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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII


JOSEPH KOSTICK; KYLE MARK )
TAKAI; DAVID P. BROSTROM; )
LARRY S. VERAY; ANDREW
)
WALDEN; EDWIN J. GAYAGAS; )
ERNEST LASTER; and JENNIFER )
LASTER,
)
) Civil No. 12-00184 JMS-LEK-MMM

Plaintiffs, ) (Three-Judge Court)

) Honolulu, Hawaii

vs.

) May 18, 2012
) 10:00 a.m.

)
SCOTT T. NAGO, in his
official capacity as the
)
Chief Election Officer 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. THOMAS, in their )
official capacities as
)
members of the State of
)
Hawaii 2011 Reapportionment )
)
Commission; and DOE
DEFENDANTS 1-10,
)
)
Defendants. )

____________________________)


Plaintiff's Motion for
Preliminary Injunction [28]

TRANSCRIPT OF PROCEEDINGS

BEFORE M. MARGARET McKEOWN, CIRCUIT JUDGE;

J. MICHAEL SEABRIGHT and LESLIE E. KOBAYASHI, DISTRICT JUDGES


APPEARANCES:

For the Plaintiffs:

ROBERT H. THOMAS, ESQ.
ANNA H. OSHIRO, ESQ.
MARK M. MURAKAMI, ESQ.
Damon Key Leong Kupchak Hastert
1003 Bishop Street, Suite 1600
Honolulu, Hawaii 96813


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APPEARANCES CONTINUED:

For the Defendants:

DAVID M. LOUIE
Attorney General of Hawaii
BRIAN P. ABURANO
JOHN F. MOLAY
SARAH R. HIRAKAMI
Deputies Attorney General
Department of the Attorney General
State of Hawaii
425 Queen Street
Honolulu, Hawaii 96813




Court Reporter: Katherine Eismann, CSR, CRR, RDR
United States District Court
300 Ala Moana Boulevard, C-338
Honolulu, Hawaii 96850


Proceedings reported by machine shorthand, transcript produced
by computer-aided transcription.

(808)541-2062 [email protected]

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(Friday, May 18, 2012, 10:00 a.m.)

--oOo--

COURTROOM MANAGER: Civil Number 12-00184, Joseph

Kostick, et al., versus Scott T. Nago in his Official Capacity

as the Chief Election Officer of the State of Hawaii, et al.

This hearing has been called for Plaintiff's Motion

for a Preliminary Injunction.

Your appearances, please.

MR. THOMAS: Good morning, Judge McKeown, Judge

Seabright, Judge Kobayashi. Robert Thomas on behalf of the

plaintiffs who, may the record reflect, are present in the

courtroom today standing behind us. With me at counsel table

is Anna Oshiro and Mark M. Murikami.

JUDGE KOBAYASHI: Good morning.

MR. ABURANO: Your Honor, Brian Aburano, John Molay,

Sarah Hirakami, and Attorney General David Louie representing

Scott Nago as the Chief Election Officer 2011 Reapportionment

Commission and its individual members, many of whom are in the

audience, Mr. Nago who is here at table.

JUDGE KOBAYASHI: Good morning.

JUDGE McKEOWN: Good morning. You may be seated.

MR. ABURANO: Thank you.

JUDGE McKEOWN: We are here on a three judge court to

hear the preliminary injunction in the motion filed for

preliminary injunction by Kostick.

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So the procedure that I think we all agreed on and

that you have had notice in advance is that we would begin with

any live testimony. And my understanding at this stage is,

Mr. Thomas, that it's only the plaintiff's side that would be

presenting any live cross-examination; is that correct?

MR. THOMAS: That's correct. We asked Mr. Nago, who

is the one witness for cross-examination. We expect that to be

under 20 minutes.

JUDGE McKEOWN: Fine.

MR. THOMAS: Thank you.

JUDGE McKEOWN: And following the testimony then we

will hear argument on the motion, obviously with plaintiff

going first, reserving some time, I presume, for rebuttal, and

then we will hear of course from the State.

