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

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Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
14-JUN-2022
09:08 AM
Dkt. 81 OPD

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
JUNE 14, 2022
DISSENTING OPINION OF WILSON, J.

I. Introduction

I join Justice McKenna’s concurring and dissenting

opinion. I dissent separately to contextualize how the

Majority’s opinion fails to protect the people of Hawaii’s

fundamental right to vote.

In the wake of the 2020 census and the resulting

2022 reapportionment maps being drawn across the country,
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numerous claims of unconstitutional maps are being brought by

groups of concerned citizens in sister states.1 The majority

of cases feature complaints of unconstitutional partisan

gerrymandering and racial discrimination.2 The United States

Supreme Court has specifically foreclosed the federal courts

as a venue for adjudicating claims of political

gerrymandering, the specter of which has been raised by the

Petitioners in the instant case. See Rucho v. Common Cause,

139 S.Ct. 2484, 2506 (2019).

State courts are the only venue for citizens to

bring complaints against this particular kind of attack on the

power of their vote, which impairs the fundamental right upon

which it stands. By this case, the people of Hawaiʻi—through a

diverse group of concerned citizens, united in their quest to

secure constitutionally compliant legislative and state senate

1 According to the Brennan Center for Justice:

As of June 8, 2022, a total of 72 cases have been
filed challenging congressional and legislative maps in
26 states as racially discriminatory and/or partisan
gerrymanders. Litigation has resulted in orders from
state courts to redraw legislative and/or congressional
maps in Alaska, Florida, Maryland, New York, North Caro-
lina, and Ohio in time for the 2022 election cycle (the
Florida redraw has since been put on hold by an appellate
court). In addition, South Carolina has agreed to amend
its new state house map without a court order, but that
revised map will not take effect until 2024. A total of
45 cases remain pending at either the trial or appellate
levels.

Brennan Center for Justice, Redistricting Litigation Roundup (June 8,
2022), https://www.brennancenter.org/our-work/research-
reports/redistricting-litigation-roundup-0 [https://perma.cc/EZ2H-SAEJ].

2 Id.

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district maps—have sounded this alarm of encroachment upon

their right to vote, and the Majority has failed to heed their

profound call for protection of this right upon which all

others depend.

Petitioners assert that the 2021 Reapportionment

Commission (“Commission”) produced maps that fail to comply

with criterion six of article IV, section 6 of the

Constitution of the State of Hawaiʻi (“Hawaiʻi Constitution”),

which provides: “Where practicable, representative districts

shall be wholly included within senatorial districts.” Haw.

Const. art. IV, § 6.

This criterion, along with all enumerated criteria

in article IV, section 6, is specifically designed to guard

against “gerrymandering or other unfair or partial result” in

the apportionment plan. Supp. Stand. Comm. Rep. No. 58, in 1

Proceedings of the Constitutional Convention of Hawaiʻi of

1968, at 265 (1973).

Respectfully, the Majority endorses an

unconstitutional redistricting process that undermines the

right to vote in Hawaiʻi.

II. Discussion

A. The Constitutional Right to Vote

1. The People’s Government and the Enumerated Right

The Hawaiʻi Constitution begins with “We, the people

of Hawaiʻi[.]” Haw. Const. pmbl. It then sets forth the

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principle that “[a]ll political power of this State is

inherent in the people” and that “the responsibility for the

exercise thereof rests with the people. All government is

founded on this authority.” Haw. Const. art. I, § 1.

Our Nation was founded on this very principle—that

“Governments . . . deriv[e] their just powers from the consent

of the governed[.]” The Declaration of Independence para. 2

(U.S. 1776). The phrase “no taxation without representation”

was the rallying cry for American revolutionaries, and many

gave their lives pursuing the ideals embodied by it. This

slogan encapsulated the American colonists’ resentment towards

having taxes levied upon them by a distant British Parliament

that lacked American—elected legislators who represented the

interests of the colonists.

A burning desire for elected, accountable

representation was the driving force behind our nation’s

birth. The “power,” James Madison wrote, “is in the people

over the Government, and not in the Government over the

people.” 4 Annals of Cong. 934 (1794). Thus, a government

“of the people, by the people, for the people” was born.

Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863).

Elections are the means by which this government “of

the people, by the people, for the people” is effectuated. As

such, “[t]he right to vote is of fundamental importance.”

Green Party of Hawaii v. Nago, 138 Hawaiʻi 228, 240, 378 P.3d

944, 956 (2016) (citing Hayes v. Gill, 52 Haw. 251, 269, 473

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P.2d 872, 883 (1970)). The Hawaiʻi Constitution enshrines the

right to vote in article I, section 8 (“No citizen shall be

disfranchised, or deprived of any right or privileges secured

to other citizens, unless by the law of the land”) and article

II, section 1 (“Every citizen of the United States who shall

have attained the age of eighteen years, have been a resident

of this State not less than one year next preceding the

election and be a voter registered as provided by law, shall

be qualified to vote in any state or local election[]”) as

well as through the adoption of the United States

Constitution, and its protections of the same.3 Yet,

constitutional protection of the right to vote was not a

foregone conclusion; today’s protections are the fruits of

momentous struggle against discriminatory voting practices,

including gerrymandered redistricting.

2. Historic Struggles to Secure the Right to Vote

Let us not forget that until the ratification of the

fifteenth amendment of the United States Constitution in 18704

3 Article fifteen of the United States Constitution, ratified in
1870, gave African American men the right to vote; article nineteen,
ratified in 1920, gave American women the right to vote; article fourteen,
ratified in 1964, eliminated poll taxes; and article sixteen, ratified in
1971, lowered the voting age for all elections to age eighteen years.

