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Who gets counted for reapportionment purposes?

Everyone!

Tomorrow, the Supreme Court is hearing oral arguments in two election law cases, Evenwel v. Abbott, No. 14-940, and Harris v. Arizona Ind. Redistricting Comm’n, No. 14-232.  We’ve covered the issues presented by these cases several times, so please forgive the continuing detour from takings law that we take whenever we get into our other favorite area, election law.

Evenwel is the sleeper case of the Term,  and may finally answer 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 residents? U.S. citizens? Those eligible to vote? And who must they count? Think back to your Con Law I class, and the “one-person, one-vote” rule from Reynolds v. Sims, 377 U.S. 533 (1964), the case which first announced that rule, and the…

Continue Reading Lessons From Takings Law For The “One-Person, One-Vote” SCOTUS Cases

Hawaii is either 5 or 6 hours behind Eastern Time, depending on the time of year (we don’t adhere to Daylight Savings Time), so we’re a quarter-day behind the part of the country where a lot — if not most — of the important things legal, financial, and political occur. Scheduling conference calls can be a chore, too. But we’re used to it, and sometimes, being outside the national attention range can work to our advantage, and we can get away with things which — were they occurring elsewhere — would attract more scrutiny, and a more skeptical eye.  

At least that is the way it appears once you step outside the Hawaii bubble, and find out how others view things that we do.

We’re way outside the bubble this week in Washington, D.C. (a different sort of bubble altogether), doing some election law things — we’ll have some…

Continue Reading The View Of The Nai Aupuni Election From Washington, D.C.

The latest news in a fast-moving election law case, about the validity of a Hawaiians-only election to choose delegates to a constitutional convention about the issue of Hawaiian national sovereignty: this morning, Associate Justice Anthony Kennedy issued this order which temporarily puts a stop to the counting of the ballots. An extraordinary move, but one which wasn’t exactly unpredictable, given the issues involved (which we noted here). 

More background on the case, and the Supreme Court filings of the parties in this post from SCOTUSBlog. 

More stories here:

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Continue Reading Justice Kennedy Temporarily Halts “Hawaiians Only” Election

Here’s a fascinating decision from the Ninth Circuit on our other area of interest, election law. 

Public Integrity Alliance, Inc. v. City of Tucson, No. 15-16142 (9th Cir. Nov. 10, 2015) was a challenge to Tucson’s unusual hybrid system of electing the city council. The primary election is a partisan primary, limited to residents of each of the city’s wards. Once elected in these ward-by-ward primaries, the candidates go on to an at-large general election, where everyone in the city is eligible to vote. This system was challenged as violative of equal protection, because it deprives city voters of the ability to vote in the ward-by-ward primaries.

In a 2-1 decision authored by Judge Konzinski, the Ninth Circuit agreed.   

Public Integrity Alliance, Inc. v. City of Tucson, No. 15-16142 (9th Cir. Nov. 10, 2015)

Continue Reading Election Law Detour: All Voters Must Be Allowed To Vote In Primary If It’s “Unitary” With General Election

1.  Don’t repeatedly refer to your private poll as an “election” and limit it to “voters” of only a certain race. Real “voters” who are excluded from your election .. I mean poll might get the wrong idea, like it’s an election or something.  

2.  Don’t use public money to fund said election … “poll,” even indirectly. Washing public money through a government agency to a nonprofit might give people who don’t understand these things the wrong idea. Those fools might still consider it public money even though it is once-removed from official agency funding of your poll. Plus, it just looks bad, man.

3.  Don’t go on and on about how this election is to select “candidates” to be “delegates” to a “constitutional convention,” when this is really like a Moose Lodge vote and a wholly private affair, and none of anyone else’s damn business. …

Continue Reading Tips From An Election Lawyer For Setting Up Private Racially-Exclusive Elections, er … “Opinion Polls”

We don’t want to take too much time away from our usual land use, takings, and eminent domain fare, but we just couldn’t let this one go by without comment.

