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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

CIVIL NO. 12-00184 JMS-LEK-MMM
(THREE-JUDGE COURT)

ORDER DENYING PLAINTIFFS’
MOTION FOR PRELIMINARY
INJUNCTION; APPENDIX “A”

JOSEPH KOSTICK, KYLE MARK
TAKAI, DAVID P. BROSTROM,
LARRY S. VERAY, ANDREW
WALDEN, EDWIN J. GAYAGAS,
ERNEST LASTER, and JENNIFER
LASTER,

Plaintiffs,

vs.

SCOTT T. NAGO, in his official
capacity as the Chief Election Officer
of the State of Hawaii, STATE OF
HAWAII 2011 REAPPORTIONMENT
COMMISSION; VICTORIA MARKS,
LORRIE LEE STONE, ANTHONY
TAKITANI, CALVERT CHIPCHASE
IV, ELIZABETH MOORE, CLARICE
Y. HASHIMOTO, HAROLD S.
MASUMOTO, DYLAN NONAKA,
and TERRY E. THOMASON, in their
official capacities as members of the
State of Hawaii 2011 Reapportionment
Commission; and DOE
DEFENDANTS 1-10,

_______________________________

Defendants.

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ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY

INJUNCTION

Before:

M. Margaret McKeown, Circuit Judge; J. Michael Seabright and
Leslie E. Kobayashi, District Judges.

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The Hawaii Constitution specifies the use of permanent residents as the

relevant population base in apportioning state legislative seats. In a 2012 decision,

the Hawaii Supreme Court laid out the appropriate method for determining

permanent residents by extracting non-resident military personnel and their

dependents, and non-resident students from the base count. The Reapportionment

Commission adopted a new plan to comply with that directive.

This electoral challenge asks us to consider the constitutionality of the

reapportionment under the Equal Protection Clause of the United States

Constitution. We do so here in the context of a motion for a preliminary injunction

requesting that we enjoin implementation of the 2012 Reapportionment Plan and

enjoin conducting the upcoming elections under that plan. This challenge raises an

issue of significant importance to Hawaii residents. Following a hearing on this

matter on May 18, 2012, we conclude that the request for an injunction should be

denied. In light of Burns v. Richardson, 384 U.S. 73 (1966), at this preliminary

stage of the proceedings, the plaintiffs have not established a likelihood of success

on the merits of their claim that the permanent resident population basis violates

equal protection. Nor do the equities and public interest weigh in favor of an

injunction that risks jeopardizing the primary election scheduled for August 11,

2012, and even the general election scheduled for November 6, 2012. Although

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we recognize that the right to representation is fundamental, “a federal court cannot

lightly interfere with or enjoin a state election.” Sw. Voter Registration Educ.

Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam).

I. INTRODUCTION

Hawaii reapportions its state legislative and federal congressional districts

every ten years, after the decennial United States Census (“the Census”), based

upon changes in population. See Haw. Const. art. IV, § 1. The Hawaii

Constitution as amended in 1992 requires reapportionment of Hawaii’s legislative

districts to be based upon “permanent residents,” id. § 4, as opposed to the Census’

count of “usual residents.” And to pass constitutional muster, any resulting

reapportionment must comply with the principles of “one person, one vote.”

Reynolds v. Sims, 377 U.S. 533, 558 (1964) (quoting Gray v. Sanders, 372 U.S.

368, 381 (1963)).

In this action, Plaintiffs Joseph Kostick, Kyle Mark Takai, David P.

Brostrom, Larry S. Veray, Andrew Walden, Edwin J. Gayagas, Ernest Laster, and

Jennifer Laster (collectively, “Kostick”) challenge aspects of the March 30, 2012

Supplement to the 2011 Reapportionment Commission Final Report and

Reapportionment Plan (“the 2012 Reapportionment Plan”), which Hawaii has

begun implementing for its 2012 primary and general elections. The 2012

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Reapportionment Plan -- upon direction from the Hawaii Supreme Court in

Solomon v. Abercrombie, 126 Haw. 283, 270 P.3d 1013 (2012) -- “extracted”

108,767 active-duty military personnel, military dependents, and university

students from Hawaii’s reapportionment population base. Kostick claims that this

extraction by itself, or the 2012 Reapportionment Plan’s subsequent apportionment

of the resulting population base, violates the Equal Protection Clause of the

Fourteenth Amendment and “one person, one vote” principles.

Kostick moves for a preliminary injunction, seeking:

(1) to enjoin Defendant Scott T. Nago, in his official capacity as the Chief

Election Officer of the State of Hawaii (“Nago”), from “further implementation” of

the 2012 Reapportionment Plan, and thus to enjoin conducting the upcoming

elections in accordance with that Plan;

(2) to order the 2011 Hawaii Reapportionment Commission (“the

Commission”) to formulate and implement a reapportionment plan using the 2010

Census’ count of “usual residents” of Hawaii as the population base; and

(3) to order the use of an August 2011 proposed reapportionment plan,

which utilized a population base that includes the now-extracted 108,767 people.

Secondarily, Kostick seeks an order requiring an apportionment of state

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legislative districts that are “substantially equal in population.”1

We pause to emphasize what is not before us. To begin, we are not making

any final determination of the merits of Kostick’s challenge, a decision that must

await further proceedings. Further, this Order addresses only the legal

considerations underlying the challenged actions -- not whether extracting certain

“non-permanent” residents from Hawaii’s reapportionment population base is good

public policy, and not whether Hawaii could or should use “usual residents” as that

base. Hawaii has long-debated these questions and Hawaii’s legislature considered

them again in its just-completed session. See Doc. No. 50-7, Pls.’ Ex. AAAA (S.B.

