Hicks v. The 2021 Hawai'i Reapportionment Commission and Its Members.

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Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
09-MAY-2022
08:58 AM
Dkt. 77 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

WILLIAM M. HICKS; RALPH BOYEA; MADGE SCHAEFER; MICHAELA IKEUCHI;
KIMEONA KANE; MAKI MORINOUE; ROBERTA MAYOR; DEBORAH WARD;
JENNIFER LIENHART-TSUJI; LARRY S. VERAY; and PHILIP BARNES,
Petitioners,

vs.

THE 2021 HAWAIʻI REAPPORTIONMENT COMMISSION AND ITS MEMBERS;
THE STATE OF HAWAIʻI OFFICE OF ELECTIONS; and SCOTT NAGO, in his
official capacity as Chief Elections Officer, State of Hawaiʻi,
Respondents.

SCPW-XX-XXXXXXX

ORIGINAL PROCEEDING

MAY 9, 2022

RECKTENWALD, C.J., NAKAYAMA, AND EDDINS, JJ.; WITH McKENNA, J.,
CONCURRING SEPARATELY AND DISSENTING, WITH WHOM WILSON, J.,
JOINS; AND WILSON, J., ALSO DISSENTING SEPARATELY 1

OPINION OF THE COURT BY EDDINS, J.

Article IV of the Hawaiʻi Constitution concerns

1 At the time of this opinion’s publication, Justice Wilson’s dissent is
forthcoming.
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reapportionment, the process through which the state’s

legislators are distributed and its political districts redrawn.

It provides that every ten years a nine-member

reapportionment commission (the commission) shall determine the

total number of state representatives to which each basic island

unit 2 is entitled. Haw. Const. art. IV, §§ 1, 2 & 4. This

determination is made “using the total number of permanent

residents in each of the basic island units” and with the

“method of equal proportions.” Id.

Once the commission determines how many representatives

each basic island unit is entitled to, it must apportion those

representatives within the basic island units. Id. at § 6. If

there have been population shifts in the decade since the last

reapportionment, the commission must redraw district lines to

ensure that the “number of permanent residents per member in

each district is as nearly equal to the average for the basic

island unit as practicable.” Id.

The commission is also tasked with redrawing congressional

district lines. Id. at § 9.

Article IV, section 6 provides eight criteria that the

commission “shall be guided by” in effecting redistricting. The

2 The four basic island units are: (1) the island of Hawaiʻi, (2) the
islands of Maui, Lānaʻi, Molokaʻi and Kahoʻolawe, (3) the island of Oʻahu and
all other islands not specifically enumerated, and (4) the islands of Kauaʻi
and Niʻihau. Haw. Const. art. IV, § 4.

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sixth is that: “[w]here practicable, [state] representative

districts shall be wholly included within [state] senatorial

districts” (the constitutional district within district

guideline). Id. at § 6. Hawaiʻi Revised Statutes (HRS) Section

25-2(b)(5) (Supp. 2021) (the statutory district within district

guideline) similarly requires that “[w]here practicable, state

legislative [representative and senatorial] districts shall be

wholly included within [U.S.] congressional districts.”

On January 28, 2022, the 2021 Hawaiʻi Reapportionment

Commission (the Commission) approved the 2021 Final Legislative

Reapportionment Plan (the Plan).

The Plan places 33 of 51 house districts (64.7%) into two

or more senate districts. It also places four O‘ahu house

districts and five O‘ahu senate districts into both U.S.

congressional districts.

Petitioners, who are registered voters in the State of

Hawai‘i, argue that the Plan is invalid because it does not give

adequate effect to article I, section 6’s guidance that “[w]here

practicable, representative districts shall be wholly included

within senatorial districts.” See Haw. Const. art. IV, § 6.

They also argue that the Plan violates HRS § 25-2(b)(5) by

placing nine O‘ahu legislative districts into both congressional

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districts. 3 Petitioners say they submitted two plans to the

Commission that not only complied with the district within

district guidelines, but also had a lower average per-district

population deviation than the Plan. Petitioners say the

Commission could have complied with article IV, section 6 and

HRS § 25-2(b)(5), it just didn’t want to. Petitioners also

argue that less than perfect compliance with one of the district

within district guidelines may only be justified by the need to

comply with the other constitutional and statutory guidelines

that govern reapportionment.

