the resultant reapportionment drew districts that were different from districts drawn using total population or state citizens, the count of voters was upheld. 

In the intervening 50 years, the Court has not clarified that decision, nor specified which "population" it requires be counted, if any, despite several cases squarely presenting the issue (including ours, from 2014). Most states (48) count everyone.

Now comes Evenwel, a case which challenges Texas' use of total population. That population, you see, includes those not eligible to vote (such as aliens), and their inclusion in the reapportionment population results in district lines that dilute the power of registered voters, or those citizens of voting age population. Citizens whose voting power was diluted by virtue of them being put into overpopulated districts sued, asserting that reapportionment could not be accomplished using total population, when doing so would impact the power of voters. "One-person, one-vote" is the mantra, after all, and the focus of many of the Court's decisions citing this rule are on preserving voting equality.

And that is the issue before the Court tomorrow. Will it say that state's must count everyone? Must only count registered voters, or some other similar metric? Or will the Court conclude, like we argued in our amici brief, that states can choose any population metric, provided they meet certain criteria?

"One-person, one-vote" has become a kind of a mantra, but one without a lot of specific meaning. The plaintiffs are asking the Court to uphold the plain meaning, and if it really meant what it said about the "vote" part. The arguments on the other side, by contrast, are more focused on "sky will fall" claims, and arguing that a ruling against Texas will result in Hispanics and children being "disenfranchised," and the like. They also claim it is impossible to accurately count the citizen voting age population. And here's where our experiences as takings lawyers may come in, because these competing claims remind us of two threads in regulatory takings doctrine:

• Lesson #1: From 1980 to 2005, we all operated under the assumption that the Court meant what it said in Agins v. City of Tiburon, 477 U.S. 255 (1980), when it held that a regulation may work a taking when it either (1) deprives the owner of all economically beneficial use, or (2) fails to substantially advance a legitimate state interest. And for years, taking the Court at its word, we all tried to apply the "substantially advance" in takings cases, repeating the Agins two-part test as a mantra, much like "one-person, one-vote." Until 2005, when the Court in Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005) issued a huge mea culpa, and held that the language in Agins about substantially advance was just inartful writing, and that wasn't a takings test at all. So be wary of relying too much on the Court's mantras. What the Justices sayeth, they can later disclaim.
• Lesson #2: The Court doesn't always pay heed to "Chicken Little" arguments like the Evenwel appellees are relying on. We takings lawyers have heard for decades how the sky was going to fall, the whole planning system was going to collapse, and that courts would become zoning boards of appeals, if regulatory takings arguments were accepted. And, like clockwork, this argument reappears in every takings-related case presented to the Court. But recently, the Court has grown weary of these arguments, noting in Brandt and Koontz that the sky would not fall.

And what about the other case, Harris v. AIRC? That one asks whether, in addition to "traditional redistricting principles" which allow a deviation from absolute population equality (such as geography, traditional political boundaries, communities of interest), whether reapportionment can also consider political motives and a desire to obtain DOJ pre-clearance under the Voting Rights Act. That case will be argued just prior to Evenwel.

We're in town to attend the arguments, and will have a report following.

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The View Of The Nai Aupuni Election From Washington, D.C.

Hawaii is either 5 or 6 hours behind Eastern Time, depending on the time of year (we don't adhere to Daylight Savings Time), so we're a quarter-day behind the part of the country where a lot -- if not most -- of the important things legal, financial, and political occur. Scheduling conference calls can be a chore, too. But we're used to it, and sometimes, being outside the national attention range can work to our advantage, and we can get away with things which -- were they occurring elsewhere -- would attract more scrutiny, and a more skeptical eye.  

At least that is the way it appears once you step outside the Hawaii bubble, and find out how others view things that we do.

We're way outside the bubble this week in Washington, D.C. (a different sort of bubble altogether), doing some election law things -- we'll have some thoughts on the two big SCOTUS cases that are being argued on Tuesday in a separate post -- so naturally, the topic of the Nai Aupuni "Hawaiians only" election poll has come up when talking shop with our election law colleagues. These lawyers, many of them national experts in election, constitutional, and appellate law, come from both sides of the political spectrum. Nai Aupuni is our shorthand for a vote, limited to those with native Hawaiian ancestry, now being conducted by a non-profit organization, Nai Aupuni, which asks the voters to select delegates to a kind of constitutional convention to determine the steps to be taken to recognize Hawaiian sovereignty, in whatever form that might take.

The U.S. District Court of Hawaii in an oral ruling which has yet to be reduced to writing, refused to enjoin the election, concluding that the delegates chosen were not actual government officials, and the election was not going to make law or official government policy, and thus it was not an unconstitutional race-restricted election, but more like a private poll. See this post for more ("Tips From An Election Lawyer For Setting Up Private Racially-Exclusive Elections...er 'Opinion Polls'"). The court also held that the fact that the Nai Aupuni nonprofit was conducting the election -- despite being funded with taxpayer money by the State Office of Hawaiian Affairs -- meant that it was sufficiently removed from public funding to not be considered a public election. The Ninth Circuit refused to stay pending appeal, and the plaintiffs took their case to the U.S. Supreme Court.

As we noted here, Justice Kennedy issued an order putting a stop to the ballot counting and certification of the election, but otherwise didn't enjoin it. When the full court got a look after Thanksgiving, five Justices enjoined the election on similar terms pending resolution by the Ninth Circuit (with four Justices "dissenting"). That Justice Kennedy would stop it, and that a majority of the Court agreed, raised the profile of the case to a "red alert" level among election lawyers and Court followers, particularly here in Washington. 

The universal query they have for us about the Nai Aupuni vote is "what the heck [or stronger] are you doing out there?"

When we explain about the arguments that this is an election beyond the reach of the Fourteenth and Fifteenth Amendments, their reaction is skeptical, to say the least. Follow the money, they suggest. Not an election to choose officials or make law? How can that be, when the election was designed to craft the relationship between a Hawaiian nation (in whatever form that might take) and the rest of us, meaning this is an election that we all have a stake in. Kind of like that statehood vote back in 1959, only the other way around.  

Richard Borecca has a column in today's Star-Advertiser ("Nai Aupuni's Hawaiian election unraveling at seam") which picks up some of the problems, and also picks up what we think is the major problem here:

The big issue that has the U.S. Supreme Court interested, however, is the whole idea of holding an election that limits voting to those who claim Hawaiian heritage.

Honolulu attorney Robert Thomas writes in his legal blog, Inversecondemnation.com, that holding an election that is paid for with public money runs into the Supreme Court prohibition from the 2000 Rice v. Cayetano decision.

Thomas says Na‘i Aupuni’s attempt to move the $2 million in OHA money for the election through a nongovernment group will not work.

“Yes, the money was washed through a nonprofit, set up for the purpose of supporting the argument that this is not a publicly funded election. But come on, the Court would have to be blind to not see the pretense,” Thomas writes.

