Justice Anthony M. Kennedy on Friday ordered officials in Hawaii not to count ballots or name the winners of an election there in which only people of native Hawaiian ancestry could vote. The justice’s order was a response to an emergency application from Hawaii residents who said the election violated the 15th Amendment, which bars race discrimination in voting. The election is to end on Monday, and Justice Kennedy’s order did not stop the voting. He apparently acted on his own, and his order may mean only that he wanted to preserve the status quo over a holiday weekend until the full court could consider the matter. The election is for delegates to a convention that would prepare a document on self-governance by Native Hawaiians. Under a definition in a 2011 law, only descendants of “the aboriginal peoples who, before 1778, occupied and exercised sovereignty in the Hawaiian islands” are eligible to vote.
The state said the election was a private matter, and a federal judge in Honolulu agreed, refusing to issue a preliminary injunction blocking it.
“No public official will be elected or nominated; no matters of federal, state or local law will be determined,” the judge, J. Michael Seabright, wrote last month. “A Native Hawaiian governing entity may recommend change, but cannot alter the legal landscape on its own.”
After the United States Court of Appeals for the Ninth Circuit, in San Francisco, refused to intercede, the challengers urged Justice Kennedy to step in. “Enormous political, social and economic consequences are at stake,” they wrote. “The delegates chosen through this election will decide whether to adopt a new government that will affect every individual living in the state.”