4 U.S. Const. art. XV, § 1 provides: “The right of citizens of
the United States to vote shall not be denied or abridged by the United
States or by any State on account of race, color, or previous condition of
servitude.”

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and the nineteenth amendment in 1920,5 citizens of the United

States could be denied the right to vote on the basis of their

race and/or gender. Even with these amendments in place,

African Americans, women, and other historically excluded

groups were prevented from registering to vote through abuses

of the voter registration process, including literacy tests,

violence, threats of violence, and economic coercion.6 The

poll tax and whites-only primaries further limited minority

participation in the electoral process.7

In 1957, Dr. Martin Luther King Jr. delivered his

“Give Us the Ballot” address on the steps of the Lincoln

Memorial. His speech laid bare the empty promise of

constitutional amendments and desegregation case law that

languished without structured processes and methods to make

the franchise real:

[A]ll types of conniving methods are still being used to
prevent Negroes from becoming registered voters. The denial of
this sacred right is a tragic betrayal of the highest mandates
of our democratic tradition. And so our most urgent request to
the president of the United States and every member of Congress
is to give us the right to vote.

Rev. Martin Luther King, Jr., “Give Us the Ballot—We Will
Transform the South,” (May 17, 1957) (emphases added).

5 U.S. Const. art. XIX provides: “The right of citizens of the
United States to vote shall not be denied or abridged by the United States
or by any state on account of sex. Congress shall have power to enforce
this article by appropriate legislation.”

6 Dep’t of Just. Manual Resource, Title 8 Civil Rights: VOTING
RIGHTS ACT OF 1965--HISTORY AND OVERVIEW §19 (4th ed. 2022-3)

7 Id.

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The Voting Rights Act of 1965 finally delivered on the promise

of the fifteenth and nineteenth amendments by creating

structures and procedures specifically designed to give them

effect.

3. The Voting Rights Act of 1965 – Procedurally
Securing the Right to Vote

The Voting Rights Act of 1965 was enacted to end the

whites—only electoral system followed by much of the South, as

the remedies provided by earlier civil rights acts (in 1957,

1960, and 1964) and the organizing work of the civil rights

movement had been unable to open the franchise to African

Americans in many areas. See Dep’t of Just. Manual Resource,

Title 8 Civil Rights: Voting Rights Act of 1965—History and

Overview §19 (4th ed. 2022-3). It was not until President

Lyndon Baines Johnson signed the Voting Rights Act of 1965

that specific laws, remedies, methods and procedures were

implemented to realize the promise of the fifteenth and

nineteenth amendments:

The Voting Rights Act banned the use of literacy tests
(Section 4), authorized federal registration of voters where
local registrars had refused voter registration to African
Americans (Section 6), authorized the appointment of federal
observers to monitor polling place activities on election
day to assure that the newly enfranchised African Americans
would be permitted to vote and that their votes would be
counted (Section 8), and allowed new laws affecting voting
to be implemented only if they were proven not to have a
discriminatory purpose or effect (Section 5). By means of a
formula set out in the Act, these special provisions applied
(initially for a five-year period) to areas with a record of
discrimination (Section 4), while general anti-
discrimination provisions applied to the nation as a whole.

Id. (cleaned up)

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This legislation, and all the affirmative mechanics

it puts into place to realize the right to vote, illustrate

the fragility of the right itself—that despite constitutional

protections granting the right to vote, the strength of the

right is only as viable as the methods and procedures giving

it effect. Apportionment is a core process of protection, and

any claims of a failure of the apportionment process to give

effect to the constitutional protections of the right to vote

must be analyzed against the backdrop of these historical

struggles to make the right to vote real. The district—

within—district criteria is specifically equipped to prevent

gerrymandering,8 and failure to give it effect opens the door

to dilution of the right to vote.

B. The Specter of Gerrymandering and Vote Dilution

1. Gerrymandered Districts Dilute Voting Strength

The right to vote is of fundamental importance.

Green Party, 138 Hawaiʻi at 240, 378 P.3d at 956. “No right is

more precious in a free country than that of having a voice in

the election of those who make laws; other rights, even the

8 See Sophia Caldera, Daryl DeFord, Moon Duchin, Samuel C.
Gutekunst & Cara Nix, Mathematics of Nested Districts: The Case of
Alaska, Statistics and Public Policy, 7:1, 39-51 (2020) available at
https://mggg.org/uploads/Alaska.pdf (last visited June 7, 2022) (“From the
perspective of redistricting, nesting means that the composition of one
house of the legislature massively constrains the space of possible
districting plans for the other, arguably cutting down the latitude for
gerrymandering.”) (emphasis added).

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most basic, are illusory if the right to vote is undermined.”

Wesberry v. Sanders, 376 U.S. 1, 17 (1964).

Any attempt to dilute the power of a vote erodes the

fundamental right standing behind the vote itself. Reynolds

v. Sims, 377 U.S. 533 (1964) (“the right of suffrage can be

denied by a debasement or dilution of the weight of a

citizen’s vote just as effectively as by wholly prohibiting

the free exercise of the franchise.”)

A gerrymandered redistricting plan dilutes voting

strength. It is such an effective vote-dilution device that

Section 2 and Section 5 of the Voting Rights Act9 prohibit the

use of any voting practices or procedures, including

redistricting plans, that dilute minority voting strength.10

In the instant case, Petitioners allege the record reflects

that Hawaiʻi’s constitutional criteria designed to prevent

gerrymandered districts have been discarded in favor of

illegitimate reapportionment factors, the consequences of

which would be likely to benefit incumbents.

Petitioners make clear the grave consequences of

such a gerrymandered redistricting process, and the

responsibility of this court to prevent it:

9 42 U.S.C. § 1973.

