NEIL ABERCROMBIE

GOVERNOR

DAVID M. LOUIE
ATTORNEY GENERAL

STATE OF HAWAII
DEPARTMENT OF THE ATTORNEY
425 QUEEN STREET HAWAII 96813 HONOLULU.

RUSSELL

A. SUZUKI

FIRST DEPUTY ATTORNEY GENERAL

GENERAL

(808) 586-0618

July 19,2011

The Honorable Robert N. Herkes Representative, Fifth District Twenty-Sixth Legislature State Capitol, Room 320 415 South Beretania Street Honolulu, Hawaii 96813 Dear Representative Herkes: Re:

VIA EMAIL AND A.G. MESSENGER

2011 Reapportionment Commission's Decision re Population Base

This responds to your July 1,2011 memorandum requesting the Attorney General to provide a written opinion on the following legal questions: (1) Is the 2011 Hawaii Reapportionment Commission's June 28, 2011 decision to include non-resident military personnel and their families, sentenced felons, and non-resident college students to re-draw state legislative district lines constitutional and within the spirit of the 1992 amendments to the Hawaii State Constitution Article IV, sections 4 and 6, and to its legislative history (including the committee reports and testimony in support ofH.B. 2327 Session Laws of Hawaii 1992); and Is the Commission's June 28, 2011 decision to include non-resident military personnel and their families, sentenced felons, and non-resident college students unlawful and/or an abuse of discretion under Citizens for Equitable and Responsible Government v. County of Hawaii, 108 Hawai'i 318, 120 P.3d 217 (2005) and Dupree v. Hiraga, 121 Hawai'i 297, 219 P.3d 1084 (2009).1

(2)

1While you have asked two separate questions, your questions raise essentially the same issue which is: whether the Reapportionment Commission acted lawfully when it decided to include military personnel and their families, sentenced felons and college students in the population base. We therefore answer both of your questions together. With regard to your reference to Dupree v. Hiraga, 121 Haw. 297, 219 P.3d 1084 (2009), we do not believe that case is relevant to the reapportionment issue you have raised. In Dupree, the court construed Haw. Rev. Stat. § 11-13 which sets forth the rules for determining residency for voting purposes only.

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Because the Reapportionment Commission's Timeline makes provisions for the Commission's proposed plan to be corrected or modified after public hearings are completed in September, we do not now know for certain, nor can we assume that the Commission will include identifiable nonresidents· in the population base it uses to prepare the 2011 reapportionment plan it files. We therefore suggest that it is premature to pass upon the lawfulness of the Commission's vote to use the U.S. Census population count as the resident population base for State redistricting at this time? However, based upon the Hawaii Supreme Court's decision in Citizens and the legislative history to the 1992 amendment to article IV of the State Constitution, it appears that the Hawaii Supreme Court would likely hold that to the extent they are identifiable, nonresident college students and non-resident military members and their families cannot properly be included in the reapportionment population base the Commission uses to draw the legislative district lines this year. DISCUSSION The minutes from the Reapportionment Commission's open meeting on June 28, 2011 indicate that the Commission passed the following motion by a vote of 8-1: "that the Commission use the U.S. Census population count as resident population base for State redistricting." See pp. 11 and 22. Based upon this vote and the widely-held understanding that the U.S. Census population count includes every person present in a state when the census is taken, irrespective of whether they are residents of that state, it appears that the population base the Commission voted to use to draw legislative district lines will, as a matter of fact, include more than only "permanent residents" of the State. Article IV, section 4 of the Hawaii State Constitution provides: 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 and computed by the method We note also that article, IV, section 10 of the State Constitution provides: Mandamus and Judicial Review Section 10. Original jurisdiction is vested in the supreme court of the State to be exercised on the petition of any registered voter whereby it may compel, by mandamus or otherwise, the appropriate person or persons to perform their duty or to correct any error made in a reapportionment plan, or it may take such other action to effectuate the purposes of this section as it may deem appropriate. Any such petition shall be filed within forty-five days of the date specified for any duty or within forty-five days after the filing of a reapportionment plan.

