THE UNITED STATES COURT OF APPEALS
THE NINTH CIRCUIT
F. ARAKAKI, EVELYN C. ARAKAKI, PATRICK BARRETT, SANDRA P. BURGESS, EDWARD
U. BUGARIN, PATRICIA A. CARROLL, ROBERT M. CHAPMAN, BRIAN L. CLARKE,
KENNETH R. CONKLIN, MICHAEL Y. GARCIA, TOBY M. KRAVET, THURSTON TWIGG-SMITH
and JEAN YOKOYAMA,
STATE OF HAWAII, BENJAMIN J.
CAYETANO, in his official capacity as the GOVERNOR OF THE STATE OF HAWAII,
DWAYNE D. YOSHINA, in his official capacity as CHIEF ELECTION OFFICER
OF THE STATE OF HAWAI`I,
Dist. Ct. Civil
No. 00-00514 HG
APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF HAWAII
PATRICK W. HANIFIN H. WILLIAM
CHRISTOPHER I.L. PARSONS
Im Hanifin Parsons
1001 Bishop Street
Pacific Tower, Suite 2475
Honolulu, Hawaii 96813
Tel. (808) 585-0335 Attorneys
(collectively, “Voters”) are thirteen individual citizens and registered
voters of the State of Hawaii who sued to protect their rights to vote
unabridged by racial disqualification. One Voter, Kenneth R. Conklin,
a prospective candidate, also sought to protect his right to run for
the public office of trustee of the Office of Hawaiian Affairs (“OHA”)
without being disqualified by his race. Solely because of race, the
Defendant-Appellants (collectively, “the State”) denied Conklin the
right to run and the Voters the right to vote for candidates without
regard to race. Just as race cannot be used to deny the right to vote
for OHA trustee, Rice v. Cayetano, 528 U.S. 495 (2000), so, too,
it cannot be used to abridge the right to vote, or to deny the right
to run and serve as OHA trustee. The State’s racial discrimination
violates the Fifteenth Amendment, the Fourteenth Amendment Equal Protection
Clause and the Voting Rights Act.
District Court has jurisdiction pursuant to 28 U.S.C. §1331 (federal
question jurisdiction) and 28 U.S.C. §1343 (civil rights and elective
franchise cases). Voters allege violations of their constitutional
rights and the Voting Rights Act, 42 U.S.C. §1973, which were perpetrated
under color of state law contrary to 42 U.S.C. §1983.
District Court entered its Order Granting Plaintiffs’ Cross Motion for
Summary Judgment and Denying Defendants’ Motion for Summary Judgment
on September 19, 2000. Clerk’s Record/Excerpts of Record (“CR/ER”)
58 at 38-39. On September 27, 2000, the District Court entered its
Judgment in a Civil Case (CR/ER 59), which was a final judgment that
disposed of all claims against all parties (except for Plaintiffs' motion
for award of attorneys' fees and expenses filed October 11, 2000 which
has been briefed but not yet adjudicated). The State filed a Notice
of Appeal on October 27, 2000. CR/ER 66. This appeal is timely under
F.R.A.P. 4(a)(1). This Court has appellate jurisdiction pursuant to
28 U.S.C. §1291. Defendant-Intervenor Office of Hawaiian Affairs did
statement of issues
the State used a racial classification to deny access to the ballot
and to limit the choice of candidates in a State election for a State
office, did it violate:
Statement of the Case
Voters are satisfied with the State's statement of the case, except
that the description of the course of proceedings below did not include
Plaintiffs' motion for award of attorneys' fees and expenses filed October
11, 2000, which has been briefed but not yet adjudicated.
compliance with Ninth Circuit Rule 28-2.3, Voters state they intend
to seek attorneys’ fees for this appeal pursuant to 42 U.S.C. §§1973l(e)
and 1988(b) and F.R.Civ.P. 54(d)(2).
Statement of Facts
facts of this case are not disputed. At the August 15, 2000 hearing
on Voters' motion for preliminary injunction, the State and Plaintiffs
agreed that, if Appellee Dwayne Yoshina (the Chief Elections Officer)
and the Voters were called, they would each testify consistent with
their declarations; that neither side wished to dispute the facts stated
in the other side's declarations; and that there were no disputes as
to material issues of fact. (Transcript 8/15/00 p. 7 - 9.)
Statement of Facts in the State's Opening Brief does not mention a single
fact cited to the record or refer to any of the declarations of the
parties. Rather, the "facts" recited in the Opening Brief
consist of legal arguments based on resolutions and laws. Voters have
controverted many of those arguments in, among other places, Plaintiff's
Separate Concise Statement of Facts in Opposition to Defendants' Motion
for Summary Judgment (Plaintiff’s “SCSFODMSJ”). Supplemental Excerpts
of Record (“SER”) 15.
section of this brief will begin with introductory information about
OHA and then summarize the undisputed facts. The State’s legal arguments
will be dealt with in the Argument section.
The Office of Hawaiian Affairs
Office of Hawaiian Affairs ("OHA") is a state agency, established
by the state constitution, responsible for the administration of state
laws and obligations. Hawai`i Constitution Art. XII, §§5-6;
Hawaii Rev. Stat. (“H.R.S.”) §10-3(3). OHA elections are elections
of the State of Hawaii. Rice, 528 U.S. at 520-21.
OHA Board of Trustees is composed of nine members elected at large by
qualified state voters. Island residency requirements apply to five
of the members. H.R.S. §13D-1. OHA trustees are “elected at a special
election held in conjunction with the general election in every even
numbered year.” H.R.S. §13D-4. A trustee’s term of office is four
years and the terms are staggered so that either four or five of the
trustees’ terms expire every even numbered year. H.R.S. §13D-5.
this suit was filed, the next special election for OHA was scheduled
to coincide with the general election on November 7, 2000. 2000 Candidate's
Manual, Important Dates, p. 1, SER 14.
candidates for elective office must file nomination papers to be listed
on the State of Hawaii ballot. H.R.S. §12-3.
last day for OHA candidates to file nomination papers for the 2000 election
was Friday, September 8, 2000. H.R.S. §12-6(a). 2000 Candidate's Manual,
2000 Election Calendar, p. 3.
has broad authority to administer two categories of State funds for
two categories of the State’s citizens. First, OHA receives twenty
percent of the revenues from the lands returned to the State by the
United States under §5(b) of the Admissions Act, 73 Stat. 6. OHA is
to spend these revenues “for the betterment of the conditions of native
Hawaiians.” H.R.S. §10-13.5. Second, OHA administers any state or
federal appropriations or private donations that may be made to OHA
for the benefit of “native Hawaiians” and/or “Hawaiians.” Haw. Const.
Art. XII, §6; see generally H.R.S. §§10-1 to 10-16.
of April 30, 2000, OHA held cash, receivables and investments of $387,974,482
in these two categories of State funds. SER 4, Exh. B.
and “native Hawaiian” are not defined in the Hawai`i Constitution.
“Hawaiian” has been defined by H.R.S. §§10-2 and 11-1 to mean “any descendant
of the aboriginal peoples inhabiting the Hawaiian Islands which exercised
sovereignty and subsisted in the Hawaiian Islands in 1778, and which
peoples thereafter have continued to reside in Hawai`i.”
Hawaiian” means a “Hawaiian” who has “not less than one half part of
the races inhabiting the Hawaiian Islands previous to 1778 as defined
by the Hawaiian Homes Commission Act, 1920, as amended.” H.R.S. §10-2.
(In 1778 Captain Cook’s visit ended Hawai`i’s long isolation.)1
the Supreme Court’s decision in Rice, only “Hawaiians” could
vote for OHA trustee. H.R.S. §§13D-1, 13D-3(b)(1) (1993); Haw. Const.
Art. XII, §5. Being Hawaiian is still a requirement to run for and
serve as trustee. Id., H.R.S. §13D-2 (as amended by 2000 Haw.
Sess. L. 59).
Facts of This Case
Voters are thirteen citizens, registered voters and taxpayers of the
State of Hawaii and of the United States. Declarations of Plaintiffs
SER 1-11. As citizens of Hawai`i, they are beneficiaries of the public
trust in State lands which provides revenue to OHA. Admission Act §5(f);
Haw. Const. Art. XII, §4.
represent a broad cross-section of the population of Hawaii, including
English, Japanese, Irish, Okinawan, Portuguese, Chinese, Filipino, French,
German, Spanish, Scottish and Hawaiian ancestries. SER 1-11.
thirteen Voters voted in the general elections in the State of Hawaii
in 1996 and 1998. SER 1-11.
two of the Voters, Evelyn Arakaki and Sandra Puanani Burgess, both of
whom are of part-Hawaiian ancestry, were allowed to vote in the OHA
elections in 1996 and 1998. SER 2, 4. The State, acting under color
of state law, barred the remaining eleven Plaintiffs and all persons
not of Hawaiian ancestry, solely because of their race or ancestry,
from voting in the OHA elections of 1996 and 1998.
February 23, 2000, the Supreme Court of the United States issued its
decision in Rice v. Cayetano, holding that the State of Hawaii
cannot constitutionally limit, by race, the class of voters who choose
the OHA trustees.
June 1, 2000, Conklin went to the State Office of Elections and attempted
to take out nomination papers so that he could become a candidate and
have his name put on the ballot for the November, 2000 election for
the OHA trustees. Conklin Declaration, SER 8, ¶ 2.
