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Akina v. Hawaii SCOTUS emergency application 151108

Akina v. Hawaii SCOTUS emergency application 151108

Page 1: Akina v. Hawaii SCOTUS emergency application 151108

Category:Election Integrity

Number of Pages:36

Date Created:November 23, 2015

Date Uploaded to the Library:November 30, 2015

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No. __-___ the Supreme Court the United States
____________________________________________________
KELI AKINA, KEALII MAKEKAU, JOSEPH KENT, YOSHIMASA SEAN MITSUI, PEDRO
KANA GAPERO, and MELISSA LEINA ALA MONIZ,
Applicants,
THE STATE HAWAII, GOVERNOR DAVID IGE, ROBERT LINDSEY JR.,
Chairperson, Board Trustees, Office Hawaiian Affairs, COLETTE MACHADO,
PETER APO, HAUNANI APOLIONA, ROWENA M.N. AKANA, JOHN WAIHE IV, CARMEN
HULU LINDSEY, DAN AHUNA, LEINA ALA AHU ISA, Trustees, Office Hawaiian
Affairs, KAMANA OPONO CRABBE, Chief Exec. Officer, Office Hawaiian Affairs,
JOHN WAIHE III, Chairman, Native Hawaiian Roll Commission, ALEHU
ANTHONY, LEI KIHOI, ROBIN DANNER, MAHEALANI WENDT, Commissioners, Native
Hawaiian Roll Commission, CLYDE NAMU Exec. Director, Native Hawaiian
Roll Commission, THE AKAMAI FOUNDATION, and THE AUPUNI FOUNDATION,
Respondents.
______________________________________________________________________________
EMERGENCY APPLICATION FOR INJUNCTION
PENDING APPELLATE REVIEW
NECESSARY ACTION BEFORE NOVEMBER 30, 2015
___________________________________________________________________________
Michael Lilly
Robert Popper, Counsel Record
JUDICIAL WATCH, INC.
NING LILLY JONES
707 Richards Street, Suite 700
425 Third Street,
Honolulu, Hawaii 96813
Washington, 20024
(808) 528-1100
(202) 646-5172
michael@nlilaw.com
rpopper@judicialwatch.org Christopher Coates
LAW OFFICES CHRISTOPHER COATES
934 Compass Point
Charleston, South Carolina 29412
(843) 609-7080
curriecoates@gmail.com
William Consovoy Michael Connolly
CONSOVOY MCCARTHY PARK PLLC
3033 Wilson Boulevard
Arlington, Virginia 22201
(703) 243-9423
will@consovoymccarthy.com
Dated: November 23, 2015
Attorneys for Applicants
Rule 29.6 Statement
Pursuant Supreme Court Rule 29.6, Applicants each represent that they not have any parent entities and not issue stock.
Respectfully submitted,
Robert Popper
Robert Popper
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street,
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Attorney for Applicants
Dated: November 23, 2015
TABLE CONTENTS
RULE 29.6 STATEMENT ..............................................................................................
TABLE CONTENTS ................................................................................................
TABLE AUTHORITIES ..........................................................................................
INTRODUCTION ..........................................................................................................
JURISDICTION.............................................................................................................
BACKGROUND AND PROCEDURAL HISTORY....................................................... Act 195 and the Native Hawaiian Roll Commission ................................. The Formation and Purpose Aupuni ............................................ The Advance Promise Aupuni Run Racially Exclusive
Election...................................................................................................... The Election-Related Agreements Between OHA and Aupuni ....... DOI Proposed Administrative Process .................................................. Procedural History ....................................................................................
ARGUMENT ................................................................................................................
Applicants Face Critical and Exigent Circumstances ..................................
II.
Applicants Have Indisputably Clear Right Relief ............................... Aupuni Clearly State Actor And Its Conduct The
Challenged Election Violates the Fifteenth Amendment ..................... Aupuni Engaged Public Function ............................ Aupuni Engaged Joint Action With OHA ...................
The Challenged Election Could Not Satisfy Strict Scrutiny ................
III. Injunctive Relief Would Aid This Court Jurisdiction .................................
CONCLUSION.............................................................................................................
APPENDIX
Appendix Court Orders and Pleadings
Order Denying Applicants Urgent Motion for
Injunction Pending Appeal, United States Court Appeals for the Ninth Circuit (Nov. 19, 2015)
App. 1a-2a
Opinion Denying Applicants Motion for
Preliminary Injunction, United States District
Court for the District Hawaii (October 29, 2015)
App. 3a-66a
Notice Interlocutory Appeal (October 26, 2015)
App. 67a-69a
Transcript Oral Opinion Denying Applicants
Motion for Preliminary Injunction, United States
District Court Hawaii (October 23, 2015)
App. 70a-104a
Applicants Motion for Preliminary Injunction
(August 28, 2015)
App. 105a-145a
Applicants Complaint the United States
District Court Hawaii (August 13, 2015)
App. 146a-178a
Appendix Exhibits Record and Amicus Brief
Brief for the United States Department Interior Amicus Curiae Opposing Urgent Motion for
Injunction Pending Appeal (November 2015)
App. 179a-233a
