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Pacific Legal Foundation Amicus Brief to the 9th Circuit in Support of Plaintiffs in Arakaki v. State of Hawai'i



 

No. 00-17213  

 

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT 

 

 

EARL F. ARAKAKI, et al., 

Plaintiffs-Appellees, 

v. 

STATE OF HAWAII, BENJAMIN J. CAYETANO, in his official capacity as GOVERNOR OF THE STATE OF HAWAII, DWAYNE D. YOSHINA, in his official capacity as CHIEF ELECTION OFFICER OF THE STATE OF HAWAII, 

Defendants-Appellants. 

 

 

On Appeal from the United States District Court

for the District of Hawaii

Honorable Helen Gillmor, District Judge 

 

 

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PLAINTIFFS-

APPELLEES AND IN SUPPORT OF AFFIRMANCE 

 

 

JOHN H. FINDLEY, CSB No. 50495

ERIC A. GRANT, CSB No. 151064

DEBORAH G. KILEY, CSB No. 204267

Pacific Legal Foundation

10360 Old Placerville Road, Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932 

Counsel for Amicus Curiae

Pacific Legal Foundation

 

 
CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Amicus Curiae Pacific Legal Foundation, a nonprofit corporation organized under the laws of California, hereby states that it has no parent companies, subsidiaries, or affiliates that have issued shares to the public.

DATED: April _____, 2001.

 

 TABLE OF CONTENTS
 

Page

CERTIFICATE OF COMPLIANCE

33

 

 
TABLE OF AUTHORITIES 

Page

Cases

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)

9-13

Allen v. State Board of Elections, 393 U.S. 544 (1969)

19

Anderson v. Martin, 375 U.S. 399 (1964)

13

City of Rome v. United States, 446 U.S. 156 (1980)

19, 20

Dougherty County Board of Education v. White, 439 U.S. 32 (1978)

19

Hadnott v. Amos, 394 U.S. 358 (1969)

15

Katzenbach v. Morgan, 384 U.S. 641 (1966)

17

Malabed v. North Slope Borough, 42 F. Supp. 2d 927 (D. Alaska 1999)

30

Morse v. Republican Party, 517 U.S. 186 (1996)

16

Morton v. Mancari, 417 U.S. 535 (1974)

3, 22-24, 26

Reynolds v. Sims, 377 U.S. 533 (1964)

14

Rice v. Cayetano, 528 U.S. 495 (2000)

passim

Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)

12

Shaw v. Reno, 509 U.S. 630 (1993)

8

Smith v. Allwright, 321 U.S. 649 (1944)

15, 16

South Carolina v. Katzenbach, 383 U.S. 301 (1966)

14, 18, 21 

Terry v. Adams, 345 U.S. 461 (1953)

16

Thornburg v. Gingles, 478 U.S. 30 (1986)

18, 19

Statutes

Federal

42 U.S.C. * 1973(a)

18

* 1973(b)

18

* 1973c

19

Pub. L. No. 103-150, 107 Stat. 1510 (1993)

12

Pub. L. No. 89-110, 79 Stat. 437 (1965)

17, 18

Pub. L. No. 106-569, 114 Stat. 2944 (2000)

25

State

Haw. Rev. Stat. * 13D-2

4, 6, 19

* 10-2

6

* 10-5

11

* 10-6

11

United States Constitution

Amendment XIV, * 1

8

Amendment XV, * 1

13, 14

Amendment XV, * 2

17

Hawaii Constitution

Article XII, * 5

4, 6, 19

Rules and Regulations

Federal Rule of Appellate Procedure 29(b)

2

Miscellaneous

H.R. 4904, S. 2899, 106th Cong. (2000)

26

H.R. 617, S. 81, 107th Cong. (2001)

26

147 Cong. Rec. S338 (daily ed. Jan. 22, 2001)

26-27

United States Department of the Interior and United States Department of Justice, From Mauka to Makai: The River of Justice Must Flow Freely (Oct. 23, 2000)

27-28

 

 

No. 00-17213 

 

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT 

 

 

EARL F. ARAKAKI, et al., 

Plaintiffs-Appellees, 

v. 

STATE OF HAWAII, BENJAMIN J. CAYETANO, in his official capacity as GOVERNOR OF THE STATE OF HAWAII, DWAYNE D. YOSHINA, in his official capacity as CHIEF ELECTION OFFICER OF THE STATE OF HAWAII, 

Defendants-Appellants. 

