Hicks v. The 2021 Hawai'i Reapportionment Commission and Its Members. ( 2022 )

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
09-MAY-2022
08:58 AM
Dkt. 77 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
WILLIAM M. HICKS; RALPH BOYEA; MADGE SCHAEFER; MICHAELA IKEUCHI;
KIMEONA KANE; MAKI MORINOUE; ROBERTA MAYOR; DEBORAH WARD;
JENNIFER LIENHART-TSUJI; LARRY S. VERAY; and PHILIP BARNES,
Petitioners,
vs.
THE 2021 HAWAIʻI REAPPORTIONMENT COMMISSION AND ITS MEMBERS;
THE STATE OF HAWAIʻI OFFICE OF ELECTIONS; and SCOTT NAGO, in his
official capacity as Chief Elections Officer, State of Hawaiʻi,
Respondents.
SCPW-XX-XXXXXXX
ORIGINAL PROCEEDING
MAY 9, 2022
RECKTENWALD, C.J., NAKAYAMA, AND EDDINS, JJ.; WITH McKENNA, J.,
CONCURRING SEPARATELY AND DISSENTING, WITH WHOM WILSON, J.,
JOINS; AND WILSON, J., ALSO DISSENTING SEPARATELY 1
OPINION OF THE COURT BY EDDINS, J.
Article IV of the Hawaiʻi Constitution concerns
1 At the time of this opinion’s publication, Justice Wilson’s dissent is
forthcoming.
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
reapportionment, the process through which the state’s
legislators are distributed and its political districts redrawn.
It provides that every ten years a nine-member
reapportionment commission (the commission) shall determine the
total number of state representatives to which each basic island
unit 2 is entitled. Haw. Const. art. IV, §§ 1, 2 & 4. This
determination is made “using the total number of permanent
residents in each of the basic island units” and with the
“method of equal proportions.” Id.
Once the commission determines how many representatives
each basic island unit is entitled to, it must apportion those
representatives within the basic island units. Id. at § 6. If
there have been population shifts in the decade since the last
reapportionment, the commission must redraw district lines to
ensure that the “number of permanent residents per member in
each district is as nearly equal to the average for the basic
island unit as practicable.” Id.
The commission is also tasked with redrawing congressional
district lines. Id. at § 9.
Article IV, section 6 provides eight criteria that the
commission “shall be guided by” in effecting redistricting. The
2 The four basic island units are: (1) the island of Hawaiʻi, (2) the
islands of Maui, Lānaʻi, Molokaʻi and Kahoʻolawe, (3) the island of Oʻahu and
all other islands not specifically enumerated, and (4) the islands of Kauaʻi
and Niʻihau. Haw. Const. art. IV, § 4.
2
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
sixth is that: “[w]here practicable, [state] representative
districts shall be wholly included within [state] senatorial
districts” (the constitutional district within district
guideline). Id. at § 6. Hawaiʻi Revised Statutes (HRS) Section
25-2(b)(5) (Supp. 2021) (the statutory district within district
guideline) similarly requires that “[w]here practicable, state
legislative [representative and senatorial] districts shall be
wholly included within [U.S.] congressional districts.”
On January 28, 2022, the 2021 Hawaiʻi Reapportionment
Commission (the Commission) approved the 2021 Final Legislative
Reapportionment Plan (the Plan).
The Plan places 33 of 51 house districts (64.7%) into two
or more senate districts. It also places four O‘ahu house
districts and five O‘ahu senate districts into both U.S.
congressional districts.
Petitioners, who are registered voters in the State of
Hawai‘i, argue that the Plan is invalid because it does not give
adequate effect to article I, section 6’s guidance that “[w]here
practicable, representative districts shall be wholly included
within senatorial districts.” See Haw. Const. art. IV, § 6.