Lawyers love to toy with the “The law is blind” metaphor, but in this case, it might not be blind at all.

In our view, that's what has happened in the past when those outside our Hawaii bubble are made to realize what is going on here. See Rice v. Cayetano, 528 U.S. 405 (2000), see Hawaii v. Office of Hawaiian Affairs, 556 U.S. 1623 (2009), for example.

We're not saying which side we think is eventually going to prevail, either in the Ninth Circuit, or the Supreme Court (to which the case is surely returning should the plaintiffs not prevail in the court of appeals), but we do know that the issues presented are going to get looked at with more than the accommodating review that they are used to locally.  

Justice Kennedy Temporarily Halts "Hawaiians Only" Election

The latest news in a fast-moving election law case, about the validity of a Hawaiians-only election to choose delegates to a constitutional convention about the issue of Hawaiian national sovereignty: this morning, Associate Justice Anthony Kennedy issued this order which temporarily puts a stop to the counting of the ballots. An extraordinary move, but one which wasn't exactly unpredictable, given the issues involved (which we noted here). 

More background on the case, and the Supreme Court filings of the parties in this post from SCOTUSBlog. 

More stories here:

• "U.S. Supreme Court justice blocks vote count in Native Hawaiian election" (Honolulu Star-Advertiser)
• "Hawaiians protest vote on future tribal plan" (SCOTUSBlog)
• "Supreme Court halts ballot-counting in controversial Native Hawaiian vote" (Fox News)
• "Supreme Court Justice Hands Down Injunction Against Nai Aupuni" (Hawaii Free Press)
• "Breaking: Supreme Court Blocks Racially Discriminatory Hawaii Election" (PJ Media)

More to follow, for sure. The biggest problem with this thing has always been the public funding. Yes, the money was washed through a non-profit, set up for the purpose of supporting the argument that this is not a publicly-funded election. But come on, the Court would have to be blind to not see the pretense. Justice Kennedy is often the lynchpin in these type of cases (and many others), so it's not good if you are a proponent of the election when he is the Circuit Justice who puts a stop to it, even if only temporarily.

He's also the author of Rice v. Cayetano, 528 U.S. 495 (2000), the 7-2 decision which struck down under the 15th Amendment the "Hawaiians-only" vote to elect trustees for the State Office of Hawaiian Affairs, in which he wrote:  

As the State of Hawaii attempts to address these realities, it must, as always, seek the political consensus that begins with a sense of shared purpose. One of the necessary beginning points is this principle: The Constitution of the United States, too, has become the heritage of all the citizens of Hawaii.

Rice v. Cayetano, 528 U.S. 495, 524 (2000). Words to keep in mind as this case progresses. The entire Court was not pleased either when it learned about the shenanigans in the "ceded lands" case, where the argument was made that the "apology resolution" by Congress actually limited the State of Hawaii's sovereign ability to dispose of state-owned land. The Court pretty much laughed that argument right out the doors, and doesn't pay much attention to arguments, now being made in the Akina case by the defenders of the election, that Hawaii is just so different that the usual rules don't apply, when these cases finally get to courts that don't have any dog in the hunt. 

Order, Akina v. Hawaii, No. 15A551 (Nov. 27, 2015, per Kennedy, Circuit Justice)

Tips From An Election Lawyer For Setting Up Private Racially-Exclusive Elections, er ... "Opinion Polls"

1.  Don't repeatedly refer to your private poll as an "election" and limit it to "voters" of only a certain race. Real "voters" who are excluded from your election .. I mean poll might get the wrong idea, like it's an election or something.  

2.  Don't use public money to fund said election ... "poll," even indirectly. Washing public money through a government agency to a nonprofit might give people who don't understand these things the wrong idea. Those fools might still consider it public money even though it is once-removed from official agency funding of your poll. Plus, it just looks bad, man.

3.  Don't go on and on about how this election is to select "candidates" to be "delegates" to a "constitutional convention," when this is really like a Moose Lodge vote and a wholly private affair, and none of anyone else's damn business. 

4.  Don't pay attention when others say that the fact that your election process was a result of an act of the State Legislature makes it look like this was an election of great public interest backed by the state, or puts the private nonprofit conducting the election and a government agency into a "symbiotic relationship." Pshaw, what do they know?

If you fail to take heed, don't be surprised if you get sued. And if the District Court rejects the lawsuit on the basis your election is really a private poll and there's no "state action" which triggers the usual constitutional prohibitions on racially-exclusive elections, don't be too surprised if the Ninth Circuit sees it a different way.

Chutzpah, Exhibit "A"

We don't want to take too much time away from our usual land use, takings, and eminent domain fare, but we just couldn't let this one go by without comment.

Last Friday, we posted our amici brief in Evenwel v. Abbott, No. 14-940, the reapportionment case which the U.S. Supreme Court is considering. The issue in the case is whether Texas' use of total population when it reapportions its state legislature is consistent with the Equal Protection Clause, or whether districts must be apportioned to consider voting power. After all, the phrase is "one person, one vote," not "one person, one ... constituent." Our brief argues that both voting equality and representational equality are valid Equal Protection principles, but the representational equality principle is the more important. Thus, it is never a violation for a state to count its entire Census-counted population, which includes those who cannot vote (aliens, minors, felons, and the like), as well as those who do vote or are eligible to vote. We filed the brief on behalf of two individuals who were plaintiffs in a case we took up recently, in which we challenged Hawaii's reapportionment plan because it did not include the entire Census-counted population, but counted "permanent resident" in such a haphazard way so that it excluded active-duty military and their families who live in Hawaii. 

So imagine our surprise when the State of Hawaii -- the very state which counted less than all of its residents, and did so by a method that was guaranteed to be both over- and under- inclusive (it didn't ask anyone where they resided, it just applied a series of assumptions) -- joined an amici brief in Evenwel supporting Texas, which counts everyone.

So how does Hawaii's brief deal with the fact that it supports a state which, in stark contrast to Hawaii, argues for counting everyone? Here's how:

Other States moved towards using the federal Census’s total-population count after court rulings expressed doubt as to the constitutionality of other metrics. For example, although this Court had approved an interim redistricting plan in Hawai‘i that equalized the population of registered voters because it “substantially approximated” the results of equalizing total population or state citizen population, Burns v. Richardson, 384 U.S. 73, 96 (1966), Hawai‘i stopped using a registered-voter metric after a federal court determined that its redistricting plan no longer approximated the result of using a permissible population base. See Travis v. King, 552 F. Supp. 554, 564-66 (D. Haw. 1982); see also Kostick v. Nago, 960 F. Supp. 2d 1074, 1083-84 (D. Haw. 2013), aff’d, 134 S. Ct. 1001 (2014) (upholding use of permanent resident population base).

Br. at 5. While technically correct, this quote certainly gives the misimpression that Hawaii is on board with the "move towards using the federal Census's total-population count."

