Voting rights | election law

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“Election contests” in Hawaii are pretty narrow cases, and are subject to strict rules regarding subject matter jurisdiction (the Hawaii Supreme Court has original jurisdiction), content, timing,and remedy. For more, see our earlier post “HAWSCT Confirms Election Contests Are Tough!” Thus, even when an election challenge may have merit, the road is an uphill one. 

But when it makes allegations like this, there’s not going to be much doubt about the outcome, is there? — 

…that the Republican Party is attempting to “subvert, remove, and over[]throw the constitutional powers of the office of the [P]resident,” that Presidential candidate Ted Cruz is not qualified to run for President of the United States and, therefore, the Republican Party “is guilty of election fraud [by] knowingly entering an illegal candidate,” that the Office of Elections sponsors racism by serving “whites only,” and that Governor David Ige is “responsible for bigotry and discrimination…

Continue Reading Election Law Detour: Hawaii SCT Dismisses Challenge To Ted Cruz Eligiblity

Here’s what we are reading today: 

  • Here’s the equivalent of law blogger nirvana: a link to one of your pieces by SCOTUSblog: “There is still more commentary on Monday’s ruling in Evenwel v. Abbott, holding that states and local governments may use total population to draw legislative districts. In posts at casetext, Robert Thomas asserts that the ruling “reaffirmed the principle that we the people mostly get to choose who will be included in ‘We The People,’ and when all are included, the federal courts will not interfere.”
  • In Oklevyeha Native American Church of Hawaii, Inc. v. Lynch, No. 14-15143 (9th Cir. Apr. 6, 2016), a panel of the Ninth Circuit concluded that a Hawaii church which uses marijuana as part of its doctrine did not have a claim under RFRA to prevent it from being prosecuted under the Controlled Substances Act. The court held that the

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Continue Reading Friday Reading: SCOTUSblog’s Shout-Out; 9th Circuit Says Church Bogarted Evidence In Cannabis Claim; Are Agencies To Blame For Telescope Delay?; WWII Guam Land Seizures Case Moves Forward

Yet another detour back to our second favorite topic, election law.

Casetext asked us to provide some commentary and analysis of the Supreme Court’s recent Evenwel opinion, and we produced this piece (“What Does Evenwel v. Abbott Mean For ‘One Person, One Vote?’“), which is a refinement of our earlier blog post containing our initial thoughts on the decision.  

It’s not a long piece and we hope you read it (even you land users and takings mavens, who may be asked about this big case at your next cocktail party — all lawyers, after all, must be prepared at such events to respond to inquiries about every recent Supreme Court decision, even if they are far afield from your usual area of practice). The short answer to the question posed in the title is: 

Evenwel has transformed the “one-person, one-vote'” rule in reapportionment cases into…

Continue Reading What Does Evenwel v. Abbott Mean For “One Person, One Vote?”

Who must may be counted for reapportionment purposes?

Everyone!

A slight detour from our usual fare, to post some thoughts about today’s big  U.S. Supreme Court opinion on election law in Evenwel v. Abbott, No. 14-940. Evenwel is the sleeper case of the Term, and opened the possibility that the we might finally get an answer to a question the Supreme Court has dodged for over fifty years, involving the seemingly mundane issue of who can states count when they reapportion their legislatures: All Census-counted residents? U.S. citizens? Those eligible to vote? And who must they count? 

In today’s ruling the Court didn’t cast the net wide, but instead (as we urged it to do in our amicus brief) drew a narrow rule: states may count everyone, but they are not required to. Thus, Texas’s plan, and the plans of those states which count total population…

Continue Reading Mantras Without Meanings (We Takings Lawyers Predicted This One) – 8-0 SCOTUS Rules States May Count Everyone In Reapportionment

Nai Aupuni and the Akamai Foundation, the proponents and organizers of the Native Hawaiians-only “Oprah” election for delegates to a convention to organize a new Hawaiian government, have responded to the election objectors’ SCOTUS motion for contempt.

The Motion for Civil Contempt asked the Supreme Court to slap the State, the Governor, OHA and its trustees, and Nai Aupuni, for violating the Court’s earlier injunction that no ballots were to be counted, and the results were not to be certified prior to a ruling on the merits by the Ninth Circuit. After the Court’s order, Nai Aupuni called off the election (after previously extending the deadline by three weeks), and promised to never, never, never count the ballots that had already been submitted. Nai Aupuni then invited all of the (former) candidates to attend the convention. 

