Map unconstitutional

HIGH COURT ORDERS NEW STATE REAPPORTIONMENT PLAN

BY ERIN MILLER

WEST HAWAII TODAY

emiller@westhawaiitoday.com

The Hawaii Supreme Court ruled Wednesday the state reapportionment plan is unconstitutional.

The ruling was issued late in the afternoon, just hours after attorneys representing Big Island residents in two lawsuits against the Reapportionment Commission completed oral arguments before the high court.

Hawaii County is likely to gain a fourth state Senate seat, and possibly an eighth House seat, if commissioners follow the state constitution as the court instructed them to do.

“The Hawaii Constitution, article IV, section 4, expressly mandates that only permanent residents be counted in the population base for the purpose of reapportionment,” the written order said. “The 2011 Final Reapportionment Plan disregards this constitutional mandate by including nonpermanent residents in the population base that the Reapportionment Commission used to allocate the members of the state legislature among the basic island units.”

West Hawaii attorney Robert Kim, who represented some of the petitioners, said it was the first time the court had declared a reapportionment plan unconstitutional.

“The petitioners feel vindicated that the Hawaii Supreme Court has re-established the practice of one man, one vote, so all our votes will count,” he said. “We look forward to the further orders of the court. It appears to be very, very hopeful that we are (going to gain a Senate seat). The status quo has been changed.”

Hilo attorney Stanley Roehrig was cautious in his assessment of the ruling.

“It’s not over, but it’s a move in the right direction,” he said. “I’m pleased and impressed that our Supreme Court, under our new chief justice, have moved with dispatch and the will to show some strong leadership to order the commission to do it again. The possibilities (of what will come from the decision) can only be a plus if (commissioners) do it right.”

The justices showed “a philosophy and intent to get this right and get it right quickly,” he added.

The unanimous order instructs Reapportionment Commissioners to prepare and file a new plan.

Commission Chairwoman Victoria Marks said the commission will meet and draw the new maps.

“I do not know if it’s even possible to meet the Feb. 1 deadline for filing (for candidacy),” Marks said.

The state’s technical consultant may not immediately be available, she said, and the commission may need more than one meeting to draft the new boundary lines.

Kim said state legislators may have to become involved, extending the filing deadline, if it appears the commission appears to be unable to meet that deadline.

Based on the arguments Wednesday morning, Marks said the court’s decision didn’t come as a surprise.

“It’s frustrating, but if that’s what the court says we have to do, that’s what we have to do,” she said.

Roehrig, Kim and appellate expert Peter Esser filed one lawsuit last fall on behalf of four members of the Hawaii Island Democratic Party — Sen. Malama Solomon, D-Waimea, Hamakua, North and South Hilo, Party Chairman Steve Pavao and party committee members Patti Cook and Louis Hao.

Solomon and Cook referred requests for comment to Roehrig.

Kona attorney Michael Matsukawa also filed suit against the commission, saying he wanted to represent the general public’s interest in the case, because politicians were already represented under the first lawsuit. He did not respond to multiple messages left Wednesday.

Attorney General’s Office spokesman Joshua Wisch said the department “is pleased the court acted quickly. We are still awaiting the formal opinion,” which the court said would be forthcoming.

Asked what would happen if the commissioners did not meet the Feb. 1 deadline, Wisch said there was “no reason to anticipate that happening.”

Both suits argued the commission erred when it failed to discount, or extract, all nonpermanent residents — nonresident military service members and college students — when determining the population for each island. Instead, the commission extracted some of an estimated 120,000 nonpermanent residents, just enough, the petitioners’ attorneys argued, to give Oahu a large enough population base to avoid losing a Senate seat. When nonresidents are not included in the population count, the Big Island stands to gain at least a Senate seat and possibly another House seat, Kim said.

Gov. Neil Abercrombie joined with the petitioners, prior to the hearing, asking the court to compel the commission to correct the plan.