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Case 1:12-cv-00184-JMS-LEK-MMM Document 80 Filed 07/11/13 Page 1 of 87 PageID

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

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

OPINION AND ORDER DENYING
PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT AND
GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT; APPENDICES “A” &
“B”

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,

_______________________________

Defendants.

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OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR

SUMMARY JUDGMENT AND GRANTING DEFENDANTS’ MOTION

FOR SUMMARY JUDGMENT

Before:

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

PER CURIAM:

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, their

dependents, and non-resident students from the total population count. The Hawaii

Reapportionment Commission adopted a new legislative apportionment plan to

comply with that directive.

This suit asks us to consider the constitutionality of Hawaii’s 2012

Reapportionment Plan under the Equal Protection Clause of the United States

Constitution. Previously, we considered a motion for a preliminary injunction

seeking to halt implementation of the 2012 Reapportionment Plan and to enjoin

conducting the 2012 elections under that plan. On May 22, 2012, we denied that

request, concluding that the citizens’ group seeking the injunction had not

established a likelihood of success on the merits of its claim that the permanent

resident population basis violates equal protection. Nor did the equities and public

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interest weigh in favor of an injunction that risked jeopardizing the 2012 primary

and general elections. See Kostick v. Nago, 878 F. Supp. 2d 1124 (D. Haw. 2012).

We now consider the equal protection challenges on cross motions for

summary judgment—the citizens’ group asks us to declare that the 2012

Reapportionment Plan violates equal protection, and the government seeks

judgment in its favor as to those questions. Following extensive briefing and a

January 14, 2013 hearing on the cross motions, we DENY Plaintiffs’ Motion for

Summary Judgment and GRANT Defendants’ Motion for Summary Judgment.

For the reasons that follow, we conclude that the 2012 Reapportionment

Plan does not violate the United States Constitution. The Commission’s reliance

on a permanent resident population base, as ordered by the Hawaii Supreme Court,

is permissible under the Equal Protection Clause. Likewise, the disparities in the

size of the Commission’s legislative districts pass constitutional muster.

I. INTRODUCTION

In our May 22, 2012 Order Denying Plaintiffs’ Motion for Preliminary

Injunction, we extensively reviewed the historical and evidentiary record at that

stage. The current record has not changed appreciably, and the cross motions for

summary judgment ultimately turn on legal arguments applied to undisputed facts.

Accordingly, we draw heavily on the May 22, 2012 Order in explaining the

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background and context for this apportionment challenge. Where appropriate, we

incorporate parts of the May 22, 2012 Order in addressing the cross motions.

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 that reapportionment of Hawaii’s state

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

Census count of “usual residents.” Any resulting reapportionment is subject to the

constitutional principles of “one person, one vote.” Reynolds v. Sims, 377 U.S.

533, 557–58 (1964) (citing 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” or “Plaintiffs”) challenge aspects of the

March 30, 2012 Supplement to the 2011 Reapportionment Commission Final

Report and Reapportionment Plan (the “2012 Reapportionment Plan”), which

Hawaii implemented in 2012 and utilized in its recent 2012 primary and general

elections. The Defendants are the members of the 2011 Reapportionment

Commission in their official capacities; the Commission itself; and Scott T. Nago,

in his official capacity as secretary to the Commission and Hawaii’s Chief

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Elections Officer (collectively, “the Commission” or “Defendants”).

The 2012 Reapportionment Plan—fulfilling a mandate from the Hawaii

Supreme Court in Solomon v. Abercrombie, 270 P.3d 1013 (Haw.

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, and the 2012 Reapportionment Plan’s

subsequent apportionment of the resulting population base, violate the Equal

Protection Clause of the Fourteenth Amendment and “one person, one vote”

principles.

Kostick asks the court to (1) declare the 2012 Reapportionment Plan

unconstitutional; (2) 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) order

the use of an August 2011 proposed reapportionment plan, which utilized a

population base that includes the now-extracted 108,767 people. In addition,

Kostick seeks an order requiring an apportionment of state legislative districts that

are “substantially equal in population.”1

1 The First Amended Complaint also asserted a separate claim under state law (Count

Five), which has been dismissed by stipulation.

