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Hale Pai
Pacific American-News Journal

`Okakopa - October 1996 Volume 2 Issue 10

 The Hawaiian Vote

ROBERT M. REES

The most significant Hawaiian vote of this year, or any other, has taken place. Hawaiians were asked, “Shall the Hawaiian people elect delegates to propose a Native Hawaiian government?” Of the 33,000 Hawaiians who responded by mail-in ballot, over 22,000 voted yes.

The announcement of the tally came only after Hawaii's U.S District Court, in a decision just as important as the vote itself, lifted a temporary restraining order that had prohibited the release of the election results. While ostensibly conducive to sovereignty, the Court's decision - one of the most significant ever made on the overall status of Hawaiians - is every bit as delimiting as the vote was expansive.

The election was conducted by the Hawaiian Sovereignty Elections Council. Created by state Act 359 in 1993, the Elections Council was charged with holding a plebiscite “to determine the will of the indigenous Hawaiian people to restore a nation of their own choosing.”

The Hawaiian Sovereignty Elections Council was not without opposition from Hawaiians. The sovereignty group Ka Lahui Hawaii, perhaps motivated by a desire to control the process, depicted the Elections Council as a pawn of the state's “Final Theft.”

After three years of disputes, the one-month's balloting finally began on July 15 of this year, only to be challenged by federal suits.

At an Aug. 16 hearing attended by about 200 people - mostly from the Hawaiian community, but including the only Honolulu TV news anchor who actually leaves the studio in search of news, KITV's Tina Shelton - U.S. District judge David Ezra granted a temporary restraining order that sealed the election results until he could hear arguments on the constitutional issues.

There were many issues in the case, but at the core was a basic question: whether the state of Hawaii can be involved in an election that disqualifies voters on the basis of race.

A full hearing was held on Aug. 30, this one also before a packed courtroom. Then, on Sept. 6, Ezra issued a scholarly 52-page decision that released the vote. Ezra, who has indicated to this writer that he is an admirer of former state Supreme Court Chief Justice William Richardson - the creator of the hybrid of American jurisprudence and Hawaiian tradition that we enjoy today - ruled that Hawaiians have a special political status not unlike that of Native Americans. This special status, declared Ezra, allows for special treatment by the government.

“While there is undoubtedly a racial component to the voter qualifications for the Native Hawaiian vote,” wrote Ezra, and while “Native Hawaiians are not now a federally recognized tribe...they nevertheless have a special relationship with the United States that removes Act 359 from heightened constitutional scrutiny.”

Ezra was careful to note, however, that the highly touted federal Apology Bill of 1993 has no bearing on the special status of Hawaiians. In a footnote, he wrote, “While the United States expressed its deep regret...the Apology Bill creates no specific Native Hawaiian rights.”

Ezra was also careful to note, “While the State may have narrow authority to canvass the sentiment of the Native Hawaiians on the issues of sovereignty... the State cannot take any affirmative action that would run contrary to the interests of other citizens of this state, to whom it also owes exacting trust duties under the public trust created by the Admission Act.”

Any affirmative action, wrote Ezra, “would be subject to strict scrutiny.” Strict scrutiny is a test that the state almost always fails. It requires the demonstration of a “compelling interest” in denying constitutional rights. It is the standard of review being applied to the state's efforts to ban same-sex marriage.

In the decision's Footnote 11, one that will be cited frequently, Ezra states that constitutional concerns about future state involvement in specific activities having to do with sovereignty or transfer of land may be well founded.

The net result of the decision is to remove the state from the sovereignty process until such time as the state can demonstrate to the courts a “compelling interest” for providing special treatment based on race.

A demonstration of compelling state interest when it comes to correcting the egregious wrongs of the past against Hawaiians is not out of the question. In fact, it offers the constitutional path of least resistance.

The U.S. Supreme Court, in U.S. v. Paradise, approved Alabama's plan to promote black state troopers on a 1-1 ratio with whites. The plan was approved because it was premised on providing a remedy for Alabama's egregious discrimination of the past.

Last year, in Adarand v. Pena, the U.S. Supreme Court held that programs that classify people by race are presumably unconstitutional, but noted. “We wish to dispel the notion that `strict scrutiny is strict in theory but fatal in fact.'”

Certainly, Hawaii and the federal government have a compelling interest in rectifying the harm done to Hawaiians.

The content of Ezra's decision, due to a press evidently unable to handle significant news even when the news is literally handed to it, has gone mostly unnoticed. The decision was released on Sept. 6 at 8:50 a.m., yet the afternoon Star-Bulletin, at least in its early editions, did not mention the decision. In fact, the Star-Bulletin didn't even bother to add it to its Web page.

Other than a teaser on KITV, the 5pm television news didn't cover the story at all. On the 6 pm news, only KITV led with it.

The nest morning, the Advertiser ran a self-centered editorial, “Better late than never,” which defended its own absurd view that the seven days Ezra took to consider his decision after final oral arguments was too long.

As a result of our wayward press, Hawaii has yet to grasp the beauty of Ezra's decision. All in one syllogism, it allowed the vote, clarified the issues and reminded us that absent a compelling state interest, the U.S. Constitution provides equal protection for all its citizens.

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Copyright 1996 Hale Pai Pacific American-News Journal
Last modified: February 28, 1998

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