No. 212, 26th Leg. Sess. 2012) (proposing to define “permanent resident” as a

“usual resident” under the Census). These are important and difficult questions,

involving political judgments and requiring consideration and balancing of

competing interests -- tasks for which courts are not suited. See, e.g., Perry v.

Perez, 565 U.S. __, 132 S. Ct. 934, 941 (2012) (“Experience has shown the

difficulty of defining neutral legal principles in this area, for redistricting ordinarily

involves criteria and standards that have been weighed and evaluated by the elected

branches in the exercise of their political judgment.”) (citations omitted).

1 The First Amended Complaint also asserts a claim under state law, which is not at issue

in the Motion for Preliminary Injunction.

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In short, we express no opinion as to how Hawaii should define its

reapportionment base, but instead examine only the challenged aspects of the 2012

Reapportionment Plan itself. And we certainly do not pass on what no one here

disputes: Hawaii’s military personnel constitute a significant and welcome

presence in Hawaii’s population.

For the reasons that follow, we conclude it is unlikely Kostick will succeed

on the merits of the constitutional claim regarding the population base. The

equities and public interest weigh heavily against Kostick. We do not consider the

likelihood of success on Kostick’s mal-apportionment claim, as he acknowledged

there is no realistic or effective remedy that could be accomplished before the

primary election. Accordingly, Kostick’s Motion for Preliminary Injunction is

DENIED.

II. BACKGROUND2

This reapportionment challenge raises issues that are best understood by first

examining the historical context. We begin by reviewing some of the historical

and legal factors that the Commission faced in crafting the 2012 Reapportionment

Plan. We then set forth specific details -- many of which are stipulated facts -- of

2 This background is based on the parties’ Stipulated Facts in the Motion for Preliminary

Injunction, which is attached as Appendix A, the exhibits and filings related to the preliminary
injunction motion, and Nago’s testimony at the preliminary injunction hearing.

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Kostick’s challenge to the Plan, and recount the procedural posture of the current

Motion.

A.

The Basic Historical and Legal Context

The Census counts the “usual residents” of a state. See, e.g., Franklin v.

Massachusetts, 505 U.S. 788, 804-05 (1992) (“‘Usual residence’ . . . has been used

by the Census Bureau ever since [the first enumeration Act in 1790] to allocate

persons to their home States.”). The 2010 Census counted people at their usual

residence as of April 1, 2010. Doc. No. 26, Parties’ Stipulated Facts re: the Motion

for Preliminary Injunction (“Stip. Facts”) ¶ 2. According to the 2010 Census,

Hawaii has a population of 1,360,301 usual residents. Doc. No. 32, First Am.

Compl. (“FAC”) ¶ 30; Stip. Facts ¶ 32.

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

sleeps most of the time” and “is not necessarily the same as the person’s voting

residence or legal residence.” Stip. Facts ¶ 1. The definition thus excludes tourists

or business travelers. Id. ¶ 5; Doc. No. 28-16, Pls.’ Mot. Ex. H (“Ex. H”), at 3.

Active duty military personnel who were usual residents of Hawaii on April 1,

2010 were or should have been counted by the 2010 Census as part of its count for

Hawaii. Stip. Facts ¶ 3; Ex. H, at 8-9. Similarly, students attending college away

from their parental homes are counted where they attend school (i.e., where they

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“live and sleep most of the time”). Ex. H, at 5. Students enrolled at a Hawaii

university or college who were usual residents of Hawaii on April 1, 2010 were or

should have been counted by the 2010 Census as part of the 2010 Census count for

Hawaii. Stip. Facts ¶ 4.

After each Census, Hawaii establishes a Reapportionment Commission to

implement a reapportionment. See Haw. Const. art. IV, § 2; Haw. Rev. Stat. § 25-

1. The Defendants in this action are the members of the Commission in their

official capacities; the Commission itself; and Nago, who serves as secretary of the

Commission in addition to his duties as Hawaii’s Chief Election Officer. See Haw.

Const. art. IV, §§ 2, 3; Haw. Rev. Stat. § 11-2. Where appropriate, we refer to all

Defendants as “the Commission,” although we sometimes refer to Nago separately.

The Commission uses the Census’ “usual residents” figure as Hawaii’s total

population for purposes of apportioning Hawaii’s federal congressional districts.

See Haw. Const. art. 4, § 9; Haw. Rev. Stat. § 25-2(b) (requiring use of “persons in

the total population counted in the last preceding United States census” as the

relevant population base). But the Commission does not necessarily use the

Census figure as the population base for State legislative reapportionment. Instead,

Hawaii uses a count of “permanent residents” as the relevant population base.

Specifically, the current Hawaii Constitution provides:

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The 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[.]

Haw. Const. art. 4, § 4 (emphasis added). After such allocation, the Commission is

then required to apportion members of the Hawaii Legislature within those “basic

island units” as follows:

Upon the determination of the total number of members of each

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

In effecting such redistricting, the commission shall be guided

by the following criteria:

1. No district shall extend beyond the boundaries

of any basic island unit.

2. No district shall be so drawn as to unduly favor

a person or political faction.

3. Except in the case of districts encompassing

more than one island, districts shall be contiguous.

4. Insofar as practicable, districts shall be

compact.

5. Where possible, district lines shall follow

permanent and easily recognized features, such as streets,
streams and clear geographical features, and, when
practicable, shall coincide with census tract boundaries.
6. Where practicable, representative districts shall

be wholly included within senatorial districts.

