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Of Counsel:
DAMON KEY LEONG KUPCHAK HASTERT
Attorneys at Law
A Law Corporation

ROBERT H. THOMAS
[email protected]
ANNA H. OSHIRO
[email protected]
MARK M. MURAKAMI 7342-0
[email protected]
1003 Bishop Street, Suite 1600
Honolulu, Hawaii 96813
www.hawaiilawyer.com
Telephone: (808) 531-8031
Facsimile: (808) 533-2242

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




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.






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CIVIL NO. 12-00184 JMS/RLP

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

PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT ON
COUNTS I AND II OF THE
FIRST AMENDED
COMPLAINT;
MEMORANDUM IN
SUPPORT OF MOTION;

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CERTIFICATE RE: WORD
LIMITATION (LR 7.5);
CERTIFICATE OF SERVICE

Hearing Date: __________, 2012
Time: _______ a.m.
Judge: _______________________




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PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON

COUNTS I AND II OF THE FIRST AMENDED COMPLAINT



Plaintiffs Joseph Kostick, Kyle Mark Takai, David P. Brostrom,

Larry S. Veray, Andrew Walden, and Edwin J. Gayagas, move this

court pursuant to Fed. R. Civ. P. 56 for summary judgment on Counts I

(Equal Representation) and II (Malapportionment) of the First

Amended Complaint for Declaratory and Injunctive Relief (filed Apr. 27,

2012) (CM/ECF doc. 32). Plaintiffs brought this action to challenge the

State of Hawaii’s Final Report and Reapportionment Plan (2012

Supplement) (“2012 Plan”) on the grounds that it violates the U.S.

Constitution and Hawaii law, and ask this court to issue a declaratory

judgment pursuant to 28 U.S.C. § 2201 and 2202 that:



1.

The 2012 Plan violates the Equal Protection Clause because

it results in districts that are not substantially equal in population

statewide.

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2.

The 2012 Plan violates the Equal Protection Clause because

the 2012 Plan “extracted” 108,767 persons (military personnel, military

families, and university students) from the Census count of 1,360,301

“usual residents” of Hawaii, thereby denying these persons equal

representation in the Hawaii legislature.



3.

The Hawaii Constitution’s apportionment and districting

process, which requires the Commission “allocate the total number of

members of each house of the state legislature being reapportioned

among the four basic island units” with the requirement that “no basic

island unit shall receive less than one member in each house,” and

requires population equality only within each basic island unit, violates

the Equal Protection Clause.

DATED: Honolulu, Hawaii, October 1, 2012.











































Respectfully submitted,

DAMON KEY LEONG KUPCHAK HASTERT











/s/ Robert H. Thomas
ROBERT H. THOMAS
ANNA H. OSHIRO
MARK M. MURAKAMI
Attorneys for Plaintiffs
JOSEPH KOSTICK, KYLE MARK TAKAI,
DAVID P. BROSTROM, LARRY S. VERAY,
ANDREW WALDEN, EDWIN J. GAYAGAS,
ERNEST LASTER, and JENNIFER LASTER


3

















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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






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TABLE OF CONTENTS




Table of Authorities .................................................................................. iv

Page

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

I.

II. STATEMENT OF FACTS ................................................................ 6





B. Hawaii’s Reapportionment Process ........................................ 7

A. Hawaii’s Reapportionment Record ......................................... 6

C. Census: 1,360,301 “Usual Residents” ..................................... 8

D. The Military In Hawaii ......................................................... 10

E. August 2011 Proposal: Count Everyone;


September 2011 Plan: “Extract” A Handful ......................... 13

F.



G.








September Plan Invalidated: “Permanent
Resident” Is “Domiciliary” (Physical Presence And
Intent to Remain) .................................................................. 13

2012 Plan: Extract Usual Residents Of Hawaii
Deemed To Not Be “Permanent Residents”.......................... 15

1.

Servicemembers ........................................................... 15

2.

Families ........................................................................ 17

3.

Students ....................................................................... 18

H. Senate Seat To Hawaii County, Large Deviations ............... 19



1.