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known as the method of equal proportions; except that no basic island unit shall receive less than one member in each house. (Emphasis added.) The term "permanent resident" is not defined in the State Constitution. However, a recent ruling by the Hawaii Supreme Court is instructive in this regard. In Citizens for Equitable and Responsible Government v. County of HawaiL et al., 108 Haw. 318,120 P.3d 217 (2005), the Hawaii Supreme Court interpreted the term "resident population" as that term is used in the Hawaii County Charter to decide whether military personnel and college students were properly included in the population base for reapportioning its county council. Relying on Black's Law Dictionary, the court stated that the common definition of the word "resident" is: [a]ny person who occupies a dwelling within the State, has a present intent to remain within the State for a period of time, and manifests the genuineness of that intent by establishing an ongoing physical presence within the State together with indicia that his presence within State is something other than merely transitory in nature. 108 Haw. at 323, 120 P.3d at 222 (italics provided; citations omitted). According to the court, "[t]his definition of 'resident' would exclude any person who did not exhibit a present intent to remain within [the State] for more than a transitory period." Id. The court then observed that generally speaking, "the transitory nature of military personnel from outside [the State] is apparent" because military personnel are temporarily stationed in Hawaii, have little say in the location of their assignments, are present in Hawaii involuntarily, and "seemingly lack a present intent to remain in the county." Id. Finally, the court wrote: The Charter employs the phrase "resident populations" which indicates that the drafters of the Charter intended to limit the population base to residents of Hawai'i County. Those who live in the county temporarily for educational purposes or those who live in the county involuntarily because ordered to do so would seemingly lack a present intent to remain in the county, rendering their stay "transitory in nature.t''' Logically, the drafters of the Charter would not have modified the word "population" by the adjective "resident" or, on the other hand, In a footnote the court allowed: Obviously, a person who otherwise ostensibly falls within such categories but establishes a present intent to remain in the county and exhibits indicia that his or her presence is something other than merely transitory may establish resident status. See Black's Law Dictionary at 1309.

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would have employed the phrase "total population" had they intended to include nonresident college students and nonresident military personnel and their dependents in the population base.

In addition to the Hawaii Supreme Court's decision in Citizens, the legislative history to H.B. No. 2327 which amended article IV, section 4 ofthe State Constitution in 1992, makes clear that "the total number of permanent residents counted in the last preceding United States census" is to be used "for determining reapportionment districts." H. Stand. Comm. Rept. No. 522-92, Haw. H.J. 1094 (1992). The Senate Committee on JUdiciary explained further that what this means is that "the legislature apportionment base ... which was the base selected by the 1991 Reapportionment Commission in the development of its plan" and described in the 1991 Reapportionment Commission's Final Report and Reapportionment Plan (1991), is to be used in future reapportionments, to the extent identifiable nonresidents can be excluded from the base. S. Stand. Comm. Rept. No. 2287, Haw. SJ. 1048 (1992). Chapter III of the 1991 Reapportionment Report entitled "Legislative Apportionment Base: Permanent Residents" described who the 1991 Commission considered "permanent residents" for purposes of reapportionment, as follows: The Commission decided upon a final legislative plan which was based upon a permanent resident population base. The population base was derived by using the April 1, 1991 census figures (from the 1990 census), with an adjustment to subtract the number of nonresident military personnel and dependents. The number of nonresident military personnel and their dependents was supplied by the Social Science Research Institute (SSRI) of the University of Hawaii. The Institute researched military personnel and financial records and conducted surveys, where necessary, to determine the residency of military personnel. Because the definition of ''residency'' varied from one military service to another, the Institute separated the residents from the nonresidents by determining in which state the military personnel paid state taxes. Dependents were assumed to claim the same residency as the military member of the family, based upon information supplied by military officials that this was the case in 98% of the families.

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In addition, while the question before the Hawaii Supreme Court in Citizens was not what the term "permanent residents" means, the court did note in passing that article IV of the State Constitution "mandated that only residents having their domiciliary in the State of Hawai'i may be counted in the population base for the purpose of reapportioning the legislative districts," 108 Hawai'i at 322, 120 P .3d at 221, pointing out that "domicile" "means the place where a man establishes his abode, makes the seat of his property, and exercises his civil and political rights," 108 Hawai'i at 323, 120 P.3d at 222, quoting from In re Irving, 13 Haw. 22,24 (1900).

