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Case 1:12-cv-00184-JMS-LEK-MMM Document 28-1 Filed 04/23/12 Page 1 of 55

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII



v.

Plaintiffs,

JOSEPH KOSTIC; et al.,





SCOTT T. NAGO, in his official
capacity as the Chief Election
Officer State of Hawaii; et al.,




Defendants.















CIVIL NO. 12-00184 JMS/RLP

(THREE-JUDGE COURT (28
U.S.C. § 2284))

MEMORANDUM IN
SUPPORT OF MOTION FOR
PRELIMINARY
INJUNCTION






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TABLE OF CONTENTS




Table of Authorities .................................................................................. iii

Page

INTRODUCTION ............................................................................. 1

I.

II. FACTS .............................................................................................. 4





B. Hawaii’s Reapportionment Process ........................................ 5

A. Hawaii’s Reapportionment Record ......................................... 4

1.

Servicemembers ........................................................... 11

September 2011 Plan: “Extract” A Handful ........................... 8

September Plan Invalidated: Extract More ........................... 9

C. Census: 1,360,301 “Usual Residents” ..................................... 6

D. August 2011 Proposal: Count Everyone;


2012 Plan: Extract Usual Residents Of Hawaii
Deemed To Not Be “Permanent Residents”.......................... 11























III. PRELIMINARY INJUNCTION STANDARD ............................... 16


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G. Senate Seat To Hawaii County, Large Deviations ............... 14

2. House Deviation: 21.57% ............................................. 15

Students ....................................................................... 13

2.

Families ........................................................................ 13

1.

Senate Deviation: 44.22% ............................................ 15

-i-

E.

F.












3.

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TABLE OF CONTENTS — CONTINUED

Page













Intra-County Inequality ............................................... 35

A. Plaintiffs Will Likely Prevail ................................................ 19

Equal Representation: Garza Requires
Inclusion Of All Persons .............................................. 21


IV. ARGUMENT .................................................................................. 17



















V. CONCLUSION ............................................................................... 48

c. No Approximation Of Population-Based


Plan ..................................................................... 39

B. Constitutional Injury Is Irreparable Harm .......................... 40

C. Equities Favor Relief ............................................................ 42

b. Oahu’s Ranges Are Excessive ............................. 38

People Are Represented, Not Counties .............. 36

a.

1.


2.
















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TABLE OF AUTHORITIES

Page

Hawaii, 120 P.3d 217 (Haw. 2005) .......................................... 28, 31


CASES

Board of Estimate v. Morris, 489 U.S. 688 (1989) .................................. 37

Brown v. Thomson, 462 U.S. 835 (1983) ..................................... 20, 35, 37

Burns v. Richardson, 384 U.S. 73 (1966) ........................................ passim

Citizens for Equitable and Responsible Gov’t v. County of


Chen v. City of Houston, 532 U.S. 1046 (2001) ....................................... 33

Davis v. Mann, 377 U.S. 678 (1964).................................................. 19, 30

Eastern Railroad President’s Conference v. Noerr


Elrod v. Burns, 427 U.S. 347 (1976) ....................................................... 41

Franklin v. Massachusetts, 505 U.S. 788 (1992) ................................ 6, 27

Farris v. Seabrook, 667 F.3d 1051 (9th Cir. 2012) ................................. 41

Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990),


Kirkpatrick v. Preisler, 394 U.S. 526 (1969) ........................................... 23

Mahan v. Howell, 410 U.S. 315 (1972) ........................................ 18-19, 35

Matsukawa v. State of Hawaii 2011 Reapportionment


cert. denied, 498 U.S. 1028 (1991) .......................................... passim

Motor Freight, Inc., 365 U.S. 127 (1961) ....................................... 23

Comm’n, No. SCPW-11-0000741...................................................... 9


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TABLE OF AUTHORITIES — CONTINUED



Page


Mitchell v. Cuomo, 748 F.2d 804 (2d Cir. 1984) ..................................... 41

Monterey Mech. Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997) .................. 40

Reynolds v. Sims, 377 U.S. 533 (1964)............................... 2, 17-18, 23, 36

Solomon v. Abercrombie, 270 P.3d 1013 (Haw. 2012) .... 10, 18, 28, 29, 30

Solomon v. Abercombie, No. SCPW-11-0000732 ................................ 9, 10

Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ....................... 17

Travis v. King, 552 F. Supp. 554 (D. Haw. 1982) .......................... passim

Wesberry v. Sanders, 376 U.S. 1 (1964) .................................................. 41

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008).................. 16


CONSTITUTIONS, STATUTES, AND RULES



U.S. CONST. AMEND. XIV .................................................................. passim