7. Not more than four members shall be elected

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from any district.

8. Where practicable, submergence of an area in a

larger district wherein substantially different
socio-economic interests predominate shall be avoided.

Haw. Const. art. IV, § 6 (emphasis added).3 The “basic island units” correspond to

Hawaii’s Counties: Hawaii County (the island of Hawaii or “the Big Island”);

Kauai County (the islands of Kauai and Niihau); Maui County (the islands of

Maui, Molokai, Kahoolawe, and Lanai); and the City and County of Honolulu (the

island of Oahu).

Defining the reapportionment population base for Hawaii’s legislative

3 The Hawaii Constitution’s apportionment provisions were changed in 1992, when

Hawaii voters approved a constitutional amendment substituting the phrase “the total number of
permanent residents” for “on the basis of the number of voters registered in the last preceding
general election” in Article IV, § 4, as the relevant apportionment population base for Hawaii’s
legislative districts. See 1992 Haw. Sess. L. 1030-31 (H.B. No. 2327); Solomon, 126 Haw. at
285, 270 P.3d at 1015.

Prior applications of a “registered voter” population base were the subject of litigation

and, as analyzed further in this Order, ultimately entail many of the same fundamental questions
that arise in this action. See, e.g., Burns, 384 U.S. at 97 (upholding a Hawaii apportionment plan
based on registered voters that approximated a plan based on population); Travis v. King, 552 F.
Supp. 554 (D. Haw. 1982) (three-judge court) (striking a Hawaii apportionment plan based on
registered voters, primarily because of insufficient justifications for wide disparities in
allocation). Indeed, in Hawaii’s 1991 reapportionment, the 1991 Reapportionment Commission
utilized a population base of “permanent residents” (extracting -- similar to the present action --
114,000 non-resident military members and their families), despite the requirement of the
Hawaii Constitution (pre-1992 amendment) to use “the number of voters registered in the last
preceding general election” as the base. This approach was apparently adopted at least in part
because of equal protection concerns. See Doc. No. 34-20, Defs.’ Ex. 30, at 3-6 (State of Hawaii
1991 Reapportionment Comm’n, Final Report and Reapportionment Plan, at 21-24); Solomon,
126 Haw. at 284-85, 270 P.3d at 1014-15. Likewise, the 2001 reapportionment (after the 1992
State Constitutional amendment) extracted non-resident military personnel, their dependents, and
non-resident college students as “non permanent.” Solomon, 126 Haw. at 286, 270 P.3d at 1016.

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districts has long-presented a dilemma, primarily because Hawaii’s population has

historically contained a large percentage of military personnel -- many of whom

claim residency in other States and do not vote in Hawaii elections. See, e.g.,

Burns, 384 U.S. at 94 (referring to “Hawaii’s special population problems”

stemming from “the continuing presence in Hawaii of large numbers of the

military”). Burns noted that “at one point during World War II, the military

population of Oahu constituted about one-half the population of the Territory.” Id.

at 94 n.24. More recently, well after statehood, the 1991 Reapportionment

Commission found that non-resident military constituted “about 14% of the

population of Hawaii” with “[a]bout 114,000 nonresident military and their

families resid[ing] in this state, primarily on the Island of Oahu.” Doc. No. 34-20,

Defs.’ Ex. 30, at 5 (State of Hawaii 1991 Reapportionment Comm’n, Final Report

and Reapportionment Plan, at 23); Solomon, 126 Haw. at 285, 270 P.3d at 1015.4

The vast majority of military and their families live on Oahu because of its many

4 The percentage of the population of military and military families in Hawaii in 2010 is

not clear from the record, but some data indicates as many as 153,124 military and military
dependents. Doc. No. 28-12, Pls.’ Mot. Ex. D, at 13; Stip. Facts ¶ 6. This figure includes
military members who are deployed -- and thus are not counted as “usual residents” -- and their
dependents who live here (and thus may indeed have been counted as “usual residents”). As
detailed below, the Commission eventually “extracted” 42,322 active duty military personnel,
and 53,115 of their associated dependents as “non-permanent” Hawaii residents. Stip. Facts
¶¶ 8, 10. Regardless of the percentage, the military continues to constitute a significant and
important presence in Hawaii’s population.

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military installations including Joint Base Pearl Harbor-Hickam, Schofield

Barracks, and Kaneohe Marine Corps Air Station. But, whatever their percentage,

Hawaii elected officials still represent them -- it is a fundamental Constitutional

principle that elected officials represent all the people in their districts, including

those who do not or cannot vote. See, e.g., Garza v. Cnty. of L.A., 918 F.2d 763,

774 (9th Cir. 1990).

A dilemma thus arises because imbalances of potential constitutional

magnitude are created whether or not Hawaii’s non-resident military and family

members are factored into the apportionment base.

If they are included in the population base but vote elsewhere, Oahu voters

potentially have greater “voting power” than residents of other counties. See, e.g.,

Reynolds, 377 U.S. at 568 (“[A]n individual’s right to vote for state legislators is

unconstitutionally impaired when its weight is in a substantial fashion diluted when

compared with votes of citizens living in other parts of the State[.]”). That is, a

vote of an Oahu voter could count more than that of a non-Oahu voter. See, e.g.,

Bd. of Estimate of City of N.Y. v. Morris, 489 U.S. 688, 698 (1989) (“[A] citizen is

. . . shortchanged if he may vote for . . . one representative and the voters in another

district half the size also elect one representative.”); Chen v. City of Houston, 206

F.3d 502, 525 (5th Cir. 2000) (“If total population figures are used in an area in

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which potentially eligible voters are unevenly distributed, the result will

necessarily devalue the votes of individuals in the area with a higher percentage of

potentially eligible voters.”).