Office of Elections refused to issue Conklin the nominating papers,
citing as the only reason, the fact that he is not of "Hawaiian"
ancestry. Conklin Declaration ¶ 3.
from the "Hawaiian" requirement, Conklin met all the other
qualifications for being a candidate for the "at-large" and
"Oahu" seats. He is a citizen, registered voter, and
taxpayer of the State of Hawaii. Conklin
was willing and able to accept the trust responsibilities of an OHA
trustee in accordance with the Constitution and laws of the United States
and the State of Hawai`i. Conklin Declaration ¶ 1, 4; Conklin Supplemental
Declaration, SER 12, ¶¶7, 8.
July 10, 2000 Mr. Dwayne D. Yoshina, Chief Election Officer of the State
of Hawaii, confirmed in writing that he had instructed election officials
that it would be appropriate to reject nomination papers by non-Hawaiians
and to determine that non-Hawaiian individuals were not qualified to
run as candidates in OHA elections. SER 13 (letter from Dwayne D. Yoshina,
Chief Election Officer, to H. William Burgess).
thirteen plaintiffs were otherwise eligible to and intended to vote
in the OHA elections scheduled for November 7, 2000. Each declared
that to vote effectively, his or her choice of candidates for whom to
vote must not be limited by the race or ancestry of the candidates.
Declarations SER 1-11.
Defendant-Appellant Governor Cayetano and then-OHA Board Chairman Clayton
Hee publicly stated that, given Rice, there is no good reason
to keep non-Hawaiians from running for OHA trustee. Conklin Declaration
8/8/00; SER 9 Ex. A, (partial transcript KRTR Radio program aired 7/16/00);
Burgess Declaration, SER 8, Exh. A (partial transcript of KITV4 News).
August 15, 2000 the District Court entered its oral order temporarily
enjoining the Office of Elections from denying nomination papers solely
based on race to any otherwise qualified applicants for the position
of OHA trustee. The Court entered its written order on August 21, 2000.
August 16, 2000, Conklin received nomination papers from the Office
of Elections. Conklin Supp. Declaration, ¶4.
August 28, 2000, having obtained the signatures of more than 25 fellow
citizens supporting his candidacy, as required by H.R.S. §12-5(c), Conklin
filed his nomination papers. He took the oath prescribed by H.R.S.
§12-7 to faithfully uphold and defend the Constitution and laws of the
United States and the State of Hawai`i. Conklin Supp. Declaration,
September 8, 2000, the nine OHA trustees resigned their positions.
Court Order CR/ER 58, 11, n.6.
to state law, the Governor subsequently appointed interim trustees.
One of the trustees-appointed by the Governor was a non-Hawaiian, Court
Order CR/ER 58, 11, n.6, who was subsequently elected.
Summary of Argument
right to be considered for public office and the right to choose for
whom to vote, both without the burden of racial disqualification, are
fundamental rights protected by the U.S. Constitution.
State's restriction on eligibility for the OHA board is a racial classification.
OHA is a State agency and its elections are State elections to which
the Constitution applies.
Voters' choice of candidates based on the race of the candidates violates
the Fifteenth Amendment because it abridges Voters' ability to vote
effectively. The Fifteenth Amendment’s ban on racial discrimination
is absolute and comprehensive.
State's racial restriction on eligibility for the OHA board also violates
the Fourteenth Amendment. By barring one Plaintiff from running for
this public office solely because of his race, it denied to him the
equal protection of the laws.
it denies fundamental rights and because it is based on a racial classification,
the State's restriction is presumptively invalid and cannot be upheld
unless the State shows it is narrowly tailored to meet a compelling
heavy burden of justification is on the State but the State presented
no evidence of either a compelling State interest or narrow tailoring.
Legislative findings are not evidence. Congress may not determine the
facts in a lawsuit. That is for the courts and evidence is required.
State’s legal arguments are invalid. The State has not shown, because
it cannot show, any legal justification for its racial restriction on
eligibility for the OHA Board.
the State has not established any legal justification for its claims:
that promoting what amounts to a racially exclusive government is a
compelling state interest; that the U.S. took lands without compensation
or by force from the Hawaiian people; that the U.S. deprived the Hawaiian
people of sovereignty; or that State and the United States have a trust
relationship with Hawaiians over and above the trust relationship they
have with all citizens.
Voters' choice based on the race of the candidate also violates the
Voting Rights Act.
is no "indigenous people" exception to the Constitution.
The State's Mancari argument was rejected by the Supreme Court
even if Congress had authority, delegated to the State, to treat Hawaiians
as tribes, it may not authorize a State to create a voting scheme that
limits the eligibility for election to public office to Hawaiians to
the exclusion of all other citizens. OHA elections are not elections
of a separate quasi-sovereign; they are elections of the State to which
the Constitution applies.
Standard of Review
Voters are satisfied with the State’s statement of the standard of review.
The State Applies Racial Classifications
to Restrict Rights in State Elections for State Office.
Racial Disqualifications Regarding
Voting and Candidacy are Unconstitutional.
Fourteenth and Fifteenth Amendments prohibit using race to disqualify
a candidate or restrict a voter’s choice.
Constitution “grants to all citizens
a right to participate in the choice of elected officials without restriction
by any State because of race.” Smith v. Allwright, 321 U.S.
649, 664 (1944). “The right to vote freely for the candidate of one’s
choice is of the essence of a democratic society.”
Shaw v. Reno, 509 U.S. 630, 639 (1993), because it is grounded
on the “fundamental principle of our representative democracy” that
“in Hamilton's words, . . . ‘the people should choose whom they please
to govern them,’” Powell v. McCormack, 395 U.S. 486, 547 (1969).
the fundamental “rights of voters and the rights of candidates do not
lend themselves to neat separation,”
Bullock v. Carter, 405 U.S. 134, 143 (1972), representative democracy
“is undermined as much by limiting whom the people can select as by
limiting the franchise itself.” Powell v. McCormack, 395 U.S.
at 547 (citing James Madison).
is a "federal constitutional right to be considered for public
service without the burden of invidiously discriminatory disqualifications.”
Turner v. Fouche, 396 U.S. 346, 362-363 (1970). “Restrictions on
access to the ballot burden two distinct and fundamental rights, ‘the
right of individuals to associate for the advancement of political beliefs
and the right of qualified voters . . . to cast their votes effectively.’”
Illinois State Board of Elections v. Socialist Workers Party,
440 U.S. 173, 184 (1979).
The Statutory Term “Hawaiian” Is
a Racial Classification.
run for and hold office as an OHA trustee, a candidate must be “Hawaiian.”
Hawai`i Constitution, Art. XII, §5, H.R.S. §§13D-1, 13D-2, 2000 Sess.
L. 59 (amending §13D-2 to expressly insert that requirement).
Rice, the United States Supreme Court held that these definitions
are racial classifications: “Ancestry can be a proxy for race. It
is that proxy here.” Rice, 528 U.S. at 514. The Supreme Court
held that the State “has used ancestry as a racial definition and for
a racial purpose.” Id. 528 U.S. at 515. Consequently, “[t]he
State’s electoral restriction enacts a race-based voting qualification.”
Id. 528 U.S. at 518. Precisely the same classification — “Hawaiian”
— with precisely the same definition, limits the class of persons who
may serve as an OHA trustee. H.R.S. §10-2.
OHA is a State Agency and Its Elections
are State Elections Subject to the Constitution.
on Hawai`i law, the Supreme Court held in
Rice that “OHA is a state agency, established by the State Constitution,
responsible for the administration of state laws and obligations.”
Rice, 528 U.S. at 520. It is “an arm of the State.”
Id. at 521. Therefore, “the elections for OHA trustee are elections
of the State . . . and they are elections to which the Fifteenth Amendment
applies.” Id. at 522.
The State's Racial Restriction Violates
the Fifteenth Amendment.
non-Hawaiian candidates from OHA elections “abridge[s]” the right to
vote “on account of race” in violation of the Fifteenth Amendment.
The State cannot salvage the remnant of its unconstitutional
electoral scheme by distinguishing between racial discrimination against voters
and racial discrimination against candidates. The Fifteenth Amendment forbids both. “The
use of racial classifications is corruptive of the whole legal order
democratic elections seek to preserve.” Rice,
528 U.S. at 517.
Restricting Voters’ Choices of Candidates
on Account of the Candidates’ Race Abridges Voters’ Right to Vote Effectively.
Fifteenth Amendment, §1, provides that “the right of citizens of the
United States to vote shall not be denied or
abridged by the United States or by any State on account of race,
color or previous condition of servitude.” (Emphasis added.)
“abridge” is to “diminish or curtail.” Black’s
Law Dictionary 8 (6th
ed. 1990). Any diminution of the right of voters to choose among candidates, based
on the candidates’ race, abridges their right to vote because it diminishes
effect is the same whether the State denies racial equality by discriminating
against the voters directly or by abridging their right to vote by excluding
candidates. The Fifteenth Amendment “nullifies sophisticated as well
as simple-minded modes of discrimination.”
Gomillion v. Lightfoot, 364 U.S. 339, 342 (1939).
Supreme Court has long recognized that denying the right of candidates
to run on account of their race abridges the rights
In Hadnott v. Amos,
394 U.S. 358 (1969), the Supreme Court applied the Fifteenth Amendment to bar exclusion of
candidates from the ballot on racial grounds. In 1968, the Alabama
Democratic Party had split along racial lines. The black faction of
the party organized itself as the National Democratic Party of Alabama (NDPA) and fielded
candidates. In one county, the probate judge (who, under Alabama law
administered elections) used certain legal technicalities to exclude
the NDPA’s candidates from the ballot. Similarly situated white candidates
were not so excluded. The NDPA and some of its officers and candidates
filed a class action challenging the racial exclusion of candidates.
