Akina v. State

Citation141 F.Supp.3d 1106
Decision Date29 October 2015
Docket NumberCIVIL NO. 15–00322 JMS–BMK
Parties Kelii Akina, et al., Plaintiffs, v. The State of Hawaii, et al., Defendants.
CourtU.S. District Court — District of Hawaii

Chris Fedeli, Lauren M. Burke, Robert D. Popper, Judicial Watch, Inc., Washington, Dc, H. Christopher Coates, Law Office Of H. Christopher Coates, Charleston, SC, Michael A. Lilly, Ning Lilly & Jones, Honolulu, HI, for Plaintiffs.

Donna H. Kalama, State of Hawaii, Girard D. Lau, Office of the Attorney General, Robert T. Nakatsuji, Department of the Attorney General, Robert G. Klein, McCorriston Miller Mukai MacKinnon LLP, Honolulu, HI, Eli Schlam, Ellen Oberwetter, Kannon K. Shanmugam, Williams & Connolly LLP, Washington, DC, for Defendant.

ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION, DOC. NO. 47

J. Michael Seabright, United States District Judge

I. INTRODUCTION

Defendant Nai Aupuni1 is conducting an election of Native Hawaiian delegates to a proposed convention of Native Hawaiians to discuss, and perhaps to organize, a "Native Hawaiian governing entity." Delegate candidates have been announced, and voting is to run from November 1, 2015 to November 30, 2015. Plaintiffs2 have filed a Motion for Preliminary Injunction seeking, among other relief, to halt this election.

The voters and delegates in this election are based on a "Roll" of "qualified Native Hawaiians" as set forth in Act 195, 2011 Haw. Sess. Laws, as amended (the "Native Hawaiian Roll" or "Roll"). A "qualified Native Hawaiian" is defined as an individual, age eighteen or older, who certifies that they (1) are "a descendant of the aboriginal peoples who, prior to 1778, occupied and exercised sovereignty in the Hawaiian islands, the area that now constitutes the State of Hawaii," Haw. Rev. Stat. ("HRS") § 10H–3(a)(2)(A), and (2)have "maintained a significant cultural, social, or civic connection to the Native Hawaiian community and wishes to participate in the organization of the Native Hawaiian governing entity." HRS § 10H–3(a)(2)(B).

Through a registration process, the Native Hawaiian Roll Commission (the "commission") asked or required prospective registrants to the Roll to make the following three declarations:

• Declaration One. I affirm the unrelinquished sovereignty of the Native Hawaiian people, and my intent to participate in the process of self-governance.
• Declaration Two. I have a significant cultural, social or civic connection to the Native Hawaiian community.
• Declaration Three. I am a Native Hawaiian: a lineal descendant of the people who lived and exercised sovereignty in the Hawaiian islands prior to 1778, or a person who is eligible for the programs of the Hawaiian Homes Commission Act, 1920, or a direct lineal descendant of that person.

Doc. No. 1, Compl. ¶ 42; Doc. No. 47–9, Pls.' Ex. A. Separately, the Roll also includes as qualified Native Hawaiians "all individuals already registered with the State as verified Hawaiians or Native Hawaiians through the office of Hawaiian affairs [ ("OHA") ] as demonstrated by the production of relevant [OHA] records[.]" HRS § 10H–3(a)(4). Those on the Roll through an OHA registry do not have to affirm Declarations One or Two.

Plaintiffs filed suit on August 13, 2015, alleging that these "restrictions on registering for the Roll" violate the U.S. Constitution and the Voting Rights Act of 1965, 52 U.S.C. § 10301. Doc. No. 1, Compl. ¶ 1. As to the constitutional claims, they allege violations of (1) the Fifteenth Amendment; (2) the Equal Protection and Due Process clauses of the Fourteenth Amendment; and (3) the First Amendment. They further allege that Nai Aupuni is acting "under color of state law" for purposes of 42 U.S.C. § 1983, and is acting jointly with other state actors.3 Id. ¶¶ 59, 68, 70, 72, 74. The Complaint seeks to enjoin Defendants "from requiring prospective applicants for any voter roll to confirm Declaration One, Declaration Two, or Declaration Three, or to verify their ancestry." Id. at 32, Prayer ¶ 2. The Complaint also seeks to enjoin "the use of the Roll that has been developed using these procedures, and the calling, holding, or certifying of any election utilizing the Roll." Id. ¶ 3.

To that end, Plaintiffs have moved for a preliminary injunction, seeking an Order preventing Defendants "from undertaking certain voter registration activities and from calling or holding racially-exclusive elections for Native Hawaiians, as explained in Plaintiffs' Complaint." Doc. No. 47, Pls.' Mot. at 3. They seek to stop the election of delegates, and thereby halt the proposed convention.