5 U.S.C. § 552a et seq. ............................................................................ 12

5 U.S.C. § 552a(a)(4)................................................................................ 29

HAW. CONST. ART. IV, § 4 ........................................................................... 6

HAW. CONST. ART. IV, § 6 ........................................................................... 6

HAW. CONST. ART. IV, § 10 ....................................................................... 45



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TABLE OF AUTHORITIES — CONTINUED




HAW. REV. STAT. § 831-2(a)(1) (1993) ................................................. 31-32

FED. R. CIV. P. 65 ..................................................................................... 16


OTHER AUTHORITIES

Page



available at http://manoa.hawaii.edu/admissions/
undergrad/financing/residency.html. ............................................. 31

(Jan. 5, 2012) .................................................................................. 44

ADD TO HAWAII’S ECONOMY? (2011) ................................................ 26

Carl Goldfarb, Allocating the Local Apportionment Pie:

What Portion for Resident Aliens?, 104 YALE L. J.

1441 (1994-1995) ............................................................................ 25

Hawaii Residency Requirements,



HONOLULU STAR-ADVERTISER, Court voids voting districts plan


James Hosek, et al., HOW MUCH DOES MILITARY SPENDING


John Manning, The Equal Protection Clause in District



Timothy M. Mitrovich, Political Apportioning is Not a
Zero-Sum Game: The Constitutional Necessity of

Apportioning Districts to be Equal in Terms


of Both Total Population and Citizen Voting-Age

Population, 77 WASH. L. REV. 1261 (2002).................................... 34

MOORE’S FEDERAL PRACTICE 3d, § 65.22 ................................................. 40


Reapportionment: Representational Equality Versus
Voting Equality, 25 SUFFOLK L. REV. 1243 (1991) ......................... 21


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TABLE OF AUTHORITIES — CONTINUED



Page


Reapportionment and Redistricting—Addendum (Mar. 2012) ..... 11

Non-Permanent Population Extraction for 2011


Summaries by Basic Island Units at 2, 6 (Mar. 8, 2102) ....................... 37

Summary of the State of Kansas Adjustment to





Census Figures for Reapportionment (Sep. 12, 2011) .................... 29


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MEMORANDUM IN SUPPORT OF MOTION FOR

PRELIMINARY INJUNCTION

“[G]overnment should represent all the people.”




Garza v. County of Los Angeles, 918 F.2d 763 (9th
Cir. 1990) (emphasis original), cert. denied, 498
U.S. 1028 (1991)

I.

INTRODUCTION





A preliminary injunction may be extraordinary relief, but here it

is necessary to remedy an extraordinary wrong: Plaintiffs ask this

Court to stop Hawaii’s exclusion of military personnel, their families,

and university students who do not pay resident tuition, from its

reapportionment population base. Equal Protection requires all persons

be counted, and Hawaii’s 2012 Reapportionment Plan cannot simply

ignore the rights of all usual residents to be represented in our

legislature. By treating servicemembers, military families, and students

as invisible, Hawaii’s plan unconstitutionally dilutes their rights and

Plaintiffs’ rights to equal representation and to petition their

government on equal terms.



This case challenges Hawaii’s use of “permanent residents” as its

reapportionment

population

basis. Hawaii

assumed

that

servicemembers counted by the Census as usual residents of Hawaii

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who pay state taxes elsewhere are “transients,” assumed that

dependents of servicemembers have the same state residence as their

sponsors, and excludes students who did not pay in-state tuition. This

exclusionary policy treats nearly 8% of the actual population—a vast

majority of whom live on Oahu—as if they did not exist, which grossly

distorts the boundaries and actual population of every Oahu district by

depriving Oahu of a Senate seat.



The Supreme Court maintains the touchstone of a state legislative

reapportionment plan is population. Reynolds v. Sims, 377 U.S. 533,

560-61 (1964). In Burns v. Richardson, 384 U.S. 73, 93 (1966), the Court

noted that states may have leeway to use a population basis other than

the Census, but only if the resulting plan is not “substantially different”

than one based on population. Hawaii’s 2012 Plan is not just

“substantially” different from population, it is grossly deviant.



In Garza, the Ninth Circuit concluded that because local

legislatures represent everyone, everyone must be included in the

reapportionment basis. The Hawaii legislature represents everyone, not

just those who vote, or who register, or who pay state income taxes, and

Equal Protection requires legislative seats to be apportioned so that all

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persons are represented. A basis other than population would “dilute

the access of voting age citizens in that district to their representative,

and would similarly abridge the right of aliens and minors to petition

that representative.” Garza, 918 F.2d at 775. The same rationale

prohibits Hawaii from using a basis that excludes some—but not all—

persons selectively deemed by the state to not be “permanent residents.”



