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Jurisdictional Statement, Kostick v. Nago, No. ___ (filed Oct. 8, 2013)

Jurisdictional Statement, Kostick v. Nago, No. ___ (filed Oct. 8, 2013)

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Jurisdictional Statement, Kostick v. Nago, No. ___ (filed Oct. 8, 2013)
Jurisdictional Statement, Kostick v. Nago, No. ___ (filed Oct. 8, 2013)

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Published by: robert_thomas_5 on Oct 07, 2013
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11/16/2013

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No
.
 
 ____ 
In The
 
Supreme Court of the United States
 J
OSEPH
OSTICK 
,
 
 YLE
M
 ARK 
T
 AKAI
,
 
D
 AVID
P.
 
B
ROSTROM
,
 
L
 ARRY 
S.
 
 V
ERAY 
,
 
 A 
NDREW
W
 ALDEN
,
 
E
DWIN
J.
 
G
 AYAGAS
,
 
E
RNEST
L
 ASTER
,
 
and J
ENNIFER
L
 ASTER
,
 Appellants
,
 
v.S
COTT
T.
 
N
 AGO
,
 
in his official capacity as the Chief Election Officer State of Hawaii; S
TATE OF
H
 AWAII
2011
 
R
EAPPORTIONMENT
C
OMMISSION
;
et al
.,
 Appellees.
 
 
On Appeal from the United States DistrictCourt for the District of Hawaii
 
 
JURISDICTIONAL STATEMENT
 R
OBERT
H.
 
T
HOMAS
Counsel of Record
 A 
NNA 
H.
 
O
SHIRO
 M
 ARK 
M.
 
M
URAKAMI
 Damon Key Leong Kupchak Hastert1003 Bishop Street, 16th FloorHonolulu, Hawaii 96813(808)
 
531-8031
rht
hawaiilawyer.comCounsel for Appellants
 
 
QUESTIONS PRESENTED1. Equal representation.
 At the direction of theHawaii Supreme Court, the 2011 Hawaii Reappor-tionment Commission (Commission) determined that108,767 residents
 —nearly 8% of Hawaii’s Ce
nsus-counted population
 — 
were
not “permanent res
i
dents,”
and thus could be excluded from
Hawaii’s
body politicbecause they did not intend to remain permanently:(1) active duty military personnel who indicated on afederal form that another state should withhold tax-es, (2) their spouses and children, and (3) studentswho did not qualify for in-state tuition. The Commis-sion acknowledged th
ose whom it “extracted”
werenot counted anywhere else, and that they were notrepresented equally in Hawaii. The District Court re-fused to apply close constitutional scrutiny, and con-cluded
Hawaii’s “permanent resident” populati
on ba-sis was a rational means of protecting other resi-
dents’
voting power, which superseded the extracted
classes’
right to equal representation. The Commis-sion counted others who could not intend to remainpermanently (
e.g 
., undocumented aliens), or whoseinclusion diluted voting power because they were notqualified to vote (prisoners, minors). The first ques-tion presented:Does
the Equal Protection Clause’s requirement o
substantial population equality mandate that repre-sentational equality take precedence over votingpower as held by the Ninth Circuit, or is the choice of whom to count left entirely to political processes, asheld by the Fourth and Fifth Circuits and the DistrictCourt, and has Hawaii appropriately defined and uni-formly applied
“perman
ent residents
” to deny
the ex-tracted persons equal representation?
 
ii
2. Extreme deviations.
The Commission recog-nized that with overall deviations of 44.22% in theSenate and 21.57% in the House of Representatives
 — 
the product of 
Hawaii’s prohibition of “can
oe dis-
tricts” (dis
tricts spanning more than a single coun-ty)
 — 
the 2012 Reapportionment Plan was presump-tively discriminatory. This Court has never upheld areapportionment plan with deviations in excess of 16%, which
may well approach tolerable limits
.”
TheDistrict Court accepted these substantial departuresfrom population equality because Hawaii is geograph-ically and culturally different. The second questionpresented:
Is Hawaii’s prohibition on legislators representingpeople in more than one county a “
substantial and
compelling” justification rendering the 44.22% and21.57% deviations “minor,”
or are these deviations toolarge to be constitutionally acceptable?

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