They also argue that the Plan violates HRS § 25-2(b)(5) by
placing nine O‘ahu legislative districts into both congressional
3
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
districts. 3 Petitioners say they submitted two plans to the
Commission that not only complied with the district within
district guidelines, but also had a lower average per-district
population deviation than the Plan. Petitioners say the
Commission could have complied with article IV, section 6 and
HRS § 25-2(b)(5), it just didn’t want to. Petitioners also
argue that less than perfect compliance with one of the district
within district guidelines may only be justified by the need to
comply with the other constitutional and statutory guidelines
that govern reapportionment.
The Commission says it satisfied its obligations under
article IV, section 6 and HRS § 25-2(b) by considering the
constitutional and statutory district within district guidelines
(collectively the district within district guidelines) in
developing the Plan. It says Petitioners have not demonstrated
that the Commission abused its discretion in discharging its
duties and adopting the Plan.
3 Petitioners also make a third argument. They claim the Commission
unconstitutionally delegated much of its redistricting work and decision
making to a committee that consisted of just four of the Commission’s nine
members. This argument lacks merit. The record shows that the Plan was
considered by all nine members of the bipartisan Commission and that all nine
members of the Commission participated in the vote regarding the adoption of
the Plan (eight commissioners voted to adopt the Plan and one voted not to).
The establishment of the technical committee did not represent an
unconstitutional delegation of the Commission’s power. To the extent
Petitioners raise claims under the Sunshine Law, they are not entitled to
mandamus relief because those claims could have been brought in circuit court
under HRS § 92-12(c)(2012).
4
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
We agree. The constitution and HRS § 25-2(b) mandate that,
in redistricting, the commission “shall be guided” by certain
enumerated criteria, among them the district within district
guidelines. The commission is not required to give the district
within district guidelines any particular effect. Nor is it
required to disregard factors other than the criteria enumerated
in article IV, section 6 or HRS § 25-2(b) in redrawing district
lines. So the Commission discharged its obligations under
article IV, section 6 and HRS § 25-2(b) by considering the
district within district guidelines alongside other policy
objectives. And, by extension, the Plan is valid.
I. BACKGROUND
At its May 17, 2021 meeting, the Commission formed a
“technical” committee consisting of four commissioners. The
Commission tasked the technical committee with drafting proposed
reapportionment plans for the Commission’s consideration.
The technical committee presented its proposed
reapportionment plans to the Commission at the Commission’s
January 13, 2022 meeting. 4
At that same meeting, there was public testimony demanding
that the Commission explain its failure to better effectuate the
4 The technical committee had previously presented other reapportionment
plans to the Commission. But these earlier plans had to be amended as a
result of updated data received from the military in December 2021 that
impacted the Commission’s assessment of the number of permanent versus
nonpermanent residents in the state.
5
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
district within district guidelines.
Responding to this public testimony, Commissioner Nonaka
explained that because of the incongruity between the population
bases used in congressional districts and those used in state
legislative districts, it was not possible, let alone
practicable, to have all state districts wholly within a
congressional district.
Later at the same meeting, Commission Chair Mugiishi
stressed that the Commission was holistically evaluating the
constitutional and statutory requirements governing
reapportionment and trying to balance them in a way that
responded to community concerns. He explained:
[W]e are as a Commission considering all of those statutory
requirements and constitutional requirements that that
[sic] is asked of us and we are doing our best to make sure
to the extent that it’s practicable that we are following
them. But sometimes they’re in conflict with each other
and that’s where that’s why we have a commission rather
than a computer program drawing these lines. It’s because
human beings who are going to care about people and
individual neighborhoods, are going to make judgment calls
on what’s the best way to make a practical decision about a
conflict between two principles. And that’s why I think
again, and I’ve said it about four times already, but I
really do appreciate the work of the technical committee
because they’ve been doing this now for weeks, months, and
for the last few days every single hour of the day to try
and consider all of those factors. Because we’re going to
affect people and that’s so we’re going to follow the
constitution, we’re going to follow the law and we’re going
to do our best to take care of people.
The Commission also met on January 20, 21, 22, and 26,
2022.
At the Commission’s January 20, 2022 meeting, Chair
Muguiishi read the article IV, section 6 guidelines aloud and
6
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
explained that “after due consideration the members of the
technical committee believed that the modified proposed plans
represent what they the technical committee deemed to be the
best, best complies with the constitutional guidelines.”