Moreover, the massive overall ranges in ideal district size in both

houses (Senate: 44.22%; House: 21.57%) reveal that even if Hawaii may

exclude this many people, the 2012 Plan still does not pass muster

because these ranges far exceed the 10% deviations the Supreme Court

has established for presuming a plan is unconstitutional.



This case presents two issues that have dogged Hawaii since

statehood: may the state reapportion using a basis that excludes nearly

8% of the actual population, and may it give priority to representing

counties rather persons, especially when the resulting apportionment

deviates wildly from statewide population equality? The last time the

first issue was presented to this Court, it did not need to decide the

issue, because the overall deviations in the plan were unconstitutionally

large (although smaller than presented here). Travis v. King, 552 F.

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Supp. 554, 562 n.19 (D. Haw. 1982). Since that time, however, the

Ninth Circuit established in Garza that representational equality

prohibits states from using a population basis categorically excluding a

huge part of its actual population.



By barring military,

their

families, and students

from

representation in the legislature, Hawaii has insured they are

represented nowhere: because they are counted by the Census only as

usual residents of Hawaii, they are not counted anywhere else.

II. FACTS





A. Hawaii’s Reapportionment Record

Hawaii’s bicameral legislative consists of a Senate (“Senate”) with

25 seats, and a House of Representatives (“House”) with 51. The ink

was barely dry on the Admissions Act when Hawaii began excluding

servicemembers. In the first challenge to reapportionment, Burns v.

Richardson, 384 U.S. 73 (1966), the Supreme Court reluctantly

approved of Hawaii’s use of “registered voters” as the population basis

(which resulted in military personnel not being counted), but “only

because on this record [the plan was] found to have produced a

distribution of legislators not substantially different from that which

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would have resulted from the use of a permissible population basis.” Id.

at 93. The Court did not endorse excluding servicemembers, did not

hold that alternative population bases are always permissible, and it

only rejected the challenge because there was no evidence the plan

varied from one based on population.



Indeed, in Travis v. King, 552 F. Supp. 554 (D. Haw. 1982), this

Court applied Burns and held that a plan based on registered voters

was unconstitutional because it did was different from one based on

population. Travis also details the multiple challenges to Hawaii’s

reapportionment efforts. See id. at 556 & n.2 (citing the “numerous

attacks in both state and federal courts”).





B. Hawaii’s Reapportionment Process

In 1992, the State of Hawaii ceased use of “registered voters” as

the population basis. Since then, it uses “permanent residents” —

The [Reapportionment] commission shall allocate the total
number of members of each house of the state legislature
being reapportioned among the four basic island units,
namely: (1) the island of Hawaii, (2) the islands of Maui,
Lanai, Molokai and Kahoolawe, (3) the island of Oahu and
all other islands not specifically enumerated, and (4) the
islands of Kauai and Niihau, using the total number of
permanent residents in each of the basic island units and
computed by the method known as the method of equal

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proportions; except that no basic island unit shall receive
less than one member in each house.


HAW. CONST. ART. IV, § 4. After “extraction” of persons deemed not to be

permanent residents, and allocation of legislative seats among the four

counties,

the

constitution

requires

the Defendant

2011

Reapportionment Commission (“Commission”) only to insure population

equality within each county. It must:

apportion the members among the districts therein [and]
redraw district lines where necessary in such manner that
for each house the average number of permanent residents
per member of each district is as nearly equal to the average
for the basic island unit as practicable.


HAW. CONST. ART. IV, § 6 (emphasis added).


Census: 1,360,301 “Usual Residents”

C.

In April 2010, the U.S. Census Bureau conducted the decennial





census (“Census”). The Census has used the standard of “usual

residence” since the first Congress. See Franklin v. Massachusetts, 505

U.S. 788, 804-05 (1992). Usual resident “can mean more than mere

physical presence, and has been used broadly enough to include some

element of allegiance or enduring tie to a place.” Id. at 789. Currently,

the Census defines “usual residence” as the “the place where a person

lives and sleeps most of the time. It is not the same as the person’s

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voting residence or legal residence.” Stip. Facts at 2, ¶ 1 (CM/ECF doc.

26, attached as Exhibit “B”). It is the place where “they live and sleep

most of the time.” Id. For military personnel stationed within the

United States, they are counted as “usual residents” of the state in

which they are stationed. Id. at 2, ¶ 3. For military personnel and

federal employees deployed or assigned outside the country, they are

counted as “overseas population” and are attributed to a state through a

different mechanism than Census Day live counts. See Exhibit “H”, at

6-7.



