Hawaii Reapportionment Commission: U.S. Military, Military Families and Students Don’t Count

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A federal lawsuit filed by Damon Key Leong Kupchak Hastert attorneys argues that the Hawaii Legislative Reapportionment Plan excludes active duty military service members, their dependants and out-of-state students from the reapportionment population basis effectively reducing their representation in the state legislature.

The military’s presence in Hawaii results in an estimated $12 billion into the local economy, this represents nearly a fifth of Hawaii’s economy, yet the state does not want to count servicemembers when choosing seats in the state legislature.

The State of Hawaii has a long history of refusing to count military personnel and their families when reapportioning the Hawaii State Legislature. The ink was barely dry on Hawaii’s admission to the Union when it started to exclude servicemembers and their families from representation in the state legislature, by only counting “registered voters.” Hawaii’s methodology was grudgingly upheld by the U.S. Supreme Court in Burns v. Richardson, 384 U.S. 73 (1966) because there was no evidence at that time that it was the product of discrimination. In 1982, a federal court ruled Hawaii's approach unconstitutional in Travis v. King, 552 F. Supp. 554 (D. Hawaii. 1982). Then in 1992, Hawaii amended its constitution to count only “permanent residents” for its legislative apportionment (Haw. Constitution article 4, section 6).

The federal constitutional touchstone of state apportionment remains population, and eight plaintiffs recently filed a federal lawsuit seeking to end Hawaii’s discriminatory practices. The suit asks the federal court to enforce the Equal Protection Clause of the U.S. Constitution and require Hawaii to count all residents of Hawaii in its reapportionment plan. The plaintiffs in Kostick v. Nago, No. 12-00184 (complaint filed Apr. 6, 2012) are asking the court to affirm the principle of equal representation in state legislatures for all persons, and end Hawaii’s long-standing exclusion of military and their families.

The 2010 U.S. Census reported 1,360,301 residents as the total resident population of Hawaii. The U.S. Census includes everyone who is a "usual resident" of Hawaii in its count, including servicemembers, military families, and university students who pay nonresident tuition. It also counts minors, non-citizens, and incarcerated felons who cannot legally vote.

The Hawaii Constitution, however, requires the Hawaii Reapportionment Commission to only count "permanent residents" rather than usual residents as counted by the Census. A January 6 opinion by the Hawaii Supreme Court in Solomon v. Abercrombie, No. SCPW-11-0000732 (Haw. Jan 6, 2012), held that this requires the Commission to "extract" (remove) active duty military, their families, and students from the 1.3 million+ persons counted by the Census. In compliance with the Hawaii Supreme Court’s order, the Hawaii Reapportionment Commission removed 108,767 people from the Census population, rendering approximately 8% of Hawaii’s true population legally invisible.

The federal lawsuit argues that the state legislature represents all persons in Hawaii, and that the Equal Protection Clause guarantees equality of representation as well as voting equality. “The military’s presence in Hawaii results in an estimated $12 billion into the local economy,” says Robert Thomas, the attorney representing the plaintiffs, “this represents nearly a fifth of Hawaii’s economy, yet the state does not want to count servicemembers when choosing seats in the state legislature.”

The plaintiffs assert that by "extracting" servicemembers, military families, and students, on the basis that they do not qualify as "permanent residents," the reapportionment plan fails to account for the right of all persons who are present in a state to be represented in the legislature as set forth by the US Supreme Court in Gaffney v. Cummings, 412 U.S. 735 (1973). In its brief in the present case, the State argues that because the military population of Hawaii "fluctuates violently," the state is justified in treating them as "transients," even though the Census does not.

Thomas also noted that the methodology used to extract servicemembers and their families is suspect. “The state extracts military personnel if they declare they pay state income taxes elsewhere,” he said. Military family members are extracted by “attaching” them to their military spouse, and Hawaii assumes, for example, that a wife shares the same state of residence as her husband, even though there is no basis for making this assumption.

Hawaii’s choice to ignore the military, their dependants and students had significant consequences as evidenced by the Final Report and Reapportionment Plan 2012 Supplement. It shifted a seat in the state senate from Oahu to Hawaii Island and created senate and house districts which deviate grossly from the Constitutional requirement that representative districts be of substantially equal population size.

The lawsuit was filed by Robert H. Thomas, Anna H. Oshiro, and Mark M. Murakami, of the Honolulu-based law firm Damon Key Leong Kupchak Hastert for a coalition of plaintiffs who believe that the Constitution prohibits discrimination against servicemembers. The plaintiffs include an active duty servicemember, a military spouse, veterans, a state representative, and an Oahu journalist. The Plaintiffs' Motion for Preliminary Injunction will be heard on May 18, 2012 before a three-judge district court in Honolulu.


Damon Key Leong Kupchak Hastert has been serving the citizens and businesses of Hawaii for nearly 50 years, providing the connections and capabilities of an international practice from its office in Honolulu. For more information about Damon Key Leong Kupchak Hastert, please visit the firm’s website here.


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Robert H. Thomas

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