A three-judge federal court denied relief. The Supreme Court reversed
and ordered a special election in which the black candidates could run.
Court based its decision on both “Fifteenth Amendment rights which guarantee
the right of people regardless of their race . . . to cast their votes
effectively and with First Amendment rights which include the right
to band together for the advancement of political beliefs.” 394 U.S.
Hadnott, there was no allegation that blacks were prevented from
voting. The violation of Fifteenth Amendment rights arose from denying
black candidates a place on the ballot because of their race and thereby
abridging the right to vote by limiting the right to choose among candidates. The State admits that
Hadnott at least “raised the possibility” that the Fifteenth
Amendment “prohibits abridging the right to vote on the basis of the
race of the candidate, as opposed to the race of the voter.”
OB, 16 (emphasis in the original). The State
attempts to distinguish the case by arguing that the Fifteenth Amendment
was superfluous because the Court also cited the First
Amendment. However, the Court relied equally on two independent
grounds: excluding a candidate because of his race and because of his
political opinions violates both “Fifteenth and the First Amendments
rights.” 394 U.S. at 364.
White Primary Cases, discussed by the Supreme Court in Rice, 528 U.S. 513-14, illustrate the principle that racial
discrimination at any step of the electoral process violates the Fifteenth
Amendment, even though the general election itself is open to voters
of all races. A primary election is a necessary step on the way to
the final election of public officials. Even if all citizens can vote
in the general election, the Fifteenth Amendment right to vote without
of race is abridged if race is taken into account in the process of
selecting candidates for the general election.
first two White Primary Cases were decided on Fourteenth Amendment grounds,
demonstrating the overlapping constitutional prohibitions of racial
in the election process. In Nixon
v. Herndon, 273 U.S.
536 (1927), the Supreme Court struck down an explicit statutory prohibition
against non-white voters participating in a primary. Texas then enacted
a statute empowering party executive committees to set requirements
for primaries. The Democratic executive committee promptly disqualified
non-whites from participating in Democratic Party primaries.
The Supreme Court struck down that law, too. Nixon
v. Condon, 286 U.S.
Texas Democratic Party convention then adopted its own rule excluding
blacks from primary elections. The Democratic Party claimed to act
as a private entity so that there would be no state action within the
scope of the Fourteenth and Fifteenth Amendments. However, in Smith v. Allwright, 321 US. 649 (1944), the Supreme Court
applied the Fifteenth Amendment to invalidate that rule because whoever
won the whites-only primary was the candidate in the general election. Justice Cardozo for
the Court pointed out that “all citizens have a right to participate
in the choice of elected officials without restriction by any State
because of race” and that “constitutional rights would be of little
value if they could be thus indirectly denied.” Id. 321 U.S. at 664. The Court grounded
its opinion on the fact that the primaries were a part of a state-regulated
process by which state officials were elected: “When primaries become
a part of the machinery for choosing officials . . . the same tests
to determine the character of discrimination or abridgment should be
applied to the primary as are applied to the general election.” Id.
in Terry v. Adams, 345 U.S. 461 (1953), the Supreme
Court held that the Fifteenth Amendment barred exclusion of
non-whites from the Jaybird Democratic Association’s pre-primary election which,
in turn, selected candidates for the primary which selected the candidates
for the general election. The candidates selected by the Jaybirds were
invariably white. “It violates the Fifteenth Amendment for a state,
by such circumvention, to permit within its borders the use of any device that produces
an equivalent of the prohibited election.” Id. 345 U.S. at 813.
lesson of the White Primary Cases is that the Fifteenth Amendment prohibits
states from taking race into account to limit choices at any stage of
the electoral process leading up to the voters’ choice at the general
election. An indirect abridgement of the right to vote is still an abridgement
of the right to vote.
State admits that the restriction on candidacy diminishes the voters’
rights: “a ‘racial’ candidate restriction, impact[s]
to some degree the right to vote by limiting the voters’ ability
to express their political preference by voting for a racially excluded
candidate” but “does not completely destroy one’s right to vote
– one can still vote, albeit with less choice.” State Opening Brief
(“OB”) at 34, (emphasis in original). In short, the racial restriction
to Hawaiian candidates abridges voters’ right to vote and does so on
account of race.
restriction is intended to and does ensure that non-Hawaiians cannot
get on the ballot and the voters cannot even consider voting for them.
OB, 50. Representative democracy in Hawaii is undermined “as much by
limiting whom the people can select as by limiting the franchise itself.”
Powell v. McCormack, 395 U.S. at 547. The racial restriction
conflicts with “[t]he design of the [Fifteenth] Amendment” which “is
to reaffirm the equality of races at the most basic level of the democratic
process.” Rice, 528 U.S. at 512.
State law creates and defines the nomination process by which a candidate
is placed upon the OHA ballot, just as state law creates and defines
the primary process. Taking out and submitting nomination papers and
being placed upon the ballot is essential to getting elected as an OHA
trustee, just as winning a primary was essential to getting elected
in Texas. Therefore, “the same tests to determine the character of
discrimination or abridgment should be applied” to the requirements
for becoming an OHA candidate as the Supreme Court in
Rice “applied to the general election” for OHA trustees.
See Smith v. Allwright, 321 US. at 664. Given that the
Fifteenth Amendment prohibits using the “Hawaiians-only” rule in the
general election, it equally prohibits using that rule to exclude candidates
because that is a “device that produces an equivalent of the prohibited
election,” Terry v. Adams, 345 U.S. at 813, by ensuring that
non-Hawaiians cannot get on the ballot and the voters cannot even consider
voting for them.
continues to apply a law that, like the Texas statute in Nixon v. Herndon, expressly excludes everyone who is not
a member of the favored racial group. By barring non-Hawaiians from being elected
as and voting as OHA trustees, the “State’s position [still] rests,
in the end on the demeaning premise that citizens of a particular race
are somehow more qualified than others to vote on certain matters.
That reasoning attacks the central meaning of the Fifteenth Amendment.” Rice,
528 U.S. at 524.
The Fifteenth Amendment’s Ban on
Racial Discrimination is Absolute and Comprehensive.
Fifteenth Amendment’s ban on racial discrimination is “absolute” and
“comprehensive.” Rice, 528 U.S. at 512. Once the Supreme Court
held in Rice that the Hawaiians-only rule was a race-based restriction
of the right to vote in a state election for OHA trustees, it reversed
and remanded the case. The Court did not need to consider whether there
might be some compelling state interest that justified the discrimination.
“Fundamental in purpose and effect and self-executing in operation the
Amendment prohibits all provisions denying or abridging the voting franchise
of any citizen or class of citizens on the basis of race.”
The State Violates the Fourteenth
Amendment by Denying Fundamental Rights Based on a Racial Classification
that is Not Narrowly Tailored to a Compelling State Interest.
is “hard to imagine a more direct and obvious infringement of the Fourteenth”
Amendment than a law which expressly excludes some people on grounds
of race from full participation in our democracy.
Nixon v. Herndon, 273 U.S. at 541. The “State may not deny to
some the privilege of holding public office that it extends to others
on the basis of distinctions that violate federal constitutional guarantees.”
Turner v. Fouche, 396 U.S. at 362-63. Despite the State’s professed
good intentions, the racial exclusion of candidates in OHA elections
fails strict scrutiny. “Discrimination is wrong even if the beneficiaries
are members of groups whose fortunes we would like to advance.”
Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 708 (9th
the State argues, “[r]acial candidate restrictions must be scrutinized
on . . . grounds, including the Fourteenth Amendment.” OB, 11. The
State not only bars non-Hawaiians from being candidates, in violation
of the Fifteenth Amendment, it also bars them from serving as trustees
if elected. Haw Const. Art. XII §5 (“board members shall be Hawaiian”);
H.R.S. §10-2 (racial definition of “Hawaiian”). The constitutional
prohibition on corruptive racial qualifications would be frustrated
if a non-Hawaiian candidate who won the support of a majority of voters
were to be barred from serving as trustee. Furthermore, H.R.S. §13D-2
disqualifies any non-Hawaiian from being appointed to fill a vacancy
on the Board between elections. H.R.S. §17-7 (remaining trustees or
the governor fill the vacancy by appointment). Counsel for the State
pointed out in oral argument below that only the Fourteenth Amendment
can reach these racial restrictions on serving as trustee, as distinguished
from running for trustee. Transcript 9/8/00, pp. 52-53.
All Racial Classifications Are Presumptively
racial classification, regardless of purported motivation, is presumptively
invalid and can be upheld only upon an extraordinary justification.”
Personal Adm’r of Massachusetts et al. v. Feeney, 442 U.S. 256,
272 (1979). Because “Hawaiian” is a racial classification,
Rice, 528 U.S. at 514-17, its use is presumptively invalid and
can be upheld only if it satisfies strict scrutiny.
See Shaw v. Reno, 509 U.S. 630, 641-44 (1993);
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 229-30
(1995); City of Richmond v. J.A. Croson, 488 U.S. 469, 496-97
(1989). A racial classification is a racial classification whether
it is challenged under the Fifteenth or the Fourteenth Amendment. The
Fourteenth Amendment requires strict scrutiny of racial classifications
applied to voting and holding office.
