Bench Memos

The Appeal of Hawaii’s Discriminatory Election Goes to the High Court

In my November 6 article for Bench Memos about the racially discriminatory election being conducted right now in Hawaii to establish a secessionist movement, I explained how a federal district court judge had refused to stop the election. The discriminatory registration and voting process set up by the Native Hawaiian Roll Commission and the Office of Hawaiian Affairs, which are state entities, along with Na’i Aupuni, a non-profit that appears to be functioning as the alter ego of these state agencies, violates basic standards of fairness and equality under the Equal Protection Clause of the 14th Amendment, as well as the Voting Rights Act.

Unfortunately, and to no one’s great surprise, on November 19, the Ninth Circuit Court of Appeals denied an emergency motion for an injunction. Thus, the Ninth Circuit, which is the most overturned federal appeals court, followed the exact same steps it took back in 1996 when it refused an emergency appeal in a case involving the last time the state of Hawaii tried to hold an almost identical discriminatory election — one that allowed only so-called “Native Hawaiians” to vote. The U.S. Supreme Court eventually overturned that election in Rice v. Cayetano (2000), holding that Hawaii’s exclusionary election violated the Constitution and that using ancestry was just a proxy for race. 

An emergency appeal of the Ninth Circuit’s denial has been filed with U.S. Supreme Court. Today, the Public Interest Legal Foundation filed an amicus brief on behalf of the American Civil Rights Union (I’m on the board of both organizations) urging the Court to take the case. As the brief says, the Supreme Court’s language in the prior Rice case is “sweeping in its scope and unforgiving toward the defenses Hawaii offered in that case, and again offers now.” There is simply no justification for allowing such a blatantly discriminatory election to proceed.

This afternoon, Justice Anthony Kennedy called on the defendants to file a response to the emergency appeal by 5:00 p.m. on Wednesday. Looks like the lawyers for Hawaii will not be leaving early for the Thanksgiving holiday.


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