Commissioners Ono, Nonaka, and Nekota agreed with the Chair’s
assessment. Commissioner Nekota added “We really did take
public testimony to heart. We did not just go draw lines to
draw lines. We really did and follow the Constitution, as we
perceive it to be, along with our legal counsel.”
During the January 26, 2022 meeting, the technical
committee presented and discussed a new version of its proposed
final legislative reapportionment plans; the only change it had
made to the proposed maps since January 13, 2022, was to the
boundaries of House Districts 48 and 49 on O‘ahu.
At the January 28, 2022 Commission meeting, the Commission
discussed, and then voted to approve, the January 26, 2022
version of the legislative reapportionment plans. In explaining
his support for the motion to approve the Plan, Commissioner
Chun pointed to the Commission’s commitment to ensuring that its
redistricting decisions were made in the context of the article
IV, section 6 guidelines:
The constitution states that in effecting such
redistricting, the commission shall be guided by the
following criteria. It sets forth guidance rather than
inflexible standards so as to ensure reasonableness and
fairness are always a part of the equation in arriving at
redistricting determinations. I have observed complete
7
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
objectivity and clear commitment to ensuring that good
decisions were made in the context of these guidelines and
as they were applied to the redistricting maps, so I will
be pleased today to support the motion [to adopt the Plan].
Shortly after adopting the final reapportionment plan, the
Commission authorized staff to make non-substantive changes,
including changes to better align the representative district,
Senate district, and council district lines. The staff made
changes to the Plan so that it would better adhere to the
constitutional district within district guideline; following
these changes, there are thirty-three (33) House districts that
are not wholly inside Senate districts.
Petitioners challenge the Plan on the grounds that it
violates article IV, section 6 and HRS § 25-2(b)(5) by failing
to place districts within districts even where it would have
been practicable to do so. They argue the Commission erred by
adopting a Plan that fell short of perfect adherence to the
district within district guidelines without justifying the
Plan’s noncompliance in terms of the need to comply with the
other reapportionment “requirements” enumerated in article IV,
section 6 and HRS § 25-2(b).
II. DISCUSSION
We hold that neither article IV, section 6 nor HRS § 25-
2(b)(5) places concrete limits on the Commission’s discretion to
craft a reapportionment plan. The Commission must consider the
district within district guidelines when redrawing district
8
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
lines. But it is not required to give them any particular
effect in redistricting.
The existence of alternative plans that hew closer to the
district within district guidelines is immaterial to our
analysis. Our task is not to consider the Plan’s relative
merits in comparison to other options the Commission could have,
but did not, adopt. We consider only whether the Plan is
constitutional under article IV, section 6 and legal under HRS
§ 25-2(b)(5). See McNeil v. Legis. Apportionment Comm’n of
N.J., 828 A.2d 840, 858 (N.J. 2003) (“The judiciary is not
justified in striking down a plan, otherwise valid, because a
‘better’ one, in its opinion, could be drawn.” (Cleaned up.)).
Petitioners have not shown that the Commission abused its
discretion by disregarding or ignoring the district within
district guidelines. To the contrary, the record suggests that
the Commission was aware of, discussed, and considered the
district within district guidelines in redrawing district lines
and adopting the Plan. So even though we agree with Petitioners
that the Plan does not give full effect to the constitutional
district within district guideline, 5 we hold that the Commission
5 Petitioners’ argument that the Plan does not give substantial effect to
the statutory district within district requirement is less convincing than
its arguments concerning the constitutional district within district
guideline: the Plan places 88 percent of state house and senate districts
wholly within a single congressional district.
9
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
did not abuse its discretion in developing and adopting the
Plan.