Shaw v. Reno; Turner v. Fouche, 396 U.S. at 362-63;
Anderson v. Martin, 375 U.S. 399, 401-02 (1964).
survive strict scrutiny under the Equal Protection Clause, state-sponsored
racial classifications must be justified by a compelling state interest
and must be narrowly tailored to achieve that interest.
Adarand Constructors, Inc. v. Pena, 515 U.S. at 227;
City of Richmond v. J.A. Croson, 488 U.S. at 496-97.
The Heavy Burden of Justification
is on the State.
burden is on the State to prove that its use of a racial classification
to restrict fundamental political rights satisfies strict scrutiny.
“Once a prima facie case of invidious discrimination is established,
of proof shifts to the State to rebut the presumption of unconstitutional
action by showing that permissible racially neutral selection criteria
and procedures have produced the monochromatic result.” Alexander v. Louisiana, 405
U.S. 625, 632 (1972). See
Miller v. Johnson 515 U.S. 900, 920 (1995) (to satisfy
strict scrutiny, State must demonstrate that its legislation is narrowly
tailored to achieve a compelling interest); University
of California Regents v. Bakke, 438 U.S. 265, 305 (1978) (“to justify
the use of a suspect classification, a state must show its purpose and
interest is both constitutionally permissible . . . and . . . its use
v. Virginia, 388 U.S. 1, 9 (1967) (statutes containing racial classifications
face very heavy burden of justification).
state interest is “compelling” only when it rests on a “strong basis
in evidence” that government action favoring one race over another is
“necessary.” Croson, 488 U.S. at 493, 500;
Adarand, 515 U.S. at 226, 228, 236.
a governmental program is “narrowly tailored” only when the government
can meet the heavy burden of showing that it has no other choice. A
state may impose racial classifications only as a “last resort.”
Croson, 488 U.S. at 519 (Kennedy, J.) It must show that it
has attempted or considered alternative, race-neutral means but has
determined that they cannot succeed.
Croson, 488 U.S. at 507. The chosen racial classification must
minimize any encroachment on the constitutional rights of other citizens.
Id., 488 U.S. at 510-11. The government must maintain “the most
exact connection between justification and classification.”
Adarand, 515 U.S. at 236. A program that takes race into account
must be “limited such that it “will not last longer than the discriminatory
effects it is designed to eliminate.”
Id., quoting Fullilove v. Klutznick, 448 U.S. 448, 513
District Court below noted the absence of concrete evidence and that
“[n]either Defendants nor OHA have explained why it is necessary that
only Hawaiians serve as trustees.” CR/ER 58 at 19.
The State Presented No Evidence
of a Compelling State Interest or Narrow Tailoring.
only evidence that the State put in the record in this case are the
two declarations by the Chief Election Officer, Dwayne Yoshina, dealing
with the details of the election process. CR 15, 19. In those declarations,
Mr. Yoshina does not say anything about why it is necessary that only
Hawaiians serve as trustees. No evidence in the record meets the State’s
burden of proving that it has a compelling interest in requiring OHA
trustees to be Hawaiian.
the facts shown by the evidence, and stipulated to as undisputed by
the parties, indicate the opposite: The Governor of the State of Hawaii
said, “Frankly I really believe that anyone should be able to run.
There’s a lot of expertise in the State and many people who are not
Hawaiian would like to help out.” SER 4, Exh. A. Then-Chairman of OHA,
Clayton Hee said, “And frankly, if everybody can vote, the question
of why shouldn’t everybody run, common sense.” ... “So if Mr. Conklin
wants to run, as far as I’m concerned have at it…. That’s what democracy’s
all about.” SER 9, Exh. A. Individual Voters, whose ancestries represent
a broad cross-section of the multi-ethnic population of Hawaii, each
said to be able to vote effectively, his or her choice of candidates
for whom to vote must not be limited by the race or ancestry of the
candidates. SER 1-11.
everyone whose statements about the subject are in evidence in this
case, including the highest officers of both the State and OHA, deny
that the State has a compelling interest in restricting eligibility
for the OHA board by race.
there is no evidence of narrow tailoring. Under
Adarand, this lack alone is fatal. In
Adarand, the Court remanded because the lower court “did not
address the question of narrow tailoring in terms of our strict scrutiny
cases, by asking, for example, whether there was any ‘consideration
of the use of race-neutral means to increase minority business participation’
in government contracting, [cite omitted] or whether the program was
appropriately limited such that it ‘will not last longer than the discriminatory
effects it is designed to eliminate.’ 515 U.S. at 237-38.
Legislative Preambles and Findings
Are Not Evidence.
than introduce evidence to support its claim of a compelling governmental
interest and a narrowly tailored program, the State relies on legislative
findings to justify its race-based restriction. At oral argument, in
response to the trial court’s question whether the State was asking
the court to find historical facts, the State’s counsel said that the
State’s concise statement of fact relied on “statutes and resolutions”
and the court could rule as a matter of law. Transcript 9/8/00, 33-34.
and resolutions do not prove facts. Of course, there is no dispute
that Congress in fact passed the resolutions and laws the State cites
but that does not establish the truth or accuracy of the assertions
in the preambles or findings of such legislation. As a matter of basic
separation of powers, Congress does not and cannot determine the facts
of a judicial case.
the Supreme Court has explained, “[w]hatever deference is due legislative
findings would not foreclose our independent judgment of the facts bearing
on an issue of constitutional law.”
Sable Communications of California, Inc. v. Federal Communications
Commission, 492 U.S. 115, 129 (1989). When a state “seeks to justify
race-based remedies to cure the effects of past discrimination,” the
courts “do not accept the government’s mere assertion” but rather “insist
on a strong basis in evidence of the harm being remedied.”
Miller v. Johnson, 515 U.S. 900, 922 (1995). This is because
“blind judicial deference to legislative . . . pronouncements of necessity
has no place in equal protection analysis.”
Croson, 488 U.S. at 501. Nor can a state get by with a citation
to congressional fact-finding. “If all a state . . . need do is find
a congressional report on the subject to enact” a race-based program,
“the constraints of the Equal Protection Clause will, in effect, have
been rendered a nullity.” Id. at 504.
State relies chiefly on the factual assertions in the “whereas” clauses
of the preamble to the so-called “Apology Resolution,” 107 Stat. 1510
(1993). Legislative statements in a preamble may help a court interpret
the operative clauses of a particular statute by clarifying the legislative
intent, but they do not legislate facts or confer rights.
Singer, Sutherland on Statutory Construction, §20.03 (5th
ed. 1993). The Apology Resolution has no legally operative provisions.
Indeed, it expressly settles no claims. 107 Stat. 1510 §3. The committee
report says that the Resolution has no regulatory impact and does not
change any law. S. Rep. 123-126. Its sponsor assured the Senate that
it is only “a simple resolution of apology” and that it “has nothing
to do” with “the status of Native Hawaiians.” 139 Congressional Record
S14477, S14482 (October 27, 1993), SER 14. The Supreme Court in
Rice demonstrated how to deal with the Apology Resolution: the
Court cited it but decided the case based on the facts in the record.
State’s position is not improved by citing similar recitations in the
preliminary findings sections of the Native Hawaiian Health Care Act,
42 U.S.C. §11701, and the Hawaiian Homelands Homeownership Act of 2000,
Pub.L. 106-568, §202, Pub.L. 106-569, §512, 25 U.S.C. §4101 note. Neither
has any relevant substantive provision about voting or candidacy. The
Healthcare Act provides for health programs and the Hawaiian Homelands
Act provides funds for housing on land managed by the Department of
Hawaiian Homelands, a different agency than OHA.
State chose not to try to prove its case at an evidentiary hearing but
it cannot rely on legislative findings to prove facts in court. It
has no factual basis for claiming that its racial restriction on candidacy
and office-holding are narrowly tailored to a compelling state interest.
The State’s Legal Arguments Do Not
Satisfy Strict Scrutiny.
No Compelling State Interest Justifies
the Racial Restriction.
Race-Based Government is Not a Legitimate
Hawaiian voters are self-governing as equal citizens who participate
in the governments of the State of Hawai`i and the United States. Nonetheless,
to justify its absolute ban on non-Hawaiian candidates and trustees,
the State relies on an alleged compelling interest in fostering a racially
exclusive government for Hawaiians. OB, 21, 26, 50.
only is this not a compelling state interest, it is not even a legitimate
interest. A racially discriminatory program can never be justified
by a racially discriminatory goal.
See, Loving v. Virginia, 388 U.S. at 11 n.11 (state purpose of
protecting racial “integrity” is repugnant to Fourteenth Amendment and
did not justify anti-miscegenation laws).
idea of a “government of the race, by the race, and for the race” is
anathema to American democracy. “The legal rights of Americans are
personal” and “are not conferred upon us as members of any group or
. . . racial identification.” Ho v. San Francisco Unified School
District, 147 F.3d 854 (9th Cir. 1998). Because the
race of a candidate is irrelevant to qualification for public office,
promoting candidates of one race over others is not a legitimate interest.
Anderson v. Martin, 375 U.S. at 403. “Race cannot qualify some
and disqualify others from full participation in our democracy.”