There's one small housekeeping matter related to

exhibits. We have in front of us two binders of exhibits that

have been helpfully cataloged and provided to us. But in

reviewing those, it appears that there may be a small number of

exhibits that -- in our binders that haven't come previously

through the pleadings.

And so on those, I also assume, like everything else

to date, that there won't be any objection to the admission of

those exhibits but that we would ask counsel to confer with

each other and to make a supplemental filing of any -- I want

to call them orphan exhibits or additional exhibits to make

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sure that they are also part of the record.

MR. THOMAS: We will do that, Your Honor. Thank you.

JUDGE McKEOWN: You may proceed.

MR. THOMAS: The plaintiff's call Mr. Nago, Scott

Nago to the stand.

SCOTT T. NAGO,

having been duly sworn, was examined and testified as follows:

COURTROOM MANAGER: State and spell your name for the

record.

THE WITNESS: Scott Nago, N-A-G-O.

CROSS-EXAMINATION

BY MR. THOMAS:

Q.

Good morning, Mr. Nago. You are the Chief Election

Officer for the State of Hawaii; is that correct?

A.

Q.

Correct.

And you testified in this case by declaration on paper;

isn't that correct?

A.

Q.

Correct.

And when you submitted your testimony, did you write the

declarations yourself?

A.

Q.

I helped in the writing, yes.

So, is the -- you didn't -- so you didn't write them

yourself completely?

A.

Q.

No.

Okay. Thank you. I want to discuss or ask you some

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questions about the election process, because I think that's

going to be very important in this case and what has happened

in order for the election to go forward with minimal

disruption.

And so the first thing I want to do is talk about or

ask you some questions about the due dates leading up to the

scheduled election. So let's start with the primary -- or, I

am sorry -- the general election. Do you know what date that's

scheduled for?

A.

Q.

A.

Q.

That is November 6th.

And the primary is August 11th?

Correct.

2012. Okay. Well, let's review what has to happen

between say now and then and how the reapportionment plan fits

into that process. So first of all I'll talk about

precincting.

In order to go forward with the election, you need to

pick precinct officials; right, just generally speaking?

A.

Are you talking about if we have to redistrict -- or

reapportion?

Q.

No, let's start at the sort of broader level. Just to

have staff people or have people at precinct places, you need

to have -- they are not all your staff; are they?

A.

Q.

I'm not following that question.

Precinct officials.

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A.

Q.

They are not my staff.

They are not your staff. And in fact that's already done

and completed for this year?

A.

Q.

A.

No, it's not.

It's not?

It's an ongoing process, recruitment. We have to recruit

roughly 4,000 precinct officials statewide. They get paid a

very minimal honorarium for 12 hours of work, so it is a

process that is ongoing to this day.

Q.

A.

Q.

Okay. But you started that process; is that correct?

Correct.

And that doesn't have anything to do with districting or

it's not triggered by districting?

A.

Q.

No, it's not.

So you don't have to wait, for instance, until districting

is done to start that process?

A.

Q.

No.

So the process that you have already started, if the Court

orders a new plan or a different plan to be implemented, you

can still go forward with the people that you have in progress

already?

A.

Q.

Correct.

Okay. You also need to pick polling places; isn't that

correct, to go forward with an election?

A.

Yes.

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Q.

A.

Q.

Those were set a long time ago?

The facilities, yes.

Okay. So let's -- the first key date after districting is

when the candidates -- I don't know if this is exactly the

right term -- but pull papers, pull nomination papers; is that

right, and start collecting signatures?

A.

Q.

A.

Q.

Correct.

And they can't do that until districts are set; correct?

Yes.

And because they don't know really what district they run

in or where to get their 15 or 25 signatures; is that correct?

A.

Q.

Yes.

And Hawaii law, in most case -- or Hawaii law itself,

Hawaii Revised Statutes requires a four-month window to collect

those signatures?