United States Department Interior Notice
Proposed Rulemaking (September 30, 2015)
App. 234a-313a
Minutes from January 2015 OHA
Board Trustees Meeting (October 2015)
App. 315a-329a
Keli Akina Second Declaration (October 2015)
App. 330a-333a
Kamana opono Crabbe Declaration
(September 30, 2015)
App. 334a-343a
Bylaws Aupuni (September 30, 2015)
App. 344a-352a
iii
James Asam Declaration (September 30, 2015)
App. 353a-369a
Letter Agreement Between OHA and Aupuni
(August 28, 2015)
App. 370a-372a
Grant Agreement Between OHA and Aupuni
(August 28, 2015)
App. 373a-377a
Fiscal Sponsorship Agreement Between Akamai
Foundation and Aupuni (August 28, 2015)
App. 378a-383a
Contractual Agreement Between OHA and
Aupuni (August 28, 2015)
App. 384a-395a
Native Hawaiian Roll Commission Online
Roll Registration Form (August 28, 2015)
App. 396a-400a
Keli Akina First Declaration (August 28, 2015)
App. 401a-408a
Joseph Kent First Declaration (August 28, 2015)
App. 409a-413a
Melissa Moniz Declaration (August 28, 2015)
App. 414a-416a
Pedro Gapero Declaration (August 28, 2015)
App. 417a-419a
Transcript for Preliminary Injunction Hearings
the United States District Court for Hawaii
(October 20, 2015)
App. 420a-426a
TABLE AUTHORITIES
FEDERAL CASES
Adickes Kress Co., 398 U.S. 144 (1970)......................................................
Am. Trucking Assocs. Gray, 483 U.S. 1306 (1987) .................................................
Davis Guam, 785 F.3d 1311 (9th Cir. 2015) ...........................................................
Dunn Blumstein, 405 U.S. 330 (1972) .....................................................................
Elrod Burns, 427 U.S. 347 (1976) ...........................................................................
Fishman Schaeffer, 429 U.S. 1325 (1976) ...............................................................
Flagg Brothers, Inc. Brooks, 436 U.S. 149 (1978) ...................................................
FTC Dean Foods Co., 384 U.S. 597 (1966) ..............................................................
Grutter Bollinger, 539 U.S. 306 (2003) ...................................................................
Guinn United States, 238 U.S. 347 (1915) ..............................................................
Harper Va. State Bd. Elections, 383 U.S. 663 (1966) .........................................
Inland Bulk Transfer Co. Cummins Engine Co.,
332 F.3d 1007 (6th Cir. 2003) ...........................................................................
Jackson Metropolitan Edison Co.,
419 U.S. 345 (1974) ...........................................................................................
Lane Wilson, 307 U.S. 268 (1939) ...........................................................................
Loving Virginia, 388 U.S. (1967) ..........................................................................
Lucas Townsend, 486 U.S. 1301 (1988) ...................................................... 15, 16,
McClellan Carland, 217 U.S. 268 (1910) ................................................................
Morse Republican Party Va.,
517 U.S. 186 (1996) ...........................................................................................
New York Kleppe, 429 U.S. 1307 (1976) ..................................................................
Nixon Condon, 286 U.S. (1932) ..........................................................................
Ohio Citizens for Responsible Energy, Inc. Nuclear Regulatory Comm
479 U.S. 1312 (1986) .........................................................................................
Ohno Yasuma, 723 F.3d 984 (9th Cir. 2013) ..........................................................
Rice Cayetano, 528 U.S. 495 (2000) ..................................................................passim
Romer Evans, 517 U.S. 620 (1996) ..........................................................................
Smith Allwright, 321 U.S. 469 (1944) ............................................................... 19,
Terry Adams, 345 U.S. 461 (1953) ........................................................ 19, 20, 21,
Washington Seattle Sch. Dist. No.1,
458 U.S. 457 (1982) ...........................................................................................
Wesberry Sanders, 376 U.S. (1964) ......................................................................
Wheaton College Burwell, 134 Ct. 2898 (2014) .....................................................
Williams Rhodes, Ct. (1968) ........................................................................
Yick Hopkins, 118 U.S. 356 (1886) ....................................................................
FEDERAL STATUTES U.S.C. 1254(1) ........................................................................................................ U.S.C. 1292 ............................................................................................................. U.S.C. 1331 ............................................................................................................. U.S.C. 1336 ............................................................................................................. U.S.C. 1651 ................................................................................................. 14, U.S.C. 2201 ............................................................................................................. U.S.C. 2202 ............................................................................................................. U.S.C. 1983 ............................................................................................................. U.S.C. 10301 ...........................................................................................................