Rice, 528 U.S. at 523.
an elective body “is created solely to effectuate the perceived common
interests of one racial group, elected officials are more likely to
believe that their primary obligation is to represent only members of
that group.” Shaw v. Reno,
509 U.S. at 648. OHA displayed this belief when its argued that Conklin
is unfit to serve as a trustee because he has expressed views critical
of racially exclusive government. See CR/ER 58, at 35-37 (trial court
rejecting OHA’s argument). OHA’s attitude “is altogether antithetical
to our system of representative democracy.”
Shaw, 509 U.S. at 648.
Here the individual is important,
not his race.
. . .
When racial … lines are drawn
by the State, the multiracial . . . communities that our Constitution
seeks to weld together as one become separatist; antagonisms that relate
to race . . . rather to than to political issues are generated; communities
seek not the best representative but the best racial . . . partisan.
Since that system is at war with the democratic ideal, it should find
no footing here.
Shaw v. Reno, 509 U.S.
at 648, quoting Wright v. Rockefeller, 376 U.S. 52, 66, 67 (1964)(Douglas,
Hawai`i’s Voters Did Not Endorse
State’s claim that the voters of Hawai`i approved a racially exclusive
government for Hawaiians is neither relevant nor true.
unconstitutional state law is not saved by being enacted by a popular
vote. This Court has given such laws even less deference than legislative
enactments receive because the public is less well informed than legislators
are. Jones v. Bates, 127 F.3d 839, 859-60 (9th Cir.
concern that the public may not have been informed of what it was voting
on was true in the case of the 1978 amendments to the Hawai`i Constitution.
In Kahalekai v. Doi, 60 Haw. 324, 342, 590 P.2d 543, 555 (1979),
the Hawai`i Supreme Court held that because the voters were not informed
of the definition of “Hawaiian” that would restrict the right to vote
and hold office in OHA, that definition had not been ratified. The
voter information pamphlet did not mention self-governance as a goal
or effect of the constitutional amendment that created OHA. It merely
said that if adopted, that amendment would “set forth the trust corpus
and beneficiaries of the Admissions Act” and “establish an Office of
Hawaiian Affairs with an elected board of trustees and providefor
an effective date." Id. at 350, Exh. B to court’s opinion
(copy of voter pamphlet). See
Jones, 127 F.3d at 845, (state law enacted by popular vote cannot
impose a severe limitation on fundamental rights when it fails to mention
1978 OHA amendments which were adopted as Haw. Const. Art. XII, §§4,
5, 6, do not support the claim that the voters endorsed “self-government”
or “self-determination” or “sovereignty” for a racial group. They do
not mention those terms. Because the Court found the racial restriction
was not properly put to the voters, supporters turned to the legislature,
which adopted the statutes challenged here. H.R.S. §§ 10-2,
Even Recast as a Trust, Race-Based
Government is Not a Legitimate State Interest.
State also argues that it has a compelling interest in fulfilling an
alleged “trust obligation to the Hawaiian people by restoring some measure
of self governance,” St. Br. 50, for the racial class of “Hawaiians.”
There are three fatal problems with this argument.
it merely restates the illegitimate interest in promoting racially exclusive
government and repeats an argument the Supreme Court rejected in
Rice. The State’s position still “rests in the end on the demeaning
premise that citizens of a particular race are somehow more qualified
than others to vote on certain matters.”
Rice, 528 U.S. at 523. In Rice, the State claimed that
citizens of Hawaiian race were “more qualified” to vote on OHA matters.
Having lost Rice, the State retreats to arguing that citizens
of Hawaiian race are still “more qualified” to vote on OHA matters as
trustees. The State’s premise is still demeaning. There is no more
room under the Fourteenth Amendment than under the Fifteenth Amendment
for “the concept that the right to vote can be allocated based on race.”
Id. The principle announced in
Rice is guaranteed by the Fourteenth Amendment as well as by
the Fifteenth: By denying non-Hawaiians the right to run and the opportunity
to serve if elected, the State is still disqualifying them from “full
participation in our democracy.” Rice, 528 U.S. at 523.
as in Rice, the racial restriction on participating in the democratic
government of OHA is unconstitutional even assuming the validity of
the underlying trust. Id. at 521-22.
if this Court were to conclude that it must consider the validity of
an alleged underlying trust, Justice Breyer dealt with the issue in
his Rice concurrence: “there is no ‘trust’ for native Hawaiians
here.” 528 U.S. at 525. Justice Breyer noted that, “[a]s the majority
makes clear, OHA is simply a special purpose department of Hawai`i’s
the public trust in public land, which the State discusses at length,
cannot give rise to a trust obligation to foster race-based government
for a racial subset of the public.
Hawai`i, the public land trust dates back to Hawai`i’s annexation to
the United States in 1898. The Annexation Resolution, 30 Stat. 750
(1898), required the United States to hold the revenues and proceeds
of the lands ceded by Hawai`i to the U.S. (the “ceded lands”) “solely
for the benefit of the inhabitants of the Hawaiian Islands for educational
and other public purposes.” There was no racial restriction.
See 22 Op. Atty. Gen. 574 (1899);
State v. Zimring, 58 Hawaii 106, 124, 125 (1977) (the people
of Hawai`i are the equitable owners of the public land). Most of the
inhabitants of Hawai`i in 1898 were not “Hawaiians” in the racial sense
defined in H.R.S. §10-2. See Rice, 528 U.S. at 506-07.
Annexation Resolution was confirmed by the Organic Act that created
the Territory of Hawai`i and assigned it the bulk of the public lands,
free of any trust except for the general public. Act of April 30, 1900,
ch. 339, §§91, 99, 31 Stat. 159.
1921, Congress enacted the Hawaiian Homes Commission Act (“HHCA”), Act
of July 9, 1921, c. 42, 42 Stat. 108, providing homesteading opportunities,
but only to “native Hawaiians” – those of 50% Hawaiian “blood.” The
program still exists as a state program and is administered by the Department
of Hawaiian Home Lands (“DHHL”), not by OHA. Issues concerning the
HHCA trust lands do not come into this case because those lands are
in a distinct trust that does not generate revenue for OHA.2
Admission Act, making Hawai`i a state, carried on the public trust and
returned title to most of the ceded land to Hawai`i for the benefit
of all of the public. Pub.L. 86-3, 73 Stat. 4 (1959) §5. State Attorney
General Opinion July 7, 1995 to Governor Cayetano.
Court has held that the federal government does not have a trust relationship
to native Hawaiians or Hawaiians based on the HHCA or the Admissions
Act. Keaukaha-Panaewa Community Association v. Hawaiian Homes Commission,
588 F.2d 1216, 1224 (9th Cir. 1978);
Han v. Department of Justice, 824 F.Supp. 1480 (D. Haw. 1993),
aff'd 45 F.3d 333 (9th Cir. 1995).
Admission Act did not impose on the State any trust obligation to Hawaiians
except insofar as they are part of the general public. The Act provided
that the lands and revenue from the lands would be held in a “public
trust” to be “managed and disposed of for one or more” of five purposes:
for the support of the public
schools and other public educational institutions, for the betterment
of the conditions of native Hawaiians, as defined in the Hawaiian Homes
Commission Act, 1920, as amended, for the development of farm and home
ownership on as widespread a basis as possible, for the making of public
improvements, and for the provision of lands for public use.
Act § 5(f), 73 Stat. 6.
5(f) places no special requirements or form of management on how the
State administers the public trust.
Price v. State of Hawai`i 921 F.2d 950, 955-56 (9th
Cir. 1990) (“All property held by a state is held upon a ‘public trust.’”).3
For the first 20 years, the State complied with the trust by spending
nearly all the money on public education. Rice, 528 U.S. at 508.
State tries to derive from §5(f)’s reference to optional assistance
to “native Hawaiians” a trust obligation to all “Hawaiians” that justifies
barring non-“Hawaiians” from serving as OHA trustees. However, as the
Supreme Court pointed out in Rice “ this contention founders
on its own terms” on the distinction between the narrow class of “native
Hawaiians” (those with 50% or more Hawaiian ancestry), referenced in
the HHCA and Admissions Act, and the broader class of “Hawaiians” favored
by the OHA electoral laws.
duties are not “in the air,” rising like a mist from general references
in legislation about other matters. The State cites congressional findings
in statutes authorizing expenditures on a health program, Native Hawaiian
Health Care Improvement Act, 42 U.S.C. §11701, and a housing program,
Hawaiian Homelands Homeownership Act of 2000, Pub.L. 106-568, §202,
Pub.L. 106-569, §512. These statutes do not concern the governance
of OHA and do not impose on the State a trust duty to exclude most of
it citizens from eligibility for the OHA Board.
federal nor state sources of the public trust create a compelling state
interest in creating a race-based government for OHA.
The History of Hawai`i Does Not
Make Raced-Based Government a Compelling State Interest.
State suggests that while racially exclusive government is generally
unconstitutional, the peculiar history of Hawai`i converts it into a
compelling state interest: OHA is a partial restoration of stolen land
and “sovereignty.” Supposedly, the ancestors of today’s Hawaiians lost
their land and sovereignty when the race-based government of the Kingdom
of Hawai`i was overthrown with American help in 1893. OB 23-27.
would not be alone in having a history of racially exclusive government.
The Fourteenth and Fifteenth Amendments were enacted to uproot historic
racial discrimination. The Fourteenth and Fifteenth Amendments do not
exempt the peculiar institutions of any state from constitutional scrutiny.
there is no precedent in Hawaiian history for OHA’s racially exclusive
government. The racial class of “Hawaiians,” as defined by the State,
did not lose their sovereignty or land when the Kingdom of Hawai`i ended
in 1893 because, as a matter of law, no racial class had sovereignty
or special rights to the public land. Individual Hawaiians alive in
1893 had no special rights or status that distinguished them from the
other subjects of the multi-ethnic Kingdom of Hawai`i.