A.

Q.

Well, it gives the start date and an end date.

Right. And that's roughly four months; right? So it's

the first -- the first business day in February; is that

correct?

A.

Q.

A.

Q.

A.

Q.

Correct.

That the window opens, and then it closes on what date?

June 5th.

Okay. And that's by statute; correct?

Yes.

Okay. But the 2012 plan, that wasn't filed until after

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the opening of that window; is that correct?

A.

Q.

Correct.

And that was -- it was filed or submitted to your office

on March 8th; is that right?

A.

Q.

A.

Q.

Yes.

And was it also filed by you that same day?

What do you mean by filed?

Well, you tell me. The statute says that you have to file

the reapportionment plan once it's given to you. Did you file

it?

A.

We have to publish the reapportionment plan, and I believe

we have 10 days to do that.

Q.

A.

Q.

Okay. And did you do that?

Yes.

Okay. Do you have any understanding what the term "filed"

means under Hawaii law?

A.

Q.

Not what you are --

When that was filed, did you begin the -- did you tell --

or how did you inform candidates that the -- the date to pull

windows or -- I am sorry -- the window to pull their papers was

open?

A.

Q.

We did it via a press release.

Okay. At that point, the window was already technically

five weeks late; is that correct, under state law?

A.

Approximately.

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Q.

Right. Approximately, right? Because it -- the window

technically under the statute started on February 1st and this

was already March 8th; correct?

A.

Q.

A.

Q.

Correct.

Well, what day did you publish that notification?

I believe the -- are you talking about the press release?

Yeah, when you informed people who were interested in

pulling papers when they can come down and pull the papers.

A.

It went out on March 8th right after the plan was filed

with our office, and they could start pulling papers on

March 9th.

Q.

Right. So you did that the day, essentially, that you got

the reapportionment plan --

A.

Q.

A.

Q.

Correct.

-- from the Commission; is that correct?

Yes.

Even so -- but so you are going forward under what, I

think you characterize, as a compressed time window. Even

understanding that the window technically had already been

opened, there was nothing that you could do, for instance, to

the fact that the Reapportionment Commission delivered you the

plan on March 8th; right?

A.

Q.

We can't change the deadline, no.

Right. So did you operate under a compressed timeframe

given the deadline when the window closed in June?

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A.

Q.

We operate -- yes.

Okay. Thank you. For the state offices a candidate or

a -- someone who wants to pull nomination papers and submits

them to you needs to submit 15 signatures; is that correct?

A.

Q.

A.

15 signatures of valid voters.

I am sorry. I didn't hear that second part.

15 signatures of voters who are eligible to vote for that

candidate.

Q.

Right. But it's a 15 signatures -- it's 15 signatures;

correct?

A.

Q.

Yes.

And is there anything that prevents a candidate or someone

who is interested in running from pulling papers and then -- in

different districts, and then deciding which of those to --

gathering signatures, for instance, and which of those to

submit on the -- on the day?

A.

No, you can pull nomination papers for more than one

district. You can just only file for one district.

Q.

Okay. Moving on a little bit, the closing of that

nomination process or the nomination period, which was June 5;

correct?

A.

Q.

Correct.

And did that set up -- did that give you a measure or does

that give you a measure for the proclamation date?

A.

I believe it's 10 days prior to the close of the filing.

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Q.

Okay. And can you explain to the Court what is the

proclamation and what that -- what that requires you to do?

A.

The proclamation is something that needs to be published

that says the date and time of the election and the polling

place locations.

Q.

Where does that proclamation go? Is it something you put

on the web? Is it -- where, how -- I mean, I imagine, you

know, when you think of proclamation, we think of the town

crier. But for our benefit what -- in today's world, what does

a proclamation -- where do you proclaim this?

A.

Q.

We publish that in the daily newspapers.

All right. Thank you. State law, there's also a time for

someone to pro -- someone, a registered voter to protest a

candidate's qualification; correct?

A.