 

 

On Appeal from the United States District Court

for the District of Hawaii

Honorable Helen Gillmor, District Judge 

 

 

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PLAINTIFFS-

APPELLEES AND IN SUPPORT OF AFFIRMANCE 

 

 

IDENTITY AND INTEREST OF AMICUSCURIAE PACIFIC LEGAL FOUNDATION

Pacific Legal Foundation (PLF) is a nonprofit, tax-exempt organization that has litigated in the public interest for 28 years. One of PLF*s principal objectives is to promote equal opportunity and individual rights for all Americans. Since the 1970s, PLF has participated in numerous cases before this Court. PLF*s participation in this case is subject to this Court*s granting PLF*s concurrently filed motion for leave to file an amicus curiae brief in support of the Plaintiffs pursuant to Federal Rule of Appellate Procedure 29(b).

PLF participated as amicus curiae in support of petitioner Harold F. Rice before the Supreme Court of the United States in Rice v. Cayetano, 528 U.S. 495 (2000). Both Rice and the present case arise from Article XII, Section 5 of the Hawaii Constitution, which established the State of Hawaii*s Office of Hawaiian Affairs (OHA). In Rice, the Supreme Court found unconstitutional a race-based scheme that allowed only statutorily-defined "Hawaiians" to vote for trustees of OHA. This case deals with an equally unconstitutional race-based scheme that allows only "Hawaiians" to hold the elected office of OHA trustee. PLF files this brief to ensure that Hawaii complies with Rice and treats its citizens with the equality to which they are entitled under the United States Constitution.

SUMMARY OF ARGUMENT

The trial court correctly found that the Hawaiian-only trustee requirement violated the Fourteenth and Fifteenth Amendments of the United States Constitution and the Federal Voting Rights Act. The lower court*s opinion is consistent with the Supreme Court*s opinion in Rice that "the use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve." 528 U.S. at 517. Accordingly, qualified candidates should not be prohibited from running for state public office on the basis of their race and voters for state office should not be required to elect only candidates of a particular race.

This Court has been asked to determine which law applies to this case. This brief will make three points:

 

 PLF urges the Court to affirm that the district court correctly applied the law in determining that the Hawaiian-only trustee requirement violates the Fourteenth and Fifteenth Amendments and the Voting Rights Act.

ARGUMENT

Hawaii*s Constitution provides: "There shall be a board of trustees for the Office of Hawaiian Affairs [OHA] elected by qualified voters who are Hawaiians, as provided by law. The board members shall be Hawaiians." Haw. Const. art. XII, * 5; accord Haw. Rev. Stat. * 13D-2 ("No person shall be eligible for election or appointment to the board unless the person is Hawaiian . . . .").

In Rice, the Supreme Court found that the requirement that voters for the office of trustee be "Hawaiian" was a race-based voting qualification that violated the Fifteenth Amendment. See Rice v. Cayetano, 528 U.S. at 524. This case challenges Hawaii*s requirement that holders of the office of trustee be "Hawaiian." That requirement is a racial restriction, appropriately analyzed by the district court under the Equal Protection Clause of the Fourteenth Amendment, the Fifteenth Amendment, and the Voting Rights Act.

This is a Fourteenth Amendment case because the State of Hawaii created a racial classification that limits the holders of a state public office to members of only one race, thus excluding members of other races from running for or holding the office in violation of the Equal Protection Clause.

This is also a Fifteenth Amendment case because the State of Hawaii limits voters to selecting only members of a particular race for a state public office. This race-based restriction strips the voters of their ability to participate fully in an electoral process that is free of race discrimination and therefore abridges their right to vote on account of race, in violation of the Fifteenth Amendment and the Voting Rights Act.

I

In their brief, Defendants warn the court in boldface type not to decide this case adversely by applying strict scrutiny under the Fourteenth Amendment. See Defendants-Appellants Opening Brief (Defs.* Br.) at 14, 36, 51-52. Nevertheless, it is apparent that Hawaii*s requirement that OHA trustees be "Hawaiian" is a state-sponsored racial classification necessitating strict scrutiny under the Equal Protection Clause.

The State of Hawaii limits candidates for the Office of Hawaiian Affairs to people who are "Hawaiian." Haw. Const. art. XII, * 5; Haw. Rev. Stat. * 13D-2. As defined in the statutes creating the Office of Hawaiian Affairs,

"Hawaiian" means 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 Hawaii.

Haw. Rev. Stat. * 10-2. The statute defines "Native Hawaiian" as

any descendant of 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; provided that the term identically refers to the descendants of such blood quantum of such aboriginal peoples which exercised sovereignty and subsisted in the Hawaiian Islands in 1778 and which peoples thereafter continued to reside in Hawaii.

Id. When it analyzed the Hawaiian-only voting requirement in Rice, the Supreme Court found that the statutory definition of "Hawaiian" by ancestry was a race-based definition:

In the interpretation of the Reconstruction era civil rights laws we have observed that "racial discrimination" is that which singles out "identifiable classes of persons . . . solely because of their ancestry or ethnic characteristics." The very object of the statutory definition in question and of its earlier congressional counterpart in the Hawaiian Homes Commission Act is to treat the early Hawaiians as a distinct people, commanding their own recognition and respect. The State, in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose.