1. Standards of Review
a. We answer questions of constitutional law de novo
“Issues of constitutional interpretation present questions
of law that are reviewed de novo.” League of Women Voters of
Honolulu v. State, 150 Hawai‘i 182, 189, 499 P.3d 382, 389 (2021)
(cleaned up). This court is the “ultimate judicial tribunal
with final, unreviewable authority to interpret and enforce the
Hawai‘i Constitution.” See Ka Pa‘akai O Ka ‘Aina v. Land Use
Comm’n, 94 Hawai‘i 31, 41, 7 P.3d 1068, 1078 (2000) (cleaned up).
“We answer questions of constitutional law by exercising our own
independent constitutional judgment based on the facts of the
case.” State v. Hanapi, 89 Hawai‘i 177, 182, 970 P.2d 485, 490
(1998) (cleaned up). Here, this means we give no deference to
the constitutional interpretations the Commission implicitly
operationalized in developing the Plan.
b. We review the Commission’s exercise of its discretion
using the abuse of discretion standard
We review the discretionary decisions of public bodies
using the abuse of discretion standard. See Kawamoto v. Okata,
75 Haw. 463, 467, 868 P.2d 1183, 1186 (1994). In the context of
this case, this means we will not substitute our judgment for
that of the Commission with respect to the Commission’s exercise
10
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
of discretion given to it by the Hawai‘i Constitution. Instead,
our determination of whether the Commission has complied with
article IV, section 6 and HRS § 25-2(b) and other applicable
laws will hinge on whether the record demonstrates that the
Commission either did not consider criteria it was required to
consider or, having considered all relevant criteria, made a
decision that disregarded the law or exceeded the bounds of
reason. 6
2. Reapportionment commissions must consider the district
within district guidelines when redrawing districts
Both the constitution and HRS § 25-2(b) frame the district
within district guidelines as discretionary, describing them as
“criteria” that the commission “shall be guided by” in effecting
redistricting. See article IV, section 6; HRS § 25-2(b).
In Save Sunset Beach Coal. v. City & Cty. of Honolulu, 102
Hawai‘i 465, 479, 78 P.3d 1, 15 (2003), we considered whether
Honolulu’s city council erred in zoning land as “country” where
6 This approach is consistent with that used by other courts reviewing
the discretionary acts of state reapportionment commissions. See, e.g.,
Hartung v. Bradbury, 33 P.3d 972, 981 (Or. 2001) (en banc) (considering
constitutional challenges to reapportionment plan and explaining that it
would void the plan only if it could “say from the record that the Secretary
of State [the reapportioning body] either did not consider one or more
criteria or, having considered them all, made a choice or choices that no
reasonable Secretary of State would have made”); Jamerson v. Womack, 423
S.E.2d 180, 182 (Va. 1992) (“In this particular litigation, it should be
remembered that reapportionment is, in a sense, political, and necessarily
wide discretion is given to the legislative body. An abuse of that
discretion is shown only by a grave, palpable and unreasonable deviation from
the principles fixed by the Constitution.” (Cleaned up.)).
11
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
only two of the four statutory guidelines provided for
identifying potential “country” district lands were met. We
concluded that while the “‘use’ or consideration” of the
statutory guidelines was mandatory, “the ultimate designation
decision arising out of that mandatory consideration must, of
necessity, involve the exercise of discretion.” Id. We
explained that “guidelines,” as used in the statute, “denote[d]
individual factors that are not mandatory in themselves, but
instead provide direction or guidance with respect to the
ultimate decision.” Id.A similar analysis informs our interpretation of “guided
by” as used in article IV, section 6 and HRS § 25-2(b): the
reapportionment commission must consider the district within
district guidelines and it must use them in developing and
adopting congressional and legislative plans. But the
guidelines are not mandatory “in themselves”; rather, they
provide “direction or guidance with respect to the ultimate
decision.” See id.