Thus, the 2010 Census resident population of Hawaii included

servicemembers, their families, university students, children, legal and

illegal aliens, and prisoners incarcerated here, all irrespective of

whether they pay state taxes, their eligibility to vote in Hawaii, or

actual registration to vote. Hawaii’s Census count also included

deployed servicemembers whose “home of record” is Hawaii. Most

critically, persons counted as usual residents of Hawaii were not

counted by the Census in any other state. Id. at 2-3, ¶¶1-3, 6-7.



The Census excluded transients such as tourists, who are counted

in their state of “usual residence.” Id. at 3, ¶ 5.

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Applying the above-referenced standards, the Census reported the

total population of persons usually residing in Hawaii as 1,360,301

(“2010 Census population”).

August 2011 Proposal: Count Everyone; September
2011 Plan: “Extract” A Handful





D.




On August 3, 2011, the Commission proposed a reapportionment

plan that used as the population basis all persons determined to be

usual residents of Hawaii by the 2010 Census. This plan included maps

with district lines, but was not adopted.





On September 26, 2011, the Commission adopted and filed the 2011

Final Report and Reapportionment Plan (“2011 Plan”) that “extracted”

16,458 active duty military and university students from the 2010

Census population who were deemed not to be permanent residents,

resulting in a “permanent resident” population basis of 1,343,843.



Using this count as the population basis, the Commission allocated

the members of each house among the counties:









1.

2.

3.

4.

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Oahu.

Senate: 18; House: 35.

Hawaii. Senate: 3, House 7.

Maui.

Senate: 3; House 6.

Kauai.

Senate: 1; House 3.


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The Elections Office did nothing to implement the plan because it was

waiting for the County of Hawaii to complete its local reapportionment,

which it would not complete until late December. Nago Deposition at

20:8-11 (Exhibit “C”).





E.

September Plan Invalidated: Extract More

On October 10, 2011, a Hawaii Island senator instituted an action

in the Hawaii Supreme Court to compel extraction of more

servicemembers, their families, and university students from the

population basis. Solomon v. Abercombie, No. SCPW-11-0000732. The

action sought to move an Oahu Senate seat to Hawaii. A nearly

identical action was filed the following day. Matsukawa v. State of

Hawaii 2011 Reapportionment Comm’n, No. SCPW-11-0000741.



On December 29, 2011, the Commission submitted the 2011 Plan to

the legislature, cautioning that it was subject to the court’s rulings in

these cases. The Elections Office did nothing to implement the plan

because of the Solomon case. Nago Deposition at 20:8-11.



On January 4, 2012, the Hawaii Supreme Court concluded the 2011

Plan violated the Hawaii Constitution because it did not extract enough

people. The court ordered the Commission to count only “permanent

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residents” by extracting additional servicemembers, families, and

university students who pay non-resident tuition from the 2010 Census

population. The

court did not

require

removal of aliens,

institutionalized persons, federal civilian workers who were “stationed”

in Hawaii, or others who were similarly situated to those who were

subject to removal. The parties did not raise Equal Protection

arguments, and as a consequence, the court did not consider the effect

of federal law. The court’s opinion detailed the meaning of the term

“permanent resident” under Hawaii law, and which also specified the

Commission’s process:



1.

First, it was required to “extract non-permanent military

residents and non-permanent university student residents from the

state’s and the counties’ 2010 Census population” because they are not

“domiciled” in Hawaii. Solomon v. Abercrombie, 270 P.3d 1013, 1022

(Haw. 2012).



2.

Next, based on this count of “permanent residents,” the

Commission was required to apportion Senate and House seats “among

the four counties” with each county having at least one seat. Id.

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3.

Finally, the Commission was required to “apportion the

senate and house members among nearly equal numbers of permanent

residents within each of the four counties.” Id. at 1024 (footnote

omitted).

F.


2012 Plan: Extract Usual Residents Of Hawaii Deemed
To Not Be “Permanent Residents”




More than two months went by without a plan. Finally, on March 8,

2012, the Commission adopted the Final Report and Reapportionment

Plan (2012 Supplement) (“2012 Plan”) that, in conformity with

Solomon, removed 108,767 servicemembers, families, and students from

the population basis, nearly 8% of Hawaii’s actual population. A

summary of how they were extracted follows, and is described in more

detail

in

the Non-Permanent Population Extraction

for 2011

Reapportionment and Redistricting—Addendum (Mar. 2012) (Exhibit

“D”).







1.