But if this group is excluded, then Oahu residents (and residents in an Oahu

district with large concentrations of non-resident military) may have diluted

representation. See, e.g., Garza, 918 F.2d at 774 (“Residents of the more populous

districts . . . have less access to their elected representative. Those adversely

affected are those who live in the districts with a greater percentage of non-voting

populations[.]”); Chen, 206 F.3d at 525 (“[T]he area with the smaller number of

voters will find itself relatively disadvantaged. Despite the fact that it has a larger

population -- and thus perhaps a greater need for government services than the

other community -- it will find that its political power does not adequately reflect

its size.”).

There are also political dimensions. Excluding large numbers of non-

residents, most of whom live on Oahu, from the population base can -- as it did in

this instance -- result in a gain or loss of legislators between the basic island units

(here, the Big Island gained a State senate seat that Oahu lost). Stip. Facts ¶ 40.

Thus, including or excluding non-resident military and dependents could

contribute to a subtle shift in power among the Counties. Historically, residents of

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each basic island unit “have developed their own and, in some instances severable

communities of interests” resulting in “an almost personalized identification of

residents of each county -- with and as an integral part of that county.” Burns v.

Gill, 316 F. Supp. 1285, 1291 (D. Haw. 1970). Forty-two years after Gill, many

individuals still identify themselves in relation to their Island. County residents

“take great interest in the problems of their own county because of that very

insularity brought about by the surrounding and separating ocean.” Id. See, e.g.,

Doc. No. 39-12, M. Solomon Decl. ¶ 9 (“There were also socio-economic and

cultural differences between the two parts of my canoe district [on Maui and the

Big Island] that predated statehood.”).5

5 The integrity of “basic island units” reaches far back. A three-judge court explained in

1965:

Hawaii is unique in many respects. It is the only state that has been successively
an absolute monarchy, a constitutional monarchy, a republic, and then a territory
of the United States before its admission as a state. Because each was insulated
from the other by wide channels and high seas and historically ruled first by
chiefs and then royal governors, after annexation the seven major, inhabited
islands of the State were divided up into the four counties of Kauai, Maui, Hawaii
and the City and County of Honolulu. All this resulted in a strongly centralized
form of government.

Holt v. Richardson, 238 F. Supp. 468, 470-71 (D. Haw. 1965), vacated, Burns, 384 U.S. 73.
Likewise, at the 1968 Hawaii Constitutional Convention when implementing apportionment
provisions in the State Constitution, committee members took into account the concept that:

(1) Islands or groups of islands in Hawaii have been separate and distinct
fundamental units since their first settlement by human beings in antiquity. . . .
The first constitution of the nation of Hawaii granted by King Kamehameha III in
1840, provided that there would be four governors “over these Hawaiian Islands -
one for Hawaii - one for Maui and the islands adjacent - one for Oahu, and one
for Kauai and the adjacent islands.” . . . Thereafter in every constitution of the

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(continued...)

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Notably, the Hawaii Constitution in Article IV, § 6, “recognizes the

geographic insularity and unique political and socio-economic identities of the

basic island units.” Doc. No. 28-3, Pls.’ Mot. Ex. A, at 35 (2012 Reapportionment

Plan, at 23). And thus the Hawaii Constitution requires that in apportioning a

population base “[n]o district shall extend beyond the boundaries of any basic

island unit.” Haw. Const. art. IV, § 6. The Commission articulated this interest as

a justification for population deviations among state districts -- avoiding bi-County

districts (often referred to as “canoe districts” because they are separated by water)

where a legislator represents people in different Counties. Doc. No. 28-3, Pls.’

Mot. Ex. A, at 33 (2012 Reapportionment Plan, at 21).6

5(...continued)
nation, the territory and the state, the island units have been recognized as
separate political entities.
(2) . . . Each of the islands has had its unique geographic, topographic and
climatic conditions which have produced strikingly different patterns of economic
progress and occupational pursuits. Thus each unit of government has its own
peculiar needs and priorities which in some instances may be quite different from
any other county.

Doc. No. 35-6, Defs.’ Ex. 37 at 261-62. See also Doc. No. 39-15, D. McGregor Decl. ¶¶ 5-11
(explaining belief that each basic island unit’s history indicates each was a separate society or
community with unique identities, and indicating that by the year 1700 each unit was a separate
kingdom).

6 Besides considering the long history of the basic island units in addressing

apportionment, the 1968 Constitutional Convention also considered political factors -- Hawaii’s
centralized state government, which performs many functions that other states have delegated to
local government units. The apportionment committee explained:

In every other state in the union there are numerous minor governmental units --
town, cities, school districts, sewer districts and the like -- which exercise power

(continued...)

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The Commission considered these and other factors in creating the 2012

Reapportionment Plan, the specifics of which we turn to next.

B.

Steps Leading to the 2012 Reapportionment Plan

1.