Rice, 528 U.S. at 515 (citation omitted). The Court concluded that "[a]ncestral tracing of this sort achieves its purpose by creating a legal category which employs the same mechanisms, and causes the same injuries, as laws or statutes that use race by name." Id. at 517.

The present case examines the same constitutional provision and statutory definitions as the Court examined in Rice, 528 U.S. at 508-10. To determine whether the classification drawn by Article XII, Section 5 is race-based, it is insignificant that the present case focuses on the discriminatory office-holding requirement while Rice examined the discriminatory voting restriction. Consequently, the Court*s analysis in Rice of the term "Hawaiian" as used in the state constitutional provision creating OHA and its implementing statutes applies directly to this case. As the Supreme Court already decided, the term "Hawaiian" in the context of OHA is a racial classification.

The Fourteenth Amendment provides: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, * 1. Plaintiffs in this case include Mr. Kenneth R. Conklin, a resident and registered voter of Hawaii who is not of Hawaiian ancestry. See Excerpts of Record (E.R.), Tab 1 at 3-4. On June 1, 2000, Mr. Conklin attempted to obtain nomination papers from the state Office of Elections to run for trustee and was barred because he was not of Hawaiian ancestry as required by state law. E.R., Tab 1 at 6. The state constitutional and statutory provisions that require OHA trustees to be "Hawaiian," and the actions of the state elections office in barring Mr. Conklin from candidacy on the basis of his race, obviously implicate the Fourteenth Amendment. The "central purpose [of the Equal Protection Clause] is to prevent the States from purposefully discriminating between individuals on the basis of race." Shaw v. Reno, 509 U.S. 630, 642 (1993) (citation omitted). In fact, Defendants* brief essentially concedes that the Fourteenth Amendment applies to this case:

This is not to say that racial restrictions upon candidacy are automatically permissible or constitutional. It simply means that any attack upon such restrictions must be based upon other provisions of the Constitution, including, most significantly, the Fourteenth Amendment*s Equal Protection clause, or the Voting Rights Act, which implements not only the Fifteenth Amendment but the Fourteenth Amendment as well.

Defs.* Brief at 17-18 (emphasis in original). Consequently, it appears that Plaintiffs and Defendants agree that the Fourteenth Amendment applies to this case.

Of course, the parties differ on which level of scrutiny should be applied under the Amendment. But the law is clear: the Supreme Court squarely has held that

all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (emphasis added). This is a case in which citizens are prohibited from running for election to a state government office solely on the basis of their race. There can be no doubt that the Fourteenth Amendment applies and that strict scrutiny is the proper standard under which the office-holding restriction should be analyzed.1

Defendants* brief warns the Court that an adverse ruling based on the application of strict scrutiny under the Fourteenth Amendment will "risk striking the deathknell" of OHA and other state and federal programs for Hawaiians. Defs.* Br. at 51-52; See also id. at 8-10, 20, 52 (listing threatened programs). Yet, Defendants concede that this case should be analyzed under the Fourteenth Amendment. See Defs.* Br. at 17-18. The Supreme Court in Rice already determined that the use of ancestry to define Hawaiians in the context of OHA constitutes a racial definition. See 528 U.S. at 514-17. In Adarand, the Supreme Court ruled that all racial classifications must be analyzed under strict scrutiny. Adarand, 515 U.S. at 227. PLF urges nothing more than that this Court apply existing law to the present question. If it turns out that Hawaii is administering other unconstitutional programs, that fact provides greater reason, not less, for this Court to do its duty under the Constitution.

The district court appropriately analyzed under strict scrutiny the Hawaiian-only restriction on OHA trustees because it is a state-sponsored racial classification that implicates the Equal Protection Clause of the Fourteenth Amendment.

Hawaii claims two compelling governmental interests: fulfilling a federal trust obligation to the Hawaiian people by restoring "some measure of self-governance" and redress of wrongs inflicted by the United States upon Hawaiians. Defs.* Br. at 49-51. The court below did not decide whether the two asserted interests were compelling. Instead, the trial court correctly determined that the Hawaiian-only restriction did not survive strict scrutiny because non-Hawaiians could fulfill the obligations of the office of trustee and, therefore, the state had "non-discriminatory alternatives available to satisfy its objectives." E.R., Tab 58 at 19-20.

The inquiry for narrow tailoring includes, for example, asking whether race-neutral means could have been employed to satisfy the interest or whether the race-based program was appropriately limited so that it "will not last longer than the discriminatory effects it is designed to eliminate." Adarand, 515 U.S. at 238.