The Commission says it satisfied its obligations under

article IV, section 6 and HRS § 25-2(b) by considering the

constitutional and statutory district within district guidelines

(collectively the district within district guidelines) in

developing the Plan. It says Petitioners have not demonstrated

that the Commission abused its discretion in discharging its

duties and adopting the Plan.

3 Petitioners also make a third argument. They claim the Commission
unconstitutionally delegated much of its redistricting work and decision
making to a committee that consisted of just four of the Commission’s nine
members. This argument lacks merit. The record shows that the Plan was
considered by all nine members of the bipartisan Commission and that all nine
members of the Commission participated in the vote regarding the adoption of
the Plan (eight commissioners voted to adopt the Plan and one voted not to).
The establishment of the technical committee did not represent an
unconstitutional delegation of the Commission’s power. To the extent
Petitioners raise claims under the Sunshine Law, they are not entitled to
mandamus relief because those claims could have been brought in circuit court
under HRS § 92-12(c)(2012).

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We agree. The constitution and HRS § 25-2(b) mandate that,

in redistricting, the commission “shall be guided” by certain

enumerated criteria, among them the district within district

guidelines. The commission is not required to give the district

within district guidelines any particular effect. Nor is it

required to disregard factors other than the criteria enumerated

in article IV, section 6 or HRS § 25-2(b) in redrawing district

lines. So the Commission discharged its obligations under

article IV, section 6 and HRS § 25-2(b) by considering the

district within district guidelines alongside other policy

objectives. And, by extension, the Plan is valid.

I. BACKGROUND

At its May 17, 2021 meeting, the Commission formed a

“technical” committee consisting of four commissioners. The

Commission tasked the technical committee with drafting proposed

reapportionment plans for the Commission’s consideration.

The technical committee presented its proposed

reapportionment plans to the Commission at the Commission’s

January 13, 2022 meeting. 4

At that same meeting, there was public testimony demanding

that the Commission explain its failure to better effectuate the

4 The technical committee had previously presented other reapportionment
plans to the Commission. But these earlier plans had to be amended as a
result of updated data received from the military in December 2021 that
impacted the Commission’s assessment of the number of permanent versus
nonpermanent residents in the state.

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district within district guidelines.

Responding to this public testimony, Commissioner Nonaka

explained that because of the incongruity between the population

bases used in congressional districts and those used in state

legislative districts, it was not possible, let alone

practicable, to have all state districts wholly within a

congressional district.

Later at the same meeting, Commission Chair Mugiishi

stressed that the Commission was holistically evaluating the

constitutional and statutory requirements governing

reapportionment and trying to balance them in a way that

responded to community concerns. He explained:

[W]e are as a Commission considering all of those statutory
requirements and constitutional requirements that that
[sic] is asked of us and we are doing our best to make sure
to the extent that it’s practicable that we are following
them. But sometimes they’re in conflict with each other
and that’s where that’s why we have a commission rather
than a computer program drawing these lines. It’s because
human beings who are going to care about people and
individual neighborhoods, are going to make judgment calls
on what’s the best way to make a practical decision about a
conflict between two principles. And that’s why I think
again, and I’ve said it about four times already, but I
really do appreciate the work of the technical committee
because they’ve been doing this now for weeks, months, and
for the last few days every single hour of the day to try
and consider all of those factors. Because we’re going to
affect people and that’s so we’re going to follow the
constitution, we’re going to follow the law and we’re going
to do our best to take care of people.

The Commission also met on January 20, 21, 22, and 26,

2022.

At the Commission’s January 20, 2022 meeting, Chair

Muguiishi read the article IV, section 6 guidelines aloud and
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explained that “after due consideration the members of the

technical committee believed that the modified proposed plans

represent what they the technical committee deemed to be the

best, best complies with the constitutional guidelines.”

