Saturday, April 22, 2006
HSC CERG Redistricting Ruling Appeal Accepted By USSC
I received this very interesting e-mail today in regards to the US Supreme Court accepting CERG's appeal of the Hawaii Supreme Court ruling on CERG's redistricting lawsuit.Hawai’i Supreme Court Redistricting Ruling Appealed to U.S. Supreme CourtCitizens for Equitable and Responsible Government (“CERG”) announced today that an appeal of the legal complaints against the County of Hawai’i and the 2001 Reapportionment Commission (“Commission”) was accepted by the U.S. Supreme Court (“USSC”) and assigned a docket number on April 19, 2006. The County has 30 days from that date in which to respond, and then a date will be scheduled for case review by the USSC Justices. Charles Flaherty, President of CERG, stated, “Given the numerous problems in Puna and West Hawai’i resulting from past Hilo-dominated County Councils, Brenda Ford and I accepted the task of creating an alternative redistricting plan in 2001. “The CERG map” quickly developed island-wide support. The CERG map gave the urban area of Kailua-Kona its own council representative. It also provided West Hawai’i and Puna, the two island communities suffering most from mindless growth, with 3 and 2 council representatives, respectively. The 2000 census had proven that these areas had the majority of the island’s resident population. But the Commission gerrymandered their map to give Hilo another ten years of control over one more council district than it deserved, violating several legal requirements in the process. “ “The CERG map enabled citizens of this county to readily understand the illegalities of the Commission’s redistricting plan, which is why over 150 citizens chose to donate their hard-earned money to have the county Commission redistricting plan declared illegal. Thanks to Mrs. Ford’s remarkable last minute efforts, the USSC will have an opportunity to evaluate the actions of the 2001 Reapportionment Commission and possibly provide equal representation on the county council for all island residents.” Ms. Ford stated, “Because I have no legal training, it took three tries and over 180 pounds of documents mailed to the U. S. Supreme Court to meet their very strict format requirements. I hope that I explained the legal arguments well enough and that the petition is sufficiently supported with case law from prior USSC decisions for the USSC to overturn the State’s ruling. My appeal was motivated by the minority opinion of Hawai’i Supreme Court (“HSC”) Justices Moon and Nakayama, who wrote in their two dissents:‘Because no authorized public policy justifies the erosion of equal representation that the current [RC’s] plan engenders, the plan fails the constitutional test set forth in Brown v. Thomson and Mahan v. Howell...’ (7-22-05), and ‘The right of equal representation is far too hard-won a liberty for its erosion to be justified so blithely…’ (9-22-05). “ CERG would like to acknowledge former 2001 Commission vice-chair Mark Van Pernis’ recent excellent viewpoint (WHT, 4/15/06). He stated West Hawai’i and Puna have sufficient resident populations to determine who is mayor, but excluded his significant role in providing Hilo with one more council representative than its population deserved. Mr. Van Pernis created the nine initial maps considered by the Commission. In addition, he provided the Commission with severely understated non-resident population information that caused the Commission to erroneously include non-residents in the total redistricting population base. Since 93% of non-residents lived in Hilo, inclusion of non-residents allowed the Commission to give Hilo one more council district than its legal resident population deserved. The HSC agreed with CERG that the Commission erred by including non-residents. Removal of non-residents caused the Commission’s plan to exceed total deviation limits set by numerous prior USSC decisions, but the HSC allowed the Commission’s plan to stand, setting the stage for Mrs. Ford’s current appeal. BackgroundOn December 18, 2001, the Commission voted to pass a redistricting plan that included non-residents in the total population. 93% of these non-residents were located in Hilo District 2 and included non-resident military plus their dependents and non-resident students. 234 of the non-resident students were foreign nationals. Originally, two redistricting cases were filed: CERG et al and Holzman et al versus the County of Hawai’i Reapportionment Commission. These two cases have already cost the citizens of this county over $100,000. The redistricting case with CERG as the lead plaintiff lost in the Third District Court (Hilo) and in the Hawai’i Supreme Court (3-2 decision). CERG and the other original plaintiffs could not find an attorney licensed to practice before the USSC who would take the case for free (pro bono). However, individually-named plaintiff, Brenda Ford, chose to file a pro se (without an attorney) appeal of the case to the USSC on her own.The HSC subsequently found the inclusion of non-residents to be illegal, creating a plan deviation that exceeded the 10% limit imposed by numerous USSC decisions. As a result, 89% of Hawai’i County residents were stripped of their right to equal representation on the County Council. In addition, the Commission did not formally establish legal criteria against which to measure the legality of their plan as required by USSC precedents. Although the Commissioners voted to include the non-residents, that vote was proven in court to be incorrect and should have invalidated their plan. The criteria that should have been used included growth rates, socio-economic factors, the “ideal population” number of 16,423 residents in each district, compactness of the districts, etc. All of these potential criteria were ignored by the Commission despite public testimony that such criteria had been established by USSC cases for more than forty years.The Commission’s plan assigned the slow-growth area of Hilo’s District 2 the fewest number of residents. The fast-growth areas of Lower Puna and North Kona were assigned too many residents by the Commission. As a result, the total deviation in population has grown even larger as the fast-growth areas expand in population. Each year, the weight of each vote in Puna, North Kona, and all areas outside Hilo has decreased relative to votes in Hilo. The Commission also stripped Upper Puna of its legal right to its own Council District justified by its population by continuing to fracture (split) Upper Puna into District 3 and District 6. This prevented Puna from having the two council districts it deserves. Interestingly, the Commission had three licensed attorneys as Commissioners. The County Clerk at the time was also a licensed attorney. These four attorneys and Corporation Counsel (the County’s attorneys) all provided “legal counsel” to the Commission in their respective testimonies. Unfortunately, their legal counsel was consistently wrong. In addition to the incorrect legal counsel, many residents testifying before the Commission were treated with contempt and disrespect; most of the public were treated as “hostile witnesses” by Commissioner Van Pernis. Public testimony on the legal requirements for redistricting and recommendations to set appropriate criteria was disregarded by the Commission.The total deviation in population between districts is mandated by USSC case law to not exceed ten percent (10%). Although the Commission was repeatedly warned by members of CERG that their plan would exceed the legal limit of 10% due to inclusion of the non-residents, the Commission approved their proposed plan without knowing the legal, total deviation. Once the HSC ruled that the inclusion of non-residents was incorrect, the deviation officially became 10.89%, which exceeded the 10% standard. Nevertheless, the HSC allowed the Commission’s plan to stand. After thousands of dollars spent and the HSC agreeing that the inclusion of non-residents was wrong, the Plaintiffs trying to get a fair and equal vote in Hawai’i County lost a second time in the Courts that should have protected our voting rights.Financially exhausted, the original plaintiffs made several unsuccessful attempts to find a voting-rights law firm that could handle the case pro bono (free). Ms. Ford then took it upon herself to carry the legal complaints forward to the USSC without formal legal counsel.
Thanks to Aaron Stene for this information.
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