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

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Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
14-JUN-2022
09:08 AM
Dkt. 81 OPD
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
JUNE 14, 2022
DISSENTING OPINION OF WILSON, J.
I. Introduction
I join Justice McKenna’s concurring and dissenting
opinion. I dissent separately to contextualize how the
Majority’s opinion fails to protect the people of Hawaii’s
fundamental right to vote.
In the wake of the 2020 census and the resulting
2022 reapportionment maps being drawn across the country,
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numerous claims of unconstitutional maps are being brought by
groups of concerned citizens in sister states.1 The majority
of cases feature complaints of unconstitutional partisan
gerrymandering and racial discrimination.2 The United States
Supreme Court has specifically foreclosed the federal courts
as a venue for adjudicating claims of political
gerrymandering, the specter of which has been raised by the
Petitioners in the instant case. See Rucho v. Common Cause,
139 S.Ct. 2484, 2506 (2019).
State courts are the only venue for citizens to
bring complaints against this particular kind of attack on the
power of their vote, which impairs the fundamental right upon
which it stands. By this case, the people of Hawaiʻi—through a
diverse group of concerned citizens, united in their quest to
secure constitutionally compliant legislative and state senate
1 According to the Brennan Center for Justice:
As of June 8, 2022, a total of 72 cases have been
filed challenging congressional and legislative maps in
26 states as racially discriminatory and/or partisan
gerrymanders. Litigation has resulted in orders from
state courts to redraw legislative and/or congressional
maps in Alaska, Florida, Maryland, New York, North Caro-
lina, and Ohio in time for the 2022 election cycle (the
Florida redraw has since been put on hold by an appellate
court). In addition, South Carolina has agreed to amend
its new state house map without a court order, but that
revised map will not take effect until 2024. A total of
45 cases remain pending at either the trial or appellate
levels.
Brennan Center for Justice, Redistricting Litigation Roundup (June 8,
2022), https://www.brennancenter.org/our-work/research-
reports/redistricting-litigation-roundup-0 [https://perma.cc/EZ2H-SAEJ].
2 Id.2
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district maps—have sounded this alarm of encroachment upon
their right to vote, and the Majority has failed to heed their
profound call for protection of this right upon which all
others depend.
Petitioners assert that the 2021 Reapportionment
Commission (“Commission”) produced maps that fail to comply
with criterion six of article IV, section 6 of the
Constitution of the State of Hawaiʻi (“Hawaiʻi Constitution”),
which provides: “Where practicable, representative districts
shall be wholly included within senatorial districts.” Haw.
Const. art. IV, § 6.
This criterion, along with all enumerated criteria
in article IV, section 6, is specifically designed to guard
against “gerrymandering or other unfair or partial result” in
the apportionment plan. Supp. Stand. Comm. Rep. No. 58, in 1
Proceedings of the Constitutional Convention of Hawaiʻi of
1968, at 265 (1973).
Respectfully, the Majority endorses an
unconstitutional redistricting process that undermines the
right to vote in Hawaiʻi.
II. Discussion
A. The Constitutional Right to Vote
1. The People’s Government and the Enumerated Right
The Hawaiʻi Constitution begins with “We, the people
of Hawaiʻi[.]” Haw. Const. pmbl. It then sets forth the
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principle that “[a]ll political power of this State is
inherent in the people” and that “the responsibility for the
exercise thereof rests with the people. All government is
founded on this authority.” Haw. Const. art. I, § 1.
Our Nation was founded on this very principle—that
“Governments . . . deriv[e] their just powers from the consent
of the governed[.]” The Declaration of Independence para. 2
(U.S. 1776). The phrase “no taxation without representation”
was the rallying cry for American revolutionaries, and many
gave their lives pursuing the ideals embodied by it. This
slogan encapsulated the American colonists’ resentment towards
having taxes levied upon them by a distant British Parliament
that lacked American—elected legislators who represented the
interests of the colonists.
A burning desire for elected, accountable
representation was the driving force behind our nation’s
birth. The “power,” James Madison wrote, “is in the people
over the Government, and not in the Government over the
people.” 4 Annals of Cong. 934 (1794). Thus, a government
“of the people, by the people, for the people” was born.
Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863).
Elections are the means by which this government “of
the people, by the people, for the people” is effectuated. As
such, “[t]he right to vote is of fundamental importance.”
Green Party of Hawaii v. Nago, 138 Hawaiʻi 228, 240, 378 P.3d
944, 956 (2016) (citing Hayes v. Gill, 52 Haw. 251, 269, 473
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P.2d 872, 883 (1970)). The Hawaiʻi Constitution enshrines the
right to vote in article I, section 8 (“No citizen shall be
disfranchised, or deprived of any right or privileges secured
to other citizens, unless by the law of the land”) and article
II, section 1 (“Every citizen of the United States who shall
have attained the age of eighteen years, have been a resident
of this State not less than one year next preceding the
election and be a voter registered as provided by law, shall
be qualified to vote in any state or local election[]”) as
well as through the adoption of the United States
Constitution, and its protections of the same.3 Yet,
constitutional protection of the right to vote was not a
foregone conclusion; today’s protections are the fruits of
momentous struggle against discriminatory voting practices,
including gerrymandered redistricting.
2. Historic Struggles to Secure the Right to Vote
Let us not forget that until the ratification of the
fifteenth amendment of the United States Constitution in 18704
3 Article fifteen of the United States Constitution, ratified in
1870, gave African American men the right to vote; article nineteen,
ratified in 1920, gave American women the right to vote; article fourteen,
ratified in 1964, eliminated poll taxes; and article sixteen, ratified in
1971, lowered the voting age for all elections to age eighteen years.