The history of article IV, section 6 reflects that the
constitutional district within district requirement was not
intended to curb the reapportionment commission’s discretion to
redraw district lines. After noting that it placed “a number of
guidelines for the reapportionment commission to follow when
redistricting” into article IV, section 6, the Committee on
12
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Legislative Apportionment and Districting clarified:
It is not intended that these guidelines be absolute
restrictions upon the commission excepting for numbers 1,
2, 3 and 7 which are stated in mandatory terms. The
remainder [including the district within district
guideline] are standards which are not intended to be
ranked in any particular order. Rather, your Committee
believes that they are matters that should be considered in
any decision concerning districting and that the balance to
be struck among them is a matter for case-by-case
determination. The inclusion of these guidelines is
intended to aid the reapportionment commission in
maintaining impartiality and objectivity in its own
reapportionment plan and to provide the courts with a
standard for review of claims of gerrymandering or other
unfair or partial result in the apportionment plan.
Supp. Stand. Comm. Report No. 58, in 1 Proceedings of the
Constitutional Convention of Hawai‘i of 1968, at 265 (1973)
(emphases added). Elsewhere in the same report, the Committee
observed that the reapportionment plan it proposed substantially
complied with the district within district guideline; but, it
remarked, it adopted that criterion “in a more general, less
restrictive manner for future reapportionment.” Id. at 247.
Two aspects of this committee report support our conclusion
that the constitutional district within district guideline is a
factor the commission must consider, not a requirement it must
meet.
First, the committee report describes the guideline as a
criterion “that should be considered” and recognizes that the
extent to which it will be followed in any given reapportionment
year is a “matter for case-by-case determination.” Id. at 265.
It says it adopted the guideline in a “more general” and “less
13
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
restrictive manner for future reapportionment.” Id. at 247.
Collectively, this language indicates that while the commission
must “be guided by” and consider the guideline, the decision to
give it effect, or not, remains discretionary.
Second, the report indicates that, in the context of
judicial review of reapportionment plans, the purpose of the
district within district guideline is “to provide the courts
with a standard for review of claims of gerrymandering or other
unfair or partial result in the apportionment plan.” Id. at
265. This language affirms that the district within district
guideline is not an inflexible requirement that the
reapportionment commission can fall short of by adopting a plan
with too many house districts that span senate district lines.
It suggests that the constitutional district within district
guideline is, rather, a general guideline or a best practice.
This is not to say that the effect the reapportionment
commission gives to the district within district guideline will
always be immaterial to the question of a reapportionment plan’s
constitutionality. A reapportionment commission’s failure to
give full effect to the district within district guideline would
be appropriately considered in the context of a claim that a
reapportionment plan was unconstitutionally gerrymandered,
biased, or otherwise contrary to the equal protection principles
that animate article IV, section 6 and article I, section 5.
14
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
For example, the fact that a reapportionment commission placed
nearly two thirds of house districts into two or more senate
districts could, if presented alongside other credible evidence
of bias, lend substantial support to a claim that a
reapportionment plan was unconstitutionally partial to a
particular person or party. But this does not mean that failure
to substantially comply with the district within district
guideline is, standing alone, a constitutional violation. 7
Based on the plain language of article IV, section 6 and
the framers’ intent as revealed by legislative history, we
conclude that reapportionment commissions do not have a
constitutional obligation to give the district within district
guideline any particular effect. They may not disregard or
ignore the district within district guidelines (or the other
reapportionment guidelines that are to be followed where
“practicable” or “possible”). They must consider them when
redistricting and should, where practicable, endeavor to
7 Justice McKenna’s dissent highlights the constitutional district within
district guideline’s role in “facilitating political organization and
developing accountability of senators to communities of common interest.”
Dissent at 12.
We do not dispute the wisdom of the guideline from a policy
perspective. But the question of whether compliance with the district within
district guideline is “normal and preferable,” see dissent at 11 (quoting
Ethan Weiss, Partisan Gerrymandering and the Elusive Standard, 53 Santa Clara
L.Rev. 693, 697 (2013)), is not before us. And the contention that, from a
policy perspective, a reapportionment plan that gives full effect to the
district within district guideline would be better than one that doesn’t
cannot curtail the reapportionment commission’s ability to exercise
discretion granted to it by the constitution.