Even if fulfilling a federal trust obligation were determined to be a compelling governmental interest in this case, there is no reason that members of only one race are capable of serving as OHA trustees to further the asserted interest. Certainly, members of races other than statutorily-defined Hawaiians are competent to administer a trust and direct a government agency. See Haw. Rev. Stat. ** 10-5; 10-6 (powers and duties of the OHA Board of Trustees). Consequently, the race restriction is not narrowly tailored to the interest asserted, and the "trust argument" fails strict scrutiny.

The other interest asserted by the state, redress of wrongs, also fails because the racial classification is not narrowly tailored. Defendants cite the Apology Resolution in asserting the interest in redressing "congressionally recognized wrongs" that include deprivation of native Hawaiians* rights to self-determination. Defs.* Br. at 51. The Apology Resolution enumerates wrongs caused to the native people of Hawaii by agents and citizens of the United States leading to the overthrow of the Kingdom of Hawaii and its eventual annexation. Pub. L. No. 103-150, 107 Stat. 1510 (1993). However, past societal discrimination alone cannot serve as the basis for rigid racial preferences. Richmond v. J.A. Croson Co., 488 U.S. 469, 505 (1989). States must identify the discrimination with some specificity before using race- conscious relief. Id. at 504. The recitations of the Apology Resolution do not provide the specific evidence of present or past discrimination necessary to compel a race conscious remedy. Consequently, Hawaii has not demonstrated that redress of past wrongs is a compelling governmental interest. However, even if the Apology Resolution provided sufficient evidence of a compelling interest, the Hawaiian-only trustee restriction is not narrowly tailored to remedy the discrimination. Grounded in the text of the state constitution, the Hawaiian-only trustee restriction continues indefinitely and therefore is not "appropriately limited such that it *will not last longer than the discriminatory effects it is designed to eliminate.* " Adarand, 515 U.S. at 238. Consequently, the "redress of wrongs" argument also fails strict scrutiny.

At one time, Louisiana required that its ballots indicate the race of each candidate for elective office. (In this case, because only "Hawaiians" may run for trustee, no ballot designation is necessary to identify the candidate by race.) In finding the Louisiana requirement violated the Equal Protection Clause, the Supreme Court noted: "Obviously, Louisiana may not bar Negro citizens from offering themselves as candidates for public office, nor can it encourage its citizens to vote for a candidate solely on account of race." Anderson v. Martin, 375 U.S. 399, 402, 404 (1964). In this case, it is equally obvious that the State of Hawaii may not bar members of all races except "Hawaiian" from offering themselves as candidates for public office, "nor can it encourage its citizens to vote for a candidate solely on account of race." In doing so, Hawaii violates the Equal Protection Clause of the Fourteenth Amendment. The district court*s decision that Hawaii has violated the Equal Protection Clause should be affirmed.

II

THE FIFTEENTH AMENDMENT APPLIESWHERE, AS HERE, RACE-BASED CLASSIFICATIONS IMPACT THE RIGHTS OF VOTERS

The Fifteenth Amendment provides: "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." U.S. Const. amend. XV, * 1. The state questions whether the Fifteenth Amendment applies to impacts on voting based upon the race of the candidate; however, that application is compelled by precedent.

Plaintiffs in this case, Mr. Conklin and 13 other residents and registered voters of Hawaii, are permitted by the laws at issue to elect as OHA trustees only persons of a designated race. The race restriction on trustee candidacy deprives the voters of Hawaii of voting effectively for candidates for this state public office without the burden of invidiously discriminatory disqualifications.

The right to vote carries with it the right to an electoral process that is free of race discrimination. See, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). The franchise would be empty indeed if all races were permitted to vote, but were required to select leaders of only one chosen race:

[H]istory has seen a continuing expansion of the scope of the right of suffrage in this country. The right to vote freely for the candidate of one*s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen*s vote just as effectively as by wholly prohibiting the free exercise of the franchise.

Reynolds v. Sims, 377 U.S. 533, 555 (1964). The progress of voting rights in this country since Reconstruction would halt if courts in the 21st century determined that it was constitutional for a state to limit holders of an elected public office to members of one race.

The Supreme Court has applied the Fifteenth Amendment to impacts upon the voting franchise that are based on the race of the candidates. For example, in Hadnott v. Amos, 394 U.S. 358, 364 (1969), the Court held that election officials in Alabama violated the First and Fifteenth Amendments when they disqualified black, but not white, candidates for failing to meet candidate filing requirements. The Court opined: "We deal here with Fifteenth Amendment rights which guarantee the right of people regardless of their race, color, or previous condition of servitude to cast their votes effectively and with First Amendment rights which include the right to band together for the advancement of political beliefs." Id. The trial court in this case correctly concluded that "Hawaii may not exclude a particular race from serving in public office while permitting another. Under Hadnott, the right to vote is abridged in violation of the Fifteenth Amendment where the state employs invidious discrimination to strip the effectiveness of its citizens* votes." E.R., Tab 58 at 21.