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State of Hawaii 1991 Reapportionment Commission Final Report and Reapportionment Plan Submitted to the Sixteenth Legislature Regular Session of 1992 ("1991 Report"), page 21. At page 23, the 1991 Report noted that experts were hired to determine which transients were counted in the census, how many there were and whether or not they could be located in specific census blocks [and] nonresident military [was] the only large, census-block-identifiable group of nonresidents included in the census. Other groups, such as nonresident students, [were] statistically insignificant and [could] not be easily placed in specific census blocks. Further, the report found additional "persuasive reasons to exclude nonresident military, as transients, from the population base for purpose oflegislative reapportionment:" • • • Nonresident military then constituted about 114,000 or 14% of the State's population Military personnel may choose to become Hawaii residents Even though military personnel could vote in Hawaii by simply declaring themselves residents of Hawaii, in 1990 only about 3% of the military opted to become Hawaii citizens Most military personnel considered Hawaii a temporary home

1991 Report, page 24. The last paragraph of Chapter III concluded: These factors, as well as the information gained from experts, leads the Commission to conclude that exclusion of nonresident military from the census data will come as close as possible to the desired permanent resident base for legislative reapportionment.

We also note that there is substantial federal law that addresses reapportionment issues. To the extent your question as to the constitutionality of including military personnel and their families in the State's reapportionment base is based on the federal constitution, we know of no federal constitutional provision that requires states to consider active duty military personnel or military dependents as "permanent residents" for purpose of reapportionment, or to include or exclude them as a group from a state's reapportionment population base. See Burns v. Richardson, 384 U.S. 73, 92 (1966) ("Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the States are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured. The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.")

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Similarly, the exclusion of any group, whether active duty military or military dependents, does not necessarily run afoul of the Equal Protection Clause. The Supreme Court has held that the Equal Protection Clause requires that electoral representation "be apportioned on a population basis." Reynolds v. Sims, 377 U.S. 533, 568 (1964). This requires a state to "make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable," however, "mathematical exactness or precision" is not required. Id. at 577. Whether to include or exclude a particular group, however, "involves choices about the nature of representation" and "[u]nless a choice is one the constitution forbids, the resulting apportionment base offends no constitutional bar, and compliance with the rule established in Reynolds v. Sims is to be measured thereby." Burns, 384 U.S. at 92 (citation omitted). In general, the Commission's "overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State." See Reynolds, 377 U.S. at 579. As previously noted, mathematical precision is not required; it has been held that an overall deviation of less than 10% is de minimus and a deviation in excess of 10% is prima facie evidence of discrimination. See White v. Regester, 412 U.S. 755 *(1973); Travis v. King, 552 F.Supp. 554 (D. Haw. 1982); Citizens, 108 Hawai'i at 327-28, 120 P.3d at 226-27. So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature. Reynolds, 377 U.S. at 578-79.

In Mahan v. Howell, 410 U.S. 315 (1973), the Court set out the following 3-part analysis
for determining whether population deviations are justified: 1. 2. 3. Whether the state's reason or policy is rational; Whether the state's policy is furthered by the apportionment plan; and If justified, whether the plan divergences are within tolerable limits.

Id., 410 U.S. at 325-26. Using the Mahan analysis, the court in Citizens held that a redistricting plan slightly in excess of 10% was not unconstitutional on that ground, where the county commission had made an honest and good faith effort to construct districts of equal population and there was no evidence of a bias to favor political interests or geographical areas or that the redistriciting process was arbitrary. 108 Hawai'i at 328, 120 P.3d at 228. Conversely, where a 43% deviation resulted from the State's reapportionment plan and did not further the stated policy to provide each basic island unit with meaningful representation, the U. S. District Court for the District of Hawaii held that the plan was unconstitutional. Travis v. King, 552 F.Supp. 554. At this point,

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the Commission has not made a final determination, so it is premature to ascertain whether the Commission's vote has violated the 10% prima facie distinction noted by the Mahan court. CONCLUSION Given the 1992 legislative history of article IV, section 4 of the State Constitution summarized and quoted above, as well as what the Supreme Court has already said in Citizens with respect to what constituted the County of Hawaii's "resident population" base for purposes of reapportioning its council's districts, it does not appear that the Hawaii Supreme Court would conclude that including all military personnel stationed in Hawaii and their families, irrespective of whether they are residents of Hawaii, in the "permanent resident" population base that is used to reapportion the State's legislative districts in 2011, satisfies article IV, section 4. Very truly yours,

~Oh,~

Charleen M. Aina Deputy Attorney General

David M. ouie Attorney General

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