The August 2011 Plan

The Commission was certified on April 29, 2011, and promptly began the

2011 reapportionment process. The Hawaii Supreme Court in Solomon describes

in exacting detail the process the Commission took in formulating initial and

revised apportionment plans. Solomon’s description conforms to the record before

this court, and we thus draw extensively from Solomon here:

The Commission, at its initial organizational meetings, adopted

“Standards and Criteria” that it would follow for the 2011
reapportionment of the congressional and state legislative districts.
The “Standards and Criteria” for the state legislative districts stated:

Standards and criteria that shall be followed:

6(...continued)
and in which the people may obtain local representation for local matters. Hawaii
has none of these. Although Hawaii has major political units called counties,
these units have substantially less power and authority over local affairs than in
most other states. The result is that Hawaii’s legislature deals exclusively with, or
at least effectively controls, many matters which are normally considered
typically local government services.

Doc. No. 35-6, Defs.’ Ex. 37 at 262. The committee gave examples of centralized services such
as (1) public education; (2) highways, harbors, and airports; (3) administration and collection of
taxes; (4) health and welfare activies; (5) the judicial system; (6) land use districts; (7) fishing,
forestry, minerals, agriculture, and land; and (8) labor and industrial relations. Id.

The committee’s conclusion was “obvious and inescapable: if a voter of the State of

Hawaii is to have meaningful representation in any kind of government, he must have effective
representation from his own island unit in the state legislature.” Id. at 263.

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The population base used shall be the “permanent resident”
population of the State of Hawaii. The permanent resident
population is the total population of the State of Hawaii as
shown in the last U.S. census less the following: non-resident
students and non-resident military sponsors.

At meetings on May 11 and 24, 2011, the Commission was

briefed on Hawaii’s population growth since the 2001
reapportionment, the history of Hawaii’s reapportionment, and the
constitutional and statutory provisions governing reapportionment. It
was provided with data from the 2010 Census showing a 12% increase
in the state’s total population consisting of increases of 24% in
Hawai‘i County, 21% in Maui County, 15% in Kauai County, and 9%
in Oahu County. It was informed of article IV, section 4 and 6’s
permanent resident basis for apportioning the state legislature and
informed -- by counsel to the 2001 Reapportionment Commission --
that the 2001 Commission computed the permanent residence base by
excluding nonresident military personnel and their dependents, and
nonresident college students. It was informed by Commission staff
that data on Hawaii’s nonresident military population had been
requested from the Defense Manpower Data Center (DMDC) through
the U.S. Pacific Command (USPACOM) and that Hawaii’s
nonresident student population would be identified by their local
addresses and assigned to specific census blocks. The Commission, at
the conclusion of the May meetings, solicited advice from the
apportionment advisory councils as to whether nonresident military
and nonresident students should be excluded from the permanent
resident base.

126 Haw. at 286, 270 P.3d at 1016 (internal footnote omitted).

The data obtained in May and June 2011 from the military on Hawaii’s non-

resident military population was apparently deemed insufficient. “The

Commission, at its June 28, 2011 meeting, voted 8-1 to apportion the state

legislature by using the 2010 Census count -- without exclusion of nonresident

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military and dependents and nonresident students -- as the permanent resident

base.” Id. at 287, 270 P.3d at 1017.

Commission staff provided the following explanation as to
“permanent and non-permanent military residents.”

The non-permanent resident extraction model used in 1991 and
2001 [reapportionments] relied on receiving location specific
(address or Zip Code) residence information for the specific
non-permanent residents to be extracted.

In 2011, the data received from DMDC does not provide
residence information for military sponsors nor does it provide
specific breakdowns of permanent and non-permanent residents
by location.

This lack of specific data from DMDC does not allow the
model used previously to be used at this time.

Id. at 288, 270 P.3d at 1018 (square brackets in original).

And so, an initial apportionment plan was developed and accepted by the

Commission on or before August 3, 2011 that was based on 2010 Census figures.

The parties have stipulated that “[t]he State legislative reapportionment plan

accepted by the Commission for public hearings and comment on August 3, 2011

(‘August 2011 Plan’) did not extract from the 2010 Census count, any active duty

military personnel, military dependents, or students.” Stip. Facts ¶ 27. The Chair

of the Commission explains that this August 2011 Plan was “preliminarily

accepted for the purpose of public hearings and comment,” because of the

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impending September 26, 2011 statutory deadline for a final plan and the statutory

requirement of conducting public hearings. Doc. No. 39-6, V. Marks Decl. ¶ 7.

This plan is apparently the August 2011 proposed reapportionment plan that

Kostick seeks to have implemented.

2.

The September 26, 2011 Plan

Further proceedings followed the Commission’s June 28, 2011 decision to

use 2010 Census figures, and its corresponding development of the August 2011

Plan. The Commission was provided with additional data from military sources on

Hawaii’s “non-permanent military resident population and from Hawaii

universities on non-permanent student resident population.” Solomon, 126 Haw. at

287, 270 P.3d at 1017.

Commission staff thereafter developed its own “model” for the
“extraction of non-permanent residents” for the 2011
reapportionment. Commission staff operated on the premise that
non-permanent residents -- active duty military who declare Hawaii
not to be their home state and their dependents, and out-of-state
university students -- were to be identified according to the specific
location of their residences within each of the four counties. Because
the 2010 Census data and the university data did not include the
residence addresses for all of the non-permanent active duty military
residents and their dependents and the out-of-state university students,
Commission staff identified three groups of non-permanent residents:
Extraction A, Extraction B, and Extraction C. The groups were based
on the level of “certainty in determining [the residents’]
non-permanency and location.” Extraction A were residents whose
specific locations were certain and included out-of-state university
students with known addresses and active duty military, with “fairly

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certain non-permanent status,” living in military barracks. Extraction
B included all residents in Extraction A, plus active duty military and
their dependents, with “less certain non-permanent status,” living in
on-base military housing. Extraction C included all residents in
Extraction A and Extraction B, plus out-of-state university students
with addresses identified only by zip code.

