A second lawsuit has been filed in state Supreme Court against the Hawaii Reapportionment Commission over its redistricting plan that counts most non-resident military and their families as part of the state’s population.

Kona attorney Mike Matsukawa is suing the commission and Chief Election Officer Scott Nago, asking the court to find the current redistricting plan invalid and to have the boundaries redrawn. (A copy of the lawsuit is embedded below.)

Matsukawa’s lawsuit, filed Thursday, argues the plan is invalid “because (it) does not use the state’s ‘permanent residents’ as the population base as is constitutionally mandated.” He contends that the commission did not make a “good faith” effort to follow the constitution when it voted 8-1 back in June to count non-resident military personnel, their families, sentenced felons and out-of-state college students as part of the population.

If the commission had excluded approximately 85,000 non-permanent residents from the population, Matsukawa says the Big Island would likely gain an additional Senate seat due to population growth over the past decade.

“If they used only permanent residents to do their calculation, then what happens is the Big Island would be entitled to one additional Senate seat to the loss of a Senate seat on Oahu,” Matsukawa told Civil Beat. “So that is why the use of the proper population base becomes critical — someone’s going to gain, and someone’s going to lose.”

Another lawsuit filed earlier this week also asks the Supreme Court to find the plan invalid. That suit, filed on behalf of Big Island Sen. Malama Solomon and other Big Island Democrats, focuses on the fact that the state constitution mandates that reapportionment be based on the total number of “permanent residents.”

Matsukawa’s suit focuses more on his claim that “the Reapportionment Commission knowingly refused to take serious, good faith and honest action and thereby denied itself, and more importantly the public, the opportunity to obtain all available data and means to perform its constitutionally mandated task.”

The commission later reversed its decision with a 5-3 vote in September that approved excluding about 16,500 active-duty military and out-of-state college students from the population base.

Matsukawa says that decision came too little too late: “The commission waited to Sept. 19, 2011 — one week prior to the Sept. 26, 2011, plan filing deadline — to ‘accomodate’ the Hawaii State Constitution, but had by then denied itself and the public the reasonable opportunity to conduct a thorough, ‘good faith’ and ‘honest’ analysis of the issue presented: to remove non-permanent residents from the Census count.”

In 2002, Matsukawa sued the Hawaii County Reapportionment Commission on behalf of the Kona-based Citizens for Equitable and Responsible Government, alleging that commission had violated the state constitution and county charter when drawing county council districts. In that case, the commission also had counted non-permanent residents in the population base.

Associate Justice Simeon Acoba Jr. wrote that while the court held that “the phrase ‘equal resident populations’ excludes nonresident college students and nonresident military personnel and their dependents from the population base for purposes of reapportioning county council districts,” that the resulting plan did not exceed the allowed deviation and was ultimately constitutional.

“We won in part, lost in part,” said Matsukawa, a former Hawaii County corporation counsel in the 1990s. “We were successful in arguing that it’s legitimate to distinguish between permanent and non-permanent residents, but we lost when the court said that while the method was wrong, the results were not unfair.”

Here’s Matsukawa’s petition and memorandum filed Thursday.



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