The contempt motion argued that this was too clever by half, and asserted that …

Continue Reading Latest On The Hawaiians-Only Oprah Election: Nai Aupuni’s Response To SCOTUS Contempt Motion

Here’s one that combines two of our practice areas, election and admin law. Land users should also pay attention because admin law issues frequently arise there, also. 

In Green Party of Hawaii v. Nago, No. CAAP-14-0001313 (Dec. 18, 2015), the Hawaii Intermediate Court of Appeals concluded that certain practices by the State Office of Elections were not “rules,” and thus need not have been adopted via the rulemaking procedures in the Hawaii Administrative Procedures Act. 

The procedures complained of were reactions to the shortage of printed ballots and other well-known difficulties the Elections Office had during the 2012 General Election. The ICA acknowledged “[i]t is undisputed that mistakes were made.” Slip op. at 2. See also slip op. at 24 (“In sum, mistakes were made in conjunction with the 2012 General Election.”). 

Election law types know that courts are generally pretty reluctant to intervene when the plaintiff …

Continue Reading “Mistakes Were Made” – Elections Office Practices Are Not “Rules”

Here’s your daily dose of election law action (don’t worry, land users, we’ve got one of those in the hopper for today as well), the latest on what has been labeled the “Costco” election and the “Oprah” election. The former premised on the notion that a seat at the convention now has all the worth of a Costco membership, the latter on the action by the purportedly private organization holding the election calling it off and declaring that all candidates could participate after the Supreme Court enjoined ballot counting and result certification.   

Well the other shoe has dropped, and the latter action has resulted in a Motion for Civil Contempt, filed yesterday in the U.S. Supreme Court, asking the Court to slap the State, the Governor, OHA and its trustees, and Nai Aupuni (and others, including the ironically-named Akamai Foundation) for violating the Court’s injunction that …

Continue Reading More SCOTUS Action In Oprah/Everyone Wins Election

An op-ed piece in today’s Star-Advertiser by Judge (Ret.) Walter Heen and U. Hawaii lawprof Randy Roth asks “What is OHA?“

For those of you who don’t already know, “OHA” is the Office of Hawaiian Affairs, a governmental entity created by the 1978 amendments to the Hawaii Constitution. But what the acronym stands for is not the question they are asking. Rather, they ask whether OHA is a state agency, or is some kind of quasi-governmental trust:

The Hawaii State Constitution has established an Office of Hawaiian Affairs to own and manage property “in trust.” The Constitution further provides for an elected board of trustees.

In “Regulating Paradise,” University of Hawaii law professor David Callies has described OHA as “operating as a public trust.”

In “Who Owns the Crown Lands of Hawaii?“, the late Jon Van Dyke pointed out that OHA is “self-governing” and…

Continue Reading What Is The Office Of Hawaiian Affairs, Asks Op-Ed. Short Answer: A “Public Agency”

Here’s the latest on the now-cancelled “Nai Aupuni” Hawaiians-only poll/election, described by one local commentator as having “the integrity of a Costco membership,” and by Election law maven Rick Hasen as the “Oprah” theory of elections after the organization cancelled the extended vote and invited all candidates to come to the convention once the U.S. Supreme Court enjoined the counting of ballots and certification of the election (in other words, all candidates were elected):

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Continue Reading Latest On The Hawaiians-Only-Oprah/Costco-Everyone-Wins Election

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Today, the Honolulu Star-Advertiser published an op-ed by me, Col. David Brostrom (U.S. Army, retired), Rep. Mark Takai, who represents Hawaii’s First Congressional District in the U.S. House of Representatives, and Andrew Walden, editor and publisher of Hawaii Free Press, about the case, argued this morning in the U.S. Supreme Court about who gets counted when state legislatures get reapportioned:

Hawaii might finally be forced to include military among ‘We the People’

By David P. Brostrom, Mark Takai and Andrew Walden

December 8, 2015

“We the People.”

The familiar opening of the U.S. Constitution, announcing our most cherished principles.

Big words, for sure.

But just who are “We the People?”

The U.S. Supreme Court is now considering that question in a Texas case in which Hawaii’s decades-long exclusion of active-duty military and families from the body politic is front and center.

In Evenwel v. Abbott, the court…

Continue Reading Op-Ed: In SCOTUS One-Person, One-Vote Case, Hawaii Might Finally Be Forced To Include Military Among ‘We The People’