Kostick v. Nago

• Citation: 960 F.Supp.2d 1074
• Decision Date: 11 July 2013
• Docket Number: Civil No. 12–00184 MMM–JMS–LEK.
• Parties: Joseph KOSTICK, Kyle Mark Takai, David P. Brostrom, Larry S. Veray, Andrew Walden, Edwin J. Gayagas, Ernest Laster, and Jennifer Laster, Plaintiffs, v. Scott T. NAGO, in his official capacity as the Chief Election Officer of the State of Hawaii; State of Hawaii 2011 Reapportionment Commission; Victoria Marks, Lorrie Lee Stone, Anthony Takitani, Calvert Chipchase IV, Elizabeth Moore, Clarice Y. Hashimoto, Harold S. Masumoto, Dylan Nonaka, and Terry E. Thomason, in their official capacities as members of the State of Hawaii 2011 Reapportionment Commission, Defendants.
• Court: U.S. District Court — District of Hawaii

960 F.Supp.2d 1074

Joseph KOSTICK, Kyle Mark Takai, David P. Brostrom, Larry S. Veray, Andrew Walden, Edwin J. Gayagas, Ernest Laster, and Jennifer Laster, Plaintiffs,

v.Scott T. NAGO, in his official capacity as the Chief Election Officer of the State of Hawaii; State of Hawaii 2011 Reapportionment Commission; Victoria Marks, Lorrie Lee Stone, Anthony Takitani, Calvert Chipchase IV, Elizabeth Moore, Clarice Y. Hashimoto, Harold S. Masumoto, Dylan Nonaka, and Terry E. Thomason, in their official capacities as members of the State of Hawaii 2011 Reapportionment Commission, Defendants.

Civil No. 12–00184 MMM–JMS–LEK.

United States District Court, D. Hawai‘i.

July 11, 2013.

Anna H. Oshiro, Mark M. Murakami, Robert H. Thomas, Damon Key Leong Kupchak Hastert, Honolulu, HI, for Plaintiffs.

John F. Molay, Patricia L. Cookson, Office of the Attorney General, Honolulu, HI, for Defendants.

Before: M. MARGARET McKEOWN, Circuit Judge; J. MICHAEL SEABRIGHT and LESLIE E. KOBAYASHI, District Judges.

OPINION AND ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; APPENDICES “A” & “B”

PER CURIAM:

The Hawaii Constitution specifies the use of permanent residents as the relevant population base in apportioning state legislative seats. In a 2012 decision, the Hawaii Supreme Court laid out the appropriate method for determining permanent residents by extracting non-resident military personnel, their dependents, and non-resident students from the total population count. The Hawaii Reapportionment Commission adopted a new legislative apportionment plan to comply with that directive.

This suit asks us to consider the constitutionality of Hawaii's 2012 Reapportionment Plan under the Equal Protection Clause of the United States Constitution. Previously, we considered a motion for a preliminary injunction seeking to halt implementation of the 2012 Reapportionment Plan and to enjoin conducting the 2012 elections under that plan. On May 22, 2012, we denied that request, concluding that the citizens' group seeking the injunction had not established a likelihood of success on the merits of its claim that the permanent resident population basis violates equal protection. Nor did the equities and public interest weigh in favor of an injunction that risked jeopardizing the 2012 primary and general elections. See Kostick v. Nago, 878 F.Supp.2d 1124 (D.Haw.2012).

We now consider the equal protection challenges on cross motions for summary judgment—the citizens' group asks us to declare that the 2012 Reapportionment Plan violates equal protection, and the government seeks judgment in its favor as to those questions. Following extensive briefing and a January 14, 2013 hearing on the cross motions, we DENY Plaintiffs' Motion for Summary Judgment and GRANT Defendants' Motion for Summary Judgment.

For the reasons that follow, we conclude that the 2012 Reapportionment Plan does not violate the United States Constitution. The Commission's reliance on a permanent resident population base, as ordered by the Hawaii Supreme Court, is permissible under the Equal Protection Clause. Likewise, the disparities in the size of the Commission's legislative districts pass constitutional muster.

I. INTRODUCTION

In our May 22, 2012 Order Denying Plaintiffs' Motion for Preliminary Injunction, we extensively reviewed the historical and evidentiary record at that stage. The current record has not changed appreciably, and the cross motions for summary judgment ultimately turn on legal arguments applied to undisputed facts. Accordingly, we draw heavily on the May 22, 2012 Order in explaining the background and context for this apportionment challenge. Where appropriate, we incorporate parts of the May 22, 2012 Order in addressing the cross motions.

Hawaii reapportions its state legislative and federal congressional districts every ten years, after the decennial United States Census (the “Census”), based upon changes in population. SeeHaw. Const. art. IV, § 1. The Hawaii Constitution as amended in 1992 requires that reapportionment of Hawaii's state legislative districts be based upon “permanent residents,” id. § 4, as opposed to the Census count of “usual residents.” Any resulting reapportionment is subject to the constitutional principles of “one person, one vote.” Reynolds v. Sims, 377 U.S. 533, 557–58, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (citing Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963)).