Q.

A.

Correct.

And that is what? Do you know offhand what time that is?

Not off the top of my head, but there is -- there is a

deadline for them, too.

Q.

All right. If I told you it was roughly a week, would

that sound about right?

A.

Q.

Yeah.

Okay. So, once that passes -- so, in other words, once

the whatever time that is passes for people to challenge the

qualification of candidates, is that when you can start the

process of producing ballots?

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A.

Q.

We start the process -- yes.

Okay. What date right now do you have to mail the

absentee ballots?

A.

45 days prior to the primary election which is August 11.

I don't have the date and time.

Q.

A.

Q.

So that would make it June 27th, would that, roughly?

Correct.

Okay. And that's the date provided to you by federal law;

is that correct?

A.

Q.

A.

Q.

Correct. Federal law requires it.

Right. That's what we shorthand call the Move Act?

Correct.

Or the Uniformed Overseas Citizens Absentee Voting Act; is

that correct? And are you aware that that law allows a state

that can't meet the deadlines or finds it very hard to meet

those deadlines can ask for a time waiver from the federal

government?

A.

Q.

Yes.

And are you aware that there's been -- in the case of a

legal contest, that the Department of Justice must give a

waiver? Is that --

A.

I don't know if they must, but I know that you can ask for

one.

Q.

Right. And in fact in 2010, the State and the Department

of Justice entered into a memorandum of understanding that

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allowed the State to not quite adhere to those deadlines; isn't

that -- is that correct?

A.

Q.

Correct.

Okay. Let's sort of move back a little bit to another

area. I think that we've heard the term, but I think for the

Court's benefit, it would help for them to hear it from you.

What is precincting?

A.

Precincting is the process of establishing precinct

districts. Those are the voters that vote in that particular

precinct.

Q.

Right. So is that -- that's different than apportionment;

isn't that correct?

A.

Q.

A.

Q.

Correct.

And that's different than districting?

Correct.

And this is done by your office and not the

Reapportionment Commission; is that correct?

A.

Q.

Correct.

I am going to try to characterize it in the way I

understand it, and I'd like you to, if it's not correct,

correct me, if you would, please.

But as I understand it, you take the various maps or

the various apportionment plans, both from all the way from the

congressional races, the State, both state houses as well as

county races, and you take those, and you essentially overlay

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each map on top of itself; is that fair to say?

A.

Q.

That's part of the process, yes.

Yes. And the goal is so that a person who lives in a

particular location gets one ballot for all the races and goes

to one place to vote; is that correct?

A.

I don't -- that doesn't sound right. The goal -- the goal

is to create a precinct with one ballot type in it, but not for

a particular person to have one ballot.

Q.

Okay. So let's step back a bit. So the goal is so you

don't have to go -- would it be fair to say the goal is so that

one voter doesn't have to go to more than one place to vote?

A.

Q.

A.

Q.

No.

No?

That's not fair.

Would it be fair to say that the goal of precincting is to

have a place where someone can go and pick up all the ballots

that they need to vote for that day?

A.

No. I would say the goal would be so that all the voters

in that precinct vote on the same ballot type.

Q.

Okay. And you do this -- thank you. You do this -- this

comes after districting; correct?

A.

Q.

Correct.

So for instance the Reapportionment Commission -- I am

sorry. I talked over you. The Reapportionment Commission

gives you the plan that has the districts for a particular

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plan; correct?

A.

Q.

Correct.

And at that point you start the precincting process;

correct?

A.

Q.

A.

Q.

A.

Q.

Yes.

What's the acronym GIS or is it GIS or do you say GIS?

GIS.

And what does that stand for?

Geographical Information System, I believe.

And is that a -- that's a computer program essentially;

right, or software?

A.

I don't know what the term -- I mean it is -- my

understanding is it is software.

Q.

A.

Q.

A.

Q.

And it helps you produce the precincts; is that correct?

Yes. It's a tool.

I am sorry?