10 While the Petitioners do not raise a claim under the Voting
Rights Act nor allege a specific dilution of minority voting strength, the
criteria in article IV section 6 are specifically designed to prevent
gerrymandering (alongside other unjust outcomes), and the dilutive effect
of a gerrymandered reapportionment process impacts each resulting vote.

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[L]egislators who benefit from specific maps have little to no
electoral incentive to appoint commissioners who will
objectively apply the constitutional criteria, if doing so
could jeopardize their chances of re-election. In turn,
gerrymandered communities will not be able to vote out such
legislators, as their voting power would be diluted through the
reapportionment process.” In other words, it is this Court’s
responsibility to ensure that the Commission follows the
reapportionment criteria, so that it is the people who “choose
their representatives, not the other way around.

(emphases added).

2. Illegitimate Reapportionment Factors in the Record

Petitioners have shown that the Commission failed to

give effect to criterion six because of a preference for

preserving “historic districts that have existed for

decades.”11 In addition, the record reflects that despite the

practicability of following the district-within-district

criteria in this year’s maps, the Commission opted not to

11 Petitioners argue in their petition:

This “preference” for preserving historic districts, which was
also offered as an explanation for not complying with the
district within district requirements, is not supported by the
relevant constitutional and statutory provisions, and would be
likely to benefit incumbents. The drawing of boundaries to the
advantage of individuals or political parties is explicitly
prohibited by Article IV, Section 6, and this requirement,
which is mandatory, applies to incumbents as a group as well.

Instead, it would appear that this “preference” was
deemed by the Commission to be more important than the district
within district requirements and consequently, the Commission
was compelled to make dramatic changes to house districts due
to population changes, but did not adjust senate districts
accordingly, in an apparent effort to keep senate district
lines the same. Chair Mugiishi admitted as much when he
stated: “Again, changing the senate map would be massively
disruptive, right? Because, as you know, there are much fewer
senators. So if you’re going to start to change the senate
map, the whole island of Oʻahu will explode.” This is
precisely the type of gerrymandering, unfair, and partial
result that the constitutional and statutory criteria was
intended to avoid.

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because “[C]hanging the senate map would be massively

disruptive, right? Because, as you know, there are much fewer

senators. So if you’re going to start to change the senate

map, the whole island of Oʻahu will explode.”

These justifications for choosing to preserve state

senate districts—that they have “existed for decades” and that

to make changes would “be massively disruptive”—are inapposite

in view of the constitutional criteria, and are brazen in

their consequential effect to protect the status quo. As the

record is devoid of any legitimate considerations for failing

to give effect to criterion six, this posture of preserving

the state senate status quo translates into protecting

incumbent state senators. This potentiality strikes at the

heart of the founders’ specific concerns about

“gerrymandering, unfair, and partial results”—the precise

outcomes Constitution’s article IV section 6 criteria are

designed to prevent.

The likelihood that gerrymandering is behind the

failure to give criterion six effect is heightened by the

staggering percentage of state senate districts that fail to

comply with the district—within—district criteria, which—at

64.7%—is an extreme deviation in view of the Hicks plan, which

has demonstrated compliance is practicable.12

12 Majority Opinion at 3.

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3. The Commission’s Constitutional Obligation to
Protect the Right to Vote

The Constitution protects the right to vote. Haw.

Const. art. I, § 8; art. II, § 1. The right to vote is

exercised during elections. Various methods and procedures

are required to structure and facilitate elections and ensure

fair elections. Such methods and procedures affect a person’s

ability to exercise the right to vote. See Green Party, 138

Hawaiʻi at 241, 378 P.3d at 957 (finding that “the method used

for calculating the number of sufficient ballots required for

an election affects a person’s ability to exercise the right

to vote.”). Flawed election methods and procedures “may

result in the deprivation of the right to vote[.]” See id. at

240, 378 P.3d at 956. It is axiomatic that the constitutional

right to vote must be protected by any constitutionally

designed method or procedure essential for structuring and

facilitating elections.

Reapportionment is one such procedure. Article IV

of the Hawaiʻi Constitution sets forth and governs

reapportionment. Article IV, section 2 provides for a

reapportionment process that creates a commission of nine

members who “shall act by majority vote of its membership and

shall establish its own procedures, except as may be provided

by law.” Haw. Const. art. IV, § 2. (emphasis added).

Under article IV, the commission must act in

accordance with the apportionment obligations set forth in

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sections 2 through 9. This includes Article IV, section 6,

which provides that the commission, in carrying out its

apportionment and redistricting duties, “shall be guided by”

eight enumerated criteria; four are mandatory in all

circumstances and four, including the “district within

district” provision, are mandatory to be applied whenever

“practicable.” See McKenna Concur and Dissent at 2.

An apportionment commission’s failure to perform its

duties and/or generate a constitutionally sound

reapportionment plan is subject to this court’s original

jurisdiction, whereby the court “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,

or it may take such other action to effectuate the purposes of

this section as it may deem appropriate.” Haw. Const. art.

IV, § 10.

Given the constitutional obligations imposed on the

Commission to carry out its duties set forth under article IV

section 6, and in full view of the constitutionally protected

right to vote, the Commission must be understood to be

constitutionally obligated to protect the right to vote in

every aspect of carrying out its mandate.

The Majority incorrectly holds that “[t]he

Commission must consider the district within district

guidelines when redrawing district lines. But it is not

required to give them any particular effect in redistricting.”

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Respectfully, such a holding is fundamentally at odds with the

constitutional mandate that, if practicable, senate districts

must contain congressional districts.

