The State of Hawaii has a long history of refusing to count military personnel and their families for purposes of reapportioning the Hawaii State Legislature. A lawsuit filed today asks a three-judge federal court to enforce the Equal Protection Clause of the U.S. Constitution and require the State to count all residents of Hawaii. The 2010 U.S. Census reported 1,360,301 residents as the total resident population of Hawaii. The Census includes military personnel, military families and students as residents of Hawaii. It also counts minors, non-citizens, and incarcerated felons. In 1965, in Burns v. Richardson, the U.S. Supreme Court upheld Hawaii’s use of its count of registered voters as the population basis for apportionment, a population base which effectively excluded low-registration groups such as military personnel and students, many of whom were below the pre-26th Amendment voting age of 21. Contrary to popular opinion, the Burns case does not permit the State to ignore military personnel and their families. The Court allowed counting only registered voters because there was no evidence doing so would result in apportionment substantially different from that which would have resulted if the State had simply counted everyone.
The Hawaii Constitution was amended in 1992 to require the Reapportionment Commission to count only those deemed “permanent residents,” instead of registered voters. Only Hawaii and Kansas use a population base other than the U.S. Census count of residents. In the current reapportionment cycle, Kansas extracted far fewer Census-counted residents than Hawaii, and in its August 3, 2011 proposed plan, the Commission did not remove anyone. The Commission subsequently presented a second plan which extracted approximately 16,000 military personnel, military families, and students, but included non-citizens, minors, and incarcerated felons who cannot legally vote.
This wasn’t enough, and two separate lawsuits were filed in the Hawaii Supreme Court demanding the Commission exclude all active duty military personnel, military families and students whom it deemed not to be “permanent residents.” After a widely-criticized defense presentation, the State Supreme Court upheld the claims. As a result, the Commission did not court 108,767 Census-counted residents of Hawaii – nearly 8% of the state’s entire population. These people were not counted by the Census in any state. The State’s choice to ignore them had palpable consequences: it shifted a seat in the state senate from Oahu to Hawaii Island and produces senate and house district which deviate grossly from the Constitutional requirement that representative district be of substantially equal population size. Hawaii continues to treat military personnel, military families, and students as second-class citizens with representation even inferior to non-citizens.