Servicemembers

The Commission started with the 2010 Census population, which

included all Census-counted “usual residents.” Stip. Facts at 3, ¶¶7-8,

10; 2012 Plan at B-12. Transient military and tourists are not counted

as “usual residents.” Stip. Facts at 2-3, 5-6, ¶¶3, 5-6, 21-22.

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The Commission asked the U.S. Pacific Command for information

on all active duty servicemembers who were not “legal residents” of

Hawaii. Pacific Command, using the Defense Manpower Data Center,

provided a spreadsheet of servicemembers who had completed form

DD2058 denoting a state other than Hawaii as their “legal residence”

for state tax purposes. Id. at 3, ¶7; Exhibit “I.” This form is used to

designate which state should withhold taxes from servicemembers’

military pay. See Exhibit “E.” Servicemembers understand the

information provided may be disclosed to tax authorities in that state,

but they were not informed that it would be provided to Hawaii to

determine “permanent residency” for apportionment. There may be

little correlation between the place where a servicemember pays state

taxes, and where she is actually located. Nor was there any way to

confirm the servicemembers to be extracted based on these forms had

actually been in Hawaii on Census Day and thus included in the count

of usual residents.



Even though the DD2058 information was not an accurate process

to determine permanent residency, and indeed, disclosure may have

violated the Privacy Act, 5 U.S.C. § 552a et seq., the Commission

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extracted 42,332 active duty military personnel based on the form. Stip.

Facts at 3-4, ¶¶ 8, 9, 10; 2012 Plan at B-47.







2. Families

The Commission then extracted 53,115 military dependents. Stip.

Facts at 3-4, ¶¶10-13; 2012 Plan, Page B-47. They were not surveyed

nor did the military provide any data about them. 2012 Plan at B-12, B-

33. In the absence of such data, the Commission merely “assumed” that

dependents have the same legal residency as their military spouse.

2012 Plan at B-53, B-54. The Commission extracted dependents

“associated or attached to an active duty military person who had

declared a state of legal residence other than Hawaii.” Stip. Facts at 3-

4, ¶10. The Commission was unable to locate any information as to the

permanent or non-permanent residence of military dependents. Id. at 4,

¶¶11-13. There was no other data with regard to dependents’ residency

except their “association” or “attachment” to a military sponsor with a

declared legal residence elsewhere. Id. at 4, ¶¶ 12-13.







3.

Students

The Commission’s attempt to extract students was also an inexact

process, loaded with assumptions. It relied on data from universities

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that was not related in any way to data gathered on Census Day,

April 1, 2010. See Stip. Facts at 2-3, 4-5, ¶¶14, 18. For example, the

University of Hawaii identified students as non-residents based on its

count of those enrolled for spring 2010 semester (not necessarily

students who were enrolled on Census Day) who paid non-resident

tuition. Exhibit “F.” BYU Hawaii, Hawaii Pacific, and Chaminade used

“home address.” Stip. Facts at 4-5, ¶¶14, 19. Accordingly, the

Commission might have extracted persons who were not included in the

Census because they were not present or were not usual residents on

Census Day. Also, the Commission had data only from the above

schools, and did not seek such data for any other of the many public and

private colleges in Hawaii, Argosy, and Tokai University. Id. at 5, ¶¶15-

17.



Using this process, the Commission extracted 13,320 students from

the Census. Id. at 4, ¶14.






G.

Senate Seat To Hawaii County, Large Deviations

Excluding these 108,767 persons resulted in 1,251,534 “permanent

residents” as the population basis. By this measurement, the ideal

population of Senate districts statewide was 50,061, and the ideal

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population for House districts was 24,540. The 2012 Plan moved one

Senate seat from Oahu to Hawaii, the result sought in the Solomon and

Matsukawa lawsuits.







1.

Senate Deviation: 44.22%

Under the 2012 Plan, the largest Senate district (Senate 8; Kauai)

contains 66,805 “permanent residents,” which is a deviation of +16,744

or +33.44%, more than the statewide ideal; the smallest Senate district

(Senate 1; Hawaii) contains 44,666 permanent residents, which is a

deviation of -5,395, or -10.78% less than the ideal. The sum of those

deviations (the “overall range” of the plan) is 44.22%.







2. House Deviation: 21.57%

The overall range in House districts was less, but still extreme. The

largest (House 5; Hawaii) contains 27,129 permanent residents, which

is a deviation of +2,589, or +10.55%, more than the statewide ideal; the

smallest House district (House 15; Kauai) contains 21,835 permanent

residents, a deviation of -2,705, or -11.02% less than the ideal. The

overall range in the House is 21.57%.