4 U.S. Const. art. XV, § 1 provides: “The 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.”
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and the nineteenth amendment in 1920,5 citizens of the United
States could be denied the right to vote on the basis of their
race and/or gender. Even with these amendments in place,
African Americans, women, and other historically excluded
groups were prevented from registering to vote through abuses
of the voter registration process, including literacy tests,
violence, threats of violence, and economic coercion.6 The
poll tax and whites-only primaries further limited minority
participation in the electoral process.7
In 1957, Dr. Martin Luther King Jr. delivered his
“Give Us the Ballot” address on the steps of the Lincoln
Memorial. His speech laid bare the empty promise of
constitutional amendments and desegregation case law that
languished without structured processes and methods to make
the franchise real:
[A]ll types of conniving methods are still being used to
prevent Negroes from becoming registered voters. The denial of
this sacred right is a tragic betrayal of the highest mandates
of our democratic tradition. And so our most urgent request to
the president of the United States and every member of Congress
is to give us the right to vote.
Rev. Martin Luther King, Jr., “Give Us the Ballot—We Will
Transform the South,” (May 17, 1957) (emphases added).
5 U.S. Const. art. XIX provides: “The 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 sex. Congress shall have power to enforce
this article by appropriate legislation.”
6 Dep’t of Just. Manual Resource, Title 8 Civil Rights: VOTING
RIGHTS ACT OF 1965--HISTORY AND OVERVIEW §19 (4th ed. 2022-3)
7 Id.
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The Voting Rights Act of 1965 finally delivered on the promise
of the fifteenth and nineteenth amendments by creating
structures and procedures specifically designed to give them
effect.
3. The Voting Rights Act of 1965 – Procedurally
Securing the Right to Vote
The Voting Rights Act of 1965 was enacted to end the
whites—only electoral system followed by much of the South, as
the remedies provided by earlier civil rights acts (in 1957,
1960, and 1964) and the organizing work of the civil rights
movement had been unable to open the franchise to African
Americans in many areas. See Dep’t of Just. Manual Resource,
Title 8 Civil Rights: Voting Rights Act of 1965—History and
Overview §19 (4th ed. 2022-3). It was not until President
Lyndon Baines Johnson signed the Voting Rights Act of 1965
that specific laws, remedies, methods and procedures were
implemented to realize the promise of the fifteenth and
nineteenth amendments:
The Voting Rights Act banned the use of literacy tests
(Section 4), authorized federal registration of voters where
local registrars had refused voter registration to African
Americans (Section 6), authorized the appointment of federal
observers to monitor polling place activities on election
day to assure that the newly enfranchised African Americans
would be permitted to vote and that their votes would be
counted (Section 8), and allowed new laws affecting voting
to be implemented only if they were proven not to have a
discriminatory purpose or effect (Section 5). By means of a
formula set out in the Act, these special provisions applied
(initially for a five-year period) to areas with a record of
discrimination (Section 4), while general anti-
discrimination provisions applied to the nation as a whole.
Id. (cleaned up)
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This legislation, and all the affirmative mechanics
it puts into place to realize the right to vote, illustrate
the fragility of the right itself—that despite constitutional
protections granting the right to vote, the strength of the
right is only as viable as the methods and procedures giving
it effect. Apportionment is a core process of protection, and
any claims of a failure of the apportionment process to give
effect to the constitutional protections of the right to vote
must be analyzed against the backdrop of these historical
struggles to make the right to vote real. The district—
within—district criteria is specifically equipped to prevent
gerrymandering,8 and failure to give it effect opens the door
to dilution of the right to vote.
B. The Specter of Gerrymandering and Vote Dilution
1. Gerrymandered Districts Dilute Voting Strength
The right to vote is of fundamental importance.
Green Party, 138 Hawaiʻi at 240, 378 P.3d at 956. “No right is
more precious in a free country than that of having a voice in
the election of those who make laws; other rights, even the
8 See Sophia Caldera, Daryl DeFord, Moon Duchin, Samuel C.
Gutekunst & Cara Nix, Mathematics of Nested Districts: The Case of
Alaska, Statistics and Public Policy, 7:1, 39-51 (2020) available at
https://mggg.org/uploads/Alaska.pdf (last visited June 7, 2022) (“From the
perspective of redistricting, nesting means that the composition of one
house of the legislature massively constrains the space of possible
districting plans for the other, arguably cutting down the latitude for
gerrymandering.”) (emphasis added).
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most basic, are illusory if the right to vote is undermined.”
Wesberry v. Sanders, 376 U.S. 1, 17 (1964).
Any attempt to dilute the power of a vote erodes the
fundamental right standing behind the vote itself. Reynolds
v. Sims, 377 U.S. 533 (1964) (“the right of suffrage can be
denied by a debasement or dilution of the weight of a
citizen’s vote just as effectively as by wholly prohibiting
the free exercise of the franchise.”)
A gerrymandered redistricting plan dilutes voting
strength. It is such an effective vote-dilution device that
Section 2 and Section 5 of the Voting Rights Act9 prohibit the
use of any voting practices or procedures, including
redistricting plans, that dilute minority voting strength.10
In the instant case, Petitioners allege the record reflects
that Hawaiʻi’s constitutional criteria designed to prevent
gerrymandered districts have been discarded in favor of
illegitimate reapportionment factors, the consequences of
which would be likely to benefit incumbents.
Petitioners make clear the grave consequences of
such a gerrymandered redistricting process, and the
responsibility of this court to prevent it:
9 42 U.S.C. § 1973.