It decidedly isn't, and Hawaii continues to count only "permanent residents" which it defines as someone who is physically present in Hawaii, and intends to remain there permanently. This, Hawaii argues, is the same thing as "state citizen" which the Supreme Court long ago said was a permissible population to count. Hawaii is one of only two states that does not count everyone, and like it has for over 50 years, Hawaii's metric somehow always ends up not counting military personnel, while at the same time it counts others who pretty clearly couldn't be "state citizens."

And how does Hawaii determine someone's intent? Does it ask them? Take a poll? Nope, it assumes that military personnel who fill out a federal form declaring where they want to pay state taxes who (rationally) choose a state other than Hawaii do not intend to remain in Hawaii permanently. It assumes that the spouses and children of those servicemembers have the same intent. It assumes that Hawaii college students who do not qualify to pay resident tuition do not intend to remain permanently.

That wouldn't be so bad if Hawaii also made similar assumptions about similarly large populations of other folks who may not have an intent to remain permanently, or who don't pay Hawaii state taxes, or who otherwise should not be included as "Hawaii citizens" -- aliens (both legal and undocumented) and COFA migrants, for example. But it doesn't. Those people are automatically included, without any inquiry whatsoever.

So what we end up with is a count which systematically excludes military personnel from being represented in any state legislature (Hawaii's military personnel are not included in any other state legislative apportionment, because they are not counted elsewhere on Census Day), while it automatically includes aliens as "Hawaii citizens." And the federal court had no problem with that, because "rational basis" review meant that whatever the state says was good is good.

We think that there should be a more skeptical judicial eye cast on such schemes, which is what our brief argues.   

Now back to your regularly scheduled programming. 

Brief for the States of New York, Alaska, California, Delaware, Hawaii, et al., in Support of Appellees, Ev...

Amici Brief In SCOTUS Reapportionment Case: Close Scrutiny For Anything Less Than Total Population

Who gets counted for reapportionment purposes?

Everyone!

Please forgive the deviation (a pun for our election law colleagues) from the blog's usual land use and takings fare, but frequent readers understand that we also have an interest in election law, and occasionally post up items of interest.

Today we filed this amici brief in Evenwel v. Abbott, No. 14-940, the case on appeal to the Supreme Court which asks which "population" states must use when reapportioning their state legislatures and drawing district boundaries. We've covered this case, as well as our own case in which we (unsuccessfully) challenged Hawaii's practice of basing reapportionment on  "permanent residents" and excluding military personnel and their families. Our brief argues:

The parties in this case suggest answers to a deceptively simple question: who constitutes the body politic in the states? This question is one the Court has avoided answering explicitly for nearly half a century. Amici respectfully suggest that the Court may continue to do so, but at the same time should pro-vide guidance to state legislatures and reapportionment commissions by holding that it is always permissible under the Equal Protection Clause for states—like Texas and 47 others—to include all Census-counted usual residents in their reapportionment populations, even when this means that non-citizens and non-voters are represented in state legislatures as equally as citizens of voting age. Doing so upholds the first and overriding principle of the Equal Protection Clause, representational equality.  At first blush, it may seem odd to conclude that those who are not United States citizens and those who are not eligible to vote, are deserving of representation in our state legislatures—at least until one reads the text of the Equal Protection Clause and studies its subsequent history and understands that elected officials represent all “persons,” not only citizens or those who can elevate them to office.

But this Court has never required states to apportion their legislatures using total population, although it is “the de facto national policy.” Thus, amici also note that the Equal Protection Clause and the “one-person, one-vote” principle do not require that a state include non-citizens and non-voters in the reapportionment population, if a state chooses to favor the voting equality principle instead of representational equality. What the Equal Protection Clause requires is that if a state decides to do so, it must meet a more exacting standard than the “rational basis” test. Thus, if a state bases reapportionment on some population other than total Census-counted usual residents, it must under Burns demonstrate that the resulting plan is “substantially similar” to one based on a “permissible population basis” such as total population, state citizens, or U.S. citizens.  It does so by employing “[a]n appropriately defined and uniformly applied requirement”  when deciding whom to count and whom to exclude.

This issue has been addressed in various ways by the lower courts. The Ninth Circuit favors representational equality over voting power and requires use of total population, while the Fourth and Fifth Circuits, allow states to freely choose whom to count and whom, or whether, to exclude.  In other words, the Ninth Circuit held that states must use total population, while the Fourth and Fifth Circuit held they merely may. Amici do not suggest that states must use one or the other, but urge a more pragmatic rule: they ask this Court to hold that if a state chooses to include less than all of its Census-counted usual residents, then a reviewing court must apply heightened scrutiny and the state should be required to show a well-defined and uniformly applied standard supporting its choice and prove that it approximates a plan that is based on a “permissible population basis” such as total population or U.S. or state citizens, before it may to deprive any person—voter or not, citizen or not—of representational equality. In the absence of such a compelling showing, states must use the total Census-counted population as their reapportionment population basis.

Stay tuned if this sort of thing is your cup of tea. We'll post up the other merits and amici briefs, and have a preview of the issues soon.

Brief of Hawaii Reapportionment Plaintiffs (David Brostrom, Andrew Walden) as Amici Curiae Supporting Appel...

From Think Tech Hawaii: SCOTUS Reapportionment, The New Environmental Court, And The TMT Oral Arguments

We visited Think Tech Hawaii's downtown studios for a chat with Chris Lethem about Evenwel v. Abbott, the one-person-one-vote reapportionment case currently being briefed in the U.S. Supreme Court. As we've written, Evenwel could directly affect how Hawaii has reapportioned its legislature since statehood, and is a case to follow closely.

We also discussed Hawaii's new Environmental Court and the recent Hawaii Supreme Court oral arguments in the "Thirty Meter Telescope" case. 

We didn't know until earlier in the day that Chris would be the host. Which was a pleasant surprise because he is a former client in a successful case we took to the Hawaii Supreme Court a few years ago. Small town, no? 

ABA Annual Meeting Programming: Takings, Land Use, Supreme Court, Election Law, Appellate Traps

We're in Chicago this week participating in the ABA Annual Meeting. While we really are looking forward to a slate of thrilling committee meetings, what we're really anticipating is the CLE programming. Here are what we think are the highlights:

• Looming Land Use Constitutional Issues -  Friday, July 31, 2:45 - 4:15 pm, Westin Chicago River North Grand Ballroom B -  Four hot land use issues: land use aspects of medical marijuana legislation; takings and exactions in San Francisco's requirement for owners to pay departing tenants huge sums; Horne and takings; and just compensation issues raised by New Jersey's dune program. With Tony Della Pelle and Stephen Schwartz (one of the counsel for the Hornes), among others. 
• The 2014 Supreme Court Term in Review - Friday, July 31, 2015, 10am - noon, Westin Chicago River North Promenade Ballroom C - "This panel of noted legal professionals, academics and journalists provides an overview of the Supreme Court decisions of the 2014 term."
• The New Normal in Electoral Access & Political Participation: Challenges Facing the 2016 Election - Friday, July 31, 2015, 2:45 - 4:40 pm, Westin Chicago River North Grand Ballroom A - covering, among other topics, who must be counted when apportioning "population" for state redistricting. 
• Traps for the Wary: Avoiding Pitfalls in Appellate Practice - Friday, July 31, 1:45 - 3:15pm, Chicago Marriott Chicago Ballroom E, 5th Floor - how to recognize and avoid traps that even experienced appellate counsel fall into. 