I join Justice McKenna’s analysis that in view of

settled principles of constitutional interpretation, article

IV, section 6 is self-executing, and that “[p]ursuant to

article XVI, section 16, the Commission was duty-bound to

effectuate the criteria to ‘the fullest extent that their

respective natures permit.’” McKenna Concur and Dissent at

18.

“The language of article IV, section 6 is not

ambiguous: criteria four, five, six and eight must be applied

where ‘practicable.’” Id. (emphasis added). Article IV,

section 6 provides that the Commission shall be guided by the

criteria contained therein. Criterion six provides “[w]here

practicable, representative districts shall be wholly included

within senatorial districts.” (emphasis added). The word

“shall” in both article IV, section 6 and criterion six

creates an imperative command. See McKenna Dissent at 18.

Further—“[i]t is well-established that, where a statute

contains the word “shall,” the provision generally will be

construed as mandatory.” Malahoff v. Saito, 111 Hawaiʻi 168,

191, 140 P.3d 401, 424 (2006) (citations omitted).

The Hicks plan demonstrated it was “practicable” for

representative districts to be wholly included within

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senatorial districts, therefore the Commission was mandated to

give criterion six effect.

The Commission’s failure to give effect to criterion

six amounts to a failure to fulfil its constitutional

obligations set forth under article IV, section 6. As

discussed herein, criterion six is specifically equipped to

prevent gerrymandering, which is a scourge on the electoral

process that dilutes the power of a vote. Any attempt to

dilute the power of a vote erodes the fundamental right

standing behind the vote itself. Reynolds, 377 U.S. at 554-

55. Therefore, the Commission’s failure to give effect to

criterion six in the execution of its duties is a failure of

its constitutional obligation to protect the right to vote.

C. Alaska, Maryland, and North Carolina: Courts finding maps
unconstitutional political gerrymanders, as demonstrated
by measurable deviations from constitutional criteria

1. Alaska

In February 2022 the Alaska Supreme Court found that

the Alaska Redistricting Board’s 2021 plan featured an

unconstitutional political gerrymander, and remanded to the

board for further proceedings to correct the unconstitutional

plan. See In the Matter of the 2021 Alaska Redistricting

Cases, No. S-18332 (Alaska, Mar. 25, 2022).

Notably, Alaska’s constitution mandates the

“district—within—district” or “nesting” criteria; state

legislative districts must be nested, so that one Senate

district is composed of two-House districts. Alaska Const.

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art. VI, § 6. Four petitions filed by Alaskan voters and

municipalities (consolidated) challenged the 2021 Alaska

Redistricting Board’s plan on the basis that the pairing of

two particular house districts—House District 21 (South

Muldoon) and House District 22 (Eagle River Valley) into one

state senate district (Senate District K) violated the

constitution as a political gerrymander. Specifically, the

plaintiffs argued before the trial court13 that without any

legitimate purpose, the pairing “dilutes the voting power of

the Muldoon voters.” In the Matter of the 2021 Redistricting

Plan, No. 3AN-21-08869CI (Feb.15, 2022). In finding for the

plaintiffs, the Alaska Supreme Court affirmed the trial

court’s conclusion that Senate District K was in fact a

political gerrymander. It is important to note that the trial

court, in its findings of fact and conclusions of law,

measured deviations in increments as small as tenths of a

percentage point as part of its analysis finding the pairing

unconstitutional.

In examining the pairing, part of the trial court’s

analysis looked at whether the pairing was justified as a

means for increasing representation for both districts (by way

of reducing the overall representational deviation of both

districts). The court examined the deviations as follows:

13 The consolidated cases were heard by Superior Court Judge
Thomas Matthews of the third judicial district at Anchorage.

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Turning to proportionality, Eagle River Valley and North Eagle
River/Chugiak are both underrepresented by -1.65% and -0.71 %
respectively. South Muldoon is underrepresented by -1.70%.
Pairing Eagle River Valley with South Muldoon creates an
average deviation of -1.68%, whereas pairing both Eagle River
districts creates an average deviation of -1.18%. Thus, the
Board's choice to pair Eagle River Valley with South Muldoon
does not lead to more proportional representation.

In the Matter of the 2021 Redistricting Plan, No. 3AN-21-
08869CI (Feb.15, 2022) at 70-71.

Here, the Alaska courts draw constitutionally based

conclusions by comparing right—to—vote deviations in amounts

as small as tenths of a percentage point. The Alaska courts

do so as part of their analysis in determining whether a

particular district-within-district pairing is an

unconstitutional political gerrymander. This concern for and

close analysis of deviation percentage points in a

constitutional gerrymander/right-to-vote case is instructive.

Both the -1.68 deviation and the -1.18% deviation are presumed

constitutional as they fall well under the 10% threshold for

proportionality analysis. That both deviations are still so

closely examined for the purposes of deciding which deviation

would best protect the right to vote stands in stark contrast

from the instant case before our Court, where a 64.7%

deviation from a constitutionally required criteria—

specifically equipped to guard against gerrymandering—has been

allowed to stand.

2. Maryland

The State of Maryland presents another instance

where 2021 maps have been found unconstitutional on the basis

of political gerrymandering. On March 25, 2022, the trial
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court struck down Maryland’s new congressional map, finding

that the map “is an ‘outlier,’ an extreme gerrymander that

subordinates constitutional criteria to political

considerations.” See Szeliga v. Lamone,

No. C-02-CV-21-001816 (Mar. 25, 2022) and Parrott v. Lamone,

No. C-02-CV-21-001773 (Mar. 25, 2022). Underlying that

finding, according to the court, is the map’s “substantial

deviation from ‘compactness’ as well as [its] failure to give

‘due regard’ to ‘the boundaries of political subdivisions’ as

required by [the Maryland Constitution][.]” Id.

