It could be up to voters to decide whether candidates have to actually live in the district they want to represent.

And Hawaii could count military just like most everyone else does on the mainland — as residents, according to several measures before lawmakers.

Candidate residency was a contentious issue in more than one race in the 2012 elections.

Calvin Say, the emeritus speaker of the Hawaii House of Representatives, was once again challenged in court over allegations that he does not live in the Palolo-Kaimuki-St. Louis Heights District 20 seat he has represented for decades.

State law requires that a candidate be “a qualified voter of the representative district from which the person seeks to be elected.” In other words, candidates can own property and be registered to vote in that district. But they don’t necessarily have to live there.

The lawsuit was rejected last week but is on appeal. It is not the first time that Say has been charged with living outside of his district.

In another election challenge, a candidate that lost to Chris Manabat in the District 40 House primary race (Ewa, Ewa Beach, Iroquois Point, Gentry) complained that, among other things, Manabat did not live in the district. Rose Martinez said that Manabat’s decision to run in District 40 was influenced by his mother, state Rep. Rida Cabanilla, the Democrat incumbent in District 41 (Ewa Beach-West Loch Estates) next door.

Manabat lost the general election to Republican Bob McDermott.

Counting Military As Residents

The military residents bill came out of last year’s reapportionment controversy.

Military personnel and out-of-state students — deemed “nonresidents” — were not included when new districts were drawn for the 2012 elections. That prompted a lawsuit last spring from state Rep. Mark Takai and five other voters.

The plaintiffs argued that the plan was unconstitutional and discriminatory, since it removed more than 100,000 military personnel, their dependents and university students from political district populations. Four of the six plaintiffs, including Takai, are military personnel or veterans.

“All persons within the jurisdiction of the state of Hawaii are entitled to be represented in the Hawaii legislature,” the lawsuit stated.

In May a federal panel rejected the plaintiffs’ request to stop reapportionment from going through. The case was later submitted to a three-judge panel of the U.S. District Court, which heard arguments in January. Plaintiffs’ attorney Robert Thomas said both sides “moved for judgement as a matter of law,” and they are awaiting a decision.

Requirement: Live In Your District For At Least a Year

Senate Bill 478, introduced by Sen. Kalani English at the request of another party, would ask voters to decide on residency.

It proposes to amend the Hawaii Constitution to require candidates for state Senate or House seats to be a resident of the state for at least five years (the current requirement is three years), and to be a resident of a legislative district for at least 12 consecutive months prior to the general election.

In a hearing Wednesday on SB 478, Deputy Attorney General Robyn Chun said the bill was constitutionally sound but strongly recommended that it include language explaining why lawmakers want to extend state residency requirements.

Others weighed in, strongly supporting the measure.

Matthew LoPresti, who unsuccessfully challenged Cabanilla, testified, “It has been a long-standing and deeply unethical and self-serving practice in this state for people with political ambitions to lie about where they live just in an attempt to get elected.”

LoPresti added that current law “is so weak” that election office clerks have little ability to rule on whether someone is eligible to run in a district.

Mel Kahele of the Ironworkers Stabilization Fund said, “Voters are tired of people coming and being a candidate when they are not a resident. We believe the 12 months requirement is reasonable.”

SB 478 now heads to the full Senate for a vote. A similar measure, House Bill 269, is moving through the House but does not change the state residency requirement.

Senate Bill 225, which also passed Senate Judiciary and Labor Wednesday and heads to a floor vote, adds a definition of residency to current law. The bill, sponsored by Sen. Les Ihara Jr., makes a distinction between permanent and temporary domiciles:

A momentary, occasional, or sporadic physical presence shall not be sufficient to establish residency. A significant physical presence, however, consistent with the ordinary conception of living, abiding, residing, dwelling, or maintaining a habitation in a fixed place, shall establish residency.

Permanent Residents

Another measure, Sen. Sam Slom’s Senate Bill 286, would define a permanent resident for reapportionment purposes “as any individual counted as a usual resident in the last preceding U.S. census within the State of Hawaii.”

Thomas, the attorney challenging the 2012 reapportionment, supports SB 286.

In detailed written testimony, Thomas and other attorneys with Damon Key Leong Kupchack Hastert laid out an argument based on equal protection. Among other things, they noted, “Every other state but Hawaii and Kansas uses the Census count of ‘usual residents’ as its reapportionment population.”

They continued:

Thus, the 2010 Census resident population of Hawaii included servicemembers, their families, university students, federal civilian workers “stationed” in Hawaii, legal and illegal aliens, children, and prisoners incarcerated here, all irrespective of whether they pay state taxes, their eligibility to vote in Hawaii, or actual registration to vote.

Thomas Smyth of the Military Officers Association of Hawaii testified in support of SB 286, too, noting the sizable economic contribution to Hawaii that comes from the military.

But Chun of the AG’s office expressed “strong concerns” about the bill, arguing that a constitutional amendement is necessary to define a population base.

Bart Dame, an active member of the Democratic Party of Hawaii who testified on his own behalf, made a similar argument while expressing “some sympathy with what I believe may be the motives behind the bill. …”

On Thursday, Senate Judiciary and Labor passed the measure with technical amendments, and it now heads to the full Senate.

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