It's a tool to help us with precincting.

And is it fair to say that what the program does is -- I

don't -- I am not exactly sure how you go about doing it or --

I am sorry. Let's step back.

Is it accomplished by your office and your personnel

or is it done through a vendor?

A.

Q.

A.

It's done through both.

Part --

Part our office, part vendor.

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Q.

And again, forgive me if this is a sort of

overgeneralization, but you input the data you have with

respect to where the maps are or where the districts are with

the various apportionment plans. So federal, county, state,

and then you input that into the computer, and it produces

precinct maps?

A.

No, it produces maps with the various lines on it, and

from there we go and we precinct.

Q.

A.

Q.

So you make the final call with respect to precincting?

Correct.

But it actually -- it gives you essentially, would it be

fair to say, a draft of what you should start with or

something --

A.

Q.

A.

Q.

A.

It's a --

-- a plan to start with?

It's a tool to help us with the precincting process.

And so it outputs, what, a map with boundaries?

It out -- well, from there it goes to the vendor who has

to produce the maps, and we get all kind of data from that

precinct such as how many registered voters are in that

precinct, and it also produces the metes and bounds.

Q.

A.

Q.

Right. And you check those against, what, your own maps?

Yes.

Okay. And then for the 2012 election, in other words,

right now your office has five people assigned to it?

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A.

Q.

I believe so.

Yeah, and that's not including you and some other

technical staff; isn't that correct?

A.

Q.

No, it doesn't include me or the vendor.

Okay. So would you say it -- five people are assigned to

the precincting process?

A.

Q.

Five people were assigned to the precincting process, yes.

Okay. In the 2012 Plan, you are done with precincting for

this year; right? Under -- or I should say you are done with

precincting for the 2012 Supplemental Plan; is that correct?

A.

Correct. We still have to produce maps though that we are

waiting for from the vendor.

Q.

Okay. And did that -- you started that process after you

received -- of course you couldn't start the process until you

received the 2012 Plan in March 8th, I believe; is that

correct?

A.

We could not start until we received the final district,

right.

Q.

And in fact you started about a week later as I understand

it?

A.

Q.

Correct.

And you completed the process roughly around April 5; is

that accurate?

A.

Q.

Correct.

Okay.

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A.

But we have not yet produced maps. We are waiting for the

vendor to produce the maps, the metes and bounds, and all the

statistical reports.

Q.

A.

Q.

So this lawsuit was filed April 6, 2012; correct?

I am not exactly sure about that.

It was. Since then though you have only been implementing

the 2012 Plan; is that correct?

A.

Q.

Correct.

Right. And you didn't, for instance, input -- go back and

input the September 2011th Plan into the GIS system?

A.

Q.

No.

All right. And when you testified in your deposition a

month ago, you hadn't then made any plans to, in the event the

Court today orders you to not continue to implement the 2012

Plan but to go to some other plan, has that changed since the

time your deposition was taken?

A.

Q.

No, we have not come up with any contingency plans.

So from the date the complaint was filed till today,

essentially, or today, you have not made any other plans as

contingencies in case the Court orders some other plan but 2012

to be used?

A.

Q.

Correct.

Okay. Now reapportionment plans are -- when they are

produced are subject to challenge in state courts; aren't they?

A.

I believe so.

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Q.

Right. And in fact an earlier version, the August or

September 2011 plan was in fact challenged in state court;

correct?

A.

Q.

Correct.

And struck down? Do you make any contingencies when a

plan is filed that it might be challenged in state or federal

courts, or do you just go forward with precincting and other

things without regard to whether the Court might or might not

uphold or strike down the plan?

A.

Do we make contingency as to if the Court is going to

strike down the plan?

Q.

A.

Q.

Yes.

No, we just continue with the election process.

Okay. So you understand as of the process that we are in

right now, that the Court may order you to use a different plan

than the 2012 Plan; is that correct?

A.

Q.

Yes.

And you understand that the Court may do so on an

expedited or relatively short timeframe; isn't that correct?