107 years, the subjects of the Kingdom have died. The question is who,
if anyone, inherits a claim. The State has answered that question by
favoring racial “Hawaiians,” i.e. “descendants of the inhabitants of
Hawai`i in 1778,” – a date 115 years before the monarchy fell.
many of the subjects of the Kingdom were not racial Hawaiians. Under
the Kingdom’s laws in 1893, a person did not have to be a racial Hawaiian
to be a subject of the Kingdom and did not have to be a subject to have
political rights. Hawaiians as a distinct ethnic group did not have
any “sovereignty” to lose. Rex v. Booth, 2 Haw. 616 (1863) (only
king was sovereign). The Kingdom followed the common law rule of
jus soli: everyone born in the country and subject to its jurisdiction
is a citizen, no matter where his or her family came from.
Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure, § 92.04
(1999); Wong Foong v. United States, 69 F.2d 681, 682 (9th
Cir. 1934). The Kingdom offered easy naturalization of immigrants and
offered political rights even to immigrants who did not wish to give
up their citizenship in the countries from which they had come. 1884
Civil Code, § 428-434. Many thousands of immigrants arrived and became
a majority of the inhabitants. See Rice, 528 U.S. at 506-07
(history of immigration and demographics). Many immigrants and descendants
of immigrants held public office. Plaintiffs’ SCSFODMSJ 5.
the Monarchy, the public lands of Hawai`i were government lands held
by the government for the benefit of all inhabitants of Hawaii, not
just racial Hawaiians. See In re Estate of His Majesty Kamehameha
IV, 2 Haw. 715, 718-23 (1864);
Rice, 528 U.S. at 501-04 (summarizing history of transformation
of Hawaiian land law); Kuleana Act, 1850 Sess. Laws. p. 202 (abolishing
right of individuals to grow crops and pasture animals on Government
land); Liliuokalani v. United States, 45 Ct. Claims 418 (1910)
(queen’s claim for taking of Crown Lands rejected because in 1893 Crown
Lands had belonged to institution of the Crown, not to any individual);
Plaintiffs’ SCSFODMSJ 2-3. Hawaiians (as defined by the State) did
not have any special rights in the public lands as a group or as individuals.
Hanifin, Hawaiian Reparations: Nothing Lost, Nothing Owed, 17
Haw. B.J. 107, 110-18 (1982).
when the U.S. accepted the ceded lands, it not only agreed that the
lands would be devoted to the benefit of the inhabitants of Hawai`i,
it also assumed Hawai`i’s public debt of up to $4 million. Annexation
Resolution 30 Stat. 750 (1898). Assumption of debt of a landowner is
compensation to the landowner. Thus, the transfer of the lands to the
U.S. was not uncompensated, as the State now alleges, OB 24. Today,
these lands are still government lands held by the State for the benefit
of all its inhabitants.
State does not contend that Hawaiians were the peculiar victims of discrimination
after Annexation. To the contrary, the State cites a series of statutes
going back to 1920 that show that Hawaiians have been the special favorites
of the law. OB, 8-10, 26.
in the history or law of Hawai`i converts race-based government from
anathema to compelling interest.
The State’s Racial Restriction Is
Not Narrowly Tailored.
District Court correctly applied Rice to determine that, even
if there is a trust for racial Hawaiians or a valid claim for wrongs
committed against the ancestors of living Hawaiians, the mandate that
OHA trustees be Hawaiian is not narrowly tailored to serving a legitimate
trust purpose. CR/ER 58,18-19.
racial restriction fails the “narrow tailoring” test for the same reason
the Supreme Court rejected the State’s trust argument in the Fifteenth
Amendment context. “Hawai`i may not assume, based on race that . .
. . . of its citizens will not cast a principled vote,”
Rice, 528 U.S. at 523 – for trustee or as trustee. “The assertion
that non-Hawaiians are incapable of fulfilling the obligations of the
public office of OHA trustee is” as “untenable” as the assertion that
they are incapable of fulfilling the obligations of voters for OHA trustees.
CR/ER 58, 20.
State imposes a rigid racial quota for seats on OHA’s board: 100% of
the seats are permanently assigned to ethnic Hawaiians and 0% to non-Hawaiians.
There is no evidence or allegation that the State ever considered a
racially neutral alternative to excluding non-Hawaiians from being OHA
trustees. (For instance, if the State fears that trustees may breach
their fiduciary duties, it could invoke H.R.S. §10-16, which authorizes
the Attorney General and any private citizen to sue a trustee for breach
of the State’s brief approximate an affirmative action argument: that
the racially exclusive government of OHA is intended to redress wrongs
allegedly committed against Hawaiians, chiefly by American involvement
in the overthrow of the Kingdom in 1893. OB 24-25. However, in oral
argument the State explicitly denied that this is an affirmative action
case. Referring to the leading affirmative action cases,
Adarand and Croson, the State’s counsel said “those cases
are simply plain old vanilla affirmative action cases, which this case
is not.” Transcript 9/8/00, 34. The State did not attempt to introduce
the kind of detailed evidence that would be needed to demonstrate a
narrowly tailored affirmative action program under
Adarand. Transcript 9/8/00 at 33-34. Whatever else OHA may
be, it is not an affirmative action program.
challenged laws violate the Fourteenth Amendment because they are not
narrowly tailored to meet any compelling state interest.
Restricting Voters’ Choice of Candidates
Based on Race Violates the Voting Rights Act.
adopted the Voting Rights Act (the “Act”) to enforce the Fourteenth
and Fifteenth Amendments. South Carolina v. Katzenbach, 383
U.S. 308 (1966); 1965 U.S. Code Cong. & Admin. News at 2437 (the
Act was “designed primarily to enforce the Fifteenth Amendment”). The
Act created a private right of action to sue for its enforcement and
has exercised Congress’ power under the Fifteenth Amendment to abrogate
the state’s Eleventh Amendment immunity and authorize suits directly
against states. Morse v. Republican Party of Virginia, 517 U.S.
186, 232 (1996); Mixon v. State of Ohio, 193 F.3d 389, 406 (6th
2(a) of the Voting Rights Act provides that “No
voting qualification or prerequisite to voting or standard, practice,
or procedure shall be imposed or applied by any State . . . in a manner
which results in a denial or abridgement of the right of any citizen
of the United States to vote on account of race.” The
Act provides that a state is in violation if
it is shown that the political
processes leading to nomination or election in the State or political
subdivision are not equally open to participation by members of [all
races] in that its members have less opportunity than other members
of the electorate to participate in the political process and to elect
representatives of their choice.
42 U.S.C. §1973 (b).
the Act specifically provides that one circumstance to be considered
in identifying a violation is the “extent to which members of a protected
class have been elected to office in the State or political subdivision.”
Id. The State’s open bar against non-Hawaiian candidacy for
the OHA Board of Trustees obviously fails this test.4
their face, the State’s racial restrictions on who can be a candidate
ensure that “the processes leading to nomination or election” to the
OHA Board “are not equally open to participation” by citizens who are
not classified as “Hawaiian.”
terms “vote” and “voting” are defined in the Act to “include all action
necessary to make a vote effective . . . including . . . other action
required by law prerequisite to voting.” Voting Rights Act §14, 42
U.S.C. §1973l. The right to vote is less effective when the choice
of candidates is racially restricted by prerequisites to voting, such
as a prohibition on anyone of an excluded race filing nomination papers.
Supreme Court has held that §2 covers all non-primary nomination methods
and “the political process leading to nomination or election.” It “‘adopts
the functional view of ‘political process’ and applies to ‘any phase
of the electoral process.’” Morse v. Republican Party of Virginia,
517 U.S. at 209. In Morse, the Voting Rights Act was applied
to party conventions, relying in part on the White Primary Cases. The
Court held that §5 of the Act required preclearance by the U.S. Attorney
General of a party rule that all registered voters who declared they
would support the party’s nominees could participate as convention delegates
to nominate a Senatorial candidate if they also paid a registration
Attorney General has promulgated regulations giving examples of the
kind of changes that require preclearance under Voting Rights Act §5.
These include “any change affecting the eligibility of persons to become
or remain candidates, to obtain a position on the ballot in primary
or general elections, or to become or remain holders of elective office.”
28 C.F.R. §51.13(g). This regulation shows that qualifications for
candidates are subject to the Voting Rights Act when they deny a person
the right to run on account of race. Thus, such qualifications are
also within the substantive scope of the Fifteenth and Fourteenth Amendments.
§§2 and 5 of the Voting Rights Act have been held to prohibit interference
with candidacies on account of race because such interference abridges
the right to vote on account of race. In
Dougherty County Bd. of Education v. White, 439 U.S. 32 (1978),
the Supreme Court held that the Voting Rights Act applied to a rule
of a local Board of Education that required its employees to take unpaid
leaves of absence while they were running for elective office. Even
though the Board of Education was not in charge of voter registration
or elections, the rule was a “standard, practice or procedure” regarding
voting and the evidence showed that the rule was targeted at a candidate
on grounds of race. “[T]he Rule burdens entry into elective campaigns
and, concomitantly, limits the choices available to . . . voters.”