Senate Deviation: 44.22% ............................................ 19


























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TABLE OF CONTENTS — CONTINUED



Page

2. House Deviation: 21.57% ............................................. 20

Commission Ignored Federal Deviation Standards,
Acknowledged Presumptive Unconstitutionality ................. 20

B. Burns Did Not Validate “Permanent Resident” In All


Circumstances For All Time ................................................. 25

A. The 2012 Plan Deviations Grossly Exceed 10%, And Is


Presumptively Unconstitutional ........................................... 23







III. SUMMARY JUDGMENT STANDARD ......................................... 20


IV. ARGUMENT .................................................................................. 22
























3. Hawaii’s 2012 Plan Does Not Survive Close




State’s Burden To Show The 2012 Plan Is A
Substantial “Duplicate” Of A Plan Based On A
Permissible Basis ......................................................... 29

State Must Identify The “Permissible Population
Basis” To Which To Compare Its Count of
“Permanent Residents” ................................................ 27

b. Hawaii’s Assumptions About Military


Transience Are Unsupported. ............................. 39

Constitutional Scrutiny ............................................... 33

a.

Equal Representation. ........................................ 34



















I.


1.



2.






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TABLE OF CONTENTS — CONTINUED



Page

C.

1.

People Are Represented, Not Counties ....................... 52

Intra-County Inequality ....................................................... 51










V. CONCLUSION ............................................................................... 57

2. Oahu’s Ranges Are Excessive ...................................... 54

3. No Approximation Of Population-Based Plan ............. 55











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TABLE OF AUTHORITIES

Page


CASES

Board of Estimate v. Morris, 489 U.S. 688 (1989) .................................. 53

Brown v. Thomson, 462 U.S. 835 (1983) ........................................... 24, 53

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

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)

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


Chen v. City of Houston, 532 U.S. 1046 (2001) ....................................... 50

Davis v. Mann, 377 U.S. 678 (1964)........................................ 3, 23, 46, 51

Eastern Railroad President’s Conference v. Noerr


Franklin v. Massachusetts, 505 U.S. 788 (1992) ............................ 3, 8, 42

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


Harper v. Virginia Bd of Elections, 393 U.S. 663 (1966) ........................ 40

Kirkpatrick v. Preisler, 394 U.S. 526 (1969) ........................................... 36

Mahan v. Howell, 410 U.S. 315 (1972) ....................................... 22, 24, 51


Motor Freight, Inc., 365 U.S. 127 (1961) ....................................... 37

Hawaii, 120 P.3d 217 (Haw. 2005) .......................................... 44, 35

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

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TABLE OF AUTHORITIES — CONTINUED



Page

Comm’n, No. SCPW-11-0000741.............................................. 13, 19


Matsukawa v. State of Hawaii 2011 Reapportionment


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

Reynolds v. Sims, 377 U.S. 533 (1964)............................. 21-22, 34, 36, 52

Solomon v. Abercrombie, 270 P.3d 1013 (Haw. 2012) .......... 13-15, 19, 33,

43, 45-46

Solomon v. Abercombie, No. SCPW-11-0000732 .................................... 13

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


CONSTITUTIONS, STATUTES, AND RULES



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

5 U.S.C. § 552a et seq. ............................................................................ 17

HAW. CONST. ART. IV, § 4 ........................................................................... 7

HAW. CONST. ART. IV, § 6 ........................................................................... 8

HAW. REV. STAT. § 831-2(a)(1) (1993) ...................................................... 48

FED. R. CIV. P. 56 ................................................................................. 2, 21



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TABLE OF AUTHORITIES — CONTINUED

OTHER AUTHORITIES





Page


ADD TO HAWAII’S ECONOMY? (2011) ................................................ 40

AND FUTURE OF HAWAII’S ECONOMY 199 (Robert M.
Kamins ed.1993) ........................................................................ 10-11

available at http://manoa.hawaii.edu/admissions/
undergrad/financing/residency.html. ............................................. 47

Carl Goldfarb, Allocating the Local Apportionment Pie:
What Portion for Resident Aliens?, 104 YALE L. J.


1441 (1994-1995) ............................................................................ 38

Hawaii Residency Requirements,



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


THOMAS K. HITCH, ISLANDS IN TRANSITION: THE PAST, PRESENT



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).................................... 50

Non-Permanent Population Extraction for 2011


Summaries by Basic Island Units at 2, 6 (Mar. 8, 2102) ....................... 53

Reapportionment: Representational Equality Versus
Voting Equality, 25 SUFFOLK L. REV. 1243 (1991) ......................... 35

Reapportionment and Redistricting—Addendum (Mar. 2012) ..... 15

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TABLE OF AUTHORITIES — CONTINUED



Page


Census Figures for Reapportionment (Sep. 12, 2011) .................... 45

Summary of the State of Kansas Adjustment to


U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES:





2012 Table 400: Persons Reported Registered and
Voted by State: 2010 ....................................................................... 45

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MEMORANDUM IN SUPPORT OF MOTION

I.