Part of the court’s analysis focused on expert

testimony with regards to deviations from the ‘compactness’

criteria as evident by examining model maps. The court’s

findings of fact notably cite just a 4.4% difference as

evidence sufficient to support its finding of a “substantial

deviation from ‘compactness’”:

With respect to the first set of maps drawn with very little
regard to compactness but regard given to contiguity and equal
population, 14,000 of the maps have seven districts that were
won by President Joseph Biden and only 4.4% have eight
districts won by President Joseph Biden. Mr. Trende concluded
that “it is exceedingly unlikely that if you were drawing by
chance, you would end up with map where President Joe Biden
carried all eight districts.”

With respect to the application of compactness and contiguity
as well as equal population, he concluded that the 2021 Plan
would result in eight districts won by President Biden, which
he concluded was “an extremely improbable outcome if you really
were drawing just caring about traditional redistricting
criteria and weren’t subordinating those considerations for
partisanship.”

Id. at 63-64. (emphases added).

Here, Maryland’s court is flagging a 4.4% chance of

a particular outcome as clear evidence of a deviation from the

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constitutionally required redistricting criteria of

‘compactness.’ Put another way, 95.6% of model maps in this

case show a different outcome if you control for partisanship.

The court rightfully characterizes this outcome as an “extreme

gerrymander” that is a “substantial deviation” from

constitutionally required criteria.

In the instant case, our 64.7% deviation from

criterion six is far more akin to Maryland’s unconstitutional

maps—an “extreme” example of a “substantial deviation” that

absent a justifiable rationale, only increases the likelihood

that gerrymandering is in play.

3. North Carolina

On February 4, 2022, North Carolina’s Supreme Court

also struck down new congressional and legislative maps,

finding they were a partisan gerrymander in violation of the

North Carolina Constitution’s free elections clause, the equal

protection clause, the free speech clause, and the freedom of

assembly clause. Harper v. Hall, 867 S.E.2d 554, 558 (N.C.

2022). Because of pressing timing issues, the court struck

down the maps via order, with an opinion to follow. Id. The

order affirmed the trial court’s findings that “the General

Assembly diminished and diluted the voting power of voters

affiliated with one party on the basis of party affiliation.”

Id. at 557. (emphasis added). Pending an opinion, the order

is still instructive as it sets forth the following categories

of quantifiable data from which deviations from constitutional

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right—to—vote protections may be measured, including

unconstitutional partisan gerrymanders: “There are multiple

reliable ways of demonstrating the existence of an

unconstitutional partisan gerrymander. In particular, mean-

median difference analysis, efficiency gap analysis, close-

votes, close seats analysis, and partisan symmetry analysis

may be useful in assessing whether the mapmaker adhered to

traditional neutral districting criteria . . .” Id.

In view of Alaska, Maryland and North Carolina

courts close analysis of the deviations from constitutionally

required reapportionment criteria, the 64.7% deviation from

criterion six in this instant case is extreme, especially as

evidenced by the Hicks and Boyea Plans’ demonstration of the

practicality of compliance.

4. An Extreme Deviation at 64.7%

Population deviation cases may be instructive in

assessing just how extreme the 64.7% deviation is in the

instant case. For purposes of determining whether a plan

complies with the requirement that “the average number of

permanent residents per member in each district [be] as nearly

equal to the average for the basic island unit as

practicable,” deviations of more than 10 percent from the

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target population base are treated as constitutionally

suspect.14

This 10% threshold for population deviation analysis

is, at its core, a specific protection of the “one-person, one

vote” doctrine—the right-to-vote doctrine designed to ensure

that “the vote of any citizen is approximately equal

in weight to that of any other citizen in the State.”

Reynolds, 377 U.S. at 579. Applying the 10% population

deviation framework to the instant case, this court faced a

prima facie discriminatory plan that far exceeded 10.01%. As

the record fails to justify the Commission’s deviation from

criterion six, the 64.7% deviation—in full view of the

demonstrated practicability of near 100% compliance—can only

be understood as a glaring constitutional violation.

Further, while this case primarily concerns the

Commission’s failure to give effect to criterion six, it is

important to note that a number of the Petitioners expressed

concern that the 2021 reapportionment plan also failed to

avoid submergence in a number of districts. The term

“submergence” refers to the pernicious phenomenon whereby “one

14 See Haw. Const. art IV, § 6; cf. Citizens for Equitable &
Responsible Gov't v. Cty. of Hawaiʻi, 108 Haw. 318, 336, 120 P.3d 217, 225
(2005), amended (Sept. 22, 2005) (In a case involving county districts, not
legislative districts, “an apportionment plan with a maximum population
deviation under 10% falls within this category of minor deviations. A plan
with larger disparities in population, however, creates a prima facie case
of discrimination and therefore must be justified by the [s]tate.”
(citations omitted)).

