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Order Denying Plaintiffs Motion for Preliminary Injunction, Kostick v. Nago

Order Denying Plaintiffs Motion for Preliminary Injunction, Kostick v. Nago

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Published by: robert_thomas_5 on May 22, 2012
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02/04/2014

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF HAWAIIJOSEPH KOSTICK, KYLE MARKTAKAI, DAVID P. BROSTROM,LARRY S. VERAY, ANDREWWALDEN, EDWIN J. GAYAGAS,ERNEST LASTER, and JENNIFERLASTER,Plaintiffs,vs.SCOTT T. NAGO, in his officialcapacity as the Chief Election Officerof the State of Hawaii, STATE OFHAWAII 2011 REAPPORTIONMENTCOMMISSION; VICTORIA MARKS,LORRIE LEE STONE, ANTHONYTAKITANI, CALVERT CHIPCHASEIV, ELIZABETH MOORE, CLARICEY. HASHIMOTO, HAROLD S.MASUMOTO, DYLAN NONAKA,and TERRY E. THOMASON, in theirofficial capacities as members of theState of Hawaii 2011 ReapportionmentCommission; and DOEDEFENDANTS 1-10,Defendants._______________________________)))))))))))))))))))))))))))))CIVIL NO. 12-00184 JMS-LEK-MMM(THREE-JUDGE COURT)ORDER DENYING PLAINTIFFS’MOTION FOR PRELIMINARYINJUNCTION; APPENDIX “A”
ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARYINJUNCTION
Before:M. Margaret McKeown, Circuit Judge; J. Michael Seabright andLeslie E. Kobayashi, District Judges.
Case 1:12-cv-00184-JMS-LEK-MMM Document 52 Filed 05/22/12 Page 1 of 73 PageID#: 1947
 
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The Hawaii Constitution specifies the use of permanent residents as therelevant population base in apportioning state legislative seats. In a 2012 decision,the Hawaii Supreme Court laid out the appropriate method for determiningpermanent residents by extracting non-resident military personnel and theirdependents, and non-resident students from the base count. The ReapportionmentCommission adopted a new plan to comply with that directive.This electoral challenge asks us to consider the constitutionality of thereapportionment under the Equal Protection Clause of the United StatesConstitution. We do so here in the context of a motion for a preliminary injunctionrequesting that we enjoin implementation of the 2012 Reapportionment Plan andenjoin conducting the upcoming elections under that plan. This challenge raises anissue of significant importance to Hawaii residents. Following a hearing on thismatter on May 18, 2012, we conclude that the request for an injunction should bedenied. In light of 
 Burns v. Richardson
, 384 U.S. 73 (1966), at this preliminarystage of the proceedings, the plaintiffs have not established a likelihood of successon the merits of their claim that the permanent resident population basis violatesequal protection. Nor do the equities and public interest weigh in favor of aninjunction that risks jeopardizing the primary election scheduled for August 11,2012, and even the general election scheduled for November 6, 2012. Although
Case 1:12-cv-00184-JMS-LEK-MMM Document 52 Filed 05/22/12 Page 2 of 73 PageID#: 1948
 
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we recognize that the right to representation is fundamental, “a federal court cannotlightly interfere with or enjoin a state election.”
Sw. Voter Registration Educ.Project v. Shelley
, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam).
I. INTRODUCTION
Hawaii reapportions its state legislative and federal congressional districtsevery ten years, after the decennial United States Census (“the Census”), basedupon changes in population.
See
Haw. Const. art. IV, § 1. The HawaiiConstitution as amended in 1992 requires reapportionment of Hawaii’s legislativedistricts to be based upon “permanent residents,”
id.
§ 4, as opposed to the Census’count of “usual residents.” And to pass constitutional muster, any resultingreapportionment must comply with the principles of “one person, one vote.”
 Reynolds v. Sims
, 377 U.S. 533, 558 (1964) (quoting
Gray v. Sanders
, 372 U.S.368, 381 (1963)).In this action, Plaintiffs Joseph Kostick, Kyle Mark Takai, David P.Brostrom, Larry S. Veray, Andrew Walden, Edwin J. Gayagas, Ernest Laster, andJennifer Laster (collectively, “Kostick”) challenge aspects of the March 30, 2012Supplement to the 2011 Reapportionment Commission Final Report andReapportionment Plan (“the 2012 Reapportionment Plan”), which Hawaii hasbegun implementing for its 2012 primary and general elections. The 2012
Case 1:12-cv-00184-JMS-LEK-MMM Document 52 Filed 05/22/12 Page 3 of 73 PageID#: 1949

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