Among the "white primary" cases, the Supreme Court found violations of the Fifteenth Amendment where voters were prohibited on the basis of race from participating in the selection of candidates who later would appear on the ballot. In Smith v. Allwright, 321 U.S. 649, 656-67 (1944), the Democratic primary in Texas was limited to white voters. The Court found that these primary elections were conducted by the party under state statutory authority and therefore were subject to the Fifteenth Amendment. Id. at 663-64. Critical to the Court*s reasoning that the discriminatory candidate-selection procedure violated the Fifteenth Amendment was the fact that the "choice of the electorate in general elections for state offices" was limited to those candidates selected in the discriminatory party primary. Id. at 664. Similar to the situation in Hawaii, race was employed in Allwright in the candidate-selection procedure so that voters were required to choose from a ballot that was limited by racial discrimination.

In Terry v. Adams, 345 U.S. 461, 463-64 (1953), black voters were denied on the basis of race the right to participate in nominating candidates for the Democratic primary election in a Texas county. The purpose of the pre-primary nomination process was to limit the voters to choosing candidates selected by white people. Id. The situation in Terry is similar to the present situation in Hawaii because, in both instances, voters have been required to choose from a ballot limited by race discrimination. As Justice Breyer has observed:

States had tried to maintain that status quo through the "all-white" primary--a tactic that tried to avoid the Fifteenth Amendment by permitting white voters alone to select the "all-white" Democratic Party nominees, who were then virtually assured of victory in the general election. 

Morse v. Republican Party, 517 U.S. 186, 235 (1996) (Breyer, J., concurring). These "white primary" cases support the proposition that candidates who ultimately are elected should reflect the will of all voters, without being restricted by race. These cases affirm that the Fifteenth Amendment is implicated when race is employed to determine who may run for office. Restricting candidates for a public office to members of one race places a race-based limitation on choices of the voters and presents them with a ballot tainted by racial discrimination. As a result, the voters* freedom to exercise the electoral franchise is restricted on the basis of race. Consequently, the Fifteenth Amendment applies to*and indeed prohibits*restrictions on the race of the candidates. Therefore, the Amendment condemns the Hawaiian-only trustee restriction imposed by Article XII, Section 5.

The Fifteenth Amendment provides: "Congress shall have power to enforce this article by appropriate legislation." U.S. Const. amend. XV, * 2. Congress* primary purpose in adopting the Voting Rights Act of 1965 was "[t]o enforce the fifteenth amendment to the Constitution of the United States."2 Pub. L. No. 89-110, 79 Stat. 437 (1965). "The Voting Rights Act of 1965 reflects Congress* firm intention to rid the country of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S. at 315. Section 2 of the Voting Rights Act provides:

No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision 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 or color . . . . 

42 U.S.C. * 1973(a).  

A violation of subsection (a) is established if, based on the totality of circumstances, 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 a class of citizens protected by subsection (a) 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. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.  

42 U.S.C. 1973(b). 

The central theme of cases interpreting Section 2 of the Voting Rights Act is that, but for a discriminatory electoral law or practice, voters would have an equal opportunity to elect representatives of their choice. See, e.g., Thornburg v. Gingles,

 

478 U.S. 30, 50-51 (1986). The district court demonstrated that the Supreme Court specifically has interpreted candidate qualification requirements as a "standard, practice or procedure with respect to voting" under Section 5 of the Voting Rights Act, 42 U.S.C. * 1973c.3 E.R., Tab 58 at 23-25 (citing Dougherty County Board of Education v. White, 439 U.S. 32, 36-37 (1978) (candidates required to take unpaid leave of absence to campaign for office); Allen v. State Board of Elections, 393 U.S. 544, 569-70 (1969) (increased qualifications for independent candidates); City of Rome v. United States, 446 U.S. 156, 160-61 (1980) (candidate residency requirements)). Hawaii requires that candidates for OHA trustee be "Hawaiian," defined by ancestry. Haw. Const. art. XII, * 5; Haw. Rev. Stat. * 13D-2. The Supreme Court already has determined that the Hawaiian-only requirement is a racial classification. Rice, 528 U.S. at 517. In creating the race-based trustee requirement, Hawaii has established a "standard, practice or procedure" under the Voting Rights Act. A complicated examination is not necessary to determine whether the election restriction in this case is discriminatory because the Hawaiian-only requirement is racially discriminatory on its face.

Hawaii has established a political process leading to election of OHA trustees that is not equally open to participation by non-Hawaiians because only "Hawaiians" can appear on the ballot for the office of OHA trustee. In Hawaii*s elections for OHA trustees, the voters cannot possibly have an equal opportunity to elect representatives of their choice because all choices are restricted by law to candidates of only one race.