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socio-economic group [is] disadvantaged by reason of its

placement in a district in which another socio-economic class

heavily predominates.” Supp. Stand. Comm. Rep. No. 58, in 1

Proceedings of the Constitutional Convention of Hawaiʻi of

1968, at 246 (1973). Petitioners raised specific concerns

that impoverished rural communities were submerged with

wealthier coastal areas, and that the rural and agricultural

communities were unnecessarily submerged with urban areas and

vice versa.15

Criterion eight of article IV, section 6 is designed

to guard against this type of reapportionment outcome, and

provides that “[w]here practicable, submergence of an area in

a larger district wherein substantially different

15 See also discussion infra Part II.E.2-12, wherein Petitioners
set forth concerns about the following specific instances of submergence:

Petitioner Michaela Ikeuchi has deep concerns about the
submergence of Native Hawaiian and poorer rural
communities with wealthier coastal areas on the Kona
coast; Petitioner Kimeona Kane is concerned that the 2021
Final Legislative Reapportionment Plan squeezes Waimānalo
between Hawaiʻi Kai and Kailua in the senate district,
submerging his rural community into wealthier and more
politically connected neighborhoods; Petitioner Deborah
Ward is concerned that the plan would submerge rural
communities on the island of Hawaiʻi into urban
communities with vastly different environmental and
socio-economic interests; and Petitioner Philip Barnes
strongly believes that rural and agricultural areas,
which historically have been submerged to Hilo and
Kailua-Kona-centric political interests, should finally
have adequate representation in the Legislature, so that
they can receive much needed government support to
achieve the unfulfilled promise of food sustainability in
Hawaiʻi.

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socio-economic interests predominate shall be avoided.” While

it can be factually determined that the Commission produced an

unacceptable 64.7% deviation from the “districts—within—

districts” criteria, deviations from criterion eight are more

difficult to quantify. Unlike criterion six, which can

objectively be measured, criterion eight “is, admittedly, not

a precise criterion, but it does delineate an undesirable

condition which should be considered in selecting districts.”

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

Constitutional Convention of Hawaiʻi of 1968, at 246 (1973).

Here, the Petitioners recognize that the Commission

at least discussed “non-submergence” at the October 14, 2022

meeting, but highlight the Commission’s failure “to disclose

with whom the technical committee [permitted interaction

group] had communicated, what type of community outreach it

had done, any fact findings supporting deviation from the

constitutional and statutorily required standards, or details

about what considerations the committee may have given more

weight and why.” While criterion eight recognizes that some

degree of submergence may be unavoidable in a reapportionment

process, the Commission here failed to provide any compelling

evidence that any submergence was necessary in the 2021

reapportionment plan. Even if the Commission had put forth

such justification, it would be subject to careful and

meticulous review for any unconstitutional impairment on the

right to vote.

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The record here reflects an extreme 64.7% deviation

from criterion six, and an unexplained deviation from

criterion eight. Alaska, Maryland and North Carolina provide

instructive examples of how analysis of deviations from

constitutional criteria can lead to the discovery—and

rejection of—unconstitutionally gerrymandered maps. The

deviations in the instant case, in light of the demonstrated

practicability of compliance with criterion six, further

demonstrate that the Commission failed in its obligation to

protect the right to vote in the execution of its duties.

D. The Hicks and Boyea Plans Demonstrate the Practicability
of Compliance

Petitioners Hicks and Boyea submitted two plans to

the Commission for consideration: a senate map for Oʻahu

submitted on January 16, 2022 (the “Hicks Plan”) and a house

map for the Island of Hawaiʻi submitted on January 19, 2022

(the “Boyea Plan”). The Hicks Plan took the Commission’s last

proposed house map for Oʻahu as a starting point and then

created senate districts simply by joining two house districts

together. The Boyea Plan took the Commission’s last proposed

senate map for the Island of Hawaiʻi and then drew lines to

divide each senate district into two roughly equally populated

house districts while trying to keep communities together.

The plans showed that including exactly two-house districts

within each senate district was not only practicable, but it

was straightforward. Put differently, both the Hicks Plan and

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the Boyea Plan demonstrate it is both possible, and

practicable, to have 100% compliance with criterion six.

Further—both the Hicks and Boyea plans created maps with lower

overall population deviations than the deviations in the

technical committee plans.16 The hard work undertaken by Hicks

and Boyea in drawing maps to demonstrate the practicability of

compliance with criterion six illustrates the lengths to which

they and their fellow Petitioners had to—and were willing to—

go to protect the right to vote for themselves and their

fellow citizens.

E. The Petitioners as Guardians of the Right to Vote

1. Engaged Citizens Sound the Alarm

The Petitioners in the instant case are registered

voters—engaged citizens from a spectrum of racial,

socioeconomic, geographic, and professional backgrounds, all

of whom sought an honest ear from the Commission. In addition

to their stalwart efforts to bring the instant case, most of

these citizens were actively engaged in the 2021

reapportionment and redistricting process for their islands,

and contributed heroic amounts of personal time and effort

attending hearings, drafting and submitting written and oral

testimony, and even preparing their own reapportionment

16 Petitioner Hicks’ congressional map is able to fit 25 house
districts into Congressional District 1 and 26 house districts into
Congressional District 2 while keeping the overall deviation under one
percent.

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plans.17 Six Petitioners are from the island of Hawaiʻi, four

are from the island of O’ahu, and one Petitioner is from the

island of Maui. Their individual and collective

contributions, as well as their concerns about the 2021

reapportionment process, are material to understanding the

continuing need for citizens to stand guard over the right to

vote here in Hawaiʻi.

2. Petitioner William M. Hicks

Petitioner William M. Hicks is a retired Navy

Captain with a combined 48 years of service across active duty

in the U.S. Navy and as the civilian Director or Deputy

Director of Submarine Operations at COMSUBPAC.18 Hicks

attended and testified at ten reapportionment commission

meetings and four public hearing meetings totaling over 27

hours in meeting attendance alone. Notably, this tally does

not account for the quantum of time and effort Hicks poured

into (1) preparing his own reapportionment plans, which have

17 The 2021 Reapportionment Commission held nineteen meetings from
April 13, 2021 – March 7, 2022. Additionally, the 2021 Reapportionment
Commission held eleven Public Hearings across the islands from November 20,
2021 – December 10, 2021. Written summaries of these commission meetings
and public hearings containing details regarding attendees, public
testimony and meeting length, can be accessed at:
https://elections.hawaii.gov/about-us/boards-and-
commissions/reapportionment/[https://perma.cc/RCA2-4HX5]. Last accessed May
26, 2022.