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As in our May 22, 2012 Order, we again emphasize that this Opinion

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

important and difficult questions, which involve political judgments and require

consideration and balancing of competing legislative interests—tasks for which

courts are ill suited. See, e.g., Perry v. Perez, 565 U.S. __, 132 S. Ct. 934, 941

(2012) (per curiam) (“[E]xperience 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).

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. 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.

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II. BACKGROUND2

This reapportionment challenge raises issues that are best understood by first

examining the historical context. We begin by reviewing the historical and legal

factors that the Commission faced in crafting the 2012 Reapportionment Plan. We

then set forth the details of Kostick’s challenge to the Plan and recount the

procedural history of this case.

A.

Historical and Legal Context

1.

The Census as Population Baseline

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

Massachusetts, 505 U.S. 788, 804 (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 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.” Doc. No. 26, Parties’ Stipulated Facts re: the Motion

2 This background section is based on the parties’ “Stipulated Facts Re: the Motion for
Preliminary Injunction in Response to Court Order,” Doc. No. 26, parts of which Plaintiffs have
also incorporated into their Separate and Concise Statement of Facts (“CSF”), Doc. No. 68.
Defendants do not contest Plaintiffs’ CSF, at least to the extent it does not state legal
conclusions. Doc. No. 71. The court thus deems admitted the factual statements in Plaintiffs’
CSF. See LR 56.1(g). Likewise, Plaintiffs have not challenged the factual basis for Defendants’
CSF and its corresponding exhibits. Doc. Nos. 65, 66. Ultimately, the historical factual record
is undisputed.

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for Preliminary Injunction in Response to Court Order (“Stip. Facts”) ¶ 1; Doc. No.

68, Pls.’ Separate and Concise Statement of Facts (“CSF”) No. 2. The definition

thus excludes tourists and business travelers. Stip. Facts ¶ 5; Doc. No. 28-16, Pls.’

Ex. H (“Ex. H”) at 3. The 2010 Census counted people at their usual residence as

of April 1, 2010. Stip. Facts ¶ 2; Pls.’ CSF No. 1. 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; Pls.’

Ex. H at 8-9. Similarly, students attending college away from their parental homes

are counted where they attend school (i.e., where they “live and sleep most of the

time”). Pls.’ 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.

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.

After each Census, Hawaii establishes a Reapportionment Commission to

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

(“HRS”) § 25-1 (2012). The Commission uses the Census’s “usual residents”

figure as Hawaii’s total population for purposes of apportioning Hawaii’s federal

congressional districts. See Haw. Const. art. IV, § 9; HRS § 25-2(b) (2012)

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(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 use the Census figure as the population base for state legislative districts.

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

2.

Hawaii’s Reapportionment Population Base Dilemma

Defining the reapportionment population base for Hawaii’s legislative

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 v. Richardson, 384 U.S. 73, 94 (1966) (referring to “Hawaii’s special

population problems” stemming from “the continuing presence in Hawaii of large

numbers of the military”). The Supreme Court in 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

personnel 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. 65-9, Defs.’ Ex. G at 6, State of Hawaii 1991

Reapportionment Comm’n, Final Report and Reapportionment Plan at 23;

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Solomon, 270 P.3d at 1015.3

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

many military installations, including Joint Base Pearl Harbor-Hickam, Schofield

Barracks, and Kaneohe Marine Corps Air Station. Regardless of whether these

individuals claim residency in Hawaii, Hawaii’s 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 the group is included in the population base but votes 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

3 The percentage of the population of military personnel and military families in Hawaii

in 2010 is not clear from the record, but some data indicate as many as 153,124 military and
military dependents. Doc. No. 28-12, Pls.’ 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 in Hawaii (and thus may indeed have been counted as “usual residents”).
As detailed later, the Commission eventually “extracted” 42,332 active duty military personnel
and 53,115 of their associated dependents as “non-permanent” Hawaii residents. Stip. Facts
¶¶ 8, 10.

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diluted when compared with votes of citizens living in other parts of the State.”).