The court heard Plaintiffs' Motion for Preliminary Injunction on October 20, 2015, and fully considered all written and oral argument, as well as the evidence properly submitted in the record. The court issued an oral ruling on October 23, 2015, explaining much of the court's reasoning and analysis. This written ruling provides further background and explanation, but is substantively the same as the oral ruling.4 Based on the following, Plaintiffs' Motion is DENIED.

II. BACKGROUND
A. Act 195 and the Native Hawaiian Roll

On July 6, 2011, then-Governor Neil Abercrombie signed into law Act 195, which is codified in substantial part in HRS Chapter 10H. Act 195 begins by declaring that "[t]he Native Hawaiian people are hereby recognized as the only indigenous, aboriginal, maoli people of Hawaii." HRS § 10H–1. The purpose of Act 195 is to:

provide for and to implement the recognition of the Native Hawaiian people by means and methods that will facilitate their self-governance, including the establishment of, or the amendment to, programs, entities, and other matters pursuant to law that relate, or affect ownership, possession, or use of lands by the Native Hawaiian people, and by further promoting their culture, heritage, entitlements, health, education, and welfare.

HRS § 10H–2.

Act 195 establishes a five-member commission, which is responsible for preparing and maintaining a roll of "qualified Native Hawaiians." HRS § 10H–3(a)(1). As summarized above, § 10H–3(a)(2)(as amended by Act 77, 2013 Haw. Sess. Laws), defines a "qualified Native Hawaiian" as

an individual whom the commission determines has satisfied the following criteria and who makes a written statement certifying that the individual:
(A) Is:
(i) An individual who is a descendant of the aboriginal peoples who, prior to 1778, occupied and exercised sovereignty in the Hawaiian islands, the area that now constitutes the State of Hawaii;
(ii) An individual who is one of the indigenous, native people of Hawaii and who was eligible in 1921 for the programs authorized by the Hawaiian Homes Commission Act, 1920, or a direct lineal descendant of that individual; or
(iii) An individual who meets the ancestry requirements of Kamehameha Schools or of any Hawaiian registry program of the [OHA];
(B) Has maintained a significant cultural, social, or civic connection to the Native Hawaiian community and wishes to participate in the organization of the Native Hawaiian governing entity; and
(C) Is eighteen years of age or older[.]

HRS § 10H–3(a)(2).5 Further, the commission is responsible for:

including in the roll of qualified Native Hawaiians all individuals already registered with the State as verified Hawaiians or Native Hawaiians through the [OHA] as demonstrated by the production of relevant [OHA] records, and extending to those individuals all rights and recognitions conferred upon other members of the roll.

HRS § 10H–3(a)(4).

Under these provisions, persons who are included on the Roll through § 10H–3(a)(4)as having "already registered with the State" through OHA do not have to certify that they have "maintained a significant cultural, social, or civic connection to the Native Hawaiian community," nor that they "wish[ ] to participate in the organization of the Native Hawaiian governing entity" as set forth in § 10H–3(a)(2). And Nai Aupuni's President, Dr. James Asam, attests that:

[Nai Aupuni] understood that OHA's Hawaiian Registry process did not require attestation of the "unrelinquished sovereignty of the Native Hawaiian people", and "intent to participate in the process of self-governance" ("Declaration One"). [Nai Aupuni] concluded, on its own, that having this alternate registration process was favorable because it provided Native Hawaiians who may take issue with Declaration One with the opportunity to participate in the [Nai Aupuni] process.

Doc. No. 79–1, Asam Decl. ¶ 19; see also Doc. No. 83–1, Kamanaopono Crabbe Decl. ¶ 11 ("[A]n OHA Database registrant may be transferred to the Roll Commission and included on the Roll without affirming the declarations required under Act 195."). Indeed, according to the Complaint, many of these OHA-registrants were placed on the Roll without their knowledge or consent. Doc. No. 1, Compl. ¶ 35.6

At the October 20, 2015 hearing, the parties stipulated that approximately 62 percent of the Roll comes from an OHA registry, and the other 38 percent come directly through the Roll commission process. See Doc. No. 104, Tr. (Oct. 20, 2015) at 57–58. It follows that approximately 62 percent of the Roll did not have to affirm Declarations One or Two. That is, approximately 62 percent of the Roll did not have to make an affirmation regarding sovereignty or significant connection to the Native Hawaiian community.7

Under Act 195, the Governor of Hawaii appointed the five members of the commission selected "from nominations submitted by qualified Native Hawaiians and qualified Native Hawaiian membership organizations," where "a qualified Native Hawaiian membership organization includes an organization that, on [July 6, 2011], has been in existence for at least ten years, and whose purpose has been and is the betterment of the conditions of the Native Hawaiian people." HRS § 10H–3(b). The commission is funded by OHA, Act 195 § 4, and is placed "within the [OHA] for administrative purposes only." HRS § 10H–3(a).

The commissioners are responsible for (1) "[p]...

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