Id. at 288, 270 P.3d at 1018. The Commission staff’s “Extraction A” listed 16,458

active duty military, their dependents, and out-of-state university students (mostly

on Oahu); its “Extraction B” listed 73,552; and its “Extraction C” listed 79,821.

Id. Additionally, an “August 7, 2011 ‘Staff Summary’ showed a state population

of 47,082 non-permanent active duty military residents, 58,949 military

dependents, and 15,463 out-of-state university students” totaling 121,494 “non-

permanent” residents. Id. at 289, 270 P.3d at 1019.

The Commission held a September 13, 2011 public hearing in Hilo, Hawaii.

It received testimony on behalf of State Senator Malama Solomon (“Solomon”)

and three members of the Hawaii County Democratic Committee, advocating

extraction of the 121,494 “non-permanent” residents from the apportionment

population base. Such an extraction would increase Hawaii County’s senate seats

from three to four. Id. Hawaii Governor Neil Abercrombie also supported that

extraction, indicating that based upon the State Attorney General’s preliminary

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view, “counting nonresidents is not warranted in law.” Id.7

On September 19, 2011, after much debate, “[t]he Commission adopted a

final apportionment plan that computed the permanent resident base by excluding

16,458 active duty military and out-of-state university students from the 2010

census population of 1,330,301.” Id. at 290, 270 P.3d at 1020; Stip. Facts ¶ 32.

That is, it chose “Extraction A,” primarily because of the certainty of that data.

The resulting apportionment allocated “as to the senate 18 seats to Oahu County, 3

seats for Hawaii County, 3 seats for Maui County, and 1 seat for Kauai County.”

Solomon, 126 Haw. at 290, 270 P.3d at 1020. The Commission filed this plan on

September 26, 2011 (“the September 26, 2011 Plan”). Id.; Stip. Facts. ¶ 32.

7 Solomon also references a letter from the Attorney General to Hawaii County legislator
Robert Herkes opining that “the Hawaii Supreme Court would likely hold that to the extent they
are identifiable, nonresident college students and nonresident military members and their
families cannot properly be included in the reapportionment population base the Commission
uses to draw the legislative district lines this year.” 126 Haw. at 287, 270 P.3d at 1017.
The [Attorney General] opinion was based on the legislative history of the 1992
‘permanent resident’ amendment to article IV, section 4, and the Hawaii Supreme
Court’s interpretation [in Citizens for Equitable & Responsible Gov’t v. County of
Hawaii, 108 Haw. 318, 120 P.3d 217 (2005)] of ‘resident population,’ as used [in]
the Hawaii County Charter, as excluding nonresident college students and
nonresident military personnel and their dependents from the population base for
purposes of apportioning county council districts. The opinion was forwarded to
the Commission.

Id. (footnote omitted).

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3.

The September 26, 2011 Plan is Challenged: Solomon v.
Abercrombie; and Matsukawa v. State of Hawaii 2011
Reapportionment Commission

On October 10, 2011, Solomon and the three members of the Hawaii

County Democratic Committee filed a petition in the Hawaii Supreme Court,

challenging the September 26, 2011 Plan. The next day, Hawaii County resident

Michael Matsukawa filed a similar petition in the Hawaii Supreme Court. Stip.

Facts ¶ 33. Among other claims, these petitions asserted that the Commission

violated the State Constitutional requirement to base a reapportionment on

“permanent residents” by failing to extract all non-resident military, their

dependents, and non-resident students. Solomon’s petition asserted that the

Commission knew that extracting only 16,000 non-residents would not trigger the

loss of an Oahu-based senate seat, and that “the fear of Oahu’s loss of this senate

seat was the driving force” for the extraction. Solomon, 126 Haw. at 290, 270 P.3d

at 1020. They sought an order requiring the Commission to prepare and file a new

reapportionment plan for the State legislature that uses a population base limited to

“permanent residents” of the State of Hawaii. Stip. Facts ¶ 33. As far as we can

discern, however, the parties did not raise constitutional equal protection

arguments.

On January 4, 2012, the Hawaii Supreme Court issued orders in the Solomon

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and Matsukawa proceedings that invalidated the September 26, 2011 Plan as

having disregarded Article IV, § 4 of the Hawaii Constitution. The Hawaii

Supreme Court, among other things, ordered the Commission to prepare and file a

new reapportionment plan that allocates members of the State legislature among

the basic island units using a permanent resident population base. Stip. Facts ¶ 34.

On January 6, 2012, the Hawaii Supreme Court issued Solomon -- an opinion

covering both the Solomon and Matsukawa proceedings. Id. ¶ 35.

As for the requirement in Article IV, §§ 4 and 6, for the Commission to

apportion the state legislature by using a “permanent resident” base, Solomon held

that the requirement “mandate[s] that only residents having their domiciliary in the

State of Hawaii may be counted in the population base for the purpose of

reapportioning legislative districts.” Solomon, 126 Haw. at 292, 270 P.3d at 1022

(quoting Citizens for Equitable & Responsible Gov’t, 108 Haw. at 322, 120 P.3d at

221). To determine “the total number of permanent residents in the state and in

each county,” the Commission was required “to extract non-permanent military

residents and non-permanent university student residents from the state’s and the

counties’ 2010 Census population.” Id. It directed that

[i]n preparing a new plan, the Commission must first --pursuant to
article IV, section 4 -- determine the total number of permanent
residents in the state and in each county and use those numbers to
allocate the 25 members of the senate and 51 members of the house of

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representatives among the four counties. Upon such allocation, the
Commission must then -- pursuant to article IV, section 6 -- apportion
the senate and house members among nearly equal numbers of
permanent residents within each of the four counties.