The Commission, however, reported that the 2012 Plan’s deviations

were lower and below the 10% federal invalidity threshold when

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comparing districts within each county. See 2012 Plan at 15-18 (Tables

1-8). It was able to reach this result by dismissing the statewide ideal as

set out above. It acknowledged that its methodology does not comply

with federal law. Id. at 18 (“The Commission is aware that federal

courts generally review reapportionment and redistricting plans under

a different methodology than set forth above.”). It also recognized that

because the statewide deviations exceed 10%, the 2012 Plan is “prima

facie discriminatory and must be justified by the state.” Id. at 9.



On March 22, 2012, Defendant Nago published notice of the plan,

and on March 30, the Office of Elections submitted the plan to the

Legislature. The following week—four working days later—Plaintiffs

instituted this lawsuit.

III. PRELIMINARY INJUNCTION STANDARD



A preliminary injunction is warranted under FED. R. CIV. P. 65

where the movant establishes: (1) a likelihood of success on the merits;

(2) it is likely to suffer irreparable harm in the absence of relief; (3) the

balance of equities tips in its favor; and (4) a preliminary injunction is

in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S.

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7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir.

2009).

IV. ARGUMENT



Two background principles should be kept in mind. First, the text of

the Equal Protection Clause protects all “persons”—

No State shall ... deny to any person within its jurisdiction
the equal protection of the laws.



U.S. CONST. AMEND. XIV. The “person” requirement means that both

houses of a state legislature must be apportioned substantially on a

population basis, and states may not maintain a legislature modeled on

the federal system in which one house represents political divisions,

while only the seats in the other house are determined by population.

Reynolds, 377 U.S. at 560-61. This means that people—not “citizens,”

“registered voters,” “taxpayers,” “counties,” or “basic island units”—are

entitled to be counted and represented equally. The principle of equality

is often referred to as the “one person, one vote” standard, but because

it applies to all “persons,” it also guarantees representational equality,

without regard to a person’s ability to vote, or in which state she pays

taxes. See Garza, 918 F.2d at 774.

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In Travis, this Court acknowledged these principles: (1) actual

population is the “starting point” and “overarching principle.” Travis,

552 F. Supp. at 559 (citing Reynolds, 377 U.S. at 567); (2) “minor”

deviations may be allowed, provided they are “free from any taint of

arbitrariness or discrimination.” Travis, 552 F. Supp. at 559 (emphasis

original) (quoting Mahan v. Howell, 410 U.S. 315, (1972)); (3) even

when a state has a clearly rational policy to afford counties “a certain

degree of representation as political subdivisions,” population cannot be

“submerged as the controlling consideration.” Travis, 552 F. Supp. at

559 (quoting Reynolds, 377 U.S. at 581); and (4) “extreme deviations”

will render a plan void even if the state meets its burden under “this

limited exception.” Travis, 552 F. Supp. at 559.



There is no question that all usual residents of Hawaii as reported

in the 2010 Census—including every person extracted by the

Commission—are “persons” within the jurisdiction of Hawaii and

entitled to the equal protection of the laws, and are not represented in

any other state legislature. The Census counts them only as residents of

Hawaii and nowhere else, which means that if Hawaii refuses to

represent them in its legislature, they are not represented anywhere.

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Second, it is unconstitutional for a state to deny legislative

representation to servicemembers merely because they are in the

military. In Davis v. Mann, 377 U.S. 678 (1964), the Supreme Court

rejected the argument that it was constitutional for districts to be

underrepresented because those districts contained large numbers of

servicemembers:

Discrimination against a class of individuals, merely because
of the nature of their employment, without more being
shown, is constitutionally impermissible.


Id. at 691. See also Travis, 552 F. Supp. at 558 & n.13 (“civilian

population is not a permissible population base”).

With these considerations

in mind, we address the three

preliminary injunction factors.





A.

Plaintiffs Will Likely Prevail

It is overwhelmingly likely the Plaintiffs will prevail on both of

their Equal Protection claims. A plan apportioning seats may make

“minor” deviations from the ideal statewide district size. Mahan, 410

U.S. at 710. A deviation is presumed unconstitutional when an

apportionment plan contains an overall range (the difference between

the largest and the smallest deviation from the ideal district

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population) of more than 10%. Brown v. Thomson, 462 U.S. 835, 842-43

(1983). The 2012 Plan results in overall ranges that wildly exceed that

threshold.



The Senate’s overall range of 44.22%, and the House’s 21.57% range

render the 2012 Plan presumptively unconstitutional, and place the

burden squarely on Defendants to justify (1) ignoring completely the

rights of military personnel, their families, and students to be

represented in the Hawaii legislature, and (2) dilution of both equal

representational power and voting strength based upon county.