10 While the Petitioners do not raise a claim under the Voting
Rights Act nor allege a specific dilution of minority voting strength, the
criteria in article IV section 6 are specifically designed to prevent
gerrymandering (alongside other unjust outcomes), and the dilutive effect
of a gerrymandered reapportionment process impacts each resulting vote.
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[L]egislators who benefit from specific maps have little to no
electoral incentive to appoint commissioners who will
objectively apply the constitutional criteria, if doing so
could jeopardize their chances of re-election. In turn,
gerrymandered communities will not be able to vote out such
legislators, as their voting power would be diluted through the
reapportionment process.” In other words, it is this Court’s
responsibility to ensure that the Commission follows the
reapportionment criteria, so that it is the people who “choose
their representatives, not the other way around.
(emphases added).
2. Illegitimate Reapportionment Factors in the Record
Petitioners have shown that the Commission failed to
give effect to criterion six because of a preference for
preserving “historic districts that have existed for
decades.”11 In addition, the record reflects that despite the
practicability of following the district-within-district
criteria in this year’s maps, the Commission opted not to
11 Petitioners argue in their petition:
This “preference” for preserving historic districts, which was
also offered as an explanation for not complying with the
district within district requirements, is not supported by the
relevant constitutional and statutory provisions, and would be
likely to benefit incumbents. The drawing of boundaries to the
advantage of individuals or political parties is explicitly
prohibited by Article IV, Section 6, and this requirement,
which is mandatory, applies to incumbents as a group as well.
Instead, it would appear that this “preference” was
deemed by the Commission to be more important than the district
within district requirements and consequently, the Commission
was compelled to make dramatic changes to house districts due
to population changes, but did not adjust senate districts
accordingly, in an apparent effort to keep senate district
lines the same. Chair Mugiishi admitted as much when he
stated: “Again, changing the senate map would be massively
disruptive, right? Because, as you know, there are much fewer
senators. So if you’re going to start to change the senate
map, the whole island of Oʻahu will explode.” This is
precisely the type of gerrymandering, unfair, and partial
result that the constitutional and statutory criteria was
intended to avoid.
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because “[C]hanging the senate map would be massively
disruptive, right? Because, as you know, there are much fewer
senators. So if you’re going to start to change the senate
map, the whole island of Oʻahu will explode.”
These justifications for choosing to preserve state
senate districts—that they have “existed for decades” and that
to make changes would “be massively disruptive”—are inapposite
in view of the constitutional criteria, and are brazen in
their consequential effect to protect the status quo. As the
record is devoid of any legitimate considerations for failing
to give effect to criterion six, this posture of preserving
the state senate status quo translates into protecting
incumbent state senators. This potentiality strikes at the
heart of the founders’ specific concerns about
“gerrymandering, unfair, and partial results”—the precise
outcomes Constitution’s article IV section 6 criteria are
designed to prevent.
The likelihood that gerrymandering is behind the
failure to give criterion six effect is heightened by the
staggering percentage of state senate districts that fail to
comply with the district—within—district criteria, which—at
64.7%—is an extreme deviation in view of the Hicks plan, which
has demonstrated compliance is practicable.12
12 Majority Opinion at 3.
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3. The Commission’s Constitutional Obligation to
Protect the Right to Vote
The Constitution protects the right to vote. Haw.
Const. art. I, § 8; art. II, § 1. The right to vote is
exercised during elections. Various methods and procedures
are required to structure and facilitate elections and ensure
fair elections. Such methods and procedures affect a person’s
ability to exercise the right to vote. See Green Party, 138
Hawaiʻi at 241, 378 P.3d at 957 (finding that “the method used
for calculating the number of sufficient ballots required for
an election affects a person’s ability to exercise the right
to vote.”). Flawed election methods and procedures “may
result in the deprivation of the right to vote[.]” See id. at
240, 378 P.3d at 956. It is axiomatic that the constitutional
right to vote must be protected by any constitutionally
designed method or procedure essential for structuring and
facilitating elections.
Reapportionment is one such procedure. Article IV
of the Hawaiʻi Constitution sets forth and governs
reapportionment. Article IV, section 2 provides for a
reapportionment process that creates a commission of nine
members who “shall act by majority vote of its membership and
shall establish its own procedures, except as may be provided
by law.” Haw. Const. art. IV, § 2. (emphasis added).
Under article IV, the commission must act in
accordance with the apportionment obligations set forth in
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sections 2 through 9. This includes Article IV, section 6,
which provides that the commission, in carrying out its
apportionment and redistricting duties, “shall be guided by”
eight enumerated criteria; four are mandatory in all
circumstances and four, including the “district within
district” provision, are mandatory to be applied whenever
“practicable.” See McKenna Concur and Dissent at 2.
An apportionment commission’s failure to perform its
duties and/or generate a constitutionally sound
reapportionment plan is subject to this court’s original
jurisdiction, whereby the court “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,
or it may take such other action to effectuate the purposes of
this section as it may deem appropriate.” Haw. Const. art.
IV, § 10.
Given the constitutional obligations imposed on the
Commission to carry out its duties set forth under article IV
section 6, and in full view of the constitutionally protected
right to vote, the Commission must be understood to be
constitutionally obligated to protect the right to vote in
every aspect of carrying out its mandate.
The Majority incorrectly holds that “[t]he
Commission must consider the district within district
guidelines when redrawing district lines. But it is not
required to give them any particular effect in redistricting.”
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Respectfully, such a holding is fundamentally at odds with the
constitutional mandate that, if practicable, senate districts
must contain congressional districts.
I join Justice McKenna’s analysis that in view of
settled principles of constitutional interpretation, article
IV, section 6 is self-executing, and that “[p]ursuant to
article XVI, section 16, the Commission was duty-bound to
effectuate the criteria to ‘the fullest extent that their
respective natures permit.’” McKenna Concur and Dissent at
18.