INTRODUCTION





The State of Hawaii cannot meet its burden to show that the 2012

Plan’s method of determining which of Hawaii’s “usual residents” as

counted by the Census are “transients, short-term or temporary

residents” that may be excluded equal representation under Burns v.

Richardson, 384 U.S. 73 (1966). The 2012 Plan has not justified denying

representational equality to 108,767 persons who unquestionably have

a substantial presence in the state but do not meet the state’s criteria

for “permanent resident.” The state’s limited latitude under Burns to

choose whom to count does not permit the exclusion of nearly 8% of the

population based only on a set of irrational assumptions that do not

survive close constitutional scrutiny.



Burns allowed Hawaii to count registered voters, but only because

there was no claim that doing so would result in an apportionment

substantially different than one based on a count of a “permissible

population basis” such as total population, state citizens, or U.S.

citizens. Moreover, the state “need not count aliens, transients, short-

term or temporary residents, or persons denied the vote.” Id. at 92.

Hawaii now excludes those whom it determines do not qualify as

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“permanent residents,” a term it defines as those who have a

substantial physical presence in the state and who have exhibited

intent to remain. The 2012 Plan denies representational equality to

108,767 servicemembers, military families, and university students who

do not meet Hawaii’s test. The 2012 Plan is unconstitutional because it

is based on three assumptions that do not survive close constitutional

scrutiny, or even a rationality test:

?


Hawaii assumes servicemembers counted by the Census as
“usual residents” of Hawaii, but who designated a different state to
withhold taxes from their pay on a military tax form (DD2058) have no
intent to remain and may be treated as transients. In effect, this
imposes a poll tax on servicemembers, by tying their representation in
the Hawaii legislature to their willingness to pay Hawaii income taxes.


It assumes spouses and dependents of servicemembers have
the same intent as their military sponsors, an unwarranted assumption
without factual foundation.


have no intent to remain.

Hawaii’s exclusionary policy treats these people as if they did not exist,

It assumes students who did not qualify for in-state tuition

?

?

which grossly distorts the boundaries and actual population of every

Oahu district.



The Equal Protection Clause requires states to apportion their

legislatures so that the population of each district is roughly equal to

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other districts across the state. Hawaii, however, holds itself to different

standards and for more than half a century, the state has found a way

to count nearly everyone but the men and women serving in the armed

forces who live here, even while it counts aliens, minors, prisoners,

those who don’t vote, and those who pay no taxes. Carefully avoiding

the prohibition on expressly excluding military personnel, see Davis v.

Mann, 377 U.S. 678, 691 (1964) (states may not refuse to count

servicemembers merely because of their occupation), Hawaii achieves

the same result by assuming that servicemembers and their families

are “transients” even though they qualify as “usual residents,” which,

according to the Supreme Court, means they have “an element of

allegiance or enduring tie” to Hawaii. See Franklin v. Massachusetts,

505 U.S. 788, 789 (1992) (any person who is a “usual resident” counted

in the Census).



Hawaii asserts that servicemembers and their families have

chosen to opt out of being counted because the servicemembers have

elected to have another state withhold taxes from their military pay,

and may also be counted by registering to vote here. But Hawaii

imposes this requirement on no one else: it automatically counts those

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who are registered to vote elsewhere or indeed, not registered or even

eligible to vote; it counts those who do not pay Hawaii state taxes.

Everyone but servicemembers, their families, and university students

who pay nonresident tuition are automatically included, and no attempt

is made to determine whether they are similarly situated to those

excluded.



Servicemembers and their families are essential and integrated

members of Hawaii’s community and body politic. 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.

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 persons are

represented.



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

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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 its legislature using a count 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. Supp. 554, 562 n.19 (D. Haw. 1982). The issue is now

squarely presented: 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—and other states base their apportionments

on the Census population—they are not counted anywhere else.







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II. STATEMENT OF 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.1 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

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

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

hold that Hawaii’s choice to use a population basis that had the effect of

excluding the military would always be constitutional; the Court


1 The Statement of Facts in this memorandum is supported by the
exhibits and declarations submitted by the parties in their pleadings in
the preliminary injunction. For the court’s convenience, hard copies of
the electronically filed briefs and cited exhibits will be submitted to
chambers.

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rejected the challenge only because there was no evidence the plan

varied from one based on a “permissible population basis.”



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 resulted in a plan that was materially

different from one based on a permissible population basis. 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
proportions; except that no basic island unit shall receive
less than one member in each house.


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HAW. CONST. ART. IV, § 4 (emphasis added). 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, and not within each district. 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”. See Statement of Fact (“SOF”) ¶ 2). 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. See SOF ¶ 4.