By limiting candidates for trustee to members of one race, the State of Hawaii has imposed a "standard, practice, or procedure" that abridges on the basis of race the right of citizens to vote. As a result, the Hawaiian-only trustee requirement violates the Voting Rights Act.4

Consequently, the district court*s determination that the Hawaiian-only trustee requirement violated both the Fifteenth Amendment and the Voting Rights Act should be affirmed.

 

III

THE SUPREME COURT ALREADY HAS HELDTHAT MORTON v. MANCARI DOES NOT APPLY TOHAWAII*S OFFICE OF HAWAIIAN AFFAIRS BECAUSE THAT RULING WAS NARROWLY CRAFTED TO COVER ONLY A FEDERALHIRING PREFERENCE FOR TRIBAL INDIANS

Defendants assert that the Supreme Court decision in Morton v. Mancari, 417 U.S. 535 (1974), "saves" the Hawaiian-only trustee restriction from violating the Fourteenth and Fifteenth Amendments, as well as the Voting Rights Act. Defs.* Br. at 19, 31, 46. As explained below, however, Mancari has no place in this case.

The Court in Mancari upheld under rational basis review a Federal Bureau of Indian Affairs (BIA) employment preference for tribal Indians under the theory that the preference was for members of a quasi-sovereign authority and not for members of a particular race. Id. at 554-55. In Rice, the Court determined that Mancari did not apply to OHA. See 528 U.S. at 520-22.

That determination governs this case whether the Hawaiian-only restriction is analyzed under the Fourteenth Amendment, the Fifteenth Amendment, or the Voting Rights Act. The Court*s determination in Rice did not rest on the fortuity that Rice construed the Fifteenth Amendment rather than the Fourteenth Amendment.5 Rather, the Court*s decision that Mancari does not apply to OHA rested on the fact that Mancari dealt with the federal government*s relationship with Indian Tribes, while the Rice case (like this case) dealt with a race restriction established by a state government. See 528 U.S. at 519-22. The race restriction on OHA trustees is a violation of civil and political rights that cannot be "saved" by analogy to a case that the Supreme Court already has determined does not apply.

The Court has drawn a sharp distinction between the preferences upheld in Mancari and the status of OHA. Rice, 528 U.S. at 518-19. In Mancari, the Federal BIA provided an employment preference for individuals who were "one-fourth or more degree Indian blood and . . . a member of a Federally-recognized tribe." Mancari, 417 U.S. at 554 n.24. The Court reasoned: "The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion." Mancari, 417 U.S. at 554.

The Court in Rice pointed out that various Indian tribes retained some elements of quasi-sovereign authority even after ceding their lands to the United States. See 528 U.S. at 518. "The retained tribal authority relates to self-governance." Id.

The BIA preference was held not to offend the Constitution because it could be rationally tied to fulfilling Congress* "unique obligation toward the Indians" and was "reasonably and rationally designed to further Indian self-government." Rice, 528 U.S. at 520 (quoting Mancari, 417 U.S. at 555). "The [Mancari] opinion was careful to note, however, that the case was confined to the authority of the BIA, an agency described as *sui generis.* " Id.

"Hawaii would extend the limited exception of Mancari to a new and larger dimension," the Court said of Hawaii*s contention in Rice that OHA "fits the model of Mancari." Id. "It does not follow from Mancari, however, 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. Applying the logic of Rice to the present case, it does not follow from Mancari that Congress may authorize the State of Hawaii to limit holders of a state public office to members of a particular race.

To support their view in this case that Mancari applies because Hawaiians are like an Indian Tribe, Defendants quote various phrases from the "Findings" section of the Hawaiian Homelands Homeownership Act of 2000, which is part of the American Homeownership and Economic Opportunity Act of 2000, Pub. L. No. 106-569, 114 Stat. 2944. However, the legislative findings in a federal housing assistance law are irrelevant to this case, which deals with a race restriction placed by a state government on elected public officials. The Supreme Court dismissed similar arguments in Rice. To apply Mancari to OHA, the Rice Court noted that it would have to accept premises "not yet established in our case law." Rice, 528 U.S. at 518. Thus,

it would be necessary to conclude that Congress, in reciting the purposes for the transfer of lands to the State * and in other enactments such as the Hawaiian Homes Commission Act and the Joint Resolution of 1993 * 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. 

Id. (emphasis added). The Court observed that it would be constitutionally difficult, if not impossible, to make such a determination: "It is a matter of some dispute, for instance, whether Congress may treat the native Hawaiians as it does the Indian tribes." Id.