We're also moderating a panel on issues related to the "sharing economy:" 

• Is Sharing Really Caring? The Law of Transportation Sharing: Uber, Lyft, and the Sharing Economy - Thursday, July 30, 2015, 2:15 - 3:45pm, Westin Chicago River North Promenade Ballroom C - We're focusing on issues raised by so-called "ride-sharing" services such as Uber and Lyft. Takings, monopoly, and the like. With Jacob Huebert (Liberty Justice Center); Michael Kamprath (Hillsborough County Aviation Authority, Tampa International Airport); Jon Riches (Goldwater Institute), and Professor Stephen Miller (University of Idaho College of the Law). Register here. 

Hope to see you at any or all of these sessions. If so, stop by and say "hi."

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Hawaii's Reapportionment Commission Breathes A Sigh Of Relief: SCOTUS Upholds Arizona Redistricting Commission

There's a category of cases in which it isn't difficult, with reasonable accuracy, to predict the ultimate outcome without knowing much about the substantive law. The recent ACA and marriage cases, for example. You kind of just know how they're going to come out. Bush v. Gore, 531 U.S. 98 (2000), was another one of those. Because the practical and political forces at play in those and similar cases overwhelm the legal objections no matter how technically and logically correct they appear, and the justices in the majority probably end up making their decisions based on pragmatic as well as their (perceived) policy inclinations. The opinions and dissents get dressed up with citations to precedent and the like, but what really seems to drive these cases is their practicalities. 

It seems to us that today's 5-4 decision in Arizona State Legislature v. Arizona Independent Redistricting Comm'n, No. 13-1314 (June 29, 2015), is one of those. Not because it was what non-lawyers might say is a "result-oriented" decision that was compelled by the justices' politics, but rather because there's no obvious solution to the case that merges the obvious law with the practicalities. On one hand, it would seem obvious that the the term "legislature" in the Elections Clause really does mean The Arizona Legislature, and not generically "the legislative process." At least as a starting point that acknowledges the plain language of the constitutional text, and very likely the intent of the framers. On the other, not only does Arizona have a redistricting/reapportionment commission that has been around for a while, so do several other states, Hawaii included, and a ruling declaring those commissions unconstitutional when they undertake congressional redistricting would cause a lot of humbug in those states, and throw the issue of how to divide up a state's population for electing the House of Representatives into politically-charged state legislatures. These commissions seem to work reasonably well, and many have been in existence for a while without objection. So the question arose: what was the Court going to do in a challenge brought by the Arizona Legislature which objected to the people of Arizona taking away the Legislature's power and delegating it to a commission?

Well, we have our answer today in that case -- which we previewed here ("Is the Hawaii Reapportionment Commission About To Go The Way Of The O'o Bird?") -- with the Court's majority concluding that "Legislature" doesn't really mean "the legislature," and the people of Arizona constitutionally delegated the power assigned to "the legislature" in the Elections Clause to the Arizona redistricting commission. Read the majority opinion of Justice Ginsburg and the lead dissent of Chief Justice Roberts for the reasons why. Reasonable minds differ, and at least in this case we're okay with that, even if we guessed there was no way the Court would force commission states to throw the process back to their legislatures, even if the constitution required it. A challenge brought earlier -- like way earlier, when these commissions were originally created -- may have had a better go. 

A sidebar: the opinions in this case reminded us of a somewhat similar case we litigated (and eventually lost, 3-2, at the Hawaii Supreme Court). In that case, the people of the County of Kauai adopted an amendment to their county charter by popular vote that would have limited the ability of the county to increase property taxes. When the measure was adopted by an overwhelming vote, it was challenged in state court by the County of Kauai, which sued the Mayor of the county to enjoin enforcement, arguing that the delegation in the Hawaii Constitution of the property tax power "to the counties" really meant "only to county councils." We represented the ballot proponents, who intervened to object on standing grounds: the County, we argued, could not be the plaintiff as it wasn't injured, and the defendant could not be the Mayor, as he wasn't the party who allegedly did anything wrong. It was the county council members who should have been the plaintiffs, and the County itself should have been the defendant. But the council members were too scared politically to be the actual plaintiffs, so they spent public funds and hired outside private counsel to represent the County.

Long story short, we lost the case, with three Hawaii Supreme Court justices agreeing that the County did not have standing as a plaintiff. Instead of dismissing the case, however, the majority dropped the County as plaintiff, made it the defendant, and essentially allowed an advisory opinion to be rendered. On the merits, the majority concluded that the term "to the counties" is really a delegation of exclusive power "to county councils." 

Compare that to the Arizona case, in which the majority concluded that the Arizona legislature had standing because it had its power to redistrict taken away ostensibly unconstitutionally, and on the merits that "legislature" means the people exercising legislative functions. In other words, the Elections Clause only requires the legislature redistrict, but doesn't require any particular form of state government, so delegation of the power by initiative is okay. A "committee of the whole" argument.

See why it reminds of the Arizona case? 

As we noted in our earlier post on that case, it could have had a big impact on Hawaii, which, like Arizona, accomplishes both Congressional and state redistricting and reapportionment via a commission. We didn't adopt ours by initiative like Arizona, at least directly. Ours was created by the 1978 constitutional convention, which was ultimately ratified by popular vote. No substantive difference, however. If today's ruling had gone the other way, Hawaii's reapportionment commission would likewise been at least partially unconstitutional.

So the Commission can breathe easy, at least for now.

We say "for now" because the bigger challenge is on the calendar for the next Supreme Court term, the Texas "one person, one vote" case which we wrote about here. However that case goes, it won't impact the Hawaii Reapportionment Commission directly like the Arizona case might have, but rather could prohibit the Commission from counting population the way it currently does, and overturn 50 years of Hawaii practice which excludes active duty military from being represented in the state legislature. 

Like the Arizona case, we think we know which way this one is going to turn out, and why. But we're not going to say, just yet. 

Arizona State Legislature v. Arizona Independent Redistricting Comm'n, No. 13-1314 (U.S. June 29, 2015...

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Star-Advertiser: Hawaii "Is Exception To Constitutional Law" In State Reapportionment

Here's a recent piece from Richard Borecca, the Honolulu Star-Advertiser's political reporter, about the Texas reapportionment case recently set for full briefing and argument by the U.S. Supreme Court.