A.

Q.

Correct.

Okay. And you have already asked -- I think the vendor

is -- I am not sure what the initials stand for, but it's ESRI?

A.

Q.

A.

That is correct.

Right. Is it ESRI?

Yeah, and I, too, am not sure what those --

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Q.

But you have asked them to give you some proposals in the

event the Court today does do something; haven't you?

A.

Q.

Yes.

And they submitted a bid or a proposal to -- in the event

the Court orders you to do something else but implement the

2012 Plan; right?

A.

Q.

They submitted us a quote, yes.

A quote. And in that -- so you got that quote and with

that you went to the legislature recently; correct?

A.

Q.

A.

Q.

We wrote a letter to legislature, yes.

And you asked them -- you asked the legislature for money?

Correct.

In the event that the Court -- this Court orders some

other plan but 2012?

A.

In the event that, yes, the plan needs to be redone and

there needs --

Q.

A.

Right.

And the commission needs to meet to redraw maps or

redraw -- come up with a new plan.

Q.

A.

Sure. The legislature approved your request; correct?

Yes.

MR. THOMAS: Okay. No further questions, Your Honor.

JUDGE McKEOWN: Did you have anything in the nature

of redirect examination?

MR. MOLAY: Yes, I do, Your Honor.

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JUDGE McKEOWN: All right.

MR. MOLAY: Thank you, Your Honor.

REDIRECT-EXAMINATION

BY MR. MOLAY:

Q.

Mr. Nago, let's start off with talking about the last

thing that you were asked about, the money that you asked for

from the State Legislature. What was the purpose of that money

or what's that money to be used for?

A.

That money was to be used by the Commission so that they

could utilize the services of ESRI, so that they could, in the

event the Court strikes down the plan, come up with a new plan.

Q.

A.

That money wasn't for the Office of Elections?

No, I believe it's proviso-ed, and it can only be used for

reapportionment.

Q.

Okay. And so if you had to implement or have a new plan

implemented, would the Office of Elections need additional

funds?

A.

If we had to do a new plan? It just depends on the nature

of the plan.

Q.

Okay. You were also asked about implementing other plans.

Would it be possible to implement more than one plan at one

time?

A.

I -- I don't see how you can implement more than one plan,

because you would have candidates who need to know what the

district they are running in is. And if there's two plans out

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there, I just don't see how that's possible.

Q.

And in fact if you had to guess as to what plan to

implement, you might be guessing wrong, and all your work would

be wasted?

A.

Q.

Correct.

Okay. We talked about new election dates or the

possibility of a new election dates. Would you need to obtain

new election precinct officials?

A.

If the dates were to change, yes, we would need to recruit

4,000 precinct officials, because not all of them may be

available on the new dates. Yes, we would need.

Q.

A.

All right.

We also would need to find polling places, because our

polling places are all -- all reserved for August 11th and

November 6th. So the facilities may or may not be available.

It just depends.

Q.

Okay. And the last thing is regarding the filing of the

plan, what's your understanding as to what you and the office

of elections is to do once you get the plan from the

Reapportionment Commission?

A.

Our job is to publish the plan. So we receive the plan

that the Commission filed, and we publish it.

Q.

Okay. So the filing then would be what -- what the

Commission gives you?

A.

Correct.

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Q.

Okay. And then you did everything you were supposed to do

once you got the plan?

A.

Yes.

MR. MOLAY: Okay. Thank you, I have no further

questions.

JUDGE McKEOWN: The panel have any questions?

JUDGE KOBAYASHI: No, thank you.

JUDGE SEABRIGHT: No.

JUDGE McKEOWN: You may step down. Thank you.

Did you have anything further?

MR. THOMAS: No, Your Honor. Thank you.

JUDGE McKEOWN: Thank you, Mr. Nago.