15
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
effectuate them. But they have no rigid statutory or
constitutional obligation to effectuate them. Put plainly, the
guidelines must shape the reapportionment commission’s exercise
of its discretion, but they do not impose any hard limits on
it. 8,9
Petitioners’ contention that the Commission must “justify”
the level of consideration it gave, or did not give, to the
district within district guidelines reflects a misunderstanding
about both the scope of the Commission’s discretion to develop
and adopt reapportionment plans and this court’s role in
reviewing the constitutionality of reapportionment plans. Burns
v. Richardson, 384 U.S. 73 (1966), is instructive.
In Burns, the Supreme Court considered the
constitutionality of an interim Hawai‘i state senate
8 This analysis concerns the non-mandatory guidelines of article IV,
section 6 and HRS § 25-2(b) only. The reapportionment commission must give
full effect to those constitutional and statutory requirements that are not
modified by “where practicable” or “where possible,” for example article IV,
section 6’s requirement that “[n]ot more than four members shall be elected
from any district.”
9 We note that the constitutional district within district guideline is
not a general principle bereft of legal force absent implementing laws or
statutes. It is, rather, self-executing in that it “supplies a sufficient
rule by means of which . . . the duty imposed may be enforced.” See Morita
v. Gorak, 145 Hawai‘i 385, 392, 453 P.3d 205, 212 (2019) (cleaned up). The
constitution imposes a duty on reapportionment commissions to “be guided” by
the criterion that, “[w]here practicable, representative districts shall be
wholly included within senatorial districts.” Haw. Const. art. IV, § 6. It
also provides the means for the enforcement of that duty. See Haw. Const.
art. IV, § 10 (“Original jurisdiction is vested in the supreme court of the
State to be exercised on the petition of any registered voter whereby it may
compel, by mandamus or otherwise, the appropriate person or persons to
perform their duty or to correct any error made in a reapportionment
plan . . . .”).
16
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
apportionment plan. A three-judge panel of the United States
District Court for the District of Hawai‘i had disapproved of the
interim plan on the grounds that instead of accounting for
population increases on O‘ahu by creating new single-member
senatorial districts for the island, the plan merely increased
the number of multi-member senatorial districts on Oʻahu from two
to five. Id. at 82. The district court had concerns about
“what it considered to be a difference in representational
effectiveness between multi-member and single-members
legislative districts.” Id. at 86. The Supreme Court overruled
the district court, explaining that absent evidence of an Equal
Protection Clause violation, the district court was wrong to
second-guess the legislature’s exercise of its discretion to
redistrict. 10 The Court said that given the absence of a showing
that the interim reapportionment plan raised equal protection
concerns, the district court should not have even required the
legislature to justify its reliance on multi-member legislative
districts:
10 The Court explained:
In relying on conjecture as to the effects of multi-member
districting rather than demonstrated fact, the court acted
in a manner more appropriate to the body responsible for
drawing up the districting plan. Speculations do not
supply evidence that the multi-member districting was
designed to have or had the invidious effect necessary to a
judgment of the unconstitutionality of the districting.
Burns, 384 U.S. at 88-89.
17
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Indeed, while it would have been better had the court not
insisted that the legislature ‘justify’ its proposal,
except insofar as it thus reserved to itself the ultimate
decision of constitutionality vel non, the legislature did
assign reasons for its choice. Once the District Court had
decided, properly, not to impose its own senate
apportionment but to allow the legislature to frame one,
such judgments were exclusively for the legislature to
make. They were subject to constitutional challenge only
upon a demonstration that the interim apportionment,
although made on a proper population basis, was designed to
or would operate to minimize or cancel out the voting
strength of racial or political elements of the voting
population.
Id. at 89 (emphases added) (footnote omitted).
This court plays a critical role in ensuring that the
voters of our state “choose their representatives, not the other
way around.” Arizona State Legislature v. Arizona Indep.
Redistricting Comm’n, 576 U.S. 787, 824 (2015) (cleaned up). We
have intervened, and will continue to intervene, when necessary
to ensure that Hawai‘i’s reapportionment commission creates
reapportionment plans that comply with the Equal Protection
Clause, the four mandatory requirements 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-permanent residents in the population
base for reapportionment). But as Burns makes clear, absent a
showing that a reapportionment plan is unconstitutional or
illegal we should not second-guess the reapportionment
18
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
commission’s exercise of its discretion to redistrict. Cf.