Id. at 40.
Hadnott v. Amos, 394 U.S. at 366, the Supreme Court held that
an Alabama statute requiring independent candidates to declare their
intention to seek office two months earlier than under prior procedures
imposed "increased barriers" on candidacy and therefore warranted
Dillard v. Town of North Johns, 717 F.Supp. 1471 (M.D. Ala. 1989),
town officials failed to notify black candidates of new filing requirements
and provide them the required forms, although they did give notice and
forms to the white candidates. The court held that this violated the
Voting Rights Act because it abridged the right to vote by excluding
candidates based on their race.
Voting Rights Act has also been applied in a series of cases alleging
that gerrymandering has effectively denied some voters on grounds of
race the equal opportunity to elect members of a particular racial group
to public office. See, e.g., Abrams v. Johnson, 521 U.S. 74
(1996). In deciding these cases, the courts consider “the extent to
which members” of the group have actually “been elected to the office”
in question. Voting Rights Act §2(b).
State of Hawai`i has not engaged in subtle tricks likes hiding forms,
switching filing deadlines, requiring leaves of absence, charging membership
fees, or gerrymandering. It openly discriminates against all non-Hawaiians.
Rice, 528 U.S. at 514. The number of non-Hawaiians elected to
OHA in its entire history is zero because they have been expressly disqualified.
Given the Supreme Court’s decision in
Rice that “Hawaiian” is a racial classification that violates
the Fifteenth Amendment, the Voting Rights Act bans the related practice
of denying non-Hawaiians the right to run for OHA trustee. Furthermore,
the State of Hawai`i cannot be allowed to perpetuate part of its historical
practice of racial discrimination. “Congress may under the authority
of §2 of the Fifteenth Amendment, prohibit state action that, though
in itself not violative of §1, perpetuates the effects of past discrimination.”
City of Rome, 446 U.S. at 176.
See, City of Boerne v. Flores, 521 U.S. at 518-19.
Eleventh Amendment does not bar suing the State itself under the Voting
Rights Act. Congress has exercised its power under the Fifteenth Amendment,
§2, to abrogate the States’ Eleventh Amendment immunity and authorize
suits directly against States. Mixon v. State of Ohio, 193 F.3d
389, 398-99 (6th Cir. 1999). There is a private right of
action to sue under Voting Rights Act §2.
Morse v. Republican Party of Virginia, 517 U.S. 186, 232 (1996);
Mixon 193 F.3d at 406. Therefore, the federal courts have jurisdiction
over the Voters’ claims against the State under the Voting Rights Act.
(Voters do not seek relief directly against the State under the Fifteenth
and Fourteenth Amendments; their claims under those Amendments are against
the Appellee state officials.)
the Voting Rights Act, §2, is another basis for affirming the District
Contrary to the State’s
Mancari Argument, There is no “Indigenous People” Exception to
State is attempting to re-fight the war it lost in
Rice over its claim that OHA is the government of a constructive
“Indian tribe” that falls outside the Fifteenth and Fourteenth Amendments.
The decisive issue in Rice was the threshold issue: was it a
voting rights case or an American Indian tribe case? Ultimately, the
Supreme Court decided that Rice was a voting rights case, applied
the Fifteenth Amendment, and reversed. That characterization determines
this case as well.
State is making two arguments based on
Morton v. Mancari, 417 U.S. 535 (1974), that are inconsistent
with the Supreme Court’s interpretation of
Mancari in Rice and inconsistent with each other.
Rice Rejected the State’s Argument
that All Groups of “Indigenous People” Are “Indian Tribes.”
the State contends that Hawaiians are “indigenous people” because they
can trace part of their ancestry in Hawaii back before the Europeans
arrived; any group of “indigenous people” is an “Indian tribe’ for the
purposes of the Commerce Clause, Art. I., § 8, clause 3, (OB 37-39);
under the Commerce Clause, Congress and states can enact special legislation
concerning “indigenous people” that is exempt from strict scrutiny even
though “indigenous people” are defined by ancestry, race or ethnicity,
OB 38, 43. No existing or historically continuous political organization
is necessary to establish the existence of an “Indian tribe.” OB 41.
Federal recognition is not necessary to qualify a group as an Indian
tribe, OB 13, so it does not matter that “Hawaiians are not a ‘federally
recognized Indian tribe,’” OB 13, 38.
Rice, the State made this “Mancari argument” -- that under
Mancari, any ”indigenous people” may be singled out whether or
not they are members of organized tribes.5
The State’s Opening Brief focuses extensively, almost exclusively, on
the argument that Hawaiians are the legal equivalent of Indians or an
Indian tribe and that the Mancari doctrine, therefore, “saves”
the racial disqualification.
U.S. Supreme Court rejected these arguments. Although, as the State
notes at OB 27, the Rice Court declined to rule on the applicability
of Mancari to Hawaiians, the high court said clearly that under
Mancari only members of organized Indian tribes may be singled
out for differential treatment:
If Hawaii’s restriction were
to be sustained under Mancari we would be required to accept some beginning
premises not yet established in our case law. Among other postulates,
it would be necessary to conclude that Congress . . . has determined
that native Hawaiians have a status like that of Indians in
organized tribes, and that it may, and has, delegated to the
state a broad authority to preserve that status. These propositions
would raise questions of considerable moment and difficulty.
528 U.S. at 518 (emphasis added).
If simply having some indigenous ancestry sufficed to be an “Indian
tribe” then the State would have prevailed in
Rice. But the Supreme Court rejected the State’s argument and
insisted that there would have to be a showing of the existence of an
organized, federally recognized tribe to come within
holding is fatal to the State’s defense. The State concedes that Hawaiians
are not a federally recognized tribe under existing law, OB 13, 38,
and admitted to the Supreme Court that there never has been a Hawaiian
tribe: “The tribal concept simply has no place in the context of Hawaiian
history.” (State’s Brief in Opposition to Certiorari in
Rice v. Cayetano, (Addendum 5 to Plaintiff’s Brief in Support
of Motion for Preliminary Injunction).
Rice, the Supreme Court explained what is different about Indian
tribes: they are quasi-sovereign governmental entities but not federal
or state instrumentalities. 528 U.S. at 518. Indian tribes pre-existed
the United States and “retained some elements of quasi-sovereign authority
even after cession of their lands to the United States.”
Id. Their lingering remnants of original sovereignty – “quasi-sovereignty”
as the Supreme Court described it – are not created by or derived from
the United States or any State. Id.
United States v. Wheeler, 435 U.S. 313, 322-323 (1978). This
has two constitutional consequences.
because Indian tribes are not agencies of the United States or any state,
tribal elections are not subject to the Fourteenth or Fifteenth Amendments.
See, Talton v. Mayes, 163 U.S. 376 (1896) (tribe not limited
by Fifth Amendment to US Constitution when dealing with its members).
Rather, tribal elections “are the internal affair of a quasi-sovereign.”
Rice 528 U.S. at 520.
because Indian tribes have lingering remnants of sovereignty not derived
from the United States or any State, the United States enters into political
relations with them, government to government. As part of that political
relationship, the federal BIA exercises a guardian’s power over Indian
tribes. See Mancari, 417 U.S. at 541-42, 551 (plenary power
of Congress exercised through BIA as guardian of tribal wards). Exercising
that power, the BIA promulgated the regulation at issue in
Mancari concerning enrolled members of federally recognized Indian
tribes. The Supreme Court concluded that the regulation was based on
the unique political relationship between the BIA and Indian tribes
and so was a political classification, not a racial classification.
Id. 417 U.S. at 554, n.24. Because a tribe must be a political
institution, “racial or ancestral commonality isn’t enough without a
continuously existing political entity to constitute a tribe.”
Miami Nation of Indians v. Babbitt, 112 F.Supp.2d 742,746 (N.D.
Ind. 2000) (when political organization ceased, Indian group ceased
to be tribe)
contrast, OHA is not an Indian tribe or tribal government but a state
agency. Its “elections . . . are elections of the State, not of a separate
quasi-sovereign, and they are elections to which the Fifteenth Amendment
applies.” Rice, 528 U.S. at 522. When the State enacts laws
that give its Hawaiian citizens voting rights that it denies to its
other citizens, it deals with its own citizens, not with a distinct
sovereign. “To extend Mancari to this context would be to permit
a State, by racial classification, to fence out whole classes of its
citizens from decision-making in critical state affairs.”
Rice, 528 U.S. at 522.
the definition of an “Indian tribe” to a group of persons having certain
ancestry, as the State suggests, would destroy the crucial constitutional
distinction between an Indian tribe and a racial group. This would
be inconsistent with Mancari itself which noted that the BIA
hiring preference excluded many individuals who are racially Indians
but did not belong to a tribe. 417 U.S. 525, 553 n.24. “To allow any
group of persons to ‘bootstrap’ themselves into formal ‘tribal’ status
– simply because they are all members of a larger aboriginal ethnic
body would be to ignore the concept of ‘tribe’ as a distinct sovereignty
set apart by historical and ethnological boundaries.”
Price v. State of Hawai`i, 764 F.2d 623, 627 (1985) (group of
Hawaiians are not a tribe).
in Rice, Justice Breyer noted that the State’s definition of
“Hawaiian” is “not analogous to the membership in an Indian tribe” and
to define “membership in terms of 1 possible ancestor out of 500, thereby
creating a vast and unknowable body of potential members . . . goes
well beyond any reasonable limit.”