So we'd like to ask Mr. Nago to stay in the event

questions come up as to specific issues during the hearing,

because --

MR. MOLAY: We had arranged --

JUDGE McKEOWN: -- he obviously is the individual

most attuned to the nuances of the implementation of any plan.

MR. MOLAY: Yes. The Court had expressed that, and

we arranged for Mr. Nago to stay here as long as the Court

needs to.

JUDGE McKEOWN: Thank you.

You may proceed with argument.

MR. THOMAS: Thank you very much, Your Honor.

Your Honor, we have one demonstrative or visual aid,

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and with your indulgence I will hand -- these are paper copies

of what this is, and we are not going to refer to it expressly,

but it does give the Court some of the key numbers, I think,

that we will be continuing to talk about over the next course

of the -- over the course of argument.

But may it please the Court. The men and women who

defend our nation are entitled to be represented in Hawaii's

legislature, but they are not. And for all the nuances, the

command of the Equal Protection Clause to the states is

actually quite simple. It tells them to apportion your state

legislatures so that the population of each district is roughly

equal to other districts across the state.

Hawaii, however, holds itself to different standards.

For more than 50 years we found a way to count everyone but the

men and women serving in the armed forces who live here and

their families.

So we count aliens. We count minors. We count

prisoners. But Hawaii singles out the military people, because

it assumes they are transients even though the census counts

them as usual residents. Which means, according to the U.S.

Supreme Court, that they have an element or allegiance or

enduring tie here, which is absolutely correct. Meaning that

they are here. They are not simply passing through on the way

someplace else. Because, of course, the census excludes such

people, tourists in Waikiki, people passing through on their

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way somewhere else, a military in transit to a duty station

elsewhere, or in the case as we see in many of reported cases,

to war zones in Vietnam and the Pacific.

Hawaii, however, says that the people excluded can

buy into the system by registering to vote or by changing their

tax forms. But Hawaii demands this of nobody else. We

automatically count people who don't pay taxes, we

automatically count people who don't register to vote, and we

automatically count people who don't vote at all.

But service members are essential and integrated

members of our community. And as Burns explained in detail and

as Travis, the case from this Court, the three judge case --

three judge panel from this Court the last time Hawaii's

reapportionment procedures were challenged in federal court,

applied Burns to the un-- and if you apply those two cases to

the undisputed facts of this case, it shows that not -- we are

very likely to succeed on the merits when we assert that

Hawaii's use of the permanent resident standard and its efforts

to extract military families, military people and students from

their communities, and also when we assert that the 2012

Reapportionment Plan, as a separate matter, doesn't even come

close to statewide population equivalency, we are likely to

succeed on the merits because both of those deny equal

representation in the legislature to everyone under the Equal

Protection Clause.

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So Burns, first of all, is the most important case.

And it tells us -- it gives us the framework by which this

Court will analyze the reapportionment plans to test whether it

will succeed on the merits. It sets out a three-part test to

measure the constitutionality of an alternative population

basis, and the 2012 Plan fails each of them.

So with your indulgence, I'd like to walk the Court

through what those tests are in Burns and how the 2012 Plan on

any basis, any one of the three will fail.

By way of background, it's a little ironic that the

State's briefs rely on Burns, the very case that damages its

case so badly, because it cherry picks out particular language

in there that seems favorable.

But a careful reading of Burns, as we will walk the

Court through, will leave the reader with an understanding of

what that Court actually requires; puts the burden on the State

to do.

So there's three parts to this test. It's what I

call the identity provision; second, the substantial similarity

provision; and then finally the close constitutional scrutiny

requirement.

And in Burns, the Court held, of course, that states

may use an alternative population basis. And in Burns and

Travis, this was the time when Hawaii used registered voters as

its population basis. In this present case, of course, it's

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permanent resident.

And there -- and the Court held in Burns that there's

no obligation on the part of a state to always use the census

population. And of course they may, and in fact most states,

Hawaii being essentially the sole outlier in that regard, they

do.