 The Court in Rice also noted: "Congress may fulfill its treaty obligations and its responsibilities to the Indian tribes by enacting legislation dedicated to their circumstances and needs." Id. at 519. Accordingly, "every piece of legislation dealing with Indian tribes and reservations . . . singles out for special treatment a constituency of tribal Indians." Id. (quoting Mancari, 417 U.S. at 552). Hawaii asserts that "Hawaiians too are Indian Tribes." Defs.* Br. at 36. Nevertheless, the federal government does not recognize Hawaiians as an Indian Tribe.

Legislation to create a Native Hawaiian government that would be recognized by the United States Government was introduced in Congress during the summer of 2000; however, that legislation was not enacted. See H.R. 4904, S. 2899, 106th Cong. (2000). The bill has been reintroduced by the Hawaii delegation in both houses in the current Congress. See H.R. 617, S. 81, 107th Cong. (2001).

When introducing the bill this year, Senator Akaka of Hawaii stated:

The measure that we are introducing today extends the federal policy of self-determination and self-governance to Native Hawaiians by authorizing a process of reorganization of a native Hawaiian government for the purposes of a federally recognized government-to-government relationship with the United States. This measure establishes parity in federal policies towards American Indians, Alaska Natives and Native Hawaiians.

 

147 Cong. Rec. S338 (daily ed. Jan. 22, 2001). If the Hawaiian people already were Indian Tribes as Defendants assert, there would be no need for Hawaii*s congressional delegation to try to enact a law that calls for the federal government to treat Hawaiians like a tribe.

On October 23, 2000, the United States Department of the Interior and the United States Department of Justice jointly issued a report that recommended:

As a matter of justice and equity, the Departments believe the Native Hawaiian people should have self-determination over their own affairs within the framework of Federal law, as do Native American tribes. . . . To safeguard and enhance Native Hawaiian self-determination over their lands, cultural resources, and internal affairs, Congress should enact further legislation to clarify Native Hawaiians* political status and to create a framework for recognizing a government-to-government relationship with a representative Native Hawaiian governing body. The determination of precisely how and whether a Native Hawaiian governing body should be recognized is a task that Congress should undertake in consultations with Native Hawaiian people.

United States Department of the Interior and United States Department of Justice, From Mauka to Makai: The River of Justice Must Flow Freely, at 17 (Oct. 23, 2000), available at http://www.doi.gov/nativehawaiians. The report observed:

Far and away the greatest number of statements received concerned Native Hawaiians* desire to have greater control over their present lives and their destinies as well as the lives and destinies of their children. The Departments believe that these goals can be achieved through recognition by the United States of a Native Hawaiian governing body similar to Native American tribes. Because practical considerations suggest that Federal legislation would be the best method for ensuring such recognition, the Departments believe strongly that all concerned should focus their energies on obtaining this legislative recognition immediately.

Id. Again, if Hawaiians already were an Indian Tribe, there would have been no need for two Federal Executive Branch departments to recommend as recently as October, 2000, that Congress enact legislation to treat Hawaiians like tribes.

It is obvious from the Rice decision that the Supreme Court did not find that Hawaiians were an Indian Tribe: "It is a matter of some dispute, for instance, whether Congress may treat the native Hawaiians as it does the Indian tribes." 528 U.S. at 518. The Supreme Court also noted that the issue in Rice wasn*t about tribal status; rather, the issue was whether a state government could create a race-based voting qualification. Id. at 522. Whether Congress has the authority to treat Hawaiians as it does Indian Tribes, and whether Congress can delegate that authority to a state is as irrelevant in this case as it was in Rice. The only issue in this case is whether a state government can dictate which race can and cannot hold a particular public office.

Hawaii asserts that the trustee restriction is justified because it promotes Hawaiian "self-governance" in the same way that the Indian preference in Mancari was to further the cause of Indian self-government. Defs.* Br. at 21, 45. However, in finding that the Hawaiian-only voter restriction violated the Fifteenth Amendment, the Supreme Court clearly distinguished the two situations:

[T]ribal elections . . . are the internal affair of a quasi-sovereign. The OHA elections, by contrast, are the affair of the State of Hawaii. 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. Furthermore,

elections for OHA trustee are elections of the State, not of a separate quasi-sovereign, and they are elections to which the Fifteenth Amendment applies. To extend Mancari to this context would be to permit a State, by racial classification, to fence out whole classes of its citizens from decisionmaking in critical state affairs. The Fifteenth Amendment forbids this result. 

Id. at 522. Therefore, the Court held that even if it were "to take the substantial step of finding authority in Congress, delegated to the State, to treat Hawaiians or native Hawaiians as tribes, Congress may not authorize a State to create a voting scheme of this sort." Id. at 519. By analogy, even if there were a relationship that permitted the state to treat Hawaiians or native Hawaiians as tribes, Congress could not authorize the State of Hawaii to create a racially restricted state public office.