“The language of article IV, section 6 is not
ambiguous: criteria four, five, six and eight must be applied
where ‘practicable.’” Id. (emphasis added). Article IV,
section 6 provides that the Commission shall be guided by the
criteria contained therein. Criterion six provides “[w]here
practicable, representative districts shall be wholly included
within senatorial districts.” (emphasis added). The word
“shall” in both article IV, section 6 and criterion six
creates an imperative command. See McKenna Dissent at 18.
Further—“[i]t is well-established that, where a statute
contains the word “shall,” the provision generally will be
construed as mandatory.” Malahoff v. Saito, 111 Hawaiʻi 168,
191, 140 P.3d 401, 424 (2006) (citations omitted).
The Hicks plan demonstrated it was “practicable” for
representative districts to be wholly included within
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senatorial districts, therefore the Commission was mandated to
give criterion six effect.
The Commission’s failure to give effect to criterion
six amounts to a failure to fulfil its constitutional
obligations set forth under article IV, section 6. As
discussed herein, criterion six is specifically equipped to
prevent gerrymandering, which is a scourge on the electoral
process that dilutes the power of a vote. Any attempt to
dilute the power of a vote erodes the fundamental right
standing behind the vote itself. Reynolds, 377 U.S. at 554-
55. Therefore, the Commission’s failure to give effect to
criterion six in the execution of its duties is a failure of
its constitutional obligation to protect the right to vote.
C. Alaska, Maryland, and North Carolina: Courts finding maps
unconstitutional political gerrymanders, as demonstrated
by measurable deviations from constitutional criteria
1. Alaska
In February 2022 the Alaska Supreme Court found that
the Alaska Redistricting Board’s 2021 plan featured an
unconstitutional political gerrymander, and remanded to the
board for further proceedings to correct the unconstitutional
plan. See In the Matter of the 2021 Alaska Redistricting
Cases, No. S-18332 (Alaska, Mar. 25, 2022).
Notably, Alaska’s constitution mandates the
“district—within—district” or “nesting” criteria; state
legislative districts must be nested, so that one Senate
district is composed of two-House districts. Alaska Const.
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art. VI, § 6. Four petitions filed by Alaskan voters and
municipalities (consolidated) challenged the 2021 Alaska
Redistricting Board’s plan on the basis that the pairing of
two particular house districts—House District 21 (South
Muldoon) and House District 22 (Eagle River Valley) into one
state senate district (Senate District K) violated the
constitution as a political gerrymander. Specifically, the
plaintiffs argued before the trial court13 that without any
legitimate purpose, the pairing “dilutes the voting power of
the Muldoon voters.” In the Matter of the 2021 Redistricting
Plan, No. 3AN-21-08869CI (Feb.15, 2022). In finding for the
plaintiffs, the Alaska Supreme Court affirmed the trial
court’s conclusion that Senate District K was in fact a
political gerrymander. It is important to note that the trial
court, in its findings of fact and conclusions of law,
measured deviations in increments as small as tenths of a
percentage point as part of its analysis finding the pairing
unconstitutional.
In examining the pairing, part of the trial court’s
analysis looked at whether the pairing was justified as a
means for increasing representation for both districts (by way
of reducing the overall representational deviation of both
districts). The court examined the deviations as follows:
13 The consolidated cases were heard by Superior Court Judge
Thomas Matthews of the third judicial district at Anchorage.
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Turning to proportionality, Eagle River Valley and North Eagle
River/Chugiak are both underrepresented by -1.65% and -0.71 %
respectively. South Muldoon is underrepresented by -1.70%.
Pairing Eagle River Valley with South Muldoon creates an
average deviation of -1.68%, whereas pairing both Eagle River
districts creates an average deviation of -1.18%. Thus, the
Board's choice to pair Eagle River Valley with South Muldoon
does not lead to more proportional representation.
In the Matter of the 2021 Redistricting Plan, No. 3AN-21-
08869CI (Feb.15, 2022) at 70-71.
Here, the Alaska courts draw constitutionally based
conclusions by comparing right—to—vote deviations in amounts
as small as tenths of a percentage point. The Alaska courts
do so as part of their analysis in determining whether a
particular district-within-district pairing is an
unconstitutional political gerrymander. This concern for and
close analysis of deviation percentage points in a
constitutional gerrymander/right-to-vote case is instructive.
Both the -1.68 deviation and the -1.18% deviation are presumed
constitutional as they fall well under the 10% threshold for
proportionality analysis. That both deviations are still so
closely examined for the purposes of deciding which deviation
would best protect the right to vote stands in stark contrast
from the instant case before our Court, where a 64.7%
deviation from a constitutionally required criteria—
specifically equipped to guard against gerrymandering—has been
allowed to stand.
2. Maryland
The State of Maryland presents another instance
where 2021 maps have been found unconstitutional on the basis
of political gerrymandering. On March 25, 2022, the trial
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court struck down Maryland’s new congressional map, finding
that the map “is an ‘outlier,’ an extreme gerrymander that
subordinates constitutional criteria to political
considerations.” See Szeliga v. Lamone,
No. C-02-CV-21-001816 (Mar. 25, 2022) and Parrott v. Lamone,
No. C-02-CV-21-001773 (Mar. 25, 2022). Underlying that
finding, according to the court, is the map’s “substantial
deviation from ‘compactness’ as well as [its] failure to give
‘due regard’ to ‘the boundaries of political subdivisions’ as
required by [the Maryland Constitution][.]” Id.