Last Friday, we posted our amici brief in Evenwel v. Abbott, No. 14-940, the reapportionment case which the U.S. Supreme Court is considering. The issue in the case is whether Texas’ use of total population when it reapportions its state legislature is consistent with the Equal Protection Clause, or whether districts must be apportioned to consider voting power. After all, the phrase is “one person, one vote,” not “one person, one … constituent.” Our brief argues that both voting equality and representational equality are valid Equal Protection principles, but the representational equality principle is the more important. Thus, it is never a violation for a state to count its entire Census-counted population, which includes those who cannot vote (aliens, minors…

Continue Reading Chutzpah, Exhibit “A”

Who gets counted for reapportionment purposes?

Everyone!

Please forgive the deviation (a pun for our election law colleagues) from the blog’s usual land use and takings fare, but frequent readers understand that we also have an interest in election law, and occasionally post up items of interest.

Today we filed this amici brief in Evenwel v. Abbott, No. 14-940, the case on appeal to the Supreme Court which asks which “population” states must use when reapportioning their state legislatures and drawing district boundaries. We’ve covered this case, as well as our own case in which we (unsuccessfully) challenged Hawaii’s practice of basing reapportionment on  “permanent residents” and excluding military personnel and their families. Our brief argues:

The parties in this case suggest answers to a deceptively simple question: who constitutes the body politic in the states? This question is one the Court has avoided answering explicitly for nearly half a century. Amici…

Continue Reading Amici Brief In SCOTUS Reapportionment Case: Close Scrutiny For Anything Less Than Total Population

We visited Think Tech Hawaii’s downtown studios for a chat with Chris Lethem about Evenwel v. Abbott, the one-person-one-vote reapportionment case currently being briefed in the U.S. Supreme Court. As we’ve written, Evenwel could directly affect how Hawaii has reapportioned its legislature since statehood, and is a case to follow closely.

We also discussed Hawaii’s new Environmental Court and the recent Hawaii Supreme Court oral arguments in the “Thirty Meter Telescope” case. 

We didn’t know until earlier in the day that Chris would be the host. Which was a pleasant surprise because he is a former client in a successful case we took to the Hawaii Supreme Court a few years ago. Small town, no? Continue Reading From Think Tech Hawaii: SCOTUS Reapportionment, The New Environmental Court, And The TMT Oral Arguments

We’re in Chicago this week participating in the ABA Annual Meeting. While we really are looking forward to a slate of thrilling committee meetings, what we’re really anticipating is the CLE programming. Here are what we think are the highlights:

  • Looming Land Use Constitutional Issues –  Friday, July 31, 2:45 – 4:15 pm, Westin Chicago River North Grand Ballroom B –  Four hot land use issues: land use aspects of medical marijuana legislation; takings and exactions in San Francisco’s requirement for owners to pay departing tenants huge sums; Horne and takingsNew Jersey’s dune program. With Tony Della Pelle and Stephen Schwartz (one of the counsel for the Hornes), among others. 
  • The 2014 Supreme Court Term in Review – Friday, July 31, 2015, 10am – noon, Westin Chicago River North Promenade Ballroom C – “This panel of noted legal professionals, academics and journalists provides an overview of the Supreme Court

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Continue Reading ABA Annual Meeting Programming: Takings, Land Use, Supreme Court, Election Law, Appellate Traps

There’s a category of cases in which it isn’t difficult, with reasonable accuracy, to predict the ultimate outcome without knowing much about the substantive law. The recent ACA and marriage cases, for example. You kind of just know how they’re going to come out. Bush v. Gore, 531 U.S. 98 (2000), was another one of those. Because the practical and political forces at play in those and similar cases overwhelm the legal objections no matter how technically and logically correct they appear, and the justices in the majority probably end up making their decisions based on pragmatic as well as their (perceived) policy inclinations. The opinions and dissents get dressed up with citations to precedent and the like, but what really seems to drive these cases is their practicalities. 

It seems to us that today’s 5-4 decision in Arizona State Legislature v. Arizona Independent Redistricting Comm’n, No. 13-1314 (June 29…

Continue Reading Hawaii’s Reapportionment Commission Breathes A Sigh Of Relief: SCOTUS Upholds Arizona Redistricting Commission