The Commission acknowledges the 2012 Plan is “prima facie

discriminatory and must be justified by the state.” 2012 Plan at 9. It

supports the deviations with only two justifications: (1) it suggests the

Burns case allows the state to exclude military and others as long as it

does so on the avowed basis of a residence requirement (id. at 10), and

(2) it argues that preservation of the integrity of political subdivisions

can be an overriding concern such that population equality is only

required within each county (id at 9-10).

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1. Equal Representation: Garza Requires Inclusion


Of All Persons

The 2012 Plan’s unjustifiable defect is that it takes no account of

the paramount Equal Protection guarantee, the right of all persons in

Hawaii to be represented (and represented equally) in the legislature,

regardless of where they are registered to vote, or where they pay taxes.

Garza, 918 F.2d at 774 (“the Reynolds Court recognized that the people,

including those who are ineligible to vote, form the basis for

representative government”). The state’s categorical exclusion of

persons whom the Census recorded as being usual residents of Hawaii

cannot be justified.



In Garza, the Ninth Circuit held that equal representation is the

dominant Equal Protection principle, “holding that total population

provides the appropriate basis for reapportionment of the county

supervisor districts, because equal representation for all persons more

accurately embodies the meaning of the fourteenth amendment.” John

Manning, The Equal Protection Clause in District Reapportionment:

Representational Equality Versus Voting Equality, 25 SUFFOLK L. REV.

1243, 1244 (1991) (footnote omitted).

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In Garza, the Ninth Circuit concluded that Equal Protection

requires use of actual population as the population basis to insure that

all persons actually present are equally represented, regardless of their

voting registration, or even their eligibility to vote. As a remedy for

Voting Rights Act and Equal Protection violations, the district court

created a county apportionment plan that used total population as the

population basis (which included legal and illegal aliens, and children),

and created districts of nearly equal numbers of persons, but sharply

unequal numbers of citizens. Id. at 773, 774 n.4-5. The county appealed,

arguing that as a matter of law actual population was an erroneous

standard, and that it was entitled to use “voting population” to insure

the “one person, one vote” principle. Id. The county argued that Burns

“seems to permit states to consider the distribution of voting population

as well as that of the total population in constructing electoral

districts.” Id. at 774.



The Ninth Circuit generally agreed with that statement, but

cautioned that Equal Protection protects both the voting power of

citizens, and the right of equal representation in the legislature for all

persons. Id. at 775 (“The purpose of redistricting is not only to protect

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the voting power of citizens; a coequal goal is to ensure ‘equal

representation for equal numbers of people.’”) (quoting Kirkpatrick v.

Preisler, 394 U.S. 526, 531 (1969)). The court also acknowledged that

Burns suggested that for purposes of evaluating equal voting power,

states may not be obligated to use Census population when

apportioning. Garza, 918 F.2d at 774. However, in situations where

equal voting power may conflict with equal representation, the Equal

Protection principle that “government should represent all the people”

means that in such situations, actual population is the only permissible

basis. Id. at 774 (emphasis original). The court highlighted this

“fundamental principle of representative government,” and held that

Reynolds “recognized that the people, including those who are ineligible

to vote, form the basis for representative government. Thus population

is an appropriate basis for state legislative apportionment.” Id.



The court reasoned that every person has a right to be represented

in the legislature, and “the whole concept of representation depends

upon the ability of the people to make their wishes known to their

representatives.” Id. at 775 (quoting Eastern Railroad President’s

Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 137 (1961)). In

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addition, the “right to petition is an important corollary to the right to

be represented.” Garza, 918 F.2d at 775. The court recognized that non-

citizens have the right to petition the government. Id. Similarly,

Hawaii’s military personnel, their families, and university students

have the right to petition the state legislature, and to be represented

therein. The 2012 Plan, by ignoring their presence and treating them as

invisible, grossly distorts the equal population of districts on Oahu. It is

forcing the Plaintiffs, who live in districts in which large numbers of

“extracted” military personnel, families, or students reside, to compete

with more of their fellow residents to gain the attention of their

legislator than others in districts in which persons “extracted” are not

concentrated. In Garza, the court held that such dilution of

representational power violates Equal Protection:

Such a plan would dilute the access of voting age citizens in that
district to their representative, and would similarly abridge the
right of aliens and minors to petition that representative. … To
refuse to count people in constructing a districting plan ignores
these rights in addition to burdening the political rights of voting
age citizens in affected districts.