Commissioners Ono, Nonaka, and Nekota agreed with the Chair’s

assessment. Commissioner Nekota added “We really did take

public testimony to heart. We did not just go draw lines to

draw lines. We really did and follow the Constitution, as we

perceive it to be, along with our legal counsel.”

During the January 26, 2022 meeting, the technical

committee presented and discussed a new version of its proposed

final legislative reapportionment plans; the only change it had

made to the proposed maps since January 13, 2022, was to the

boundaries of House Districts 48 and 49 on O‘ahu.

At the January 28, 2022 Commission meeting, the Commission

discussed, and then voted to approve, the January 26, 2022

version of the legislative reapportionment plans. In explaining

his support for the motion to approve the Plan, Commissioner

Chun pointed to the Commission’s commitment to ensuring that its

redistricting decisions were made in the context of the article

IV, section 6 guidelines:

The constitution states that in effecting such
redistricting, the commission shall be guided by the
following criteria. It sets forth guidance rather than
inflexible standards so as to ensure reasonableness and
fairness are always a part of the equation in arriving at
redistricting determinations. I have observed complete

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objectivity and clear commitment to ensuring that good
decisions were made in the context of these guidelines and
as they were applied to the redistricting maps, so I will
be pleased today to support the motion [to adopt the Plan].

Shortly after adopting the final reapportionment plan, the

Commission authorized staff to make non-substantive changes,

including changes to better align the representative district,

Senate district, and council district lines. The staff made

changes to the Plan so that it would better adhere to the

constitutional district within district guideline; following

these changes, there are thirty-three (33) House districts that

are not wholly inside Senate districts.

Petitioners challenge the Plan on the grounds that it

violates article IV, section 6 and HRS § 25-2(b)(5) by failing

to place districts within districts even where it would have

been practicable to do so. They argue the Commission erred by

adopting a Plan that fell short of perfect adherence to the

district within district guidelines without justifying the

Plan’s noncompliance in terms of the need to comply with the

other reapportionment “requirements” enumerated in article IV,

section 6 and HRS § 25-2(b).

II. DISCUSSION

We hold that neither article IV, section 6 nor HRS § 25-

2(b)(5) places concrete limits on the Commission’s discretion to

craft a reapportionment plan. The Commission must consider the

district within district guidelines when redrawing district

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lines. But it is not required to give them any particular

effect in redistricting.

The existence of alternative plans that hew closer to the

district within district guidelines is immaterial to our

analysis. Our task is not to consider the Plan’s relative

merits in comparison to other options the Commission could have,

but did not, adopt. We consider only whether the Plan is

constitutional under article IV, section 6 and legal under HRS

§ 25-2(b)(5). See McNeil v. Legis. Apportionment Comm’n of

N.J., 828 A.2d 840, 858 (N.J. 2003) (“The judiciary is not

justified in striking down a plan, otherwise valid, because a

‘better’ one, in its opinion, could be drawn.” (Cleaned up.)).

Petitioners have not shown that the Commission abused its

discretion by disregarding or ignoring the district within

district guidelines. To the contrary, the record suggests that

the Commission was aware of, discussed, and considered the

district within district guidelines in redrawing district lines

and adopting the Plan. So even though we agree with Petitioners

that the Plan does not give full effect to the constitutional

district within district guideline, 5 we hold that the Commission

5 Petitioners’ argument that the Plan does not give substantial effect to
the statutory district within district requirement is less convincing than
its arguments concerning the constitutional district within district
guideline: the Plan places 88 percent of state house and senate districts
wholly within a single congressional district.

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did not abuse its discretion in developing and adopting the

Plan.

1. Standards of Review

a. We answer questions of constitutional law de novo

“Issues of constitutional interpretation present questions

of law that are reviewed de novo.” League of Women Voters of

Honolulu v. State, 150 Hawai‘i 182, 189, 499 P.3d 382, 389 (2021)

(cleaned up). This court is the “ultimate judicial tribunal

with final, unreviewable authority to interpret and enforce the

Hawai‘i Constitution.” See Ka Pa‘akai O Ka ‘Aina v. Land Use

Comm’n, 94 Hawai‘i 31, 41, 7 P.3d 1068, 1078 (2000) (cleaned up).