That is, the vote of an Oahu voter could count more than that of a non-Oahu voter.

See, e.g., Bd. of Estimate 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

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 (particularly 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.”).

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3.

The Population Base’s Impact on Basic Island Unit Autonomy

The Commission was also driven by a geographic constraint—grounded in

Hawaii’s history and its Constitution as explained below—to apportion among

“basic island units,” which correspond to Hawaii’s counties. See Appendix B

(Hawaii map from National Atlas of the United States, March 5, 2003,

http://nationalatlas.gov). And Hawaii’s choice of a reapportionment population

base has the potential to affect the distribution of political power among these basic

island units. 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 (here, Hawaii County gained a State Senate seat that the City and

County of Honolulu lost). Stip. Facts ¶ 40. Thus, including or excluding non-

permanent residents could contribute to a subtle shift in power among the counties.

Historically, residents of each basic island unit “have developed their own

and, in some instances, severable communities of interests” resulting in “an almost

personalized identification of the residents of each county—with and as an integral

part of that county.” Burns v. Gill, 316 F. Supp. 1285, 1291 (D. Haw. 1970)

(three-judge court). 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. And forty-three years after Gill, many individuals still

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identify themselves in relation to their island. See, e.g., Doc. No. 66-3, Defs.’ Ex.

Y, Solomon Decl. ¶ 9 (noting “socio-economic and cultural differences . . . that

predated statehood” between parts of Maui and the Big Island (as Hawaii Island is

often called)).

The integrity of the basic island units reaches back centuries. 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.

Holt v. Richardson, 238 F. Supp. 468, 470–71 (D. Haw. 1965) (internal citation

omitted), vacated by Burns, 384 U.S. 73. Likewise, at the 1968 Hawaii

Constitutional Convention when implementing apportionment provisions in the

Hawaii Constitution, committee members incorporated 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
nation, the territory and the state, the island units have been
recognized as separate political entities.

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(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. 65-13, Defs.’ Ex. K at 26–27, Standing Comm. Rpt. at 261–62. See also

Doc. No. 66-14, Defs.’ Ex. KK, McGregor Decl. ¶¶ 5-11 (explaining 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).

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

apportionment, Hawaii’s 1968 Constitutional Convention also considered the

effect of Hawaii’s centralized state government, which performs many functions

that other states have delegated to local government units. The Convention’s

apportionment committee explained:

In every other state in the union there are numerous minor
governmental units—towns, cities, school districts, sewer districts and
the like—which exercise power 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. 65-13, Defs.’ Ex. K at 27, Standing Comm. Rpt. at 262. The committee

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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 activities; (5) the judicial system; (6) land use districts; (7) fishing,

forestry, minerals, agriculture, and land; and (8) labor and industrial relations. Id.

These examples of state-wide control largely still exist today.

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 28, Standing Comm. Rpt. at 263.

4.

The Hawaii Constitution

Crafted to protect basic island unit autonomy, the present-day Hawaii

Constitution requires that the population be apportioned on the basis of permanent

residents. It also requires that “[n]o district shall extend beyond the boundaries of

any basic island unit.” Haw. Const. art. IV, § 6. This second requirement is often

described as a policy of avoiding “canoe districts,” a term that describes legislative

districts spanning two basic island units (Counties) separated by ocean. See Doc.

No. 65-24, Defs.’ Ex. V, Masumoto Decl. ¶ 3.4

Specifically, the Hawaii Constitution provides:

4 An example would be a single district containing parts of Kauai and Maui Counties.

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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. IV, § 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).

The basic island units correspond to Hawaii’s Counties: Hawaii County

Hawaii 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).5 See Appendix B. Hawaii’s Constitution provides

for a bicameral Legislature consisting of 25 senators and 51 representatives. Haw.

Const. art. III, §§ 1-3.

