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Attorney general’s office: No on nonresident troops

Inclusion in new district lines not recommended

July 21, 2011
The Associated Press

HONOLULU (AP) - The Hawaii Supreme Court would likely rule that nonresident members of the military can't be counted when drawing legislative district lines, according to an opinion by the state attorney general's office.

The opinion written by Deputy Attorney General Charleen Aina was presented to the Hawaii Reapportionment Commission on Tuesday as a warning against last month's decision to include nonresident military members, their dependents and nonresident students in the state's population for redistricting purposes. Attorney General David Louie approved the opinion.

The commission voted 8-1 last month to count nonresident troops, a decision that prevents Hawaii County from gaining a fourth seat in the state Senate.

Hawaii and Kansas are the only two states that don't include nonresident troops in district counts.

''It appears that the Hawaii Supreme Court would likely hold that to the extent they are identifiable, nonresident college students and nonresident military members and their families cannot properly be included in the reapportionment population base the commission uses to draw the legislative district lines this year,'' Aina wrote in her opinion, which was requested by Rep. Bob Herkes, D-Volcano-Kainaliu.

Commission Chairwoman Victoria Marks said commissioners want to hear from the public during hearings that begin next month, after the commission publishes its planned redistricting maps.

''The commission members basically are open to reconsidering views that they voted on or expressed, and we're happy to hear whatever information any member of the public wishes to provide,'' she said in Wednesday editions of the Honolulu Star-Advertiser.

Nonresident military had been passed over in district lines since Hawaii became a state in 1959, and again following 1992 when voters approved a constitutional amendment to use the total number of permanent residents for apportioning legislative districts.

But the meaning of ''permanent resident'' was never defined, and it was interpreted to mean that military based in Hawaii were here temporarily.

Aina wrote in her opinion that the Hawaii Supreme Court in 2005 interpreted the term ''resident population'' to exclude anyone who didn't show an intent to stay in the state for more than a transitory period.

The court said ''the transitory nature of military personnel from outside (the state) is apparent'' in a case involving whether military personnel and college students should be included in the population base for reapportioning the Hawaii County Council, Aina wrote.

''How clearer can you get?'' Herkes said. ''If it goes to court, it is our opinion - from the attorney general - that the Supreme Court will not uphold your decision.''

The commission has an Aug. 8 deadline to prepare a preliminary plan, and then a final plan would be decided following public comment during the week of Sept. 26.





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