Part of the court’s analysis focused on expert
testimony with regards to deviations from the ‘compactness’
criteria as evident by examining model maps. The court’s
findings of fact notably cite just a 4.4% difference as
evidence sufficient to support its finding of a “substantial
deviation from ‘compactness’”:
With respect to the first set of maps drawn with very little
regard to compactness but regard given to contiguity and equal
population, 14,000 of the maps have seven districts that were
won by President Joseph Biden and only 4.4% have eight
districts won by President Joseph Biden. Mr. Trende concluded
that “it is exceedingly unlikely that if you were drawing by
chance, you would end up with map where President Joe Biden
carried all eight districts.”
With respect to the application of compactness and contiguity
as well as equal population, he concluded that the 2021 Plan
would result in eight districts won by President Biden, which
he concluded was “an extremely improbable outcome if you really
were drawing just caring about traditional redistricting
criteria and weren’t subordinating those considerations for
partisanship.”
Id. at 63-64. (emphases added).
Here, Maryland’s court is flagging a 4.4% chance of
a particular outcome as clear evidence of a deviation from the
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constitutionally required redistricting criteria of
‘compactness.’ Put another way, 95.6% of model maps in this
case show a different outcome if you control for partisanship.
The court rightfully characterizes this outcome as an “extreme
gerrymander” that is a “substantial deviation” from
constitutionally required criteria.
In the instant case, our 64.7% deviation from
criterion six is far more akin to Maryland’s unconstitutional
maps—an “extreme” example of a “substantial deviation” that
absent a justifiable rationale, only increases the likelihood
that gerrymandering is in play.
3. North Carolina
On February 4, 2022, North Carolina’s Supreme Court
also struck down new congressional and legislative maps,
finding they were a partisan gerrymander in violation of the
North Carolina Constitution’s free elections clause, the equal
protection clause, the free speech clause, and the freedom of
assembly clause. Harper v. Hall, 867 S.E.2d 554, 558 (N.C.
2022). Because of pressing timing issues, the court struck
down the maps via order, with an opinion to follow. Id. The
order affirmed the trial court’s findings that “the General
Assembly diminished and diluted the voting power of voters
affiliated with one party on the basis of party affiliation.”
Id. at 557. (emphasis added). Pending an opinion, the order
is still instructive as it sets forth the following categories
of quantifiable data from which deviations from constitutional
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right—to—vote protections may be measured, including
unconstitutional partisan gerrymanders: “There are multiple
reliable ways of demonstrating the existence of an
unconstitutional partisan gerrymander. In particular, mean-
median difference analysis, efficiency gap analysis, close-
votes, close seats analysis, and partisan symmetry analysis
may be useful in assessing whether the mapmaker adhered to
traditional neutral districting criteria . . .” Id.
In view of Alaska, Maryland and North Carolina
courts close analysis of the deviations from constitutionally
required reapportionment criteria, the 64.7% deviation from
criterion six in this instant case is extreme, especially as
evidenced by the Hicks and Boyea Plans’ demonstration of the
practicality of compliance.
4. An Extreme Deviation at 64.7%
Population deviation cases may be instructive in
assessing just how extreme the 64.7% deviation is in the
instant case. For purposes of determining whether a plan
complies with the requirement that “the average number of
permanent residents per member in each district [be] as nearly
equal to the average for the basic island unit as
practicable,” deviations of more than 10 percent from the
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target population base are treated as constitutionally
suspect.14
This 10% threshold for population deviation analysis
is, at its core, a specific protection of the “one-person, one
vote” doctrine—the right-to-vote doctrine designed to ensure
that “the vote of any citizen is approximately equal
in weight to that of any other citizen in the State.”
Reynolds, 377 U.S. at 579. Applying the 10% population
deviation framework to the instant case, this court faced a
prima facie discriminatory plan that far exceeded 10.01%. As
the record fails to justify the Commission’s deviation from
criterion six, the 64.7% deviation—in full view of the
demonstrated practicability of near 100% compliance—can only
be understood as a glaring constitutional violation.
Further, while this case primarily concerns the
Commission’s failure to give effect to criterion six, it is
important to note that a number of the Petitioners expressed
concern that the 2021 reapportionment plan also failed to
avoid submergence in a number of districts. The term
“submergence” refers to the pernicious phenomenon whereby “one
14 See Haw. Const. art IV, § 6; cf. Citizens for Equitable &
Responsible Gov't v. Cty. of Hawaiʻi, 108 Haw. 318, 336, 120 P.3d 217, 225
(2005), amended (Sept. 22, 2005) (In a case involving county districts, not
legislative districts, “an apportionment plan with a maximum population
deviation under 10% falls within this category of minor deviations. A plan
with larger disparities in population, however, creates a prima facie case
of discrimination and therefore must be justified by the [s]tate.”
(citations omitted)).
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socio-economic group [is] disadvantaged by reason of its
placement in a district in which another socio-economic class
heavily predominates.” Supp. Stand. Comm. Rep. No. 58, in 1
Proceedings of the Constitutional Convention of Hawaiʻi of
1968, at 246 (1973). Petitioners raised specific concerns
that impoverished rural communities were submerged with
wealthier coastal areas, and that the rural and agricultural
communities were unnecessarily submerged with urban areas and
vice versa.15
Criterion eight of article IV, section 6 is designed
to guard against this type of reapportionment outcome, and
provides that “[w]here practicable, submergence of an area in
a larger district wherein substantially different
15 See also discussion infra Part II.E.2-12, wherein Petitioners
set forth concerns about the following specific instances of submergence:
Petitioner Michaela Ikeuchi has deep concerns about the
submergence of Native Hawaiian and poorer rural
communities with wealthier coastal areas on the Kona
coast; Petitioner Kimeona Kane is concerned that the 2021
Final Legislative Reapportionment Plan squeezes Waimānalo
between Hawaiʻi Kai and Kailua in the senate district,
submerging his rural community into wealthier and more
politically connected neighborhoods; Petitioner Deborah
Ward is concerned that the plan would submerge rural
communities on the island of Hawaiʻi into urban
communities with vastly different environmental and
socio-economic interests; and Petitioner Philip Barnes
strongly believes that rural and agricultural areas,
which historically have been submerged to Hilo and
Kailua-Kona-centric political interests, should finally
have adequate representation in the Legislature, so that
they can receive much needed government support to
achieve the unfulfilled promise of food sustainability in
Hawaiʻi.