Supp. Stand. Comm. Report No. 58, in 1 Proceedings of the
Constitutional Convention of Hawai‘i of 1968, at 266 (1973)
(“Judicial review is provided in the form of a mandamus to
require the commission to do its work, correct any error or
effectuate the purposes of the reapportionment provisions
contained in the Constitution.”)
3. The Commission did not abuse its discretion in developing
the Plan
Our constitution requires that the reapportionment
commission consider the district within district guidelines.
See supra section II(2). But it does not dictate what that
consideration should look like. Decisions about when and how
the guidelines ought to be considered are left to the discretion
of the reapportionment commission.
The record in this case shows that the Commission did not
abuse that discretion: it adequately considered the
constitutional district within district guideline in developing
and approving the Plan.
Chair Mugiishi’s statements at the January 13, 2022 meeting
concerning the Commission’s commitment to “consider[ing] all of
those factors,” “follow[ing] the constitution,” and doing its
best to “take care of people” speaks to the fact that the
constitutional district within district guideline was one of the
19
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
factors the Commission considered in exercising its discretion.
As does Commissioner Chun’s remark at the January 28, 2022
meeting that he had “observed complete objectivity and clear
commitment to ensuring that good decisions were made in the
context of these guidelines and as they were applied to the
redistricting maps.”
The Commission’s consideration of the constitutional
district within district guideline is also evidenced by the fact
that after the January 28, 2022 approval of the Plan, Commission
staff made minor changes to the Plan in order to improve its
compliance with the constitutional district within district
guideline. If the Commission was indifferent to the guideline
it would not have tweaked the Plan to better comply with it.
Finally, declarations provided by members of the
Commission’s technical committee speak to the Commission’s
consideration of the district within district guidelines.
Commissioner Nonaka declared that:
the Technical Committee was guided by the applicable
constitutional and statutory provisions, including the
eight (8) criteria listed in Article IV, Section 6 of the
Hawai‘i Constitution. We considered the criteria to comply
with the Constitution while striving to produce plans that
would best serve the State as a whole. The Technical
Committee also did its best to be responsive to public
testimony while following the criteria. 11
11 In explaining why the Commission declined to more perfectly adhere to
the constitutional district within district guideline, Commissioner Nonaka
said that “it would be extremely difficult to consider other crtieria [sic]
if that one principle was used as a guiding factor. The Commission would
have to prioritize drawing arbitrary lines without regard for community
input.”
20
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Commissioner Ono, who like Commissioner Nonaka was on the
technical committee, declared that the committee considered the
district within district guidelines in developing the Plan and
that, in her opinion, the Plan “achieve[s] the overriding
objective of voter equality and best represent[s] the balancing
of constitutional and statutory redistricting criteria.”
Petitioners may disagree with the weight the Commission
assigned to the district within district guidelines, but they
have not shown that the Commission disregarded them in
developing and adopting the Plan. To the contrary, the record
reflects that the Commission holistically considered the
district within district guidelines when exercising its
discretion to develop and adopt the Plan. The Commission’s
consideration of the district within district guidelines was
thus adequate under both article IV, section 6 and HRS § 25-
2(b)(5). 12
12 We base this holding solely on the information in the record concerning
the Plan’s development. The Commission’s argument that the Plan is
constitutional because the number of state house districts split by state
senate districts in the Plan (33) is in line with that found in previous
reapportionment plans lacks merit. The Commission is right that the Plan’s
compliance with the constitutional district within district guideline is
similar to that of the 2012, 2001, and 1991 reapportionment plans, which
split 30, 31, and 38 state house districts across state senate districts.
But this fact has no bearing on our analysis: even the most longstanding
practice cannot transform unconstitutional actions into constitutional ones.