"In Hawaii, eligible voters count more than people" is behind a partial paywall, but here's the key points in the event you are not a subscriber:

• Hawaii has never counted the entire census-counted resident population for purposes of apportioning its state legislature. It has always relied on a method that somehow excludes active duty military and their families who reside in Hawaii from the reapportionment count. 
• Hawaii is one of two states which does not base reapportionment on total census-counted population (Kansas being the other). 
• When voter registration and participation was high in the years following statehoood in 1959, Hawaii counted registered voters, which due to the high percentage of Hawaii residents who registered to vote, was an accurate approximation of what the Supreme Court in Burns labeled a "permissible population basis."
• When voter registration and participation declined and could no longer be relied upon to approximate population, however, the Hawaii Constitution was amended to count "residents," a term not defined in the constitution.
• The most recent reapportionment "extracted" 108,000 military, families, and university students from the census-counted resident population, to arrive at what the Reapportionment Commission determined was a count of Hawaii "residents."
• Although we lost the latest reapportionment challenge to this approach, the Texas case may open up future Hawaii reapportionments to legal challenge if Hawaii persists in applying the same or similar standards.
• Here's what the piece has to say:
• "Back in 2011, local attorney Robert Thomas sued on behalf of then-state Rep. K. Mark Takai and others claiming the Hawaii interpretation violated the Equal Protection Clause in the U.S. Constitution. The real political questions were that if adding everyone who lived in Hawaii as compared to just registered voters would determine whether the Big Island would get another seat in the state Senate and if someone on Oahu would likely lose a seat in the reapportionment process."
• "

  Hawaii is the only state other than Kansas that subtracts military and dependents from its state reapportionment numbers."

• "'As a consequence of Hawaii not counting them, they end up without any representation in any state legislature,'" Thomas said in an interview last week."
• "'We argued that the Equal Protection Clause of the 14th Amendment, which protects all persons' rights to be treated equally, means that the state must start by counting all persons, and if it desires to exclude some people, then it has a high burden to justify those exclusions.'"
• "Failing to do that, Thomas argued, leaves the reapportionment process up to "'political whims.'"

Stay tuned folks, this one is going to get interesting if this issue is your cup of tea. 

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WSJ Law Blog: "Hawaii Military Carve Out May Play Role in Voting District Case"

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)

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SCOTUS To Revisit One-Person-One-Vote: Representational Equality Or Voting Equality?

Followers of the blog recognize that in addition to our regular menu of regulatory takings, eminent domain, inverse condemnation, and land use related items, our practice also includes voting rights and election law issues. So every now and then we post up interesting cases and decisions, especially where the issues involved are related to cases which we've done in the past.

Thus, it was with great interest that we saw the Supreme Court today noting probable jurisdiction in a case we've been following, ordering full briefing and argument on an issue that is near and dear to us: the question of who exactly gets counted under the Fourteenth Amendment's Equal Protection Clause requirement that state legislative districts be of roughly equal size. See Evenwel v. Abott, No. 14-940. The question the Court has never squarely answered is equal size of who? Does the Equal Protection Clause require states to count the total population? To count only voters? Or is the question of whom to count left entirely up to the states?

What this issue comes down to is which of the Equal Protection Clause's two competing principles take precedence: (1) representation equality (the idea that elected officials represent everyone, not just voters), or (2) voting equality (the notion that voters are entitled to have an equal opportunity to elect representatives). Most states count everyone, but our home jurisdiction of Hawaii counts only those whom it considers "residents," those whom the state infers intend to remain in Hawaii permanently. By doing so, Hawaii excludes from the count (and thus from being represented) the nearly 8% of the actual population that are either associated with the active duty military or who are not eligible to pay resident tuition at local universities.  

In a recent case (Kostick v. Nago, No. 13-456), we argued that this scheme falls short of Equal Protection's requirements, and that representational equality is the overriding principle. Equal Protection requires a count of everyone, including local military and students, regardless of whether the state thinks they intend to remain in Hawaii forever. Or at least the state has a high burden if it wants to cut out some people from being represented equally, while it includes others without any meaningful inquiry.

We ended up on the short end of that case, with a three-judge panel concluding that the State has nearly unreviewable leeway to determine whom to count, and how to count them. The Supreme Court summarily affirmed.  

Bu the issue may be back. Here's the Question Presented in Evenwel: 

In Reynolds v. Sims, 377 U.S. 533 (1964), this Court held that the Equal Protection Clause of the Fourteenth Amendment includes a “one-person, one-vote” principle. This principle requires that, “when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.” Hadley v. Junior Coll. Dist. of Metro. Kansas City, Mo., 397 U.S. 50, 56 (1970). In 2013, the Texas Legislature enacted a State Senate map creating districts that, while roughly equal in terms of total population, grossly malapportioned voters. Appellants, who live in Senate districts significantly overpopulated with voters, brought a one-person, one-vote challenge, which the three-judge district court below dismissed for failure to state a claim. The district court held that Appellants’ constitutional challenge is a judicially unreviewable political question.

The question presented is whether the “one-person, one-vote” principle of the Fourteenth Amendment creates a judicially enforceable right ensuring that the districting process does not deny voters an equal vote.

Like the three-judge District Court in Kostick, the lower court in Evenwel relied on Burns v. Richardson, 384 U.S. 73 (1966), a case originating in Hawaii, which both courts viewed as giving the states total leeway in how they define their reapportionment populations. 

We'll be following along to see if anything has changed since then. In the meantime, here are the appeal briefs from SCOTUSblog (remember, reapportionment cases are one of the few areas left for Supreme Court mandatory jurisdiction), as well as a short summary from the Wall Street Journal.   

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Is The Hawaii Reapportionment Commission About To Go The Way Of The 'O'o Bird?

Spurred by yesterday's battle-of-the-titans Supreme Court oral arguments (Clement vs. Waxman) in a case we've been following, we're taking a short diversion from our usual fare of takings, eminent domain, and land use law today to cover another topic that long-time followers know is also within our area of practice: voting and election law.

The case is Arizona State Legislature v. Arizona Independent Redistricting Commission, No. 13-1314, an actual appeal to the Supreme Court from a three-judge district court, one of the few places left in the law where that can still happen. The Question Presented boils down to the meaning of "legislature" as used in the Elections Clause: does the requirement that "the Legislature" determine the time, place, and manner of congressional elections mean that those states which redistrict and reapportion by way of Commission or other non-legislative means are using an unconstitutional processes? 