STATE CONSTITUTION
HAW. CONST. art. XII, ................................................................................................
STATE STATUTES
HAW. REV. STAT. 10-17(a)(6) ....................................................................................
HAW. REV. STAT. 10-2 ...............................................................................................
HAW. REV. STAT. 10H-2 ..............................................................................................
HAW. REV. STAT. 10H-3(a) ...................................................................................
HAW. REV. STAT. 10H-4(b) ....................................................................................
HAW. REV. STAT. 10H-5 ...............................................................................................
vii the Honorable Anthony Kennedy, Associate Justice the Supreme Court the United States and Circuit Justice for the Ninth Circuit:
Right now, the State Hawaii holding election which only Native
Hawaiians defined blood descendants the aboriginal inhabitants the
Hawaiian islands are allowed vote. November 30, one week from today, the
election will conclude and the votes will counted. that time, Applicants
Joseph William Kent and Yoshimasa Sean Mitsui, two Hawaiian residents who
cannot meet the racial criteria required statute, will forever lose their right
participate the political process and the State Hawaii will [have], racial
classification, [successfully] fence[d] out whole classes its citizens from
decisionmaking critical state affairs. Rice Cayetano, 528 U.S. 495, 514, 519
(2000). This Court intervention urgently needed. 2011, the State Hawaii enacted Act 195, which authorized the creation race-based voter roll used for election delegates Native
Hawaiian convention. the same time, Act 195 established another state agency,
Respondent Native Hawaiian Roll Commission, administrative subdivision
within the Office Hawaiian Affairs, oversee registration for the roll and
enforce its restrictions. December 2014, non-profit entity, Respondent Aupuni, was
established for the stated purpose conducting the current election. Shortly after
its formation and while the election was still being planned, Aupuni assured
the Office Hawaiian Affairs that would use the racially exclusive registration
list developed the Native Hawaiian Roll Commission conduct the election
desired the State. Shortly thereafter, the Office Hawaiian Affairs executed
number contracts that transferred $2.6 million government funds
Aupuni order hold the current election. October 23, 2015, the U.S. District Court for the District Hawaii denied
Applicants motion for preliminary injunction, and November 19, 2015, the
U.S. Court Appeals for the Ninth Circuit issued brief order denying Applicants
urgent motion for injunction pending appeal.
The district court ruling was flawed least two critical respects. First,
the district court held that Aupuni merely private actor holding private
election and those individuals excluded from voting the election had
protection under the U.S. Constitution and federal law. App. 38a, 44a. But this
election permeated with state action: Hawaii statute contemplated the election,
the Office Hawaiian Affairs, state agency, created the race-based registration
list, the election being conducted pursuant government contract and being
paid for government funds, and the election concerns hugely important questions public policy. There almost nothing private all about this election.
Second, the district court held that even Aupuni state actor, the
current election satisfies strict scrutiny because the State had compelling
interest bettering the conditions its indigenous people allowing starting
point for process self-determination. App. 55a-56a. This ruling literally
unprecedented. the first decision American history (not subsequently
vacated) find compelling justification for State prohibit individuals
certain race from voting election. Not only does this holding fly the face
this Court decision Rice Cayetano, but fails its own terms. This election
will express nothing meaningful about Hawaiian indigenous people.
The
definition Native Hawaiian that used refers any person with even drop
Native Hawaiian blood and egregiously over-inclusive the statute stated
goals. See Rice, 528 U.S. 527 (Breyer, J., concurring the result) (to define
tribal membership terms possible ancestor out 500 goes well beyond
any reasonable limit. addition, many individuals who met this definition
Native Hawaiian were prohibited from being listed the voter roll unless they
swore having certain viewpoints, such recognizing the unrelinquished
sovereignty the Native Hawaiian people. And many others were transferred
the voter rolls without their knowledge. the language strict scrutiny, the
conduct this election cannot possibly narrowly tailored achieve any
compelling purpose.
Injunctive relief under the All Writs Act necessary prevent irreparable
harm Applicants during the appellate process, and preserve this Court
jurisdiction regarding the issues raised this case. Monday, November 30,
