Kostick v. Nago

• Decision Date: 22 May 2012
• Docket Number: Civil No. 12–00184 JMS–LEK–MMM.
• Citation: 878 F.Supp.2d 1124
• 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; and Doe Defendants 1–10, Defendants.
• Court: U.S. District Court — District of Hawaii

878 F.Supp.2d 1124

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; and Doe Defendants 1–10, Defendants.

Civil No. 12–00184 JMS–LEK–MMM.

United States District Court, D. Hawai‘i.

May 22, 2012.

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

Brian P. Aburano, John F. Molay, Office of the Attorney General, Honolulu, HI, for Defendants.

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

ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION; APPENDIX “A”

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 and their dependents, and non-resident students from the base count. The Reapportionment Commission adopted a new plan to comply with that directive.

This electoral challenge asks us to consider the constitutionality of the reapportionment under the Equal Protection Clause of the United States Constitution. We do so here in the context of a motion for a preliminary injunction requesting that we enjoin implementation of the 2012 Reapportionment Plan and enjoin conducting the upcoming elections under that plan. This challenge raises an issue of significant importance to Hawaii residents. Following a hearing on this matter on May 18, 2012, we conclude that the request for an injunction should be denied. In light of Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966), at this preliminary stage of the proceedings, the plaintiffs have not established a likelihood of success on the merits of their claim that the permanent resident population basis violates equal protection. Nor do the equities and public interest weigh in favor of an injunction that risks jeopardizing the primary election scheduled for August 11, 2012, and even the general election scheduled for November 6, 2012. Although we recognize that the right to representation is fundamental, “a federal court cannot lightly interfere with or enjoin a state election.” Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.2003) (en banc) (per curiam).

I. INTRODUCTION

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 reapportionment of Hawaii's legislative districts to be based upon “permanent residents,” id.§ 4, as opposed to the Census' count of “usual residents.” And to pass constitutional muster, any resulting reapportionment must comply with the principles of “one person, one vote.” Reynolds v. Sims, 377 U.S. 533, 558, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (quoting 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”) challenge aspects of the March 30, 2012 Supplement to the 2011 Reapportionment Commission Final Report and Reapportionment Plan (“the 2012 Reapportionment Plan”), which Hawaii has begun implementing for its 2012 primary and general elections. The 2012 Reapportionment Plan—upon direction 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, or the 2012 Reapportionment Plan's subsequent apportionment of the resulting population base, violates the Equal Protection Clause of the Fourteenth Amendment and “one person, one vote” principles.

Kostick moves for a preliminary injunction, seeking:

(1) to enjoin Defendant Scott T. Nago, in his official capacity as the Chief Election Officer of the State of Hawaii (“Nago”), from “further implementation” of the 2012 Reapportionment Plan, and thus to enjoin conducting the upcoming elections in accordance with that Plan;

(2) to 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) to order the use of an August 2011 proposed reapportionment plan, which utilized a population base that includes the now-extracted 108,767 people.

Secondarily, Kostick seeks an order requiring an apportionment of state legislative districts that are “substantially equal in population.” ¹

We pause to emphasize what is not before us. To begin, we are not making any final determination of the merits of Kostick's challenge, a decision that must await further proceedings. Further, this Order 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 questions and Hawaii's legislature considered them again in its just-completed session. See Doc. No. 50–7, Pls.' Ex. AAAA (S.B. No. 212, 26th Leg.Sess.2012) (proposing to define “permanent resident” as a “usual resident” under the Census). These are important and difficult questions, involving political judgments and requiring consideration and balancing of competing interests—tasks for which courts are not suited. See, e.g., Perry v. Perez, 565 U.S. ––––, 132 S.Ct. 934, 941, 181 L.Ed.2d 900 (2012) (“Experience 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. And 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.

For the reasons that follow, we conclude it is unlikely Kostick will succeed on the merits of the constitutional claim regarding the population base. The equities and public interest weigh heavily against Kostick. We do not consider the likelihood of success on Kostick's mal-apportionment claim, as he acknowledged there is no realistic or effective remedy that could be accomplished before the primary election. Accordingly, Kostick's Motion for Preliminary Injunction is DENIED.

II. BACKGROUND²

This reapportionment challenge raises issues that are best understood by first examining the historical context. We begin by reviewing some of the historical and legal factors that the Commission faced in crafting the 2012 Reapportionment Plan. We then set forth specific details—many of which are stipulated facts—of Kostick's challenge to the Plan, and recount the procedural posture of the current Motion.

A. The Basic Historical and Legal Context

The Census counts the “usual residents” of a state. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 804–05, 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 2010 Census counted people at their usual residence as of April 1, 2010. Doc. No. 26, Parties' Stipulated Facts re: the Motion for Preliminary Injunction (“Stip. Facts”) ¶ 2. 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.

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.” Stip. Facts ¶ 1. The definition thus excludes tourists or business travelers. Id. ¶ 5; Doc. No. 28–16, Pls.' Mot. Ex. H (“Ex.H”), at 3. 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; 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”). 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.

After each Census, Hawaii establishes a Reapportionment Commission to implement a reapportionment. SeeHaw. Const. art. IV, § 2; Haw.Rev.Stat. § 25–1. The Defendants in this action are the members of the Commission in their official capacities; the Commission itself; and Nago, who serves as secretary of the Commission in addition to his duties as Hawaii's Chief Election Officer. SeeHaw. Const. art. IV, §§ 2, 3; Haw.Rev.Stat. § 11–2. Where appropriate, we refer to all Defendants as “the...