Solomon v. Abercrombie, s. SCPW–11–0000732

Decision Date06 January 2012
Docket NumberNos. SCPW–11–0000732,SCPW–11–0000741.,s. SCPW–11–0000732
Parties Malama SOLOMON, State Senator, 1st Senatorial District; Louis Hao; Patricia A. Cook; And Steven G. Pavao, Petitioners, v. Neil ABERCROMBIE, Governor, State of Hawai‘i; Scott Nago, Chief Election Officer, State of Hawai‘i; State of Hawai‘i 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, Respondents. Michael J. Matsukawa, Petitioner, v. State of Hawai‘i 2011 Reapportionment Commission; and Scott Nago, Chief Election Officer, State of Hawai‘i, Respondents.
CourtHawaii Supreme Court

Stanley H. Roehrig, Robert D.S. Kim, and Peter Van Name Esser, for petitioners Malama Solomon, Louis Hao, Patricia A. Cook, and Steven G. Pavao.

Michael J. Matsukawa, petitioner pro se.

Russell A. Suzuki, Diane Erickson, and Robyn B. Chun, Deputy Attorneys General, for respondents Chief Election Officer Scott Nago, State of Hawai‘i 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.

Charlene M. Aina and Harvey E. Henderson, Deputy Attorneys General, for respondent Governor Neil Abercrombie.

RECKTENWALD, C.J., NAKAYAMA, ACOBA, DUFFY, and McKENNA, JJ.

PER CURIAM.

In these related original proceedings, the petitioners petitioned this court pursuant to the Hawai‘i Constitution, article IV, section 10, quoted infra, for: (1) a judgment invalidating the 2011 Final Reapportionment Plan for the state legislature adopted and filed on September 26, 2011 by the State of Hawai‘i 2011 Reapportionment Commission; (2) a writ of mandamus directing the Reapportionment Commission to prepare and file a new reapportionment plan for the state legislature; and (3) a writ of mandamus directing the Chief Election Officer to rescind the publication of the 2011 Final Reapportionment Plan.

On January 4, 2012, we issued orders granting the petitions. We concluded that the 2011 Final Reapportionment Plan is constitutionally invalid because: (1) the Hawai‘i Constitution, article IV, section 4, expressly mandates that only permanent residents be counted in the population base for the purpose of reapportionment and (2) the 2011 Final Reapportionment Plan disregards this constitutional mandate by including non-permanent residents in the population base that the Reapportionment Commission used to allocate the members of the state legislature among the basic island units. We invalidated the 2011 Final Reapportionment Plan and directed the Reapportionment Commission to prepare and file a new reapportionment plan that: (1) allocates the members of the state legislature among the basic island units by using a permanent resident population base, and then (2) apportions the members among the districts therein as provided by article IV, section 6. We further directed the Chief Election Officer to rescind the publication of the 2011 Final Reapportionment Plan for the state legislature.

I. BACKGROUND
A.

The Hawai‘i Constitution, article IV (Reapportionment), requires, every tenth year after 1981, reapportionment for the state legislature and congressional districts. Reapportionment is effected by a reapportionment plan filed by a nine-member reapportionment commission constituted in the reapportionment year.

Article IV, as originally enacted in 1978, provided for reapportionment of the state legislature by requiring allocation—among the four basic island units of the 25 senatorial districts and the 51 house of representative districts—"on the basis of the number of voters registered in the last preceding general election." Though the registered voter basis was upheld as constitutional by the United States Supreme Court because it approximated a plan based on a permissible population base,1 the 1991 Reapportionment Commission concluded, after analyzing its data, that use of the voter registration basis would not result in a constitutionally permissible apportionment plan. It selected, as an alternative apportionment base, the permanent resident population, identified as the total population derived from the 1990 census, less transients. It hired a research firm to "determine which transients were counted in the census, how many there were and whether or not they could be located in specific census blocks." The research firm, upon consultation, reported to the 1991 Reapportionment Commission that "the nonresident military is the only large, census-block-identifiable group of nonresidents included in the census" and that "other groups, such as nonresident students, are statistically insignificant and cannot be easily placed in specific census blocks." The 1991 Reapportionment Commission thereupon decided to exclude, from the permanent resident population base, nonresident military personnel and their dependents as constituting "the vast majority of transients included in the census counts." It stated, in its final reapportionment plan, that "exclusion of nonresident military from the census data will come as close as possible to the desired permanent resident base for legislative reapportionment" because: (1) nonresident military then constituted about 114,000 or 14% of Hawaii's population; (2) most military personnel considered Hawai‘i a temporary home and only 3% opted to become Hawai‘'i citizens; and (3) 98% of military dependents claimed the same residency as the military member of the family.