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socio-economic interests predominate shall be avoided.” While
it can be factually determined that the Commission produced an
unacceptable 64.7% deviation from the “districts—within—
districts” criteria, deviations from criterion eight are more
difficult to quantify. Unlike criterion six, which can
objectively be measured, criterion eight “is, admittedly, not
a precise criterion, but it does delineate an undesirable
condition which should be considered in selecting districts.”
Supp. Stand. Comm. Rep. No. 58, in 1 Proceedings of the
Constitutional Convention of Hawaiʻi of 1968, at 246 (1973).
Here, the Petitioners recognize that the Commission
at least discussed “non-submergence” at the October 14, 2022
meeting, but highlight the Commission’s failure “to disclose
with whom the technical committee [permitted interaction
group] had communicated, what type of community outreach it
had done, any fact findings supporting deviation from the
constitutional and statutorily required standards, or details
about what considerations the committee may have given more
weight and why.” While criterion eight recognizes that some
degree of submergence may be unavoidable in a reapportionment
process, the Commission here failed to provide any compelling
evidence that any submergence was necessary in the 2021
reapportionment plan. Even if the Commission had put forth
such justification, it would be subject to careful and
meticulous review for any unconstitutional impairment on the
right to vote.
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The record here reflects an extreme 64.7% deviation
from criterion six, and an unexplained deviation from
criterion eight. Alaska, Maryland and North Carolina provide
instructive examples of how analysis of deviations from
constitutional criteria can lead to the discovery—and
rejection of—unconstitutionally gerrymandered maps. The
deviations in the instant case, in light of the demonstrated
practicability of compliance with criterion six, further
demonstrate that the Commission failed in its obligation to
protect the right to vote in the execution of its duties.
D. The Hicks and Boyea Plans Demonstrate the Practicability
of Compliance
Petitioners Hicks and Boyea submitted two plans to
the Commission for consideration: a senate map for Oʻahu
submitted on January 16, 2022 (the “Hicks Plan”) and a house
map for the Island of Hawaiʻi submitted on January 19, 2022
(the “Boyea Plan”). The Hicks Plan took the Commission’s last
proposed house map for Oʻahu as a starting point and then
created senate districts simply by joining two house districts
together. The Boyea Plan took the Commission’s last proposed
senate map for the Island of Hawaiʻi and then drew lines to
divide each senate district into two roughly equally populated
house districts while trying to keep communities together.
The plans showed that including exactly two-house districts
within each senate district was not only practicable, but it
was straightforward. Put differently, both the Hicks Plan and
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the Boyea Plan demonstrate it is both possible, and
practicable, to have 100% compliance with criterion six.
Further—both the Hicks and Boyea plans created maps with lower
overall population deviations than the deviations in the
technical committee plans.16 The hard work undertaken by Hicks
and Boyea in drawing maps to demonstrate the practicability of
compliance with criterion six illustrates the lengths to which
they and their fellow Petitioners had to—and were willing to—
go to protect the right to vote for themselves and their
fellow citizens.
E. The Petitioners as Guardians of the Right to Vote
1. Engaged Citizens Sound the Alarm
The Petitioners in the instant case are registered
voters—engaged citizens from a spectrum of racial,
socioeconomic, geographic, and professional backgrounds, all
of whom sought an honest ear from the Commission. In addition
to their stalwart efforts to bring the instant case, most of
these citizens were actively engaged in the 2021
reapportionment and redistricting process for their islands,
and contributed heroic amounts of personal time and effort
attending hearings, drafting and submitting written and oral
testimony, and even preparing their own reapportionment
16 Petitioner Hicks’ congressional map is able to fit 25 house
districts into Congressional District 1 and 26 house districts into
Congressional District 2 while keeping the overall deviation under one
percent.
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plans.17 Six Petitioners are from the island of Hawaiʻi, four
are from the island of O’ahu, and one Petitioner is from the
island of Maui. Their individual and collective
contributions, as well as their concerns about the 2021
reapportionment process, are material to understanding the
continuing need for citizens to stand guard over the right to
vote here in Hawaiʻi.
2. Petitioner William M. Hicks
Petitioner William M. Hicks is a retired Navy
Captain with a combined 48 years of service across active duty
in the U.S. Navy and as the civilian Director or Deputy
Director of Submarine Operations at COMSUBPAC.18 Hicks
attended and testified at ten reapportionment commission
meetings and four public hearing meetings totaling over 27
hours in meeting attendance alone. Notably, this tally does
not account for the quantum of time and effort Hicks poured
into (1) preparing his own reapportionment plans, which have
17 The 2021 Reapportionment Commission held nineteen meetings from
April 13, 2021 – March 7, 2022. Additionally, the 2021 Reapportionment
Commission held eleven Public Hearings across the islands from November 20,
2021 – December 10, 2021. Written summaries of these commission meetings
and public hearings containing details regarding attendees, public
testimony and meeting length, can be accessed at:
https://elections.hawaii.gov/about-us/boards-and-
commissions/reapportionment/[https://perma.cc/RCA2-4HX5]. Last accessed May
26, 2022.