The Hawaii Constitution’s apportionment provisions have stood since 1992,

when Hawaii voters approved a constitutional amendment substituting as the

relevant apportionment population base for Hawaii’s legislative districts the phrase

“the total number of permanent residents” in place of “on the basis of the number

of voters registered in the last preceding general election” in Article IV, § 4. See

5 Hawaii law recognizes a fifth County, “Kalawao County,” which is part of the island of

Molokai. Kalawao County is “commonly known or designated as the Kalaupapa Settlement,”
HRS § 326-34(a), and is “under the jurisdiction and control of the [state] department of health
and [is] governed by the laws, and rules relating to the department and the care and treatment of
persons affected with Hansen’s disease.” HRS § 326-34(b). According to the Census, the
population of Kalawao County is 90. See http://quickfacts.census.gov/qfd/states/15/15005.html
(last visited July 3, 2013). For present purposes, it is included in the Maui County basic island
unit.

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1992 Haw. Sess. L. 1030-31 (H.B. No. 2327); Solomon, 270 P.3d at 1014–15.

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

litigation and, as analyzed further in this Opinion, ultimately entail many of the

same fundamental questions that arise in this action.6 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, 572

(D. Haw. 1982) (three-judge court) (striking down a Hawaii apportionment plan

based on registered voters, primarily because of insufficient justifications for wide

disparities in allocation). Indeed, 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

Hawaii Constitution’s (pre-1992 amendment) provision 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. 65-9, Defs.’ Ex. G at 4–7, State of Hawaii 1991 Reapportionment

6 Notably, “[t]he historical background demonstrates that issues which are traditionally

important in other jurisdictions, such as the ‘gerrymandering’ of communities or the
submergence of ethic [sic] minorities, have not been issues in Hawaii simply because its
geography and population distribution alone create difficult problems of districting.” Doc. No.
65-6, Defs.’ Ex. D, R. Schmitt, A History of Recent Reapportionment in Hawaii, XXIII Haw.
B.J. at 172 (1990). Likewise, the current action raises no arguments that the Commission
improperly considered factors such as race or ethnicity in the 2012 Reapportionment Plan.

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Comm’n, Final Report and Reapportionment Plan at 21–24; Solomon, 270 P.3d at

1014–15.

Likewise, the 2001 reapportionment, to which we now turn, extracted non-

resident military personnel, their dependents, and non-resident college students as

“non-permanent” residents. Solomon, 270 P.3d at 1016–20.

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 is consistent with 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:

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

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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.

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 were 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

military and dependents and nonresident students—as the permanent resident

base.” Id. at 1017.

The Commission staff explained:

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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 1018 (brackets in original).

Because of the gaps in the DMDC data, the Commission’s August 3, 2011

apportionment plan (“August 3, 2011 Plan”) was based on 2010 Census figures

without any extractions. Stip. Facts ¶ 27. The Chair of the Commission explained

that this August 3, 2011 Plan was “preliminarily accepted for the purpose of public

hearings and comment,” because of the impending September 26, 2011 statutory

deadline for a final plan and the statutory requirement of conducting public

hearings. Doc. No. 65-18, Defs.’ Ex. P, Marks Decl. ¶ 7.

2.

The September 26, 2011 Plan

Further proceedings followed the Commission’s initial decision to use the

2010 Census figures without extractions. The Commission was provided with

additional data from military sources on Hawaii’s “non-permanent military

resident population and from Hawai‘i universities on non-permanent student

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resident population.” Solomon, 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 Hawai‘i
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
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 1018 (brackets in original). 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 17, 2011 ‘Staff Summary’ show[ed] 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 1019.

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

It received testimony from 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 view,

“counting nonresidents is not warranted in law.” Id.

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

final reapportionment 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 1020; Stip. Facts ¶ 32.7 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

Hawai‘i County, 3 seats for Maui County, and 1 seat for Kauai County.” Solomon,

270 P.3d at 1020. The Commission filed this plan on September 26, 2011 (“the

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

7 The Solomon decision states the 2010 Census population as 1,330,301 while the

parties’ Stipulated Facts state it as 1,360,301. The latter figure appears to be correct, as it agrees
with the number provided in the 2012 Reapportionment Plan. See Doc. No. 65-22 at 7, 17, 23.

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3.