In a provision added by citizen initiative, the Arizona Constitution removes all authority to prescribe legislative and congressional redistricting from the Arizona State Legislature and places it in an unelected commission. The Legislature challenges this provision as to congressional redistricting as a violation of Article I, section 4, the Elections Clause of the United States Constitution. In a 2-1 decision, a three-judge panel of the District Court for the District of Arizona ruled that removing the Legislature did not violate the Elections Clause. The Question Presented is:

Does the provision of the Arizona Constitution that divests the Arizona Legislature of any authority to prescribe congressional district lines violate the Elections Clause of the United States Constitution, which requires that the time, place, and manner of congressional elections be prescribed in each state by the "Legislature thereof”?

FURTHER CONSIDERATION OF THE QUESTION OF JURISDICTION IS POSTPONED TO THE HEARING OF THE CASE ON THE MERITS LIMITED TO THE FOLLOWING QUESTIONS: 1) DO THE ELECTIONS CLAUSE OF THE UNITED STATES CONSTITUTION AND 2 U.S.C.§ 2a(c) PERMIT ARIZONA’S USE OF A COMMISSION TO ADOPT CONGRESSIONAL DISTRICTS? 2) DOES THE ARIZONA LEGISLATURE HAVE STANDING TO BRING THIS SUIT?

According to reports from yesterday's oral arguments, the Justices exhibited "doubts" and "appeared skeptical" of arguments in support of commissions. See "U.S. justices raise doubts about Arizona redistricting commission" (Reuters), and "Argument analysis: Literalism vs. the power of the people" (SCOTUSblog) ("What seemed like a majority shied away from the idea that the voters of a state could seize power away from their legislature, and lodge that authority elsewhere in government more pleasing to the people.").

Should the Court rule that Arizona's Redistricting Commission is unconstitutional and conclude that Congressional redistricting can only be accomplished by the legislature, where would that leave Hawaii's Reapportionment Commission, which was drafted by the 1978 Hawaii Constitutional Convention, and added to the Hawaii Constitution by a subsequent vote of the people? Our commission is constituted in much the same manner as Arizona's: under article IV, section 2 of the Hawaii Constitution, eight of the Commission's nine members are selected by members of the Legislature, with the ninth member being selected (and designated Chair) by the eight:

The commission shall consist of nine members. The president of the senate and the speaker of the house of representatives shall each select two members. Members of each house belonging to the party or parties different from that of the president or the speaker shall designate one of their number for each house and the two so designated shall each select two members of the commission. The eight members so selected, promptly after selection, shall be certified by the selecting authorities to the chief election officer and within thirty days thereafter, shall select, by a vote of six members, and promptly certify to the chief election officer the ninth member who shall serve as chairperson of the commission.

This and other similarities between the Hawaii and Arizona systems are noted in the amici brief in support of the Arizona commission filed by the states which employ some system other than redistricting by the legislature. Like Arizona's commission, Hawaii's is expressly tasked with redrawing Congressional district lines for the U.S. House of Representatives, in addition to redistricting Hawaii state Senate and House districts. There's no chance for the governor to veto a plan. 

Were the Court to issue the broad ruling which the Arizona Legislature seeks, that would likely mean that no later than June (when the Court will issue its opinion in the Arizona case) Hawaii's Reapportionment Commission will go the way of the of the now-extinct 'o'o, described by wikipedia as a bird whose "striking plumage was used for 'a'ahu ali'i (robes), 'ahu 'ula (capes), and kahili (feathered staffs) of ali'i (Hawaiian nobility)." at least in its present role in Congressional redistricting. Such a ruling would likely not impact the Commission's duties to redraw districts for the Hawaii Senate and House, however, leaving us with a split process. 

We don't know whether the Founders who drafted the Elections Clause would approve of the "good government" and purportedly nonpartisan vibe of commissions, or whether it was part of their plan of checks-and-balances and republican government that drawing the lines for seats in Congress would be subject to the sharp elbows and political influences that come with the territory when a state legislature is doing such things. But we do know that come June, we'll be watching for more guidance from the Supreme Court. 

More to come, so stay tuned.

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HAWSCT Confirms Election Contests Are Tough!

The statutory standards for an original jurisiction action in the Hawaii Supreme Court challenging the outcome of an election are pretty rigorous. You've got to show acts or omissions that "could cause a difference in the election results." Haw. Rev. Stat. § 11-172. In other words, you must show that if you are right about the facts, the winner won't be the winner. Indeed, the bar is set pretty high just to survive a motion to dismiss, much less win, since the complaint itself must demonstrate "error, mistakes or irregularities that would change the outcome of the election" to avoid dismissal for failure to state a claim.

The Twombly heightened pleading standards applicable in the federal courts have not been adopted by Hawaii courts, at least in typical civil cases where the pleading bar is set pretty low. But in original jurisdiction election contests, the opposite may be true, and a plaintiff has perhaps a higher burden than Twombly, because she must plead "actual information or mistakes or errors sufficient to change the election result."

The Hawaii Supreme Court has required something more than a "fishing expedition," and that it's not enough that a sufficient number of votes are in play, with the hope the election challenge itself might turn up problems with enough votes to change the result. In other words, unlike your typical civil case, an election contest requires pleading with specificity and the plaintiff cannot rely on the discovery process to unearth the details. 

In Waters v. Nago, No. SCEC-14-0001317 (Dec. 24, 2014), the Hawaii Supreme Court once again reaffirmed these principles. The court issued findings of fact and conclusions of law in an election contest challenging the results of the November 2014 vote for a spot on the Honolulu City Council, where a mere 41 votes separated the winner from the also-ran.

The challenger filed an original jurisdiction election contest with the Supreme Court alleging that something was afoot with either the way the "overage" votes were handled (where somehow, the number of ballots cast exceeds the number of ballots issued), or that up to 74 blank ballots could have been miscounted due to the margin of error for Hawaii's voting machines.  

The court rejected the arguments, concluding there was nothing of substance backing them up. In other words, the complaint itself was not supported with evidence, and only contained unsupported allegations (even when the court converted the motion to dismiss for failure to state a claim into a motion for summary judgment, and considered other evidence which the challenger submitted).

The plaintiff asserted that he tried to get the documents which might prove his case within the short statute of repose under Hawaii law (20 days for general elections), but that he could not. He also introduced a 1998 audit of voting machines revealing a .2% margin of error, which if applicable here, would mean that up to 74 of the 4,455 blank ballots may have actually been votes cast for him. "And 74 maybe votes > 41, therefore, I get a recount," argued the challenger (we are paraphrasing, of course).

But to the court, none of this was enough to show "how the sought-after documents or information demonstrates fraud, irregularities, or mistakes sufficient to change the election results." Slip op. at 17. You can't get to a win in an election contest by showing there might be something there, you've got to show there is something there, and that something is enough to change the outcome. A challenger can't complain that documents he doesn't have might show he would win, he has to show that he might win. And the 1998 audit showing the margin of error might net the challenger more than 41 votes? Different machines and a different vendor, therefore irrelevant, held the court. 

