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After four hours of legal arguments on Tuesday by supporters and opponents of the current election for delegates to a Native Hawaiian political convention that both sides agree could be an important step toward some form of Hawaiian self-governance, federal Judge J. Michael Seabright said he will decide by the end of the week whether he will block the election from proceeding.
Seabright is presiding over a lawsuit brought by several opponents of the process that is widely expected to be a significant step toward Hawaiian political autonomy. The lawsuit is backed by Judicial Watch, a conservative Washington foundation, and the lead plaintiff is Kelii Akina, CEO of the Grassroot Institute of Hawaii, a local conservative, free-market educational group.
Tuesday’s hearing was request by plaintiffs seeking a preliminary injunction that would put the election on hold until the issues being raised by the lawsuit can be decided. No trial date has yet been set, while ballots are due to be distributed to the list of certified voters on Nov. 1.
Seabright said he will rule on the injunction and scheduled another hearing for 10:30 a.m. Friday to explain the basis for it. A full written ruling is unlikely be ready before the election. Mail-in voting is currently scheduled to continue through the month of November.
The judge did not indicate which way he is leaning, although the commitment to a decision this week likely means he has at least tentatively made up his mind.
The election process, and the political convention, or aha, to follow, are supported by a broad swath of mainstream Hawaiian organizations, including the Office of Hawaiian Affairs, and several so-called “Alii Trusts” and royal societies, which established a private nonprofit organization, Nai Aupuni, to organize and conduct the election. OHA entered into contracts with Nai Aupuni to fund the election process, although it maintains it has no control over the process or its outcome.
The election is opposed by Hawaiians on two ends of the political spectrum. Some Hawaiians like Akina, a political conservative, have opposed extending special status to Hawaiians. But the election process is also opposed by those Hawaiians who say they will not support anything less than full national independence. They also are against any process that would grant Hawaiians the same status as Native American tribal governments, which they see as limiting sovereignty.
The lawsuit criticizes the election on several grounds. First, it argues that Hawaiians who declined to affirm several statements that were part of the registration process, including the “unrelinquished sovereignty” of the Native Hawaiian people, were illegally barred from registering to vote simply due to their political beliefs.
Second, the lawsuit alleges that the election violates the U.S. Constitution by limiting voting to those of Hawaiian descent.
And, finally, the lawsuit argues that the First Amendment rights of some Hawaiians were violated when they were placed on the voter rolls without their affirmative consent.
Stepping back, though, the election process has been spurred on not only by a desire for more political autonomy for Hawaiians, but also by the fear that virtually all social programs that have specifically targeted benefits to Hawaiians, including institutions such as Kamehameha Schools as well as programs created and funded by Congress over the past 40 years, could be shut down if the U.S. Supreme Court finds Hawaiian-only preferences to be unconstitutional.
Previous court rulings ended Hawaiian-only voting in OHA elections, and have challenged Hawaiian-only admission to Kamehameha Schools. Many legal scholars believe that unless Hawaiians are given a legal status akin to those of Indian tribes, which are recognized in federal law, these programs will be at risk in the face of continued legal challenges.
Much of the legal wrangling during the hearing revolved around the issue of whether this election is truly a private affair among Hawaiians only, or whether its public funding and the participation of OHA, a state agency, mean that it is really a government function involving “state action” and subject to the constitutional protections against various forms of discrimination in voting and elections.
Previous court rulings ended Hawaiian-only voting in OHA elections, and have challenged Hawaiian-only admission to Kamehameha Schools.
Robert Popper, arguing for the plaintiffs, told the court that the upcoming election “could be a turning point for the state” because it will inevitably start a process that will have far-reaching impacts on all Hawaii residents, and on the relationship between Hawaiians and the U.S. government.
And because of those potential impacts, as well as the key role played by OHA in organizing and funding the whole process, the election is necessarily more than simply a private affair, Popper argued.
In addition, plaintiffs argued that the Hawaiian election process was triggered by Act 195, passed by the Legislature in 2011, which established the Native Hawaiian Roll Commission to compile a list of qualified Hawaiian voters. This, they say, is further evidence that the election should be treated as a public election.
But the position of the defendants in the case, which include trustees, officers, and staff of OHA, the Native Hawaiian Role Commission, and Nai Aupuni, is that the election is private and independent of the government.
In his comments, Judge Seabright seemed to agree. He pressed Popper and other attorneys for the plaintiffs concerning the outcome of the planned election, noting that it would not result in the election of any state official, or the passing of any public laws. Why, Seabright asked, should it be considered anything other than a private election?
What if blue-eyed people raised money to organize themselves, create a list of qualified blue-eyed people, and then elected representatives to meet and discuss their status, Seabright asked, indicating that he did not believe there are grounds to consider that a public election.
Nai Aupuni and its supporters were also buoyed by a “friend of the court” brief in support of the legality of the election process filed by the U.S. Department of the Interior. The department said Native American tribes are recognized to have the right to determine their own members, organize themselves and conduct their own elections, limited to tribal members.
Federal laws have allowed these elections to exclude non-Natives, and there is no basis for treating the Native Hawaiian community any differently, the department argued.