Id. at 775 (citations omitted). Discussing Garza, one commentator

wrote:

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The court-ordered apportionment plan showed how two prized
American values, electoral equality and equal representation, can
conflict in areas with large noncitizen populations. Electoral
equality rests on the principle that the voting power of all eligible
voters should be weighted equally and requires drawing voting
districts to include equal numbers of citizens. The slightly
different concept of equal representation means ensuring that
everyone—citizens and noncitizens alike—is represented equally
and requires drawing districts with equal numbers of residents.
Equal representation is animated by the ideal that all persons,
voters and nonvoters alike, are entitled to a political voice, however
indirect or muted.


Carl Goldfarb, Allocating the Local Apportionment Pie: What Portion for

Resident Aliens?, 104 YALE L. J. 1441, 1446-47 (1994-1995) (emphasis

added) (footnotes omitted). Substitute “permanent residents” for

“citizens” and “voters,” and you have the situation presented in this

case, and the result here should be no different than in Garza: Hawaii’s

use of “permanent resident,” and its application in a way that excludes

only military personnel, their families, and university students

completely ignores their right to representation in the state legislature.

Hawaii has effectively denied them any representation anywhere,

because they are counted by the Census nowhere but Hawaii and thus

are not represented in any state legislature but ours.



Consequently, Hawaii cannot choose to exclude persons who are

admittedly “usual residents” and who are plainly not transients, and

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whom no one disputes have substantial physical and continuing

presences here. In essence, when it apportions its legislative seats,

Hawaii attempts to treat servicemembers in Hawaii in the same fashion

that the Census considers servicemembers deployed outside of the

United States, by attributing them to somewhere other than where they

actually are located. But servicemembers actually in Hawaii are

obviously not located “overseas” and cannot be treated in the same

manner as those physically located outside of the United States. They

live, work, rent, own homes, patronize businesses, and pay property and

general excise taxes in Hawaii. A study prepared for the Secretary of

Defense estimated the presence of the military is responsible for

injecting $12 billion into the state, or up to 18% of Hawaii’s economy.

See James Hosek, et al., HOW MUCH DOES MILITARY SPENDING ADD TO

HAWAII’S ECONOMY? 21 (2011).1 Military personnel, their families, and

students who pay non-resident tuition are a far cry from the “aliens,

transients, short-term or temporary residents, or persons denied the

vote for conviction of a crime” that Burns suggested a state may not

count. Burns, 384 U.S. at 92. The Census counts them as “usual


1 available at http://www.rand.org/content/dam/rand/pubs/technical_
reports/2011/RAND_TR996.pdf.

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residents” of Hawaii, which means that they have “more than mere

physical presence, and [have an] … allegiance or enduring tie to a

place.” Franklin, 505 U.S. at 804. The Census already excludes

transients such as tourists and those in Hawaii only for a short time;

these people are counted back home. Hawaii, however, lumps the

military together with transients and excludes them, while at the same

time it unquestioningly includes aliens and “persons denied the vote for

conviction of a crime” in its population basis. Despite the economic

contribution of the military (which the state gladly accepts) and their

actual long-term presence here (tours of duty generally range from 18

months to two or more years), by employing irrational and unevenly

applied tests, Hawaii deems them not to be “permanent” residents.

Instead of acknowledging them as the usual residents they are (they are

more in Hawaii than they are anywhere else), the state imposes a

purity test that supposedly measures whether military personnel are

“truly” here. It imposes this test on no one else, since Hawaii’s use of

“permanent resident” as interpreted by Solomon is irrationally and

unevenly applied only to military personnel, their families, and

students.

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First, in accordance with the Hawaii Supreme Court’s mandate in

Solomon, the Commission simply accepted that if a servicemember

declared their desire to pay taxes in a state other than Hawaii on

DD2058, that person cannot be a Hawaii “permanent resident.” In other

words, Hawaii presumes that military personnel who do not pay Hawaii

income taxes are not here, because paying taxes elsewhere conclusively

reveals they are “merely transitory” in Hawaii. See Citizens for

Equitable and Responsible Gov’t v. County of Hawaii, 120 P.3d 217, 222

(Haw. 2005) (domiciled means someone who “occupies a dwelling within

the State, has a present intent to remain within the State for a period of

time, and manifests the genuineness of that intent by establishing an

ongoing physical presence within the State together with indicia that

his presence within the State is something other than merely transitory

in nature.”). That assumption is unreasonable and unwarranted. The

form is only for withholding purposes, and there is nothing that would

prevent a servicemembers who indicated on her DD2058 that she pays

state taxes in a state other than Hawaii from registering to vote in

Hawaii, from renting or owning property in Hawaii, or undertaking any

other activity that would qualify as “domiciling” in Hawaii under the

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Citizens test.2 The Commission simply could not know whether a

servicemember who completed a DD2058 was domiciled here. The

DD2058 fo