“We answer questions of constitutional law by exercising our own

independent constitutional judgment based on the facts of the

case.” State v. Hanapi, 89 Hawai‘i 177, 182, 970 P.2d 485, 490

(1998) (cleaned up). Here, this means we give no deference to

the constitutional interpretations the Commission implicitly

operationalized in developing the Plan.

b. We review the Commission’s exercise of its discretion
using the abuse of discretion standard

We review the discretionary decisions of public bodies

using the abuse of discretion standard. See Kawamoto v. Okata,

75 Haw. 463, 467, 868 P.2d 1183, 1186 (1994). In the context of

this case, this means we will not substitute our judgment for

that of the Commission with respect to the Commission’s exercise

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of discretion given to it by the Hawai‘i Constitution. Instead,

our determination of whether the Commission has complied with

article IV, section 6 and HRS § 25-2(b) and other applicable

laws will hinge on whether the record demonstrates that the

Commission either did not consider criteria it was required to

consider or, having considered all relevant criteria, made a

decision that disregarded the law or exceeded the bounds of

reason. 6

2. Reapportionment commissions must consider the district
within district guidelines when redrawing districts

Both the constitution and HRS § 25-2(b) frame the district

within district guidelines as discretionary, describing them as

“criteria” that the commission “shall be guided by” in effecting

redistricting. See article IV, section 6; HRS § 25-2(b).

In Save Sunset Beach Coal. v. City & Cty. of Honolulu, 102

Hawai‘i 465, 479, 78 P.3d 1, 15 (2003), we considered whether

Honolulu’s city council erred in zoning land as “country” where

6 This approach is consistent with that used by other courts reviewing
the discretionary acts of state reapportionment commissions. See, e.g.,
Hartung v. Bradbury, 33 P.3d 972, 981 (Or. 2001) (en banc) (considering
constitutional challenges to reapportionment plan and explaining that it
would void the plan only if it could “say from the record that the Secretary
of State [the reapportioning body] either did not consider one or more
criteria or, having considered them all, made a choice or choices that no
reasonable Secretary of State would have made”); Jamerson v. Womack, 423
S.E.2d 180, 182 (Va. 1992) (“In this particular litigation, it should be
remembered that reapportionment is, in a sense, political, and necessarily
wide discretion is given to the legislative body. An abuse of that
discretion is shown only by a grave, palpable and unreasonable deviation from
the principles fixed by the Constitution.” (Cleaned up.)).

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only two of the four statutory guidelines provided for

identifying potential “country” district lands were met. We

concluded that while the “‘use’ or consideration” of the

statutory guidelines was mandatory, “the ultimate designation

decision arising out of that mandatory consideration must, of

necessity, involve the exercise of discretion.” Id. We

explained that “guidelines,” as used in the statute, “denote[d]

individual factors that are not mandatory in themselves, but

instead provide direction or guidance with respect to the

ultimate decision.” Id.

A similar analysis informs our interpretation of “guided

by” as used in article IV, section 6 and HRS § 25-2(b): the

reapportionment commission must consider the district within

district guidelines and it must use them in developing and

adopting congressional and legislative plans. But the

guidelines are not mandatory “in themselves”; rather, they

provide “direction or guidance with respect to the ultimate

decision.” See id.

The history of article IV, section 6 reflects that the

constitutional district within district requirement was not

intended to curb the reapportionment commission’s discretion to

redraw district lines. After noting that it placed “a number of

guidelines for the reapportionment commission to follow when

redistricting” into article IV, section 6, the Committee on

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Legislative Apportionment and Districting clarified:

It is not intended that these guidelines be absolute
restrictions upon the commission excepting for numbers 1,
2, 3 and 7 which are stated in mandatory terms. The
remainder [including the district within district
guideline] are standards which are not intended to be
ranked in any particular order. Rather, your Committee
believes that they are matters that should be considered in
any decision concerning districting and that the balance to
be struck among them is a matter for case-by-case
determination. The inclusion of these guidelines is
intended to aid the reapportionment commission in
maintaining impartiality and objectivity in its own
reapportionment plan and to provide the courts with a
standard for review of claims of gerrymandering or other
unfair or partial result in the apportionment plan.