Challenges to the September 26, 2011 Plan: 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. Solomon, 270 P.3d at 1020. The next

day, Hawaii County resident Michael Matsukawa filed a similar petition in the

Hawaii Supreme Court. Id.; Stip. Facts ¶ 33. Among other claims, these petitions

asserted that the Commission violated the Hawaii Constitution’s requirement to

base a reapportionment on “permanent residents” by failing to extract all non-

resident military, their dependents, and non-resident students. Solomon, 270 P.3d

at 1020. 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. Id. 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.

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

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

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

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

new reapportionment plan allocating members of the State legislature among the

basic island units using a permanent resident population base. Id. ¶ 34. On

January 6, 2012, the Hawaii Supreme Court issued 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, the opinion

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

in the State of Hawai‘i may be counted in the population base for the purpose of

reapportioning legislative districts.” Solomon, 270 P.3d at 1022 (quoting Citizens

for Equitable & Responsible Gov’t v. Cnty. of Hawaii, 120 P.3d 217, 221 (Haw.

2005)). 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
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.

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Id. at 1024. It appears that the parties did not raise, and the Hawaii Supreme Court

did not address, equal protection concerns.

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.

Active duty military included in the 2010 Census were extracted if they

“declared a state other than Hawaii as their home state for income tax purposes.”

Doc. No. 28-12, Pls.’ Ex. D at 8. 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

person who had declared a state of legal residence other than Hawaii. Id. ¶ 10.

The military did not provide the Commission with any data regarding the military

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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 Hawaii. Id. ¶ 15.

After extraction, the Commission reapportioned the adjusted population base

of 1,251,534 “permanent residents” by dividing the base by the constitutionally-

defined 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.

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

largest Senate district (Senate district 8, Kauai basic island unit) contains 66,805

permanent residents, 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,

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which is 5,395 fewer (or 10.78 percent less) than the ideal. Id. ¶ 38. Thus, the

maximum deviation 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 House districts: (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;

(b) the smallest House district (House district 15, Kauai basic island unit) contains

21,835 permanent residents, which is 2,705 fewer (or 11.02 percent less) than the

ideal. Id. ¶ 39. The maximum deviation for the House districts is 21.57 percent.8

As explained more fully when we address Kostick’s malapportionment

claim, the extent of the deviations is driven primarily by the Commission’s

decision to continue to avoid canoe districts. See Doc. No. 65-22, Defs.’ Ex. T at

32, 2012 Reapportionment Plan at 21. Canoe districts were eliminated in the 2001

reapportionment, after being imposed in 1982 when a three-judge court found a

1981 reapportionment plan to be unconstitutional and ordered use of an interim

plan that utilized canoe districts. See Doc. No. 65-4, Defs.’ Ex. C-1 (April 27,

8 The breakdown of deviations for all House and Senate districts is set forth in Tables 9

and 10 of the 2012 Reapportionment Plan, and is reproduced as Appendix A to this Opinion.

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1982 Final Report and Recommendations of Special Masters in Travis v. King).

The 2001 Reapportionment Commission eliminated canoe districts, concluding

after experience and public input that such districts were ineffective. See, e.g.,

Doc. No. 65-15, Defs.’ Ex. M at 11, 2001 Reapportionment Plan at 25; id. at 14,

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.

C.

Procedural History

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 were “not insubstantial,” as necessary to convene

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.

Kostick filed a Motion for Preliminary Injunction on April 23, 2012, which

we heard on May 18, 2012, and denied on May 22, 2012. See Doc. No. 52

(Kostick, 878 F. Supp. 2d 1124). The cross motions for summary judgment were

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filed on October 1, 2012. Doc. Nos. 64, 67. Oppositions were filed on October 29,

2012, Doc. Nos. 72, 74, and corresponding Replies were filed on November 19,

2012, Doc. Nos. 76, 77. The court heard oral argument from the parties on January

14, 2013.

III. STANDARD OF REVIEW

Summary judgment is appropriate where there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(a). Rule 56(a) mandates summary judgment “against a party who

fails to make a showing sufficient to establish the existence of an element essential

to the party’s case, and on which that party will bear the burden of proof at trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of

Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).