So 48 other states use the census population

expressly as their population basis. One state uses the

population minus military, but since they have no data, they

extract virtually no one, and it has no effect on their

reapportionment plan. So we imagine nobody has standing to

challenge that, even though it's probably technically illegal.

But literally Hawaii is the only state that extracts

anybody from its population, and in the last 50 years it's

always been military folks.

So the Court said that you don't have to use -- you

may use census population, but you don't have to. But -- and

here is the critical part. But if a state chooses something

else but what is called a -- what the Court uses, a very

technical term, a permissible population basis, essentially a

basis that's already constitutional, the State has an

obligation. The State has an obligation to adhere to a certain

process to ensure the Court, a court reviewing that -- that

challenge or reviewing that plan, that that is constitutional.

And it must --

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JUDGE McKEOWN: Let me --

MR. THOMAS: -- adhere to a process that ensures --

yes, Your Honor.

JUDGE McKEOWN: Let me interject here just to have a

clarification from you. Because we are talking in Burns, of

course, of registered voters, and we are talking of a

circumstance that addressed Hawaii's plan.

But in Burns -- and then you go on and continue to

talk about other permissible population basis. But Burns makes

the following statement, and I would appreciate your

elaboration on how it fits in in your view.

It says -- in speaking to the voter registration as a

base, it says, "It is enough if it appears that the

distribution of registered voters approximates distribution of

state citizens or another permissible population base."

So my question is hasn't the Supreme Court implicitly

endorsed a state citizen basis for -- as a permissible

population base?

MR. THOMAS: The short answer to that question is

yes, it has, but it also puts the burden on the State to make

that choice and to expressly tell us in the reapportionment

plan or in the legislative history -- in our case, it's

constitutional history of 1992 -- when you adopt an alternative

population base, tell us what you are measuring it against.

And that's the first part of the Burns standard. It

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says you can't just pick something out of air. We choose --

you can choose population. You don't have to. But if you are

going to choose something else, if you are going to choose

registered voters, you, state, has an obligation to tell us

what you are measuring that against.

Because we can't just trust that a plan that looks at

registered voters is going to give us the two things that the

Equal Protection Clause says we have to look at, either

representation equality or voting equality.

In fact in Burns, the Court quite clearly had some

reservations about registered voters simply because it was one

of those methods measurements that could be manipulated. If

you could keep people from registering to vote, you could

manipulate districts through the population.

JUDGE McKEOWN: Do you equate citizenship and

permanent residency for purposes of how they are used in the

Supreme Court cases and also used in your briefs?

MR. THOMAS: The Court has -- the answer to that,

Your Honor, is the Court has never settled that question. And

it's -- the smoke trails are there that if a state decided to

use citizenship as its metric, that it's likely to pass

constitutional review, but it still has to go through the Burns

process, which is the process that we are talking about here.

The first step being the State has an obligation,

when it uses something other than population, to identify what

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that's measured against. So for instance in Burns, which was a

registered voter case or registered voter population base, the

Court specifically pointed out the State of Hawaii, in its 1950

consti -- well, it's the convention in anticipation of Hawaii

statehood to -- to create the first Hawaii constitution. The

delegates expressly said, and this is set out in Burns, that

they are going to choose registered voters, but they believed

that it would be the equivalent -- it would result in the same

plan as if we measured citizens or total population, either/or.

And in Travis it was again -- the population basis in

that case was registered voters. And the Reapportionment

Commission there, in their report, said that we think a count

of registered voters will give us the equivalent plan of one

based on eligible voters.

Again, if you look at both citizen, total population

and eligible voters, those are all principles which the Equal

Protection Clause supports; right, either voter equality or

representational equality by counting all people.

And this is the 2012 Plan's glaring first fatal

defect is it doesn't identify what the permissible population

base is to which permanent resident is -- should be compared

to. So we don't know what to measure the 2012 plan's choice of

permanent resident against to see if it's constitutional.

So, you look at the 2012 Plan to figure out, well,

did they do what they did in Burns and say, "Well, we think

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