Supp. Stand. Comm. Report No. 58, in 1 Proceedings of the

Constitutional Convention of Hawai‘i of 1968, at 265 (1973)

(emphases added). Elsewhere in the same report, the Committee

observed that the reapportionment plan it proposed substantially

complied with the district within district guideline; but, it

remarked, it adopted that criterion “in a more general, less

restrictive manner for future reapportionment.” Id. at 247.

Two aspects of this committee report support our conclusion

that the constitutional district within district guideline is a

factor the commission must consider, not a requirement it must

meet.

First, the committee report describes the guideline as a

criterion “that should be considered” and recognizes that the

extent to which it will be followed in any given reapportionment

year is a “matter for case-by-case determination.” Id. at 265.

It says it adopted the guideline in a “more general” and “less

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restrictive manner for future reapportionment.” Id. at 247.

Collectively, this language indicates that while the commission

must “be guided by” and consider the guideline, the decision to

give it effect, or not, remains discretionary.

Second, the report indicates that, in the context of

judicial review of reapportionment plans, the purpose of the

district within district guideline is “to provide the courts

with a standard for review of claims of gerrymandering or other

unfair or partial result in the apportionment plan.” Id. at

265. This language affirms that the district within district

guideline is not an inflexible requirement that the

reapportionment commission can fall short of by adopting a plan

with too many house districts that span senate district lines.

It suggests that the constitutional district within district

guideline is, rather, a general guideline or a best practice.

This is not to say that the effect the reapportionment

commission gives to the district within district guideline will

always be immaterial to the question of a reapportionment plan’s

constitutionality. A reapportionment commission’s failure to

give full effect to the district within district guideline would

be appropriately considered in the context of a claim that a

reapportionment plan was unconstitutionally gerrymandered,

biased, or otherwise contrary to the equal protection principles

that animate article IV, section 6 and article I, section 5.

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For example, the fact that a reapportionment commission placed

nearly two thirds of house districts into two or more senate

districts could, if presented alongside other credible evidence

of bias, lend substantial support to a claim that a

reapportionment plan was unconstitutionally partial to a

particular person or party. But this does not mean that failure

to substantially comply with the district within district

guideline is, standing alone, a constitutional violation. 7

Based on the plain language of article IV, section 6 and

the framers’ intent as revealed by legislative history, we

conclude that reapportionment commissions do not have a

constitutional obligation to give the district within district

guideline any particular effect. They may not disregard or

ignore the district within district guidelines (or the other

reapportionment guidelines that are to be followed where

“practicable” or “possible”). They must consider them when

redistricting and should, where practicable, endeavor to

7 Justice McKenna’s dissent highlights the constitutional district within
district guideline’s role in “facilitating political organization and
developing accountability of senators to communities of common interest.”
Dissent at 12.

We do not dispute the wisdom of the guideline from a policy
perspective. But the question of whether compliance with the district within
district guideline is “normal and preferable,” see dissent at 11 (quoting
Ethan Weiss, Partisan Gerrymandering and the Elusive Standard, 53 Santa Clara
L.Rev. 693, 697 (2013)), is not before us. And the contention that, from a
policy perspective, a reapportionment plan that gives full effect to the
district within district guideline would be better than one that doesn’t
cannot curtail the reapportionment commission’s ability to exercise
discretion granted to it by the constitution.

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effectuate them. But they have no rigid statutory or

constitutional obligation to effectuate them. Put plainly, the

guidelines must shape the reapportionment commission’s exercise

of its discretion, but they do not impose any hard limits on

it. 8,9

Petitioners’ contention that the Commission must “justify”

the level of consideration it gave, or did not give, to the

district within district guidelines reflects a misunderstanding

about both the scope of the Commission’s discretion to develop

and adopt reapportionment plans and this court’s role in

reviewing the constitutionality of reapportionment plans. Burns

v. Richardson, 384 U.S. 73 (1966), is instructive.