All references in this section to Petitioner meeting attendance and
public testimony are drawn from these records.

18 COMSUBPAC is the acronym for Commander, Submarine Force, U.S.
Pacific Fleet, which is the principal advisor to the Commander, United
States Pacific Fleet for submarine matters.

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demonstrated the practicability of adhering to criterion six,

and (2) attending and leading Kailua Neighborhood Board

meetings, so as to inform his community about this impending

injustice, and sharing the solutions he crafted to mitigate

it.

Hicks lives in Kailua on O’ahu, and in the 2011

reapportionment was assigned to House District 51 and Senate

District 25. Hicks was deeply concerned that failing to

comply with criterion six would make it less likely that

elected officials will have a shared understanding of their

community’s needs, which in turn would complicate legislative

coordination, and frustrate neighbors’ efforts to effectively

advocate for their common interests to the legislature.

3. Petitioner Ralph Boyea

Petitioner Ralph Boyea retired as the Hawaiʻi

Division Chief of the Hawaiʻi Government Employees Association.

Boyea attended and testified at eight reapportionment

commission meetings and two public hearing meetings totaling

over eighteen hours in meeting attendance. Like Hicks, Boyea

invested laudable time and energy drafting and submitting his

own redistrict maps for the reapportionment commission’s

review, and sharing his work with fellow citizens across the

island of Hawaiʻi. Boyea, a resident in Puna on the Island of

Hawaiʻi, has been assigned to House District 51 and Senate

District 25 since the 2011 reapportionment. Boyea’s proposed

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maps, unlike the final 2021 reapportionment maps, complied

with criterion six, and successfully avoided (1) submerging

rural communities like his own into urban areas, and (2)

crossing senate lines.

4. Petitioner Kimeona Kane
Petitioner Kimeona Kane (“Kane”), the director for

community outreach at a local environmental non-profit and

Chair of the Waimānalo Neighborhood Board, was born and raised

on a dairy farm in the Waikupanaha area of Waimānalo on the

island of Oʻahu. Kane, assigned to House District 51 and

Senate District 25 since registering to vote in 2018, attended

and testified at eleven reapportionment commission meetings

and one public hearing meeting totaling over 26 hours in

meeting attendance. Kane’s involvement in the 2021

reapportionment process arose from his efforts to ensure that

Waimānalo and Native Hawaiians are properly and effectively

represented at the legislature and in government, and his

grave concerns that gentrification will displace generations

of Waimānalo residents, and submergence will erode their

political power.

5. Petitioner Roberta Mayor

Petitioner Roberta Mayor (“Mayor”), a retired

educator and the Hawaiʻi Kai Neighborhood Board Chair, served

as a teacher, principal and superintendent in Hawaiʻi and

California for forty-one years. Mayor, who was born and

raised in Hawaiʻi, has been registered to vote in Hawaiʻi since

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returning in 2009, and has been assigned to House District 17

and Senate District 25 since the 2011 reapportionment.

Mayor’s involvement in this process was driven by the outcome

of the 2011 reapportionment, which divided Hawaiʻi Kai into two

house districts and two senate districts, which, in turn,

spanned three separate house districts each. This result left

Hawaiʻi Kai without a plurality of representation in either

senate district. Hoping to avoid this scenario for another

ten years, Mayor attended and testified at seven

reapportionment commission meetings and two public hearing

meetings totaling almost eighteen hours in attendance.

Notably, this amount of time does not include the hours and

efforts Mayor has spent preparing her testimony, informing her

community members and neighborhood board about the

unconstitutional 2021 reapportionment maps, and mobilizing

them to take official action rejecting them.

6. Petitioner Maki Morinoue

Petitioner Maki Morinoue (“Morinoue”) is an artist,

small business manager, and a fourth generation (Yonsei)

Japanese-American from the Hōlualoa village on the island of

Hawaiʻi. Under the 2011 reapportionment, she was assigned to

House District 6 and Senate District 3. Morinoue attended and

testified at four reapportionment commission meetings and one

public hearing meeting totaling approximately 6 hours in

attendance. Morinoue became involved due to her particular

concerns about preserving the agricultural character, water
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rights, and history of Hōlualoa as a village of farmers and

paniolos, and part of the breadbasket of Hawaiʻi. Like many of

her fellow Petitioners, Morinoue is also gravely concerned

about the effect of submergence, specifically as it would

undermine the quality of representation at the legislature for

rural and agricultural areas.

7. Petitioner Larry S. Veray
Petitioner Larry S. Veray (“Veray”) is a retired

Navy Command Master Chief with a combined 52 years of both

active duty in the United States Navy and as a Scientific

Engineering Technical Advisor assigned to the United States

Indo-Pacific Command. Veray has lived in Hawaiʻi for the past

thirty four years in the Waiau area of Pearl City, and for the

last seventeen years has volunteered with the Pearl City

Neighborhood Board, of which he is the current Chair. Veray

was greatly concerned that his community, as a result of the

Commission’s failure to give effect to criterion six, would be

divided into four house and four senate districts, and have to

contend with eight legislators, none of whom would necessarily

come from Pearl City or make Veray’s neighborhood their

priority.

Veray attended and testified at four reapportionment

commission meetings and one public hearing meeting for a total

of over seven hours in attendance. Like his fellow

Petitioners, Veray also committed untold hours and energy

towards preparing testimony, and informing and mobilizing his

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neighborhood board about the injustices at play and the

consequences at stake. Notably, Veray observed that he

offered to discuss potential solutions with the Commission’s

technical committee, but was never contacted by anyone

associated with the technical committee.

