Redistricting Challenge Could Result in Two Hawaii Primaries

Hawaii voters could be heading to the primary election polls twice this year if federal judges side with plaintiffs challenging the state’s redistricting plan.

A three-judge panel heard arguments Friday morning in U.S. District Court in Honolulu on a preliminary injunction that seeks to toss out the political boundaries approved in March by the Reapportionment Commission.

The motion is before U.S. District Judges J. Michael Seabright and Leslie Kobayashi, and U.S. Circuit Judge M. Margaret McKeown of San Diego. The court is expected to issue a decision soon.

The plaintiffs — six Hawaii voters, including state Rep. Mark Takai — argue the plan is unconstitutional and discriminatory because it removed more than 100,000 military personnel, their dependents and out-of-state university students from political district population totals. Four of the six plaintiffs are military personnel or veterans.

Their lawsuit claims the plan violates the federal Equal Protection Clause.

Hawaii’s primary election is set for Aug. 11, and the state Office of Elections says it’s too late to start over [pdf]. Candidates have until June 5 to file to run for office.

Invalidating the existing plan would “cause a chaotic scene,” according to state Deputy Attorney General Brian Aburano, who is defending the Office of Elections and the Reapportionment Commission in the legal challenge.

He said implementing a new redistricting plan — even using an alternative plan that’s already drawn up — would delay the primary election by several months. Another possibility, Aburano said, would be to hold dual primary elections.

“It means the primary is either going to have to be delayed, or, more likely, we would have to have dual primaries,” he said in court.

He noted one primary election would be held for federal races, which are not impacted by the lawsuit, and another primary for state and county elections once a new redistricting plan is implemented.

“It’s next to impossible to have this election in a timely manner,” he said.

Robert Thomas, attorney for the plaintiffs, said he sees remedying the situation as “mission difficult, not mission impossible.”

Thomas stressed that Friday’s hearing was only for the preliminary injunction. If the motion is denied, the lawsuit challenging the constitutionality of the plan would proceed to trial, he said.

At times, things didn’t look like they were going well for the plaintiffs.

The judges appeared to be confused at some of Thomas’ arguments, which often got technical. For example, he argued that when the state adopts an alternative population base for reapportionment, the state has an obligation to say how that alternative stacks up to a constitutionally permissible population base.

Seabright made clear during the hearing that the court doesn’t want to disrupt the elections.

Seabright said re-doing the redistricting process would “throw the (election) system into chaos — something this court won’t do,” noting that it would “undermine the integrity of the process.”

In addition to claiming that the reapportionment plan disenfranchises military personnel, Thomas said the plan fails to apportion populations of each district equally across the state. He acknowledged that so-called “canoe districts” — a single district covering portions of more than one island — would be the only way to address that.

The Reapportionment Commission initially came up with a plan in September that removed about 16,500 military and college students because they weren’t “permanent” residents, as called for in the state constitution.

Thomas has said that plan, as well as an August 2011 plan, could be acceptable alternatives to the existing plan.

The September plan was challenged in two separate lawsuits for including too many non-resident military and their families as part of the state’s population. Those suits contended that counting these populations had cost the Big Island an additional Senate seat it would otherwise gain due to population growth.

The Hawaii Supreme Court in January ruled the plan did in fact violate the Hawaii Constitution and had to be redone.

When the commission reconvened to draw up new plans, it removed more than 100,000 active-duty military and dependents and out-of-state college students, a change that shifted a Senate seat from Oahu to the Big Island.

“By barring military, their families, and students from representation in the legislature, Hawaii has insured they are represented nowhere: Because they are counted by the Census only as usual residents of Hawaii, they are not counted anywhere else,” the preliminary injunction motion said.

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