In this action, Plaintiffs Joseph Kostick, Kyle Mark Takai, David P. Brostrom, Larry S. Veray, Andrew Walden, Edwin J. Gayagas, Ernest Laster, and Jennifer Laster (collectively, “Kostick” or “Plaintiffs”) challenge aspects of the March 30, 2012 Supplement to the 2011 Reapportionment Commission Final Report and Reapportionment Plan (the “2012 Reapportionment Plan”), which Hawaii implemented in 2012 and utilized in its recent 2012 primary and general elections. The Defendants are the members of the 2011 Reapportionment Commission in their official capacities; the Commission itself; and Scott T. Nago, in his official capacity as secretary to the Commission and Hawaii's Chief Elections Officer (collectively, “the Commission” or “Defendants”).

The 2012 Reapportionment Plan—fulfilling a mandate from the Hawaii Supreme Court in Solomon v. Abercrombie, 126 Hawai‘i 283, 270 P.3d 1013 (2012)—“extracted” 108,767 active-duty military personnel, military dependents, and university students from Hawaii's reapportionment population base. Kostick claims that this extraction by itself, and the 2012 Reapportionment Plan's subsequent apportionment of the resulting population base, violate the Equal Protection Clause of the Fourteenth Amendment and “one person, one vote” principles.

Kostick asks the court to (1) declare the 2012 Reapportionment Plan unconstitutional; (2) order the 2011 Hawaii Reapportionment Commission (the “Commission”) to formulate and implement a reapportionment plan using the 2010 Census count of “usual residents” of Hawaii as the population base; and (3) order the use of an August 2011 proposed reapportionment plan, which utilized a population base that includes the now-extracted 108,767 people. In addition, Kostick seeks an order requiring an apportionment of state legislative districts that are “substantially equal in population.” ¹

As in our May 22, 2012 Order, we again emphasize that this Opinion addresses only the legal considerations underlying the challenged actions—not whether extracting certain “non-permanent” residents from Hawaii's reapportionment population base is good public policy and not whether Hawaii could or should use “usual residents” as that base. Hawaii has long debated these important and difficult questions, which involve political judgments and require consideration and balancing of competing legislative interests—tasks for which courts are ill suited. See, e.g., Perry v. Perez, 565 U.S. ––––, 132 S.Ct. 934, 941, 181 L.Ed.2d 900 (2012) (per curiam) (“[E]xperience has shown the difficulty of defining neutral legal principles in this area, for redistricting ordinarily involves criteria and standards that have been weighed and evaluated by the elected branches in the exercise of their political judgment.”) (citations omitted).

In short, we express no opinion as to how Hawaii should define its reapportionment base, but instead examine only the challenged aspects of the 2012 Reapportionment Plan itself. We certainly do not pass on what no one here disputes: Hawaii's military personnel constitute a significant and welcome presence in Hawaii's population.

II. BACKGROUND²

This reapportionment challenge raises issues that are best understood by first examining the historical context. We begin by reviewing the historical and legal factors that the Commission faced in crafting the 2012 Reapportionment Plan. We then set forth the details of Kostick's challenge to the Plan and recount the procedural history of this case.

A. Historical and Legal Context1. The Census as Population Baseline

The Census counts the “usual residents” of a state. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 804, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) ( “ ‘Usual residence’ ... has been used by the Census Bureau ever since [the first enumeration Act in 1790] to allocate persons to their home States.”).

The Census defines “usual residence” as “the place where a person lives and sleeps most of the time” and “is not necessarily the same as the person's voting residence or legal residence.” Doc. No. 26, Parties' Stipulated Facts re: the Motion for Preliminary Injunction in Response to Court Order (“Stip. Facts”) ¶ 1; Doc. No. 68, Pls.' Separate and Concise Statement of Facts (“CSF”) No. 2. The definition thus excludes tourists and business travelers. Stip. Facts ¶ 5; Doc. No. 28–16, Pls.' Ex. H (“Ex. H”) at 3. The 2010 Census counted people at their usual residence as of April 1, 2010. Stip. Facts ¶ 2; Pls.' CSF No. 1. Active duty military personnel who were usual residents of Hawaii on April 1, 2010 were or should have been counted by the 2010 Census as part of its count for Hawaii. Stip. Facts ¶ 3; Pls.' Ex. H at 8–9. Similarly, students attending college away from their parental homes are counted where they attend school ( i.e., where they “live and sleep most of the time”). Pls.' Ex. H at 5. Students enrolled at a Hawaii university or college who were usual residents of Hawaii on April 1, 2010 were or should have been counted by the 2010 Census as part of the 2010 Census count for Hawaii. Stip. Facts ¶ 4. According to the 2010 Census, Hawaii has a population of 1,360,301 usual residents. Doc. No. 32, First Am. Compl. (“FAC”) ¶ 30; Stip. Facts ¶ 32.

After each Census, Hawaii establishes a Reapportionment Commission to implement a reapportionment. SeeHaw. Const. art. IV, § 2; Haw.Rev.Stat. (“HRS”) § 25–1 (2012). The Commission uses the Census's “usual residents” figure as Hawaii's total...