8. Petitioner Philip Barnes
Petitioner Philip Barnes (“Barnes”) is a retired

teacher who has lived in Hawaiʻi since 1998, and in Hilo for

the past ten years. Barnes, driven by his concern that the

2021 reapportionment plan would submerge his urban

neighborhood’s interests with those of the more rural

interests of the Hāmākua coast, made his voice heard at the

reapportionment’s public hearing on December 2, 2021. It was

Barnes’ strong belief that rural and agricultural areas have

historically been submerged to Hilo and Kailua—Kona—centric

political interests, and that the 2021 reapportionment process

should finally provide them with adequate representation in

the legislature.

9. Petitioner Jennifer Lienhart-Tsuji

Petitioner Jennifer Lienhart-Tsuji (“Lienhart-

Tsuji”) moved to Hawaiʻi in 1995, and lives in Waikōloa Village

on the Island of Hawaiʻi. A practicing social worker,

Lienhart-Tsuji is particularly attuned to the lack of

resources available to communities outside the urban centers

of the island, and has serious concerns regarding the island’s

overcrowded schools and inadequate public infrastructure,

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especially in the face of an anticipated influx of new

residents and children. Lienhart-Tsuji joined the petition

armed with concerns regarding the Commission’s lack of

transparency and accountability to the public, and her

understanding that the 2021 reapportionment plan unnecessarily

splits Waikōloa Village into two house districts, thereby

diminishing its representation in the legislature.

10. Petitioner Deborah Ward
Petitioner Deborah Ward (“Ward”) is a retired

University of Hawaiʻi extension educator and professor, a

farmer of produce and ornamental plants, and recent chair of

the Hawaiʻi Island Group of the Sierra Club of Hawaiʻi. Ward

has lived in Hawaiʻi for fifty-five years, including 40 years

in Kurtistown on the island of Hawaiʻi. She was assigned to

House District 3 and Senate District 2 under the 2011

reapportionment plan. As with many of her fellow Petitioners,

Ward is concerned about the socio-economic challenges of her

community, including houselessness, food insecurity, and lack

of social services. To that end, Ward volunteered her time

preparing for, attending and testifying at a reapportionment

commission meeting and a public hearing meeting, where she

voiced her concern that the final 2021 reapportionment plan

would submerge rural communities on the island of Hawaiʻi into

urban communities with vastly different environmental and

socio-economic interests.

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11. Petitioner Michaela Ikeuchi

Petitioner Michaela Ikeuchi (“Ikeuchi”), a marketing

manager, was born and raised on the Island of Hawaiʻi, and is

assigned to House District 5 and Senate District 3. As a

Hawaiian and a Keauhou resident, Ikeuchi has deep concerns

about the 2021 final reapportionment plan, and the submergence

of Native Hawaiian and poorer rural communities with wealthier

coastal areas on the Kona coast. Specifically, Ikeuchi wants

her representatives to focus on increasing access to social

services in underserved areas, ocean conservation, and water

use issues, particularly in light of how overdevelopment and

drought have led to sewage spills and water use restrictions

in her community. Like many of her fellow Petitioners,

Ikeuchi also has concerns about the Commission’s lack of

transparency and accountability to the community and feels a

responsibility to future generations to remedy that.

12. Petitioner Madge Schaefer
Petitioner Madge Schaefer (“Shaefer”) permanently

moved to Hawaiʻi twenty-five years ago after retiring from a

career in politics in California. She now lives in Kihei on

the island of Maui, and since moving to Hawaiʻi she has been

registered to vote and has not missed an election. In the

2011 reapportionment, Schaefer was assigned to House District

11 and Senate District 6. Schaefer is concerned that the 2021

final legislative reapportionment plan does not include Maui’s

house districts wholly within senate districts, as the 2011

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reapportionment plan did. Schaefer is concerned that this

discrepancy is not in the best interest of her community, as

legislation needs to pass both houses of the legislature, but

under the new plan, the interests of her senator and house

member will be, like the lines in their districts, misaligned.

Together, these guardians rose, united, and spoke

out as they watched a straight-forward constitutional

protection of their most fundamental right—the right to vote—

erode before them. Not only did they speak out—not only did

they sound the alarm through their complaint to this court

that the Commission failed to produce constitutionally

compliant maps, but they went further: they demonstrated—

through their own efforts, using the Commission’s own data—

that it was in fact practicable to give effect to Criteria

six. The Hicks and Boyea plans unequivocally prove that the

Commission’s deviation in the face of this criteria—64.7%—is

unconstitutional. And with the record devoid of any rationale

in support of this deviation, indefensibly so.

III. Conclusion

For the reasons above, I respectfully dissent. The

2021 Reapportionment Maps failed to comply with the

constitutional requirements specifically designed to protect

the right to vote from the pernicious effects of gerrymandered

apportionment.

As a result, for the next 10 years, Petitioners will

suffer the unconstitutional dilution of their voting strength.

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I join Justice McKenna’s ardent hope that future

reapportionment commissions will give effect to the intent of

the people of Hawaiʻi as expressed by the language of article

IV, section 6 of the Hawaiʻi Constitution. The resolute

dedication of Petitioners is a historic demonstration of the

necessity of citizens to remain vigilant in protecting their

right to vote, and to hold all branches of government to

account for any failure to deliver the constitutional promise

of an effective right to the franchise. The failure of this

court to heed their plea for protection of the right to vote

should not hamper those in the future who stand guard over our

most important guarantee of freedom.

/s/ Michael D. Wilson

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