All references in this section to Petitioner meeting attendance and
public testimony are drawn from these records.
18 COMSUBPAC is the acronym for Commander, Submarine Force, U.S.
Pacific Fleet, which is the principal advisor to the Commander, United
States Pacific Fleet for submarine matters.
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demonstrated the practicability of adhering to criterion six,
and (2) attending and leading Kailua Neighborhood Board
meetings, so as to inform his community about this impending
injustice, and sharing the solutions he crafted to mitigate
it.
Hicks lives in Kailua on O’ahu, and in the 2011
reapportionment was assigned to House District 51 and Senate
District 25. Hicks was deeply concerned that failing to
comply with criterion six would make it less likely that
elected officials will have a shared understanding of their
community’s needs, which in turn would complicate legislative
coordination, and frustrate neighbors’ efforts to effectively
advocate for their common interests to the legislature.
3. Petitioner Ralph Boyea
Petitioner Ralph Boyea retired as the Hawaiʻi
Division Chief of the Hawaiʻi Government Employees Association.
Boyea attended and testified at eight reapportionment
commission meetings and two public hearing meetings totaling
over eighteen hours in meeting attendance. Like Hicks, Boyea
invested laudable time and energy drafting and submitting his
own redistrict maps for the reapportionment commission’s
review, and sharing his work with fellow citizens across the
island of Hawaiʻi. Boyea, a resident in Puna on the Island of
Hawaiʻi, has been assigned to House District 51 and Senate
District 25 since the 2011 reapportionment. Boyea’s proposed
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maps, unlike the final 2021 reapportionment maps, complied
with criterion six, and successfully avoided (1) submerging
rural communities like his own into urban areas, and (2)
crossing senate lines.
4. Petitioner Kimeona Kane
Petitioner Kimeona Kane (“Kane”), the director for
community outreach at a local environmental non-profit and
Chair of the Waimānalo Neighborhood Board, was born and raised
on a dairy farm in the Waikupanaha area of Waimānalo on the
island of Oʻahu. Kane, assigned to House District 51 and
Senate District 25 since registering to vote in 2018, attended
and testified at eleven reapportionment commission meetings
and one public hearing meeting totaling over 26 hours in
meeting attendance. Kane’s involvement in the 2021
reapportionment process arose from his efforts to ensure that
Waimānalo and Native Hawaiians are properly and effectively
represented at the legislature and in government, and his
grave concerns that gentrification will displace generations
of Waimānalo residents, and submergence will erode their
political power.
5. Petitioner Roberta Mayor
Petitioner Roberta Mayor (“Mayor”), a retired
educator and the Hawaiʻi Kai Neighborhood Board Chair, served
as a teacher, principal and superintendent in Hawaiʻi and
California for forty-one years. Mayor, who was born and
raised in Hawaiʻi, has been registered to vote in Hawaiʻi since
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returning in 2009, and has been assigned to House District 17
and Senate District 25 since the 2011 reapportionment.
Mayor’s involvement in this process was driven by the outcome
of the 2011 reapportionment, which divided Hawaiʻi Kai into two
house districts and two senate districts, which, in turn,
spanned three separate house districts each. This result left
Hawaiʻi Kai without a plurality of representation in either
senate district. Hoping to avoid this scenario for another
ten years, Mayor attended and testified at seven
reapportionment commission meetings and two public hearing
meetings totaling almost eighteen hours in attendance.
Notably, this amount of time does not include the hours and
efforts Mayor has spent preparing her testimony, informing her
community members and neighborhood board about the
unconstitutional 2021 reapportionment maps, and mobilizing
them to take official action rejecting them.
6. Petitioner Maki Morinoue
Petitioner Maki Morinoue (“Morinoue”) is an artist,
small business manager, and a fourth generation (Yonsei)
Japanese-American from the Hōlualoa village on the island of
Hawaiʻi. Under the 2011 reapportionment, she was assigned to
House District 6 and Senate District 3. Morinoue attended and
testified at four reapportionment commission meetings and one
public hearing meeting totaling approximately 6 hours in
attendance. Morinoue became involved due to her particular
concerns about preserving the agricultural character, water
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rights, and history of Hōlualoa as a village of farmers and
paniolos, and part of the breadbasket of Hawaiʻi. Like many of
her fellow Petitioners, Morinoue is also gravely concerned
about the effect of submergence, specifically as it would
undermine the quality of representation at the legislature for
rural and agricultural areas.
7. Petitioner Larry S. Veray
Petitioner Larry S. Veray (“Veray”) is a retired
Navy Command Master Chief with a combined 52 years of both
active duty in the United States Navy and as a Scientific
Engineering Technical Advisor assigned to the United States
Indo-Pacific Command. Veray has lived in Hawaiʻi for the past
thirty four years in the Waiau area of Pearl City, and for the
last seventeen years has volunteered with the Pearl City
Neighborhood Board, of which he is the current Chair. Veray
was greatly concerned that his community, as a result of the
Commission’s failure to give effect to criterion six, would be
divided into four house and four senate districts, and have to
contend with eight legislators, none of whom would necessarily
come from Pearl City or make Veray’s neighborhood their
priority.
Veray attended and testified at four reapportionment
commission meetings and one public hearing meeting for a total
of over seven hours in attendance. Like his fellow
Petitioners, Veray also committed untold hours and energy
towards preparing testimony, and informing and mobilizing his
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neighborhood board about the injustices at play and the
consequences at stake. Notably, Veray observed that he
offered to discuss potential solutions with the Commission’s
technical committee, but was never contacted by anyone
associated with the technical committee.
