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The State of Aloha

This year’s election has already been the result of serious discussions, planning, and a few lawsuits–and it hasn’t even happened yet. The Hawai’i Constitution mandates that every ten years a commission assess and determine the total number of representatives in the Legislature.

The nine-person reapportionment commission has been going through criteria, maps, facts, and figures and have redrawn a few districts.

It looks more or less the same–except for a few glaring differences that stirred up a lot of anger. The far eastern edge of Oahu is a peninsula jutting out into the ocean. Kailua and Waimanalo, two distinct neighborhoods, lie on the windward side while right around the corner is the posh bedroom community of Portlock, which is culturally closer to Kahala and Hawaii Kai. The commission redrew the map to lump Portlock with Kailua and Waimanalo.

That upset Bill Hicks of Kailua and other concerned citizens. He testified against the proposed plan, which passed and eventually challenged the map arguing that it violated several constitutional rights. His case went to the Hawai’i Supreme Court.

The Court issued its opinion in May. The Court was careful to note that it has the power to intervene in order to ensure the principle of one person, one vote and prevent unconstitutional dilution of people’s voices. Simply put, the Court noted that “we have intervened, and will continue to intervene, when necessary to ensure that Hawaii’s reapportionment commission creates reapportionment plans that comply with the Equal Protection Clause” and other constitutional provisions. But then the Court found no violations here, upheld the map, and elections were underway.

One justice dissented. Justice Michael Wilson wrote that the map and the actions of the commission resulted in gerrymandered districts watering down the voice of voters living there. He lamented that for the next decade, Hicks and the others in his newly-drawn district “will suffer the unconstitutional dilution of their voting strength.”

Getting the Court to intervene at all is the result of decades of litigation and lawsuits. The Supreme Court of the United States refused to enter the morass of politics until the 1960s. And since then, it has maintained a duty and obligation to intervene where there are blatant constitutional violations.

What would have happened if Justice Wilson’s opinion carried the day and the maps had to be redrawn? And what would have happened if the Legislature simply ignored the Court? Can they do that? What strange place is that?

The answer is North Carolina. While our reapportionment commission was at work lumping Portlock with Waimanalo, the Republican-dominated legislature in the Tarheel State unveiled new districts watering down Democratic voters and strengthened the GOP. It gerrymandered the state’s 14 congressional districts to lock in Congressional Republicans–the same people who certify presidential elections.

And like Hicks in Kailua, concerned citizens brought a lawsuit. They did not go to a federal court (the Supreme Court of the United States years ago already held they couldn’t go there) and took the case to a state court. In February, the North Carolina Supreme Court agreed with them and, unlike Hicks’ case, intervened. It ruled that the gerrymandered maps were unconstitutional.

The Court called the map an “egregious and intentional partisan gerrymander … designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.” It struck down the maps and ordered the Legislature to do it again.

The Legislature didn’t give in. Two Republican legislators asked the Supreme Court of the United States to (ironically) intervene with an argument that the state supreme court had no power to tell it what to do.

When the Supreme Court agreed to hear the case, people around the country got really worried. Buried in Article I of the United States Constitution is a peculiar clause:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[.]”

The issue centers around the word “legislature.” The North Carolina Republicans argue that that means the state supreme court cannot intervene–even if the Legislature is doing something blatantly unconstitutional. Without getting too far afield and into the development of constitutional law in this country, the argument seems to undermine the very nature of judicial review, a power that came into American jurisprudence after the Constitution was ratified.

If the Supreme Court agrees with the Republicans and shields their map from judicial review, many fear that there will be no recourse from gerrymandered maps, diluted voting populations, and partisan politics infecting the democratic process. Oral argument is set for Dec. 7. The opinion itself could not be issued until the end of term, which is next summer. Until then, those fearing the weakening of our democratic institutions will continue to wait and worry that the election after this one will be radically different and our democracy will be unrecognizable.

* Ben Lowenthal is a trial and appellate lawyer, currently with the Office of the Public Defender, who grew up on Maui. His email is 808stateofaloha@gmail.com.

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