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. SOF ¶ 3.



The Census excluded transients such as tourists, who are counted

in their state of “usual residence.” Id. at 3, ¶ 5, SOF ¶ 7.

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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”)

The Military In Hawaii

D.



Fifty years ago, the Supreme Court concluded that Hawaii’s

military were transients. Burns, 384 U.S. at 94-95 (“Hawaii’s special

population problems, including large concentrations of military and

other transients centered on Oahu, suggest that state citizen

population, rather than total population, is the appropriate comparative

guide.”). The Court noted that “the military population in the State

fluctuates violently as the Asiatic spots of trouble arise and disappear.”

Id. at 94; see also id. at 94 n.24 (“For example, at one point during

World War II, the military population of Oahu constituted about one-

half the population of the Territory.”). But Hawaii’s “special population

problems” fifty years ago no longer exist. The 25 years prior to Burns

decision saw massive swings in military populations as draftees flowed

into military bases to fight World War II, Korea and the beginnings of

the Vietnam conflict. At the peak of World War II, 400,000 military

personnel comprised nearly 50% of the population of the Territory of

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Hawaii. With post-war demobilization, that number shriveled nearly

twenty-fold to 21,000 by 1950. It then swelled again during the Korean

War. See THOMAS KEMPER HITCH, ISLANDS IN TRANSITION: THE PAST,

PRESENT AND FUTURE OF HAWAII’S ECONOMY 199 (Robert M. Kamins ed.

1993), SOF ¶ 9.



Today’s military is vastly different. The draft was abandoned in

favor of an all-volunteer force at the close of Vietnam. In contrast to the

period preceding the Burns decision, the post-Vietnam all-volunteer

military has fought in Grenada, Lebanon, Kuwait, Bosnia, Somalia,

Afghanistan, Iraq, and several other conflicts with no surge in Hawaii

military populations even remotely comparable to the 20-fold

population shifts which confronted the Burns court.

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

HAWAII’S ECONOMY 28 (RAND 2011).2 At the same time that the military

has integrated itself into the community, Hawaii’s voting participation

level has dramatically changed from the levels at the time of Burns. At

that time (shortly after statehoood), the cited percentage of registered

voters in Hawaii was 87.1%, perhaps the highest in the nation. As of

the 2010 census by contrast, the percentage had dropped dramatically

to 48.3%—the lowest in the country. U.S. CENSUS BUREAU, STATISTICAL


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

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ABSTRACT OF THE UNITED STATES: 2012 Table 400: Persons Reported

Registered and Voted by State: 2010, SOF ¶5.






E.


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



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.







F.



September Plan Invalidated: “Permanent Resident” Is
“Domiciliary” (Physical Presence And Intent To
Remain)

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

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

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



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

2011 Plan violated the Hawaii Constitution because the Commission

had not extracted enough people. The court ordered the Commission to

count only “permanent residents.” The court defined “permanent

resident” as “domiciliary,” which under Hawaii law means a person who

has both a substantial physical presence in Hawaii, and who has

demonstrated an intent to remain here. The court ordered the

Commission to extract 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:

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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.



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).



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

G.


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

2012, the Commission adopted the 2012 Plan that, in conformity with

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

the count, nearly 8% of Hawaii’s actual Census population. A summary

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

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the Non-Permanent Population Extraction for 2011 Reapportionment

and Redistricting—Addendum (Mar. 2012) (Exhibit “D”. See SOF ¶ 19.).







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 had already been

excluded from the Census population, and were not counted as “usual

residents” of Hawaii. Stip. Facts at 2-3, 5-6, ¶¶3, 5-6, 21-22, SOF ¶ 7.



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.” See SOF ¶ 21. This form

is used to designate which state should withhold taxes from

servicemembers’ military pay. See Exhibit “E.” See SOF ¶ 22.

Servicemembers are informed that the information they provide may be

disclosed to tax authorities in the tax withholding state, but they are

not informed that it would be provided to Hawaii to determine

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“permanent residency” for apportionment purposes. There may be little

correlation between the place where a servicemember pays state taxes,

and where she is actually located. Nor does the DD2058 form ask the

servicemember to declare where they are located, or where they intend

to remain. Moreover, there no 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,” (where a servicemember had an

intent to remain in Hawaii), and indeed, disclosure to the state may

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

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

data. Stip. Facts at 3-4, ¶¶ 8, 9, 10; 2012 Plan at B-47, SOF ¶ 23.