8. Petitioner Philip Barnes
Petitioner Philip Barnes (“Barnes”) is a retired
teacher who has lived in Hawaiʻi since 1998, and in Hilo for
the past ten years. Barnes, driven by his concern that the
2021 reapportionment plan would submerge his urban
neighborhood’s interests with those of the more rural
interests of the Hāmākua coast, made his voice heard at the
reapportionment’s public hearing on December 2, 2021. It was
Barnes’ strong belief that rural and agricultural areas have
historically been submerged to Hilo and Kailua—Kona—centric
political interests, and that the 2021 reapportionment process
should finally provide them with adequate representation in
the legislature.
9. Petitioner Jennifer Lienhart-Tsuji
Petitioner Jennifer Lienhart-Tsuji (“Lienhart-
Tsuji”) moved to Hawaiʻi in 1995, and lives in Waikōloa Village
on the Island of Hawaiʻi. A practicing social worker,
Lienhart-Tsuji is particularly attuned to the lack of
resources available to communities outside the urban centers
of the island, and has serious concerns regarding the island’s
overcrowded schools and inadequate public infrastructure,
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especially in the face of an anticipated influx of new
residents and children. Lienhart-Tsuji joined the petition
armed with concerns regarding the Commission’s lack of
transparency and accountability to the public, and her
understanding that the 2021 reapportionment plan unnecessarily
splits Waikōloa Village into two house districts, thereby
diminishing its representation in the legislature.
10. Petitioner Deborah Ward
Petitioner Deborah Ward (“Ward”) is a retired
University of Hawaiʻi extension educator and professor, a
farmer of produce and ornamental plants, and recent chair of
the Hawaiʻi Island Group of the Sierra Club of Hawaiʻi. Ward
has lived in Hawaiʻi for fifty-five years, including 40 years
in Kurtistown on the island of Hawaiʻi. She was assigned to
House District 3 and Senate District 2 under the 2011
reapportionment plan. As with many of her fellow Petitioners,
Ward is concerned about the socio-economic challenges of her
community, including houselessness, food insecurity, and lack
of social services. To that end, Ward volunteered her time
preparing for, attending and testifying at a reapportionment
commission meeting and a public hearing meeting, where she
voiced her concern that the final 2021 reapportionment plan
would submerge rural communities on the island of Hawaiʻi into
urban communities with vastly different environmental and
socio-economic interests.
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11. Petitioner Michaela Ikeuchi
Petitioner Michaela Ikeuchi (“Ikeuchi”), a marketing
manager, was born and raised on the Island of Hawaiʻi, and is
assigned to House District 5 and Senate District 3. As a
Hawaiian and a Keauhou resident, Ikeuchi has deep concerns
about the 2021 final reapportionment plan, and the submergence
of Native Hawaiian and poorer rural communities with wealthier
coastal areas on the Kona coast. Specifically, Ikeuchi wants
her representatives to focus on increasing access to social
services in underserved areas, ocean conservation, and water
use issues, particularly in light of how overdevelopment and
drought have led to sewage spills and water use restrictions
in her community. Like many of her fellow Petitioners,
Ikeuchi also has concerns about the Commission’s lack of
transparency and accountability to the community and feels a
responsibility to future generations to remedy that.
12. Petitioner Madge Schaefer
Petitioner Madge Schaefer (“Shaefer”) permanently
moved to Hawaiʻi twenty-five years ago after retiring from a
career in politics in California. She now lives in Kihei on
the island of Maui, and since moving to Hawaiʻi she has been
registered to vote and has not missed an election. In the
2011 reapportionment, Schaefer was assigned to House District
11 and Senate District 6. Schaefer is concerned that the 2021
final legislative reapportionment plan does not include Maui’s
house districts wholly within senate districts, as the 2011
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reapportionment plan did. Schaefer is concerned that this
discrepancy is not in the best interest of her community, as
legislation needs to pass both houses of the legislature, but
under the new plan, the interests of her senator and house
member will be, like the lines in their districts, misaligned.
Together, these guardians rose, united, and spoke
out as they watched a straight-forward constitutional
protection of their most fundamental right—the right to vote—
erode before them. Not only did they speak out—not only did
they sound the alarm through their complaint to this court
that the Commission failed to produce constitutionally
compliant maps, but they went further: they demonstrated—
through their own efforts, using the Commission’s own data—
that it was in fact practicable to give effect to Criteria
six. The Hicks and Boyea plans unequivocally prove that the
Commission’s deviation in the face of this criteria—64.7%—is
unconstitutional. And with the record devoid of any rationale
in support of this deviation, indefensibly so.
III. Conclusion
For the reasons above, I respectfully dissent. The
2021 Reapportionment Maps failed to comply with the
constitutional requirements specifically designed to protect
the right to vote from the pernicious effects of gerrymandered
apportionment.
As a result, for the next 10 years, Petitioners will
suffer the unconstitutional dilution of their voting strength.
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I join Justice McKenna’s ardent hope that future
reapportionment commissions will give effect to the intent of
the people of Hawaiʻi as expressed by the language of article
IV, section 6 of the Hawaiʻi Constitution. The resolute
dedication of Petitioners is a historic demonstration of the
necessity of citizens to remain vigilant in protecting their
right to vote, and to hold all branches of government to
account for any failure to deliver the constitutional promise
of an effective right to the franchise. The failure of this
court to heed their plea for protection of the right to vote
should not hamper those in the future who stand guard over our
most important guarantee of freedom.
/s/ Michael D. Wilson
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