21
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
4. The Commission did not abuse its discretion by considering
factors other than those enumerated in article I, section 6
and HRS § 25-2(b)
The Commission must consider the article IV, section 6 and
HRS § 25-2(b) guidelines in reapportionment. But it is not
prohibited from pursuing other rational and non-discriminatory
policy goals through its redistricting. 13 So Petitioners’ claim
that the Plan is invalid because the Commission unlawfully
allowed its “preference” for preserving legacy districts to get
in the way of drawing a reapportionment plan that better
effectuated the district within district guidelines has no
merit.
There are two reasons why the Commission did not abuse its
discretion by crafting and adopting a plan that sought the
preservation of legacy district boundaries.
First, the constitution explicitly contemplates that
reapportionment will involve the redrawing of district lines.
13 McNeil provides a good example of a rational state policy that the
reapportionment commission must consider alongside article IV, section 6 and
HRS § 25-2(b)’s requirements and guidelines: compliance with the federal
Voting Rights Act. In McNeil, the New Jersey Supreme Court considered a
challenge to the New Jersey constitution’s requirement that no county or
municipality should be divided between legislative districts. Under New
Jersey’s constitution, “[u]nless necessary to meet the [contiguity,
compactness or equal population] requirements, no county or municipality
shall be divided among Assembly districts unless it shall contain more than
one-fortieth of the total number of inhabitants of the state.” 828 A.2d at
845 (cleaned up). The court held this constitutional requirement was
preempted by the federal Voting Rights Act, since full compliance with it
would result in the “packing” of minority voters and the dilution of their
electoral influence. Id. at 857.
22
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
See Haw. Const. art. IV, § 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 [to equalize the
population in each district as much as practicable].” (Emphasis
added.)). This use of the word “redraw” presumes that existing
districts may serve as the starting point for redistricting.
The commission is required to consider the constitutional
district within district guideline in adjusting district lines
to account for population changes since the last
reapportionment; but because it is tasked with redrawing it is
also implicitly authorized to consider the boundaries of
existing legislative districts.
Second, the Supreme Court has recognized that “preserving
the cores of prior districts” is a legitimate state legislative
policy that may justify minor deviations from the requirement
that each district should have an equal population. In Karcher
v. Daggett, 462 U.S. 725 (1983), the court explained that it was
“willing to defer to state legislative policies, so long as they
are consistent with constitutional norms, even if they require
small differences in the population of congressional districts.”
Id. at 740. The court continued, explicitly recognizing that
keeping legacy districts intact was a “legitimate objective:”
23
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Any number of consistently applied legislative policies
might justify some variance, including, for instance, making
districts compact, respecting municipal boundaries,
preserving the cores of prior districts, and avoiding
contests between incumbent Representatives. As long as the
criteria are nondiscriminatory, these are all legitimate
objectives that on a proper showing could justify minor
population deviations.
Id. (emphasis added)(citation omitted).
To the extent that the reapportionment commission sought to
preserve legacy districts, that was a “legitimate objective.”
See id.; see also Chapman v. Meier, 407 F.Supp. 649, 664 (D.N.D.
1975) (adopting a court-ordered apportionment plan and
explaining that though the court had “altered most of the
existing legislative districts to comply with the one man-one
vote standard” it also “endeavored to retain the core
of existing districts in the new reapportionment plan” so that
“extreme disruption in the election processes may be avoided”).
We see no reason to conclude that article IV, section 6 or
HRS § 25-2(b) limit the commission’s discretion to craft a
reapportionment plan that complies with constitutional equal
protection mandates, strictly conforms to the mandatory
requirements of article IV, section 6 and HRS § 25-2(b), and
also seeks to promote stability by preserving legacy districts.
24
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
III. CONCLUSION
The Plan complies with article IV, section 6 and HRS § 25-
2(b); Petitioners have not shown that they are entitled to the
requested relief. The Petition is denied.
Mateo Caballero, /s/ Mark E. Recktenwald
for petitioners
/s/ Paula A. Nakayama
Lauren K. Chun /s/ Todd W. Eddins
(Patricia Ohara, Lori N.
Tanigawa, and Reese R. Nakamura
on the briefs),
for respondents
25