KAILUA-KONA — Supporters of a Native Hawaiian election of delegates to a February convention are urging voters to submit their ballots by the Monday deadline, despite an order Friday by U.S. Supreme Court Associate Justice Anthony Kennedy temporarily halting the counting of ballots or certification of winners.
Kennedy’s one-sentence order was terse, saying only “respondents are enjoined from counting the ballots cast in, and certifying the winners of, the election described in the application, pending further order of the undersigned or of the Court.”
It’s not uncommon for a single justice, the one assigned to a specific circuit, to unilaterally issue an order, Todd Belt, a political science professor at the University of Hawaii at Hilo, said Friday.
It’s much less common for the court to act so quickly, Belt said. He said a notable example was the case of Bush v. Gore, during the contested 2000 presidential election.
“They’ve been known to take cases very quickly,” Belt said. “It’s happened in the past and generally it’s done if there’s some sort of inherent harm.”
A group of Native Hawaiians and non-Hawaiians challenged the election, arguing Hawaii residents who don’t have Native Hawaiian ancestry are excluded from the vote, in violation of their constitutional rights.
U.S. District Judge J. Michael Seabright in Honolulu ruled last month the purpose of the private election is to establish self-determination for the indigenous people of Hawaii. Those elected won’t be able to alter state or local laws, he said.
The challengers appealed and also filed an emergency motion to block the votes from being counted. Last week, the 9th U.S. Circuit Court of Appeals denied the emergency motion, prompting the challengers to appeal to the high court.
“This is a significant victory for us,” Kelii Akina, president of the Honolulu-based Grassroot Institute and one of the plaintiffs in the case brought by Judicial Watch, said in a statement. “After a full briefing, Justice Kennedy decided that the issue was worthy of further examination, and issued the injunction we requested. We are confident in our position, and excited at the possibility that it could go before the full Court.”
Akina said the ruling from Justice Kennedy was not just a victory for the plaintiffs, but “a victory for the many Native Hawaiians who have been misrepresented and overridden by government and special interests determined to create a government-recognized tribe.“
“It’s a victory for all Hawaiians — and all Americans — in its affirmation of racial equality,” Akina added.
Monday is the deadline for ballots to be received by email or U.S. Mail from voters who had registered for the election. Nai Aupuni, an independent group, was set up to oversee the election, convention and ratification process.
A statement issued by Nai Aupuni on Friday said the group didn’t expect that creating a path for Native Hawaiians to formally discuss self-governance and create a proposed constitution would be unimpeded. Native Hawaiian self-governance has been discussed for over 120 years without tangible results, the statement said.
“Nai Aupuni encourages all voters to continue voting for the delegate candidates who will participate in the aha or constitutional convention with the goal of making self-governance recommendations for ratification by voters,” the statement said. “Reorganizing a government is not easy and it takes the courage and will of the candidates to take the first step in this historic process. It is every voter’s kuleana to help them by voting now.”
The 95,000-plus Native Hawaiian voters will help choose 40 delegates to an aha, or constitutional convention. The voters are picking from more than 200 listed candidates representing various geographical districts. Big Island voters are choosing from 32 candidates running for seven seats.
Local delegate candidates’ opinions were mixed.
“I am disappointed that the Supreme Court order temporarily stops the counting ballots for aha delegates effective today,” said Kailua-Kona resident Lei Kihoi in an email response.
“I encourage all voters to continue voting for your respective aha delegate. This order does not affect your right to vote in this election,” said Kihoi, an attorney and Big Island representative on the Native Hawaiian Roll Commission.
Another delegate candidate, Moanikeala Akaka of Hilo, saw a silver lining to Kennedy’s order. Akaka, a vocal proponent of Native Hawaiian rights who served 12 years on the board of trustees for the Office of Hawaiian Affairs, said Nai Aupuni did not take into account recommendations developed over several years by community representatives.
“There are very many flaws in this current process. It was rushed,” Akaka said. “This gives us the opportunity to do this right.”