The U.S. Supreme Court on Wednesday blocked the counting of ballots in the ongoing Nai Aupuni election until a lower court takes action on a related lawsuit.

The ruling was a blow to supporters of an election of delegates to a Native Hawaiian convention on self-governance, but a big victory to those who oppose it.

The granting of an injunction requested by the nonprofit Grassroot Institute of Hawaii means that the nonprofit, independent Nai Apuni cannot publicly identify the winners of its election. On Tuesday, the group had extended the voting period until Dec. 21.

Instead, the 9th U.S. Circuit Court of Appeals must first make a ruling in Akina v. Hawaii, a challenge to the constitutionality of Nai Apuni’s election, which was funded by a quasi-governmental agency. The lower court last month rejected a request from Grassroot Institute to stop the election while the case is on appeal.

Carved statues on the front of the Supreme Court Building. Washington DC. 23 feb 2015. photograph Cory Lum/Civil Beat
The U.S. Supreme Court Building. Cory Lum/Civil Beat

The high court’s vote Wednesday was 5-4, with Associate Justice Anthony Kennedy siding with the four more conservative justices, including Chief Justice John Roberts. It was Kennedy who initially ordered a halt to the vote count Friday, three days before Nai Apuni was scheduled to end the monthlong voting process and announce the names of 40 convention delegates.

More than 200 candidates are vying for the delegate positions, and about 90,000 qualified Hawaiian voters are eligible to complete the ballots either online or by mail. It’s unclear exactly how many have voted or will vote.

Grassroot Institute of Hawaii President Kelii Akina called the court’s decision a significant victory for all Hawaii citizens, and a possible first step toward ending what he calls a wasteful effort.

“The ultimate winners are all people of Hawaii.” —Kelii Akina, Grassroot Institute president

“The ultimate winners are all people of Hawaii, including Native Hawaiians, who do not support the wasting of millions of dollars of public funds that have been diverted from the real needs of Hawaiians for housing, jobs, education, and health care,” said Akina, who is also a plaintiff in the case that was brought by the conservative Judicial Watch. “This is a powerful step in holding the Office of Hawaiian Affairs and the Native Hawaiian Role Commission accountable for their unconstitutional and un-Hawaiian attempts to divide people based on race.”

Said Michael Lilly, former Hawaii attorney general and a lawyer for the plaintiffs: “One requirement for our motion was to show that  we were likely to prevail on the merits of our claims. In short, the Nai Aupuni election is an unconstitutional race-based election being conducted by the State of Hawaii. We are confident that we will ultimately prevail.”

However, Nai Aupuni says it remains confident that the law is on its side.

In a statement released after the injunction was issued, Nai Aupuni said it “stands by its commitment to provide a legal process for Native Hawaiians to elect leaders to convene to reorganize a government. We believe the process aligns with the U.S. Constitution and that the U.S. 9th Circuit Court of Appeals ultimately will let the election process proceed. We will ask the appeals court to expedite the hearing so that votes can be counted and the constitutional convention, or ‘aha, can proceed this summer.”

Nai Aupuni also urged eligible voters to still cast ballots, stating, “Your vote is the mana (power) to unify us.”

A Private Election

In late October, U.S. District Court Judge Michael Seabright in Honolulu rejected the Grassroot Institute’s lawsuit that argues the Nai Aupuni election violates the U.S. Constitution. Seabright determined that Nai Aupuni was conducting a private election separate from the state.

Now it is up to the 9th Circuit to weigh in. Legal observers say it is possible that Akina v. Hawaii might eventually lead to oral arguments in the U.S. Supreme Court.

Grassroots Institute of Hawaii President Kelii Akina.
Grassroot Institute of Hawaii President Kelii Akina. PF Bentley/Civil Beat

Nai Apuni has its share of detractors, not only those who say the election is unconstitutional but others who contend that an election of delegates and the holding of a convention is not the appropriate way to determine Native Hawaiian self-governance.

Supporters, however, say the convention is perhaps the best chance for self-determination. It comes after a decade of unsuccessful efforts to pass the so-called Akaka Bill on federal recognition of Hawaiians in Congress, and just weeks after the U.S Department of the Interior proposed rules for dealing directly with a potential Hawaiian government.

Hawaii was a kingdom until its monarchy was overthrown in 1893, and the nation was annexed by the U.S. in 1898. After a territorial period, Hawaii became the 50th state in 1959.

Arguments persist in some circles as to whether Hawaii is actually part of the U.S. or is instead illegally occupied by it. The Nai Aupuni convention, say organizers, could lead to a path toward self-governance or even independence.

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