The court's decision is no real surprise, however, because under Hawaii law the statutory standards for election contests are so exacting. In setting the bar this high, the legislature appears to have chosen certainty and repose over accuracy. So even in what appears to be a case meriting at least a recount, an election challenge is very tough. This isn't likely to change unless Hawaii's voting patterns shift significantly, because there's little chance a one-party legislature filled with incumbents and party insiders will even consider amending the statutes to make it any easier for a loser to challenge an election result. Those who win elections (and election contests) under this system like it just the way it is.   

Waters v. Nago, No. SCEC-14-0001317 (Haw. Dec. 24, 2014)

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The Other Two Election Contests To The Postponed Puna Precincts Primary Also Dismissed

Today must be election contest day at the Hawaii Supreme Court. We say that because the court today disposed of all three election contests which were filed stemming from the postponed Puna precincts primary and other primary election problems.

Earlier, we posted the court's order dismissing for lack of subject-matter jurisdiction the original jurisidiction action filed by several voters from Puna and the ACLU Hawaii, which asked the court to allow them to vote because they were prevented by the tropical storm which whacked the Big Island on primary day. Now we have decisions on the merits in the other two election contests which were filed by the deadline.

In Waikiki v. Nago, No. SCEC-14-0001072 (Aug. 28, 2014), the court issued findings of fact and conclusions of law, and held that an election contest which complained about the state's Chief Election Officer temporarily misplacing 800 Maui County votes, and which sought a re-vote or re-count. The court held that the complaint did not state a viable legal claim under the election contest statutes because a "comoplaint contesting the results of a special primary election fails to state a claim unless the plaintiff demonstrates errors, mistakes or irregularities that would change the outcome of the election." Order at 3. Since Mr. Waikiki "can prove no set of facts that would entitle him to relief inasmuch as Waikiki fails to present specific acts or 'actual information of mistakes or error sufficient to change the results of the election.'" Id. at 4. 

Next, in Cermelj v. Nago, No. SCEW-14-0001070 (Aug. 28, 2014), the court disposed of handwritten complaint raising an election contest, in which the plaintiffs alleged that they could not vote in the primary because of Tropical Storm Iselle, which walloped the Big Island on primary day. The court concluded that the "[p]laintiffs are not proper parties to the election contest and lack the requisite standing" under the statute, because they are not a "candidate, qualified political party directly interested, or any thirty voters." Order at 3. Even if they did have standing, the plaintiffs, like Mr. Waikiki above, did not allege that allowing them to vote would alter the outcome of the primary election. 

That's it, at least as far as originial jurisdiction actions filed in the Hawaii Supreme Court regarding the primary election. As far as we know, no other such cases were instituted.  

Findings of Fact, Conclusions of Law and Judgment, Waikiki v. Nago, SCEC-14-0001072 (Aug. 28, 2014)

Findings of Fact, Conclusions of Law and Judgment, Cermelj v. Nago, No, SCEC-14-0001070 (Haw. Aug. 28, 2014...

Complaint, Cermelj v. Nago, No. SCED-14-0001070 (filed Aug. 21, 2014)

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Here's the Order Granting Motion to Dismiss, just filed in Lathers v. Abercrombie, No. SCOT-14-0001069 (Aug. 28, 2014).

That's the original jurisidiction action filed by several voters from Puna and the ACLU Hawaii, which asked the court to allow them to vote because they were prevented by the tropical storm which whacked the Big Island on primary day. 

The State defendants sought dismissal, and the court agreed that it lacked subject matter jurisdiction:

Plaintiffs concede that their complaint is “not a typical ‘election contest’” within the meaning of HRS §§ 11-172 (2009) or 11-173.5 (2009) and that they do not meet the statutory requirements for an election contest. Further, the court does not have jurisdiction under the statutory and constitutional provisions cited in the Complaint and First Amended Complaint to grant the relief requested. Therefore,

IT IS HEREBY ORDERED that the motions to dismiss are granted. The complaint and first amended complaint are dismissed.

That's all, folks? There is at least one other election challenge pending about the postponed primary, but for the Lathers plaintiffs, it seems like the only possible avenue left is a complaint in circuit court. 

Order Granting Motion to Dismiss, Lathers v. Abercrombie, SCOT-14-0001069 (Aug. 28, 2014)

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"Not A Typical Election Contest" Filed Over Postponed Puna Primary

Great SCOT! Actually, No "SCOT" According To State: ACLU Complaint About Postponed Puna Primary Not An "Election Contest"

Update: an astute reader notes that "election contests" in the Hawaii Supreme Court actually have their own separate designation in the case numbering system, "EC." Thus, a election challenge is labeled as "SCEC-xxxxxxx." Which means that, for whatever reason, the ACLU's case which we posted on below and earlier was not labeled as an election challenge at all, but as an "Other." We don't think that the case designation or numbering has any substantive effect, mind you, but do find it interesting that the complaint calls the action an "election challenge" yet it's neither labeled as such, nor was the jurisdiction of the court invoked under the election challenge statute. A big mahalo for the input. 

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You can tell what kind of case is before what Hawaii appellate court by the case designation at the top of the fist page flysheet. First two letters are the court, second two are the type of case, followed by the actual case number. Thus, when a case is labeled "CAAP," that means it's before the Intermediate Court of Appeals, and it is an appeal. When it says "SCJD" it's a case of judicial discipline before the Supreme Court. "SCWC" means a writ of cert before the Supreme Court. And so on.

It's rare that we see cases labeled "SCOT," since that means "Supreme Court - Other." Mysterious. Or, maybe not so mysterious since it could be an election contest under Haw. Rev. Stat. § 11-172, which gives the Supreme Court original jurisdiction over such cases. So it was last week, when the ACLU Hawaii and other plaintiffs invoked the court's "Other" jurisdiction and filed Lathers v. Abercrombie, No. SCOT 14-0001069, which asks the court to allow Big Island voters who were not able to make it to the polls on primary day because of the tropical storm, to vote even though the nominees have already been selected.  

Yesterday, the state defendants (the Governor, the Attorney General, the state's Chief Election Officer) filed a Motion to Dismiss which asserts that the case doesn't deserve an "OT," but rather belongs in circuit court (Hawaii's trial court of general jurisdiction), since it isn't really an "election contest." 

We detailed the allegations in the complaint in this post, in which we did some issue spotting. Sure enough, the state's motion raises arguments which we are not surprised to see: the case is not an "election contest" over which the Supreme Court of Hawaii can exercise original jurisdiction, and even if it qualified, the complaint doesn't state a claim for a primary election contest in which the only remedy the Supreme Court can impose is a declaration that one candidate or another is a party's nominee. 

Bottom line, as the motion puts it, "This case is a civil action filed in the wrong court, and nothing more."  

There's a little daylight for the plaintiffs in that the Hawaii Supreme Court has on occasion exercised its original election contest jurisdiction over a case which was not a "typical" election contest. See, e.g, Taomae v. Lingle, 108 Haw. 245, 118 P.3d 1188 (2005). But those cases, according to the state's motion, are really about the validity of constitutional amendments that were on the ballot, and not a primary election, as here. Motion at 6. We'll see if the plaintiffs' arguments get any traction with the court.  