Even putting aside all the reasons why Mancari does not apply to this case, there is a serious question whether Mancari is even viable after Adarand. As Judge Sedwick has observed:

The continuing validity of Mancari*s analysis is subject to some question. In Adarand Constructors, Inc. v. Pena, the United States Supreme Court held a preference favoring "Native Americans" among others was subject to strict scrutiny. In Williams [v. Babbitt, 115 F.3d 657 (9th Cir. 1997)], . . . . Judge Kozinski observed that "Mancari*s days are numbered" if one assumes that Justice Stevens* dissent in Adarand is right. Mancari has not been overruled. However, application of its principles in each case must be made with reference to its purpose.

Malabed v. North Slope Borough, 42 F. Supp. 2d 927, 938 n.88 (D. Alaska 1999) (citations omitted). Judge Sedwick*s observation is valid because the Supreme Court in Rice made clear that Mancari is not to be expanded beyond its application to the federal government*s relationship with Indian Tribes.

Consequently, the Mancari decision is irrelevant to the present case. In Rice, Mancari did not "save" the State of Hawaii*s requirement that voters for OHA trustee be Hawaiian from violating the Fifteenth Amendment. Here, Mancari does not save the State of Hawaii*s requirement that OHA elected trustees be Hawaiian from violating the Fourteenth and Fifteenth Amendments and the Voting Rights Act. The trial court in this case was correct in holding that Morton v. Mancari does not apply to OHA.

CONCLUSION

This case involves a state-sponsored racial classification that must be strictly scrutinized and found unconstitutional in accordance with the Fourteenth Amendment*s guarantee of equal protection of the laws. This case also involves an abridgment of the right to vote on the basis of race in violation of the Fifteenth Amendment and the Voting Rights Act.

"The Constitution of the United States . . . has become the heritage of all the citizens of Hawaii." Rice, 528 U.S. at 524. The State of Hawaii*s race-based trustee requirement is just as noxious to our constitutional principles as the state*s race-based voting rule was. The Supreme Court decision in Morton v. Mancari does not apply to the facts of this case and, therefore, Mancari doesn*t "save" Hawaii*s race-based limitation on OHA trustees from violating either constitutional provision. The district court analyzed this case appropriately under both the Fourteenth and Fifteenth Amendments as well as the Voting Rights Act, and its decision should be affirmed.

DATED: April _____, 2001.

 

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1 In Part III below, this brief disputes the Defendants* erroneous argument that rational basis is the proper level of review for this state-sponsored race discrimination.



2 The Supreme Court also has found the Voting Rights Act to enforce the Equal Protection Clause of the Fourteenth Amendment. See Katzenbach v. Morgan, 384 U.S. 641, 652 (1966).



3 Section 5 of the Voting Rights Act requires certain jurisdictions to obtain preclearance from the United States District Court for the District of Columbia or the Attorney General of the United States before implementing a new "standard, practice, or procedure with respect to voting." 42 U.S.C. * 1973c.



4 Defendants erroneously assert that the Voting Rights Act would be unconstitutional if it prohibited the trustee restriction while the Fourteenth and Fifteenth Amendments did not. Defs.* Br. at 47. Although it is not necessary to belabor the point because there is no question that the discriminatory office-holder restriction violates both the Fourteenth and Fifteenth Amendments, the constitutionality of the Voting Rights Act is not an issue in this case. The Supreme Court has held: "[U]nder * 2 of the Fifteenth Amendment Congress may prohibit practices that in and of themselves do not violate *1 of the Amendment, so long as the prohibitions attacking racial discrimination in voting are *appropriate,* as that term is defined in McCulloch v. Maryland and Ex parte Virginia, 100 U.S. 339 (1880)." City of Rome v. United States, 446 U.S. at 177. The Court also has set forth the definitions of "appropriate:"

The basic test to be applied in a case involving *2 of the Fifteenth Amendment is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States. Chief  

Justice Marshall laid down the classic formulation, 50 years before the Fifteenth Amendment was ratified:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. McCulloch v. Maryland, 4 Wheat. 316, 421.

The Court has subsequently echoed his language in describing each of the Civil War Amendments:

Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power. Ex parte Virginia, 100 U.S., at 345-346.

South Carolina v. Katzenbach, 383 U.S. at 326-27.



5 Defendants acknowledge that Mancari did not apply to the race-based voter restriction in Rice. Defs.* Br. at 28. Defendants try to distinguish between voters and candidates to support their argument that Rice left open the question under the Fifteenth Amendment whether Mancari applies to race-based candidate restrictions. Defs.* Br. at 32. Such distinctions are irrelevant because both the voter restriction and the office-holding restriction are racial classifications established by a state government; hence, Mancari is inapplicable in either circumstance.





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