As noted earlier, the relevant historical facts are undisputed: “Where a case

turns on a mixed question of law and fact and, as here, the only disputes relate to

the legal significance of undisputed facts, ‘the controversy collapses into a

question of law suitable to disposition on summary judgment.’” Blue Lake

Rancheria v. United States, 653 F.3d 1112, 1115 (9th Cir. 2011) (quoting Thrifty

Oil Co. v. Bank of Am. Nat’l Trust & Sav. Ass’n, 322 F.3d 1039, 1046 (9th Cir.

2003)).

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IV. DISCUSSION

Kostick makes a bifurcated equal protection challenge to Hawaii’s

reapportionment plan.9 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

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

deviations in the 2012 Reapportionment Plan exceed constitutional limits.

Before turning to these claims, we address the threshold issue of standing.

The Commission argues that Plaintiffs lack standing to assert either claim because

they have suffered no injury.10 It is enough, for justiciability purposes, that at least

one party with standing is present. See Dep’t of Commerce v. U.S. House of

Representatives, 525 U.S. 316, 330 (1999).

With regard to Count One, the result of the challenged extraction of military

9 The First Amended Complaint includes five Counts: Equal Protection (Equal

Representation) (Count One); Equal Protection (Malapportionment) (Count Two); Civil Rights
(42 U.S.C. § 1983) (Count Three); Civil Rights Attorney’s Fees (42 U.S.C. § 1988) (Count
Four); and State Law Claims (Count Five). Doc. No. 32. As noted earlier, Count Five was
dismissed by stipulation. Thus, we refer to Counts One and Two as the bifurcated equal
protection challenge, with Counts Three and Four providing the remedies for the alleged equal
protection violations.

10 The parties do not dispute that the other requirements for standing are present. See
Levine v. Vilsack, 587 F.3d 986, 991–92 (9th Cir. 2009) (explaining that plaintiffs must show
they have suffered an injury in fact that is fairly traceable to the challenged conduct and likely to
be redressed by a favorable court decision).

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and other residents was the loss of an Oahu Senate seat. Stip. Facts ¶ 40. All

Plaintiffs were “usual residents” of Oahu with a military connection (aside from

Walden). FAC ¶¶ 1-8; Doc. No. 38-4, Gayagas Decl. ¶ 5. Some of those with

military connections, such as Jennifer Laster, were or may have been “extracted”

from the reapportionment base despite being permanent residents of Hawaii.

Because these individuals have suffered the injury of losing a representative,

Plaintiffs have standing to bring Count One.

With regard to Count Two, the Commission argues that Plaintiffs lack

standing to challenge the apportionment deviations because no Plaintiff resides on

Kauai, the island that is most under-represented in the State Senate. See Doc. No.

72 at 19, Defs.’ Opp’n at 12. Id. What the Commission overlooks is that three of

the Plaintiffs—Kostick, Walden, and Veray—do live in underrepresented districts,

albeit not on Kauai. They have standing to challenge the Commission’s

apportionment plan, which disadvantages them compared to residents of

over-represented districts. Although the decisions cited by the Commission

support the proposition that residents of overrepresented districts cannot challenge

reapportionment plans, the same logic does not support the Commission’s

argument that residents of an underrepresented district cannot challenge a

reapportionment plan as a whole. See Fairley v. Patterson, 493 F.2d 598, 603–04

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(5th Cir. 1974) (holding that an intervenor from an underrepresented district “had

standing to attack the original malapportioned districts,” including two others in

which he did not reside) (emphasis added).

A.

Count One (Equal Protection Challenge: Population Basis)

Count One centers on Hawaii’s apportionment of its population on a

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

non-resident students. At the preliminary injunction stage, we found that Kostick

was unlikely to succeed on the merits of this issue. Kostick proffers very little new

evidence in support of his position on summary judgment, and the facts are not in

dispute.

We conclude that Hawaii’s choice of a permanent resident population base is

constitutionally permissible. There is no evidence that Hawaii discriminated

unreasonably among non-resident groups; rather, the State extracted all n