More on the arguments via the Honolulu Star-Bulletin's story, "State wants suit over election to be dismissed."

State Defendants' Motion to Dismiss for Lack of Jurisdiction, Lathers v. Abercrombie, No. SCOT 14-0001...

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"Not A Typical Election Contest" Filed Over Postponed Puna Primary

Yesterday at 4:30 p.m. was the statutory deadline for instituting an "election contest" in the Hawaii Supreme Court to challenge last Friday's postponed Puna precincts primary (say that quickly five times).

As those of you who have been following along know, the state's Chief Election Officer determined that voting would remain open in two Big Island precincts due to the impacts of Tropical Storm Iselle on primary day. He could have ordered a delay of up to 21 days and the use of mail-in ballots, but after some waffling, determined that the two-precinct election would be held one week later, with in-person voting. All of this while the reports of the impact of the storm just seemed to get worse each day as the residents of Puna dug themselves out, and the true scope of the damage made its way to the media.

National eyes were watching, because the Democratic Party primary for U.S. Senate was close, and the delayed Puna votes could have changed the results. One Senate candidate filed a pre-election challenge, but the circuit court let the election go forward, with the judge noting that he believed there were some questions, but ruling that he had no power to overrule the Chief Election Officer's decision. When the delayed votes were added to the earlier results, the parties had their nominees, and the Senate runner up decided to throw in the towel and stated that she would not file a post-election "election contest." 

Late in the day yesterday, however -- about 45 minutes before the six-day statute of repose window closed -- at least one complaint was filed. The plaintiffs are six Big Island voters who are residents of precincts which were not subject to the Chief Election Officer's postponement decision who assert that the damage prevented them from voting, and, interestingly, the American Civil Liberties Union of Hawaii, which not only represents the plaintiffs, but is also a plaintiff itself. 

We've had a chance to review the filing, and this report from KHON2 sums up our thoughts:

Two other precincts, which the state closed on August 9th, were allowed to vote nearly a week later. The plaintiffs say, they’d like that same opportunity.

They are suing the Governor, Attorney General, State Chief Election Officer, and Hawaii County Elections Clerk, claiming they failed to take steps necessary to allow the individual Plaintiffs the opportunity to exercise their right to vote.

Election law attorney Robert Thomas believes the lawsuit includes questions and concerns many people have.

“But I’m just not sure that the Hawaii Supreme Court is the place that these questions can be answered,” Thomas said.

Read the entire report here ("ACLU sues state over primary election"), or watch the video above. 

The complaint acknowledges that "the instant case is not a typical election contest as contemplated by HRS §§ 11-172 or 11-173.5, in which a candidate, political party, or a group of thirty voters seeks to have the [Hawaii Supreme] Court declare a different result of the election." Complaint at 3 (emphasis original).

On that point, we'd have to agree. Your "typical" primary election contest invoking the original jurisdiction of the Hawaii Supreme Court is governed by the two statutes noted, § 11-172 and § 11-173.5. The first gives the Supreme Court original (non-appellate) jurisdiction, and defines "election contest" as a lawsuit in which "any candidate, or qualified political party directly interested, or any thirty voters of any election district" claims "provable fraud, overages, or underages, that could cause a difference in the election results" (although the claims are not limited to those examples). Section 11-173.5 deals specifically with the deadlines and the relief available in a primary (or special) election contest. Interestingly, the court has limited jurisdiction on what it can order if it finds good cause: 

The judgment shall decide what candidate was nominated or elected, as the case may be, in the manner presented by the petition, and a certified copy of the judgment shall forthwith be served on the chief election officer or the county clerk, as the case may be, who shall place the name of the candidate declared to be nominated on the ballot for the forthcoming general, special general, or runoff election.

That's it. It apparently does not have the express authority to order a new election, or, as the complaint requests, an order allowing the plaintiffs and others to vote in the now-pau election. The court also does not have original jurisdiction to declare that the statute in which the legislature delegated discretion to the Chief Election Officer to delay elections unconstitutional because it exceeds the requirements of article II, section 4 of the Hawaii Constitution, which requires the legislature to "prescribe the method of voting at all elections."  

Thus, this atypical election challenge complaint leaves us with more questions than answers:

• What about the candidate, political party, or thirty-voter plaintiff requirements?
• How does the ACLU itself have standing?
• Why does the complaint name the Governor and the Attorney General as defendants, and what do they have to do with the delayed election? 
• What about subject matter jurisdiction? The complaint invokes the jurisdiction of the Supreme Court under a variety of authorities (including the court's "catch-all" [our words, not theirs] jurisdiction), but not the court's jurisdiction over actual "election contests." See Complaint at 8, ¶ 10. 
• If the complaint gets tossed from the Hawaii Supreme Court on jurisdictional grounds, can the plaintiffs still obtain the relief they seek in circuit court?
• If a court orders the voting to continue, could this make a difference in the outcome, not only in the Senate race, but on other contests which were even closer? See, e.g, Complaint at 19 ("According to Plaintiffs’ calculations, if 149 or more voters were to cast ballots for any one of the three non-leading County Council candidates, there would be a run-off election in November between the two top candidates. This is a distinct possibility given that sheer number of people who were unable to cast votes in the August primary.").

We'll know more after the defendants respond. 

Complaint, Lathers v. Abercrombie, No. ____ (Haw. S. Ct. Aug. 21, 2014)

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Our little hurricane-related election dust-up has made the New York Times (see "Senator Brian Schatz Wins Closely Fought Democratic Primary in Hawaii") and the Christian Science Monitor ("Brian Schatz wins Hawaii primary: What role did tropical storm Iselle play?"). Now that the delayed-but-not-delayed-too-long election has been conducted and a Democratic Party nominee anointed, everyone's wondering what -- if anything -- is next on the law scene.

Being a Saturday, we should have been out enjoying the nice weather, but we were in the office when KHON2 dropped by to find out more:

With as little as a few hundred votes separating some of the primary races, there’s some hope for losing candidates before November’s General Election.

We spoke with an attorney who specializes in election law.

“The most obvious approach is what’s called an election contest and that’s very unusual circumstance where you would go straight to the Hawaii Supreme Court,” said attorney Robert Thomas.

Candidates would have until this Thursday to file a complaint. The Supreme Court would then have four days to make a ruling.

For Congresswoman Hanabusa, there are other options. On Thursday, a judge denied Hanabusa’s temporary restraining order to postpone the Puna elections until a later date, claiming residents needed more time.

“So there’s always, of course, perhaps, the option of appealing the judge’s ruling from the Big Island on Thursday because he said the election could go forward, but now maybe depending, they can always appeal that,” Thomas said.

See the entire report here. 

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