In Burns, the Supreme Court considered the

constitutionality of an interim Hawai‘i state senate

8 This analysis concerns the non-mandatory guidelines of article IV,
section 6 and HRS § 25-2(b) only. The reapportionment commission must give
full effect to those constitutional and statutory requirements that are not
modified by “where practicable” or “where possible,” for example article IV,
section 6’s requirement that “[n]ot more than four members shall be elected
from any district.”

9 We note that the constitutional district within district guideline is
not a general principle bereft of legal force absent implementing laws or
statutes. It is, rather, self-executing in that it “supplies a sufficient
rule by means of which . . . the duty imposed may be enforced.” See Morita
v. Gorak, 145 Hawai‘i 385, 392, 453 P.3d 205, 212 (2019) (cleaned up). The
constitution imposes a duty on reapportionment commissions to “be guided” by
the criterion that, “[w]here practicable, representative districts shall be
wholly included within senatorial districts.” Haw. Const. art. IV, § 6. It
also provides the means for the enforcement of that duty. See Haw. Const.
art. IV, § 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 . . . .”).

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apportionment plan. A three-judge panel of the United States

District Court for the District of Hawai‘i had disapproved of the

interim plan on the grounds that instead of accounting for

population increases on O‘ahu by creating new single-member

senatorial districts for the island, the plan merely increased

the number of multi-member senatorial districts on Oʻahu from two

to five. Id. at 82. The district court had concerns about

“what it considered to be a difference in representational

effectiveness between multi-member and single-members

legislative districts.” Id. at 86. The Supreme Court overruled

the district court, explaining that absent evidence of an Equal

Protection Clause violation, the district court was wrong to

second-guess the legislature’s exercise of its discretion to

redistrict. 10 The Court said that given the absence of a showing

that the interim reapportionment plan raised equal protection

concerns, the district court should not have even required the

legislature to justify its reliance on multi-member legislative

districts:

10 The Court explained:

In relying on conjecture as to the effects of multi-member
districting rather than demonstrated fact, the court acted
in a manner more appropriate to the body responsible for
drawing up the districting plan. Speculations do not
supply evidence that the multi-member districting was
designed to have or had the invidious effect necessary to a
judgment of the unconstitutionality of the districting.

Burns, 384 U.S. at 88-89.

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Indeed, while it would have been better had the court not
insisted that the legislature ‘justify’ its proposal,
except insofar as it thus reserved to itself the ultimate
decision of constitutionality vel non, the legislature did
assign reasons for its choice. Once the District Court had
decided, properly, not to impose its own senate
apportionment but to allow the legislature to frame one,
such judgments were exclusively for the legislature to
make. They were subject to constitutional challenge only
upon a demonstration that the interim apportionment,
although made on a proper population basis, was designed to
or would operate to minimize or cancel out the voting
strength of racial or political elements of the voting
population.

Id. at 89 (emphases added) (footnote omitted).

This court plays a critical role in ensuring that the

voters of our state “choose their representatives, not the other

way around.” Arizona State Legislature v. Arizona Indep.

Redistricting Comm’n, 576 U.S. 787, 824 (2015) (cleaned up). We

have intervened, and will continue to intervene, when necessary

to ensure that Hawai‘i’s reapportionment commission creates

reapportionment plans that comply with the Equal Protection

Clause, the four mandatory requirements in article IV, section

6, and all other constitutional and statutory mandates

concerning redistricting. Cf. Solomon v. Abercrombie, 126

Hawai‘i 283, 270 P.3d 1013 (2012) (holding that reapportionment

plan was invalid under article IV, section 4 of our constitution

because it included non-permanent residents in the population

base for reapportionment). But as Burns makes clear, absent a

showing that a reapportionment plan is unconstitutional or

illegal we should not second-guess the reapportionment

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commission’s exercise of its discretion to redistrict. Cf.