The 1991 Reapportionment Commission's final reapportionment plan was the basis, in the 1992 legislative session, for House Bill 2327 to amend article IV of the Hawai‘i Constitution to change the state legislature apportionment base from registered voters to permanent resident population "based on the 1991 Reapportionment Commission's Final Reapportionment Plan" and "the reasons set forth in [the] Plan." House Bill 2327 was enacted by the 1992 legislature and article IV of the Hawai‘i Constitution was amended by Hawai‘i voters in 1992 to its present form.

ARTICLE IV
REAPPORTIONMENT
....
APPORTIONMENT AMONG BASIC ISLAND UNITS
Section 4. The [reapportionment] commission shall allocate the total number of members of each house of the state legislature being reapportioned among the four basic island units, namely: (1) the island of Hawaii, (2) the islands of Maui, Lanai, Molokai and Kahoolawe, (3) the island of Oahu and all other islands not specifically enumerated, and (4) the islands of Kauai and Niihau, using the total number of permanent residents in each of the basic island units and computed by the method known as the method of equal proportions; except that no basic island unit shall receive less than one member in each house.
....
APPORTIONMENT WITHIN BASIC ISLAND UNITS
Section 6. Upon the determination of the total number of members of each house of the state legislature to which each basic island unit is entitled, the commission shall apportion the members among the districts therein and shall redraw district lines where necessary in such manner that for each house the average number of permanent residents per member in each district is as nearly equal to the average for the basic island unit as practicable.

The apportionment provisions of article IV, sections 4 and 6 are incorporated in the reapportionment statute, HRS Chapter 25, which provides that the reapportionment commission "shall reapportion the members of each house of the legislature on the basis, method, and criteria prescribed by the Constitution of the United States and article IV of the Hawaii Constitution." HRS § 25–2(a) (2009).

The reapportionment commission, within 150 days from the date that its members are certified, "shall file with the chief election officer a reapportionment plan for the state legislature ... which shall become law after publication as provided by law." Article IV, section 2 ; HRS § 25–2(a). "Within fourteen days after the filing of the final reapportionment plan, the chief election officer shall cause public notice to be given of the final legislative reapportionment plan which, upon public notice, shall become effective as of the date of filing and govern the election of members of the next five succeeding legislatures." HRS § 25–2(a). "In the event of a successful court challenge of a reapportionment plan, the reapportionment commission shall continue in operation and may assist the court in formulating a new reapportionment plan." HRS § 25–9 (2009).

B.

2011 being a reapportionment year, the State of Hawai‘i 2011 Reapportionment Commission ("the Commission") was certified on April 29, 20112 and tasked with adopting and filing a final reapportionment plan by September 26, 2011.

The Commission, at its initial organizational meetings, adopted "Standards and Criteria" that it would follow for the 2011 reapportionment of the congressional and state legislative districts. The "Standards and Criteria" for the state legislative districts stated:

Standards and criteria that shall be followed:
The population base used shall be the "permanent resident" population of the State of Hawaii. The permanent resident population is the total population of the State of Hawaii as shown in the last U.S. census less the following: non-resident students and non-resident military sponsors.

At meetings on May 11 and 24, 2011, the Commission was briefed on Hawaii's population growth since the 2001 reapportionment, the history of Hawaii's reapportionment, and the constitutional and statutory provisions governing reapportionment. It was provided with data from the 2010 Census showing a 12% increase in the state's total population consisting of increases of 24% in Hawai‘i County, 21% in Maui County, 15% in Kauai County, and 9% in Oahu County. It was informed of article IV, section 4 and 6's permanent resident basis for apportioning the state legislature and...

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4 cases
  • Kostick v. Nago
    • United States
    • U.S. District Court — District of Hawaii
    • 11 Julio 2013
    ...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 reap......
  • Kostick v. Nago
    • United States
    • U.S. District Court — District of Hawaii
    • 22 Mayo 2012
    ...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 reap......
  • Hicks v. 2021 Hawai‘i Reapportionment Comm'n
    • United States
    • Hawaii Supreme Court
    • 9 Mayo 2022
    ...in article IV, section 6, and all other constitutional and statutory mandates concerning redistricting. Cf. Solomon v. Abercrombie, 126 Hawai‘i 283, 270 P.3d 1013 (2012) (holding that reapportionment plan was invalid under article IV, section 4 of our constitution because it included non-pe......
  • Hicks v. 2021 Hawai‘i Reapportionment Comm'n
    • United States
    • Hawaii Supreme Court
    • 9 Mayo 2022
    ...in article IV, section 6, and all other constitutional and statutory mandates concerning redistricting. Cf. Solomon v. Abercrombie, 126 Hawai‘i 283, 270 P.3d 1013 (2012) (holding that reapportionment plan was invalid under article IV, section 4 of our constitution because it included non-pe......

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