Id. at 294, 270 P.3d at 1024.

4.

The 2012 Reapportionment Plan

Soon after Solomon was issued, the Commission commenced a series of

public meetings and obtained additional information regarding military personnel,

their family members, and university students. The Commission eventually

extracted 42,332 active duty military personnel, 53,115 military dependents, and

13,320 students from the 2010 Census population of “usual residents.” Stip. Facts

¶¶ 8, 10, 14, 36. This extraction totaled 108,767 persons, resulting in an adjusted

reapportionment population base of 1,251,534. Id. ¶ 37.

The active duty military were extracted if they “declared a state other than

Hawaii as their home state for income tax purposes,” and if they were included in

the 2010 Census. Doc. No. 28-12, Pls.’ Mot. Ex. D, at 2-2. That is, they were

extracted “based on military records or data denoting the personnel’s state of legal

residence.” Stip. Facts ¶ 8.

The extracted military family members were identified by associating them

with their active duty military sponsor. In other words, the Commission extracted

military dependents who were associated with or attached to an active duty military

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person who had declared a state of legal residence other than Hawaii. Stip. Facts

¶ 10. The military did not provide the Commission with any data regarding the

military dependents’ permanent or non-permanent residency other than their

association or attachment to an active duty military sponsor who had declared a

state of residence other than Hawaii. Id. ¶ 12.

The students were extracted solely on the basis of (a) payment of non-

resident tuition, or (b) a home address outside of Hawaii. Id. ¶¶ 14, 18-19. The

students were from the University of Hawaii System, Hawaii Pacific University,

Chaminade University, and Brigham Young University (“BYU”) Hawaii. Id. ¶ 15.

No other Hawaii universities provided data to the Commission. Id. ¶ 16.

After extraction, the Commission reapportioned the adjusted population base

of 1,251,534 “permanent residents” by dividing the base by 25 Senate seats and 51

House seats. Id. ¶ 37. This resulted in an ideal Senate district of 50,061 permanent

residents, and an ideal House district of 24,540 permanent residents. Id. The

Commission then reapportioned within the four basic island units as set forth in

Article IV, § 6 of the Hawaii Constitution, and as guided by the criteria set forth in

that provision.

Under the 2012 Reapportionment Plan: (a) the largest Senate District

(Senate District 8, Kauai basic island unit) contains 66,805 permanent residents

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which is 16,744 (or 33.44 percent) higher than the ideal Senate district of 50,061

permanent residents; and (b) the smallest Senate District (Senate District 1, Hawaii

basic island unit) contains 44,666 permanent residents which is 5,395 (or 10.78

percent) less than the ideal. Id. ¶ 38. Thus, the range for the Senate Districts is

44.22 percent. The 2012 Reapportionment Plan resulted in one Senate seat moving

from the Oahu basic island unit to the Hawaii basic island unit. Id. ¶ 40.

As for the House districts, under the 2012 Reapportionment Plan: (a) the

largest House District (House District 5, Hawaii basic island unit) contains 27,129

permanent residents which is 2,589 (or 10.55 percent) higher than the ideal House

district of 24,540 permanent residents; and (b) the smallest House District (House

District 15, Kauai basic island unit) contains 21,835 permanent residents which is

2,705 (or 11.02 percent) less than the ideal. Id. ¶ 39. The range for the House

districts is 21.57 percent.

The extent of the deviations is driven largely by a Commission decision to

continue to avoid canoe districts. See Doc. No. 28-3, Pls.’ Mot. Ex. A, at 33 (2012

Reapportionment Plan, at 21). Canoe districts were eliminated in the 2001

reapportionment, after being imposed in 1982 when, as noted earlier, a three-judge

court in Travis v. King, 552 F. Supp. 554 (D. Haw. 1982), found a 1981

reapportionment plan to be unconstitutional, and ordered use of an interim plan

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that utilized canoe districts as recommended by special masters. See Doc. No.

34-17, Defs.’ Ex. 27 (April 27, 1982 Final Report and Recommendations of

Special Masters, Travis v. King). The 2001 Reapportionment Commission did

away with canoe districts, concluding after experience and public input that such

districts were ineffective. See, e.g., Doc. No. 34-21 at 10 (2001 Reapportionment

Plan, at 25); id. at 13 (2001 Reapportionment Plan, at A-209).

The 2012 Reapportionment Plan was adopted and filed on March 8, 2012,

with notice published on March 22, 2012. Stip. Facts ¶ 36. It was presented to the

Legislature on March 30, 2012. Doc. No. 32, FAC ¶ 45.

C.

Procedural History

Soon after the 2012 Reapportionment Plan was presented to the Legislature,

this action was filed on April 6, 2012. The Complaint requested a three-judge

district court pursuant to 28 U.S.C. § 2284. On April 10, 2012, Judge J. Michael

Seabright granted the request for a three-judge district court, determining that the

constitutional claims are “not insubstantial,” as necessary for such a court. See,

e.g., Goosby v. Osser, 409 U.S. 512, 518 (1973). On April 17, 2012, the Chief

Judge of the Ninth Circuit Court of Appeals appointed the present panel, Ninth

Circuit Judge M. Margaret McKeown, and District Judges J. Michael Seabright

and Leslie E. Kobayashi.

