Arakaki v. Hawaii

• Citation: 314 F.3d 1091
• Decision Date: 31 December 2002
• Docket Number: No. 00-17213.,00-17213.
• Parties: Earl F. ARAKAKI; Evelyn C. Arakaki; Patrick Barrett; Sandra P. Burgess; Edward U. Bugarin; Patricia A. Carroll; Robert M. Chapman; Brian Clarke; Kenneth R. Conklin; Michael Y. Garcia; Toby M. Kravet; Thurston Twigg-Smith; Jean Yokoyama, Plaintiffs-Appellees, v. State of HAWAII; Benjamin J. Cayetano, in his official capacity as the Governor of the State of Hawaii; Dwayne D. Yoshina, in his official capacity as Chief Election Officer of the State of Hawaii, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1091

314 F.3d 1091

Earl F. ARAKAKI; Evelyn C. Arakaki; Patrick Barrett; Sandra P. Burgess; Edward U. Bugarin; Patricia A. Carroll; Robert M. Chapman; Brian Clarke; Kenneth R. Conklin; Michael Y. Garcia; Toby M. Kravet; Thurston Twigg-Smith; Jean Yokoyama, Plaintiffs-Appellees, v. State of HAWAII; Benjamin J. Cayetano, in his official capacity as the Governor of the State of Hawaii; Dwayne D. Yoshina, in his official capacity as Chief Election Officer of the State of Hawaii, Defendants-Appellants.

No. 00-17213.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 2002.

Filed December 31, 2002.

Girard D. Lau, Deputy Attorney General, Honolulu, HI, for the Defendants-Appellants.

Patrick W. Hanifin, Honolulu, HI, for the Plaintiffs-Appellees.

Deborah G. Kiley, Sacramento, CA, for amicus curiae Pacific Legal Foundation.

Appeal from the United States District Court for the District of Hawaii; Helen Gillmor, District Judge, Presiding. D.C. No. CV 00-514 HG.

Before WALLACE, TASHIMA, and TALLMAN, Circuit Judges.

Opinion by Judge TASHIMA; Concurrence by Judge WALLACE.

OPINION

TASHIMA, Circuit Judge.

Defendants-Appellants, State of Hawaii, Benjamin J. Cayetano, in his official capacity as Governor of the State of Hawaii, and Dwayne D. Yoshina, in his official capacity as Chief Elections Officer of the State of Hawaii (collectively "Hawaii" or the "State"), appeal the district court's grant of summary judgment to Plaintiffs-Appellees, Earl F. Arakaki and twelve other individuals (collectively "Arakaki"), holding that the State's constitutional and statutory requirements that the trustees of the Office of Hawaiian Affairs ("OHA") be "Hawaiian" are invalid under the Equal Protection Clause of the Fourteenth Amendment, the Fifteenth Amendment, and the Voting Rights Act.¹ We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part and vacate in part.

I. BACKGROUND

At the time of its admission as the 50th State of the Union, in 1959, Congress granted Hawaii "title to all the public lands and other public property within the boundaries of the State of Hawaii" that had been held by the United States, including the "available lands" set out in the Hawaiian Homes Commission Act ("HHCA").² See Hawaii Statehood Admission Act of March 18, 1959, Pub.L. No. 86-3, 73 Stat. 4 ("Admission Act"); id. Intro., § 5(b). Congress required that Hawaii hold these ceded lands, and their income and proceeds, as a "public trust" to be "managed and disposed of for one or more of the foregoing purposes," one of which is "the betterment of the conditions of native Hawaiians, as defined in the[HHCA]." Admission Act § 5(f). The four other purposes, which include "the support of the public schools and other public educational institutions," pertain to the Hawaii public at large, i.e., they are not restricted to or expressly for the benefit of native Hawaiians. Id. In accordance with this statutory requirement, the Hawaii Constitution was amended to provide for these lands, excluding the lands covered by the HHCA, to be "held by the State as a public trust for native Hawaiians and the general public." Haw. Const. art. XII, § 4.

In 1978, Hawaii amended its Constitution to establish the OHA to "address the needs of the aboriginal class of people of Hawaii." Haw.Rev.Stat. § 10-1. OHA's primary responsibility is to manage and administer the property and funds, including those from the public trust, that have been allocated for the betterment of the conditions of "native Hawaiians" and "Hawaiians,"³ Haw.Rev.Stat. §§ 10-1, 10-3, and to formulate policies, programs, and activities relating to the affairs of native Hawaiians and Hawaiians. Haw. Const. art. XII, § 6.

OHA is governed by a nine-member board of trustees, elected by qualified voters in the State. See Haw. Const. art. XII, § 5; Haw.Rev.Stat. § 13D-1. Former statutory provisions that limited eligible voters in OHA trustee elections to citizens of Hawaiian ancestry were repealed after the Supreme Court held those provisions to violate the Fifteenth Amendment. See Rice v. Cayetano, 528 U.S. 495, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000). The issue we must decide is whether the remaining statutory and constitutional provisions requiring that all OHA trustee candidates be Hawaiian, Haw. Const. art. XII, § 5; Haw.Rev.Stat. § 13D-2, are constitutional and valid.