Rice, 528 U.S. at 526, 527.
Rice Rejected the State’s Argument
that Congress Could Authorize the State to Racially Discriminate in
Its Electoral Process.
some points in its brief, the State also appears to be arguing, inconsistently
with its ancestry test, that Congress has almost unbridled discretion
to define an Indian tribe, OB 40, enact special legislation for that
“Indian tribe” and authorize the States to do so, OB 44-46. Yet no
formal federal recognition is necessary. It suffices that Congress
enact any sort “special” legislation for the group to make it an “Indian
tribe” or merely appropriate money for a program which helps some members
of the group. OB 46. Then special legislation, whether federal or state,
becomes exempt from constitutional strict scrutiny.
again, the State is repeating an argument it made and lost in
Court need not address hypothetical “questions of considerable moment
and difficulty” about whether Congress could invent a “Hawaiian tribe”
analogous to an Indian tribe with a race-based government. Rice,
528 U.S. at 518. See
United States v. Sandoval,
231 U.S. 28 (1913) (Congress may not “bring a community or body of people
within the range of” its Indian commerce power “by arbitrarily calling
them an Indian tribe”). Like the Supreme Court, this Court “can stay
far off that difficult terrain.” Id. at 519.
assuming arguendo that Congress could recognize Hawaiians as a kind
of Indian tribe, “it does not follow from
Mancari” under the Fourteenth Amendment any more than the Fifteenth
“that Congress may authorize a State to establish a voting scheme that
limits the electorate for its public officials to a class of tribal
Indians to the exclusion of all non-Indian citizens.”
Id. at 520. OHA is a state agency, not an Indian tribe, and
this case challenges State laws concerning state elections for the state
office of OHA trustee. This is not a case in which Congress has expressly
authorized a state to regulate some particular aspect of the affairs
of a federally recognized Indian tribe. Compare
Washington v. Confederated Bands and Tribes of the Yakima Indian
Nation, 439 U.S. 463, 501 (1979) (state exercised specifically
granted authority to extend state jurisdiction over Indian reservation).
in Rice, the State cited many of the same materials that it cites
here (the Apology Resolution, Hawaiian Homes Commission Act, assorted
statutory findings), but failed to persuade the Supreme Court that Congress
has tried to grant the State the power to operate a racially exclusionary
state electoral process. 528 U.S. at 518-19. An alleged “longstanding
policy of Congress” does not effect federal recognition of an Indian
tribe absent explicit recognition by statute.
United Houma Nation v. Babbitt, 1997 U.S. Dist. Lexis 10095 *24
(D. D.C. 1997).6
Mancari Does Not Save the State’s
Racial Restriction on Voting Rights, Candidacies, and Serving in Public
is irrelevant to this case. In Rice, the Supreme Court restricted
Mancari to its peculiar facts: an affirmative hiring preference
in the Bureau of Indian Affairs (“BIA”) for enrolled members of federally
recognized Indian tribes. Rice, 528 U.S. at 518- 522. The Court
read Mancari as crucially depending on the limitation of the
hiring preference to “members of federally recognized tribes.”
Rice, 528 U.S. at 519-520, quoting
Mancari, 417 U.S. at 553 n. 24. The Supreme Court also stressed
that the BIA is “sui generis” -- different from every other agency,
particularly OHA. Rice, 538 U.S. at 520 quoting
Mancari, 417 U.S. at 554.
before Rice, this Court also rejected a broad reading of
Mancari. Williams v. Babbitt 115 F.3d 657, 663 (9th
Cir.) (preference at issue in Mancari only applied to BIA and
cannot justify an absolute ban on non-Indian participation).
confining Mancari to its facts, the Supreme Court reconciled
it with later cases that apply strict scrutiny to programs that give
preferences to individuals of American Indian ancestry.
Adarand, 515 U.S. at 204 (federal race-based programs), and to
“American Indians, Eskimos,” and “Aleuts”)
Croson, 488 U.S. at 478 (state programs).
See Benjamin, Equal Protection and the Special Relationship
106 Yale L.J. at 558-71 (Mancari can be reconciled with
Adarand only by limiting Mancari to federally recognized
scrutiny applies to every racial classification, including classifications
that favor “Native Americans,” Adarand, 515 U.S. at 204, and
“American Indians, Eskimos,” and “Aleuts,”
Croson, 488 U.S. at 478. After
Rice, there is no room to argue for an exception to the Constitution
for any variety of allegedly “indigenous people.” The Equal Protection
Clause affords equal protection to every citizen, regardless of ancestry.
State’s Mancari argument contradicts basic principles of Indian
law. “Miscellaneous Indians do not make a tribe.”
United Houma Nation v. Babbitt, 1997 U.S. Dist. Lexis 10095 (D.
D.C. 1997). Canby, American Indian Law in a Nutshell 8 (1998) (for
many federal jurisdictional purposes, to be an “Indian” one must be
a member of a federally recognized Indian tribe “and there can be no
Indian without a tribe”); See 25 C.F.R. §§ 83.1, 83.7 (listing mandatory
criteria for federal acknowledgement including a governing body that
has maintained continuous political influence or authority over its
members since contact with non-Indians.)
does not punch an “indigenous people” loophole through the Fourteenth
the reasons stated above, Plaintiffs-Appellees request that this Court
affirm the decision of the District Court granting summary judgment
in their favor and permanently enjoining the State of Hawai`i and the
Defendant-Appellant state officials from barring on grounds of race
or ancestry any candidate for trustee of the Office of Hawaiian Affairs.
DATED: Honolulu, Hawai`i:
April 9, 2001.
OF RELATED CASES
are aware of no case pending in this Court that is related to this case.
DATED: Honolulu, Hawai`i:
April 9, 2001.
CERTIFICATE OF COMPLIANCE
TO FED. R. APP. 32(a)(7)(C)
certify that pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit
rule 32-1, the attached answering brief is proportionately spaced, has
a typeface of 14 points and contains _____ words.
Commerce Clause – Art. I.,
Section 8, Clause 3
Admission Act §5
Haw. Rev. Statutes Chapter
10 (selected sections)
2000 Haw. Sess. Act 59
Haw. Rev. Stat. Chapter 13D-2,
13D-3 (old), 13D-3 new
Letter from Gerard Lau to Patrick
Hanifin re extension of time
Letter from Patrick Hanifin
to Gerard Lau re extension of time
hereby certify that two copies of the foregoing were of the foregoing
were duly served on each of the following persons by depositing the
same in the U.S. mails, first class, postage pre-paid, on April 9, 2001.
EARL I. ANZAI, ESQ.
GIRARD D. LAU, ESQ.
CHARLEEN M. AINA, ESQ.
Department of the Attorney
425 Queen Street
Honolulu, HI 96813
Attorneys for Defendants-Appellants
DATED: Honolulu, Hawai`i:
April 9, 2001.
This brief uses “Hawaiian” and “native Hawaiian” in senses defined in
HRS § 10-2. They use “non-Hawaiian” to refer to all persons who are
neither “Hawaiian” nor “native Hawaiian.” It should be noted that in
daily discourse and political debate “Hawaiian” is given several other
meanings as well. For instance the Supreme Court described Freddy Rice
as “a citizen of Hawai`i and thus himself a Hawaiian in a well-accepted
sense of the term.” Rice, 528 U.S. at 499 (2000).
While all racial classifications are presumptively invalid,
Shaw v. Reno, 509 U.S. at 641-44, there is no need to consider
whether the HHCA’s race-based leasing program could survive constitutional
challenge because it is entirely separate from OHA and is not involved
in this case.
If Admissions Act § 5(f) were interpreted to require the State to give
special treatment to the members of the racial class of “native Hawaiians”,
it would raise serious constitutional issues under the Equal Footing
Doctrine. See Pollard’s Lessee v. Hagen, 44 U.S. (3
How.) 212 (1845); Coyle v. Smith, 221 U.S. 559 (1911);
Escanaba Co. v. Chicago, 107 U.S. 678, 689 (1883);
Utah Div. of State Lands v. United States, 482 U.S. 193 (1987).
These issues should be avoided by reading § 5(f) to mean what it says.
Congress cannot use its enforcement power under the Fourteenth and Fifteenth
Amendments to expand the scope of a constitutional right.
City of Boerne v. Flores, 521 U.S. 507, 517-20 (1997). At the
same time, Congress can use its enforcement power to outlaw procedures
which, while not unconstitutional, have been used to achieve unconstitutional
discrimination. Id. at 518. While the Voters assert that the
racial restriction on OHA candidacy violates both the Fourteenth and
Fifteenth Amendments, such a finding would not be necessary to apply
the plainly stated prohibitions in the Act to the matter at bar.
5 The State’s Respondent’s Brief in
Rice, (Addendum 6 to Plaintiffs’ Memo in Support of Motion for
Preliminary Injunction) for example, argued at page 32:
“That unique legal or political
status - not recognition of ‘tribal’ status, under the latest executive
transmutation of what that means - is the touchstone for application
of Mancari when, as here, Congress is constitutionally empowered
to treat an indigenous group as such.
Proponents of a Hawaiian “Indian tribe” are trying to get Congress to
enact a bill that would recognize Hawaiians, thereby demonstrating that
Hawaiians do not already have “Indian tribe” status. Senate Bills S81,
S746 and House Bill HR617, 107th Congress. Even if one of
these bills were to pass, it would not affect this case. Rather, it
would create a new federal organization that would be distinct from