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Kostick filed the Motion for Preliminary Injunction on April 23, 2012. An

Amended Complaint was filed on April 27, 2012, which added two Plaintiffs to the

action, Ernest and Jennifer Laster, but otherwise did not substantially differ from

the original Complaint. An Opposition was filed on May 3, 2012, and a Reply on

May 8, 2012. We heard the Motion on May 18, 2012, and admitted evidence

without objection, most of which had previously been submitted as exhibits

already entered on the court’s docket. We also heard live testimony from Nago,

and considered extensive oral argument from the parties. We have considered the

evidentiary record, and oral and written argument of counsel, and rule as follows.

III. STANDARD OF REVIEW

There are two types of preliminary injunctions -- a prohibitory injunction

“preserve[s] the status quo pending a determination of the action on the merits,”

whereas a “mandatory injunction orders a responsible party to ‘take action.’”

Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879

(9th Cir. 2009) (citations and quotations omitted). “A mandatory injunction ‘goes

well beyond simply maintaining the status quo [p]endente lite [and] is particularly

disfavored.’” Id. (quoting Anderson v. United States, 612 F.2d 1112, 1114 (9th

Cir. 1980)). The remedies Kostick seeks here include both types of preliminary

injunction.

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A preliminary injunction “‘is an extraordinary remedy never awarded as of

right.’” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.

2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)).

“A plaintiff seeking a preliminary injunction must establish that he is likely to

succeed on the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.” Winter, 555 U.S. at 20. A decisive showing as

to all factors is not required: under the “sliding scale” or “serious questions”

approach to preliminary injunctions, “the elements of the preliminary injunction

test are balanced, so that a stronger showing of one element may offset a weaker

showing of another. For example, a stronger showing of irreparable harm to

plaintiff might offset a lesser showing of likelihood of success on the merits.”

Alliance for the Wild Rockies, 632 F.3d at 1131 (citing Clear Channel Outdoor,

Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003)). However, the

Supreme Court emphasized in Winter that a preliminary injunction is not

appropriate when there is only a “possibility of some remote future injury.”

Winter, 555 U.S. at 22 (citations omitted). Kostick must show that the conduct of

the Commission is likely to cause him constitutional harm. Id.

Where a plaintiff seeks a mandatory injunction, “courts should be extremely

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cautious about issuing a preliminary injunction,” and “should deny such relief

‘unless the facts and law clearly favor the moving party.’” Stanley v. Univ. of S.

Cal., 13 F.3d 1313, 1319-20 (9th Cir. 1994) (quoting Anderson, 612 F.2d at 1114).

Generally, mandatory injunctions “are not granted unless extreme or very serious

damage will result and are not issued in doubtful cases or where the injury

complained of is capable of compensation in damages.” Anderson, 612 F.2d at

1115; see also Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010) (describing

that “the movant must make a heightened showing of the four factors” (citation and

quotation signals omitted)). “The burden of proof at the preliminary injunction

phase tracks the burden of proof at trial.” Thalheimer v. City of San Diego, 645

F.3d 1109, 1116 (9th Cir. 2011). The parties challenging state apportionment

legislation bear the burden of proving disparate representation. Karcher v.

Daggett, 462 U.S. 725, 730-731 (1983). It falls on Kostick to show that he is

likely to establish a constitutional violation at trial.

IV. DISCUSSION



Kostick makes a bifurcated equal protection challenge to Hawaii’s

reapportionment plan. He first protests the extraction of non-resident military

personnel, their dependents, and non-resident students. He argues that using a

population base that does not include the extracted individuals violates equal

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protection. Next, even if such an extraction is allowed, Kostick argues that

deviations in the 2012 Reapportionment Plan’s subsequent reapportionment of the

resulting population base are constitutionally problematic. We now turn to these

claims.

A. Count One (Equal Protection Challenge: Population Basis)

We first address the overriding question of constitutional injury, and

conclude that Kostick has not demonstrated that he is likely to succeed on the

merits. Even if Kostick were able to make this threshold showing, we find that the

equities tip decisively in the Commission’s favor. The record shows that the

remedy Kostick seeks would require postponement of the state primary election, an

integral part of the electoral process, and even put the general election in jeopardy.

1.

Likelihood of Success on the Merits

Kostick argues that by seeking to apportion based only on a permanent

resident basis, and extracting non-resident military, their dependents, and non-

resident students from the apportionment population base, Hawaii violated the

principle of equal representation. On this record, Kostick fails to meet his

preliminary injunction burden. To begin, the Supreme Court has explicitly

affirmed that a state may legitimately restrict the districting base to citizens, which

in this case, corresponds to permanent residents. Discriminating among non-

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resident groups in the course of extraction may be problematic -- yet, the record

reveals that Hawaii extracted all non-resident populations that exist in sufficient

numbers to affect the apportionment of districts, and regarding which it could

obtain reliable data without discriminating among them. Kostick does not show

that Hawaii attempted to single out non-resident servicemembers, servicemember

dependents, or non-resident students for any reason other than their lack of

permanent residency. Finally, the record shows that the means Hawaii chose to

achieve the result were rational and, even using the standard urged by Kostick,

pass close constitutional scrutiny. There is no indication that Hawaii’s methods

resulted in the exclusion of state residents from the population basis sufficient to

affect legislative apportionment.

a)

Use of Permanent Resident Population Base

In considering Kostick’s claim, we have the benefit of longstanding

Supreme Court precedent, including the 1966 case stemming from Hawaii&rsqu