Supp. Stand. Comm. Report No. 58, in 1 Proceedings of the

Constitutional Convention of Hawai‘i of 1968, at 266 (1973)

(“Judicial review is provided in the form of a mandamus to

require the commission to do its work, correct any error or

effectuate the purposes of the reapportionment provisions

contained in the Constitution.”)

3. The Commission did not abuse its discretion in developing
the Plan

Our constitution requires that the reapportionment

commission consider the district within district guidelines.

See supra section II(2). But it does not dictate what that

consideration should look like. Decisions about when and how

the guidelines ought to be considered are left to the discretion

of the reapportionment commission.

The record in this case shows that the Commission did not

abuse that discretion: it adequately considered the

constitutional district within district guideline in developing

and approving the Plan.

Chair Mugiishi’s statements at the January 13, 2022 meeting

concerning the Commission’s commitment to “consider[ing] all of

those factors,” “follow[ing] the constitution,” and doing its

best to “take care of people” speaks to the fact that the

constitutional district within district guideline was one of the

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factors the Commission considered in exercising its discretion.

As does Commissioner Chun’s remark at the January 28, 2022

meeting that he had “observed complete objectivity and clear

commitment to ensuring that good decisions were made in the

context of these guidelines and as they were applied to the

redistricting maps.”

The Commission’s consideration of the constitutional

district within district guideline is also evidenced by the fact

that after the January 28, 2022 approval of the Plan, Commission

staff made minor changes to the Plan in order to improve its

compliance with the constitutional district within district

guideline. If the Commission was indifferent to the guideline

it would not have tweaked the Plan to better comply with it.

Finally, declarations provided by members of the

Commission’s technical committee speak to the Commission’s

consideration of the district within district guidelines.

Commissioner Nonaka declared that:

the Technical Committee was guided by the applicable
constitutional and statutory provisions, including the
eight (8) criteria listed in Article IV, Section 6 of the
Hawai‘i Constitution. We considered the criteria to comply
with the Constitution while striving to produce plans that
would best serve the State as a whole. The Technical
Committee also did its best to be responsive to public
testimony while following the criteria. 11

11 In explaining why the Commission declined to more perfectly adhere to
the constitutional district within district guideline, Commissioner Nonaka
said that “it would be extremely difficult to consider other crtieria [sic]
if that one principle was used as a guiding factor. The Commission would
have to prioritize drawing arbitrary lines without regard for community
input.”

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Commissioner Ono, who like Commissioner Nonaka was on the

technical committee, declared that the committee considered the

district within district guidelines in developing the Plan and

that, in her opinion, the Plan “achieve[s] the overriding

objective of voter equality and best represent[s] the balancing

of constitutional and statutory redistricting criteria.”

Petitioners may disagree with the weight the Commission

assigned to the district within district guidelines, but they

have not shown that the Commission disregarded them in

developing and adopting the Plan. To the contrary, the record

reflects that the Commission holistically considered the

district within district guidelines when exercising its

discretion to develop and adopt the Plan. The Commission’s

consideration of the district within district guidelines was

thus adequate under both article IV, section 6 and HRS § 25-

2(b)(5). 12

12 We base this holding solely on the information in the record concerning
the Plan’s development. The Commission’s argument that the Plan is
constitutional because the number of state house districts split by state
senate districts in the Plan (33) is in line with that found in previous
reapportionment plans lacks merit. The Commission is right that the Plan’s
compliance with the constitutional district within district guideline is
similar to that of the 2012, 2001, and 1991 reapportionment plans, which
split 30, 31, and 38 state house districts across state senate districts.
But this fact has no bearing on our analysis: even the most longstanding
practice cannot transform unconstitutional actions into constitutional ones.

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4. The Commission did not abuse its discretion by considering
factors other than those enumerated in article I, section 6
and HRS § 25-2(b)

The Commission must consider the article IV, section 6 and

HRS § 25-2(b) guidelines in reapportionment. But it is not

prohibited from pursuing other rational and non-discriminatory

policy goals through its redistricting. 13 So Petitioners’ claim

that the Plan is invalid because the Commission unlawfully

allowed its “preference” for preserving legacy districts to get

in the way of drawing a reapportionment plan that better

effectuated the district within district guidelines has no

merit.