2. Families

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

Facts at 3-4, ¶¶10-13; 2012 Plan, Page B-47, SOF ¶ 24. They were not

surveyed, nor did the military provide any data about them. 2012 Plan

at B-12, B-33, SOF ¶ 24. In the absence of such data, the Commission

merely “assumed” that dependents have the same legal residency as

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their military spouse. 2012 Plan at B-53, B-54, SOF ¶24. 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, SOF ¶26. 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. SOF ¶ 24.







3.

Students

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

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

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, SOF ¶ 27. 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.” See SOF ¶ __. BYU Hawaii, Hawaii

Pacific, and Chaminade used “home address.” Stip. Facts at 4-5, ¶¶14,

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19, SOF ¶ 25.. 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, such as Argosy, and Tokai University. Id. at 5, ¶¶15-17, SOF ¶

25, 28.



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

the Census. Id. at 4, ¶14, SOF 29.






H.

Senate Seat To Hawaii County, Large Deviations

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

residents” as the population counted for the 2012 Plan. By this

measurement, the ideal population of Senate districts statewide was

50,061, and the ideal population for House districts was 24,540. The

2012 Plan shifted one Senate seat from Oahu to Hawaii, the result

sought by 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

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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%. SOF ¶ 31.







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%. SOF ¶ 32.






I.


Commission Ignored Federal Deviation Standards,
Acknowledged Presumptive Unconstitutionality

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

were lower and below the 10% federal invalidity threshold when

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

1-8). SOF ¶ 33. It was able to reach this result only by dismissing the

statewide ideal as set out above. It acknowledged its methodology does

not comply with federal law. Id. at 18 (“The Commission is aware that

federal courts generally review reapportionment and redistricting plans

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under a different methodology than set forth above.”). SOF ¶33. 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.



Plaintiffs instituted this lawsuit, and sought a preliminary

injunction to prohibit Hawaii from implementing the 2012 Plan. On

May 22, 2012, the court issued its Order Denying Plaintiff’s Motion for

Preliminary Injunction (“Order”) (CM/ECF doc. 52). SOF ¶ 34.

III. SUMMARY JUDGMENT STANDARD



The Rule 56 standard for summary judgment is well-established

and will not be repeated here in great detail. Suffice it to say that trial

is unnecessary when the material facts are not disputed and the law

can be applied to those facts to render judgment. See Fed. R. Civ. P.

56(a); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Here, no material

facts are disputed, and the court must correctly identify the controlling

law, including the burden of proof and the standard of review, and

apply the law to the undisputed facts.





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IV. ARGUMENT



Two background principles should be kept in mind as the court

considers this motion.



First, the touchstone of a state legislative reapportionment plan is

“population.” Reynolds v. Sims, 377 U.S. 533, 560-61 (1964). 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” standard 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. 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. See Garza v. County of Los

Angeles, 918 F.2d 763, 774 (9th Cir. 1990).3 This means that persons—


3
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

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not “citizens,” “registered voters,” “taxpayers,” “counties,” or “basic

island units”—are entitled to be counted and represented equally. There

is no question that all “usual residents” of Hawaii as reported in the

2010 Census—including everyone 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, which

means that because Hawaii does not count them for purposes of

apportioning legislative representation, they are not represented

anywhere.



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


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.


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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 issues.






A.


The 2012 Plan Deviations Grossly Exceed 10%, And Is
Presumptively Unconstitutional

The Commission acknowledged the 2012 Plan is “prima facie

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

plan apportioning seats may make “minor” deviations from the ideal

statewide district size. Mahan v. Howell, 410 U.S. 315 (1972). 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 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,

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and place the burden squarely on the State to justify (1) excluding

“usual residents” from representational equality, and (2) dilution both

equal representational power and voting strength based upon “basic

island unit.”



The Commission supported

the deviations with only

two

justifications: (1) the state may exclude servicemembers and others as

long as it does so on the avowed basis of a residence requirement (id. at

10), and (2) it argued that preservation of the integrity of political

subdivisions can be an overriding concern such that population equality

is only required within each county, and not statewide (id at 9-10).






B.


Burns Did Not Validate “Permanent Resident” In All
Circumstances For All Time

Burns did not resolve the issue presented in the case at bar. In

Burns, the Court recognized that states are not required to use the

Census population as the basis for reapportionment and may employ

some other count, but may do so only if the resulting plan is not

“substantially different” than one based on a “permissible population

basis.” Burns, 284 U.S. at 91-92. Although most states now use the

actual Census population, they are not required to do so. Indeed, a state

may choose to count nearly any population, with two limitations: first, it

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