Arakaki contends that the requirement that all OHA trustees be Hawaiian violates the Equal Protection Clause, the Fifteenth Amendment, and the Voting Rights Act. Arakaki further contends that an effective vote requires that the choice of OHA trustee candidates cannot be limited by the race or ancestry of the candidates.⁴

On cross-motions for summary judgment, the district court denied Hawaii's motion and granted Arakaki's motion for summary judgment. It held that § 5, Article XII, of the Hawaii Constitution, and Haw.Rev.Stat. § 13D-2, to the extent that they require OHA trustees be Hawaiian, violate the Equal Protection Clause, the Fifteenth Amendment, and § 2 of the Voting Rights Act. The judgment requires Hawaii "to permit otherwise qualified non-Hawaiians to run for office and to serve, if elected, as trustees of the [OHA]." Hawaii timely appeals.

II. STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). Neither side contends that there are any genuine issues of material fact. Therefore, our task is to determine whether the district court correctly applied the relevant substantive law. See id.

III. DISCUSSION

A. Fifteenth Amendment

The Fifteenth Amendment provides in relevant part that "[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." U.S. Const. amend. XV, § 1. "The Amendment grants protection to all persons, not just members of a particular race." Rice, 528 U.S. at 512, 120 S.Ct. 1044.

Hawaii contends that the Fifteenth Amendment is not even implicated by this case because the OHA trustee qualification does not restrict the right to vote based on the race of the voter. Since voters are allowed to vote in the trustee elections regardless of race, the right to vote is not denied or abridged on the basis of the race of the voter. The trustee requirement, however, categorically excludes all non-Hawaiians from running for the office of OHA trustee based solely on the fact that they are not of Hawaiian ancestry. In doing so, the qualification significantly limits the voters' choice of candidates on the basis of race.

In Hadnott v. Amos, 394 U.S. 358, 364, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969), the Supreme Court established that the disqualification of candidates based on race implicates the Fifteenth Amendment right of voters "regardless of their race, color, or previous condition of servitude to cast their votes effectively." The Court has also recognized the importance of the process by which the choice of candidates is determined to the preservation of their voting rights. See Smith v. Allwright, 321 U.S. 649, 664, 64 S.Ct. 757, 88 L.Ed. 987 (1944) (recognizing that a state adopts and enforces discrimination where its election procedures "limit[] the choice of the electorate in general elections for state offices ... to those whose names appear" on "a general election ballot made up of party nominees" who have been chosen through discriminatory primary elections). Stated differently, the "fundamental principle of our representative democracy ... `that the people should choose whom they please to govern them,' ... is undermined as much by limiting whom the people can select as by limiting the franchise itself." Powell v. McCormack, 395 U.S. 486, 547, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (quoting 2 Elliot's Debates 257).

Hawaii further contends that the Supreme Court's decision in Morton v. Mancari 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), saves the OHA trustee requirement from violating the Fifteenth Amendment. In Mancari, the Court upheld a statutory employment preference for American Indians in the Bureau of Indian Affairs ("BIA") based in part upon the "unique legal status of Indian tribes under federal law and upon the plenary power of Congress ... to legislate on behalf of[them]." Id. at 551, 94 S.Ct. 2474. In Rice, however, the Court held that the voting scheme which allowed only Hawaiians to vote in OHA trustee elections violated the Fifteenth Amendment, regardless of whether the Mancari rule applied.⁵ 528 U.S. at 518-19, 120 S.Ct. 1044. In reaching this conclusion, the Court rejected arguments that the State's voting restrictions were not "racial" in nature, concluding that "[a]ncestry can be a proxy for race. It is that proxy here." Id. at 514, 120 S.Ct. 1044. Despite the unique position OHA has under state law, the Court also concluded that it is an "arm of the State" and that the Fifteenth Amendment applies to elections for OHA trustees, which are "elections of the State." Id. at 521-22, 120 S.Ct. 1044. Rejecting the State's efforts to set apart the elections based on the special purpose of OHA or the status of native Hawaiians and Hawaiians as special beneficiaries of its programs, the Court declared that "[a]ll citizens, regardless of race, have an interest in selecting officials who make policies on their behalf, even if those policies will affect some groups more than others" and held that the restriction was prohibited by the Fifteenth Amendment. Id. at 523, 120 S.Ct. 1044.

Hawaii argues that it does not follow from the Court's decision about voter qualifications in Rice that the candidate qualification in the present case violates the Fifteenth Amendment. But the holdings of Rice that: (1) OHA is an "arm of the State"; (2) trustee elections are "elections of the State" in which all citizens should have an equal voting interest, id....