There are two reasons why the Commission did not abuse its

discretion by crafting and adopting a plan that sought the

preservation of legacy district boundaries.

First, the constitution explicitly contemplates that

reapportionment will involve the redrawing of district lines.

13 McNeil provides a good example of a rational state policy that the
reapportionment commission must consider alongside article IV, section 6 and
HRS § 25-2(b)’s requirements and guidelines: compliance with the federal
Voting Rights Act. In McNeil, the New Jersey Supreme Court considered a
challenge to the New Jersey constitution’s requirement that no county or
municipality should be divided between legislative districts. Under New
Jersey’s constitution, “[u]nless necessary to meet the [contiguity,
compactness or equal population] requirements, no county or municipality
shall be divided among Assembly districts unless it shall contain more than
one-fortieth of the total number of inhabitants of the state.” 828 A.2d at
845 (cleaned up). The court held this constitutional requirement was
preempted by the federal Voting Rights Act, since full compliance with it
would result in the “packing” of minority voters and the dilution of their
electoral influence. Id. at 857.

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See Haw. Const. art. IV, § 6 (“Upon the determination of the

total number of members of each house of the state legislature

to which each basic island unit is entitled, the commission

shall apportion the members among the districts therein and

shall redraw district lines where necessary [to equalize the

population in each district as much as practicable].” (Emphasis

added.)). This use of the word “redraw” presumes that existing

districts may serve as the starting point for redistricting.

The commission is required to consider the constitutional

district within district guideline in adjusting district lines

to account for population changes since the last

reapportionment; but because it is tasked with redrawing it is

also implicitly authorized to consider the boundaries of

existing legislative districts.

Second, the Supreme Court has recognized that “preserving

the cores of prior districts” is a legitimate state legislative

policy that may justify minor deviations from the requirement

that each district should have an equal population. In Karcher

v. Daggett, 462 U.S. 725 (1983), the court explained that it was

“willing to defer to state legislative policies, so long as they

are consistent with constitutional norms, even if they require

small differences in the population of congressional districts.”

Id. at 740. The court continued, explicitly recognizing that

keeping legacy districts intact was a “legitimate objective:”

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Any number of consistently applied legislative policies
might justify some variance, including, for instance, making
districts compact, respecting municipal boundaries,
preserving the cores of prior districts, and avoiding
contests between incumbent Representatives. As long as the
criteria are nondiscriminatory, these are all legitimate
objectives that on a proper showing could justify minor
population deviations.

Id. (emphasis added)(citation omitted).

To the extent that the reapportionment commission sought to

preserve legacy districts, that was a “legitimate objective.”

See id.; see also Chapman v. Meier, 407 F.Supp. 649, 664 (D.N.D.

1975) (adopting a court-ordered apportionment plan and

explaining that though the court had “altered most of the

existing legislative districts to comply with the one man-one

vote standard” it also “endeavored to retain the core

of existing districts in the new reapportionment plan” so that

“extreme disruption in the election processes may be avoided”).

We see no reason to conclude that article IV, section 6 or

HRS § 25-2(b) limit the commission’s discretion to craft a

reapportionment plan that complies with constitutional equal

protection mandates, strictly conforms to the mandatory

requirements of article IV, section 6 and HRS § 25-2(b), and

also seeks to promote stability by preserving legacy districts.

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III. CONCLUSION

The Plan complies with article IV, section 6 and HRS § 25-

2(b); Petitioners have not shown that they are entitled to the

requested relief. The Petition is denied.

Mateo Caballero, /s/ Mark E. Recktenwald
for petitioners
/s/ Paula A. Nakayama
Lauren K. Chun /s/ Todd W. Eddins
(Patricia Ohara, Lori N.
Tanigawa, and Reese R. Nakamura
on the briefs),
for respondents

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