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UPDATED 6/23/11 6:30 p.m. The Hawaii Legislature is supposed to represent all of Hawaii’s people, but not everybody who lives in the islands gets a seat at the table.
Do active-duty military stationed here count? What about their families? University students who come from elsewhere? Sentenced felons? The answer, at least for now, is no. That could soon change.
The once-per-decade task of defining “resident” for the purposes of drawing political districts offers a glimpse into Hawaii’s deep-seated identity issues.
If many conversations start with “What high school did you go to?” and a common refrain in testimony at public meetings is how many generations someone can trace back in Hawaii, then how much standing do the islands’ newest inhabitants have?
It’s a broad rhetorical question, but there will soon be a direct answer that carries political ramifications.
The Hawaii Reapportionment Commission is set to meet next week to continue its debate over the issue, and the Office of Elections predicts that adding some 70,000 active-duty military back into the population base would cost the Big Island a state Senate seat. Hawaii Island had experienced comparatively rapid population growth in the decade since nonresident military and their families, nonresident students and sentenced felons were all excluded from the count in 2001.
Of course, drawing political districts isn’t the only context in which being a “resident” matters. There’s the matter of registering to vote, of paying state income tax and of enjoying in-state college tuition.
“The definition of residency doesn’t come from one source. It comes from various bureaucracies that get to set their own definition,” political analyst Neal Milner told Civil Beat. “Who counts and who doesn’t varies according to what you’re counting for.”
State law lays out the seven rules for determining residency for voter eligibility and registration. Among those rules are the instruction that “A person does not gain or lose a residence solely by reason of the person’s presence or absence while employed in the service of the United States or of this State, or while a student of an institution of learning, or while kept in an institution or asylum, or while confined in a prison.”
It also says that “No member of the armed forces of the United States, the member’s spouse or the member’s dependent is a resident of this State solely by reason of being stationed in the State.”
UPDATED In 2009, the Hawaii Supreme Court heard a case centering on challenges to Maui County Councilmember Sol Kahoohalahala’s alleged Lanai residency. Though the Maui County clerk had said state law means “one’s state of mind determines one’s place of residence,” the Supreme Court’s ruling said Kahoohalahala also needed to have a sufficient “physical presence” on Lanai to “corroborate his intent” to move back to the island from Maui.Corrected
“Resident” has a different definition when it comes to the matter of paying state income taxes. That different section of state law says everyone who lives in Hawaii more than 200 total days of a given year shall be presumed to be a Hawaii resident. But the law makes explicit exemptions for those that produce evidence that they have a permanent residence outside of Hawaii and that they’re here for a temporary purpose.
“No person shall be deemed to have gained or lost a residence simply because of the person’s presence or absence in compliance with military or naval orders of the United States, or while engaged in aviation or navigation, or while a student at any institution of learning,” the law says.
But even non-residents have to pay Hawaii income tax on money earned in the state.
The state’s Tax Department has a financial incentive to be as inclusive as possible — more residents means more income tax. But the University of Hawaii looks at things the opposite way. Because tuition is less for residents than for transplants, the school has set a high bar for resident status that it acknowledges differs from income tax or voter registration definitions.
State law says UH students qualify for resident tuition only if they’ve been a “bona fide resident of this State for at least twelve consecutive months” before the semester begins. But making things trickier is the administrative rule [pdf] that a nonresident student taking more than six credits per term is presumed to be in the state for educational purposes and can’t count their time toward residency. (Classes at UH are typically three or four credits.)
In other words, if you come to Hawaii to be a full-time student, you will likely be paying out-of-state tuition for the entirety of your college years.1
But while there are numerous costs and benefits of being a Hawaii resident — the ones above, plus things like kamaaina discounts — there are few issues as fundamental as representation in the halls of government.
The Reapportionment Commission’s decision could mean a lifelong Hawaii resident that’s married to a member of the military from elsewhere would be left out of the population base. Military children using public schools or University students driving on public roads won’t be part of the count that determines how their neighborhoods are represented at the Legislature.
In arguing in favor of including military in the population base, proponents have said Hawaii and Kansas are the only two states that have excluded them.
Others chalk up Hawaii’s reluctance to count military to the state’s unique relationship with the U.S. military specifically, and with newcomers in general.
“Hawaii is a little bit different from other places because of the presence of more military than other areas and then more tourists or visitors, as we call them, than other areas,” said John Rosa, assistant professor of modern Hawaii history at UH. “Hawaii is linked to the U.S. and global conditions but also very different in some ways.”
Rosa said that the term “local” was created during the 20th Century to refer to working-class people who were usually non-white and often descendants of plantation workers. But he said that a “local” population might have a different view of Hawaii’s future than military or visitors.
“Maybe sometimes people are only thinking in the five- to 10-year range and not one or two or three generations down the line,” he said.
But while reapportionment and redistricting are about representation in government, it’s also about politics and the distribution of political power throughout the state. Either coincidentally or cynically, each county has advocated in what is clearly its own political interest.
The three neighbor island advisory councils have all asked the commission to exclude military from the tally, while the Oahu council recommended that the state follow the federal government’s practice of using the unamended U.S. Census count for apportioning seats. Going that route would likely allow Oahu to hang onto at least one Senate seat and possibly seats in the House as well.
Maui Advisory Council Madge Schaefer — a vocal proponent of excluding military from the count — has repeatedly pointed to a 1992 amendment to the state’s Constitution that says only “permanent residents” should be counted in reapportionment.
Though the term isn’t defined in the Constitution or in statute, the courts have weighed in.
In 2001, Big Island officials decided to include nonresident military and their families and nonresident students in the population base as they reapportioned Hawaii County Council districts. Four years later, after that decision was challenged with a lawsuit, the Hawaii Supreme Court rejected the county’s logic.2
The court adopted Black’s Law Dictionary definition of resident as “Any person who occupies a dwelling within the State, has a present intent to remain within the State for a period of time, and manifests the genuineness of that intent by establishing an ongoing physical presence within the State together with indicia that his presence within the State is something other than merely transitory in nature.”
The court ruled that military deployments and college education were “transitory in nature” and that writers of the county charter would have written “total population” instead of “resident population” if they’d wanted to include those groups.3
That ruling from the Hawaii Supreme Court six years ago might be a signal to the Hawaii Reapportionment Commission that the Constitution’s directive to count only “permanent” residents in its population base should be heeded. The commission will take up the matter at its next meeting Tuesday [pdf].
Some observers say that just because the commission needs to make a yes-or-no call doesn’t mean being local is a straightforward issue.
“All of those things have probably not a lot to do with what it means to actually live in this place. Whether you’re part of the community in a cultural sense,” said Milner, the political analyst. That question of community is a “broader, richer and more important question.”
“Either way you come down, you’re missing a lot of these subtleties. Residency is in many ways a very crude representation of how people live,” he said. “Well, we’ve got to do it one way or the other. People shouldn’t be under any illusions that there’s a definitive answer to this: ‘They should be here or they should be there, end of story.'”