2015, this election will end, the votes will counted, and the winners the
delegates the constitutional convention will certified Tuesday, December
2015. that time, Applicants Joseph William Kent and Yoshimasa Sean Mitsui,
along with several hundred thousand other residents Hawaii, will forever lose
their right participate this public policy determination their State. See Rice,
528 U.S 523 All citizens, regardless race, have interest selecting
officials who make policies their behalf, even those policies will affect some
groups more than others. The delegates the planned convention will have been
elected without any input whatsoever from these Applicants. addition, the
results the election from which these Applicants were excluded will publicized
and touted expression the popular will. Yet Applicants and many others
will have had say respecting the documents the delegates will create and the
recommendations they will make respecting Native Hawaiian sovereignty. the U.S. Department the Interior (DOI) has its way, Applicants will
never have say whether new Hawaiian governmental entity formed.
would prefer that this election proceed that DOI can advance the process
recognizing Hawaiian native tribe without sufficient Congressional approval.
September 29, 2015, during the briefing this matter the district court, the DOI
issued Notice Proposed Rulemaking commencing the 90-day comment period rule that would allow the United States use this election formally recognize
certain Native Hawaiians formal government-to-government relationship. other words, this election will lead the formation new Hawaiian nation
limited race and recognized independent government and Applicants and
countless others will have played part this important process solely because
their race.
Accordingly, Applicants respectfully ask the Court enter injunction
against Respondents under the All Writs Act during the pendency this appeal
enjoining them from counting the ballots cast and certifying the winners the
election delegates the upcoming constitutional convention.
Finally, minimum, Applicants request temporary injunction allow
for full briefing and consideration this Application. See, e.g., Wheaton College
Burwell, 134 Ct. 2898 (2014).
JURISDICTION
Applicants filed their complaint August 13, 2015, challenging Act 195 and
its race-based voting restrictions violations the First, Fourteenth, and
Fifteenth Amendments, well the Voting Rights Act 1965, U.S.C. 10301
and U.S.C. 1983. App. 147a. August 28, 2015, Applicants filed motion for preliminary injunction.
Dkt. 47.
The district court had jurisdiction over
Applicants lawsuit under U.S.C. 1331 and 1336 and had authority issue
injunction under U.S.C. 2201 and 2202.
The district court denied Applicants motion for injunction oral
hearing October 23, 2015. Subsequently, the district court followed the oral
order with written decision October 29, 2015, and Applicants timely filed their
notice appeal the Ninth Circuit that same day. App. 67a. The Ninth Circuit
had jurisdiction over the appeal under U.S.C. 1292(a).
The Ninth Circuit
denied Applicants motion for injunction pending appeal November 19, 2015.
App. 1a.
This Court has jurisdiction over this Application under U.S.C. 1254(1)
and has authority grant the relief that the Applicants request under the All
Writs Act, U.S.C. 1651.
BACKGROUND AND PROCEDURAL HISTORY
Act 195 and the Native Hawaiian Roll Commission
The Office Hawaiian Affairs (hereafter, OHA state agency
established Hawaii Constitution.
HAW. CONST. art. XII,
Among other
things, OHA holds title all the real and personal property now hereafter set
aside conveyed which shall held trust for native Hawaiians and
Hawaiians. Id. This Court has recognized that OHA arm the state. Rice,
528 U.S. 521. July 2011, Hawaii Governor Neil Abercrombie signed Act 195 into law.
The Act purpose provide for and implement the recognition the Native
Hawaiian people means and methods that will facilitate their self-governance.
HAW. REV. STAT. 10H-2. so, the Act established five-member Native
Hawaiian Roll Commission within the OHA. Id. 10H-3. The Native Hawaiian
Roll Commission responsible for, among other things, [p]reparing and
maintain[ing] roll qualified Native Hawaiians; certifying that the individuals the roll qualified Native Hawaiians meet the definition qualified Native
Hawaiians; [and] receiving and maintaining documents that verify ancestry[.]
Id. 10H-3. For purposes establishing the roll, qualified Native Hawaiian
means individual whom the Native Hawaiian Roll Commission determines has
satisfied the following criteria and who makes written statement certifying that
the individual:
(A) Is:
(i) individual who descendant the aboriginal peoples
who, prior 1778, occupied and exercised sovereignty the Hawaiian
islands, the area that now constitutes the State Hawaii;
(ii) individual who one the indigenous, native people
Hawaii and who was eligible 1921 for the programs authorized
the Hawaiian Homes Commission Act, 1920, direct lineal
descendant that individual;
(iii) individual who meets the ancestry requirements
Kamehameha Schools any Hawaiian registry program the
office Hawaiian affairs;
(B) Has maintained significant cultural, social, civic connection
the Native Hawaiian community and wishes participate the
organization the Native Hawaiian governing entity; and
(C) eighteen years age older.
Id. 10H-3(a)(2).
Act 195 ordered the Native Hawaiian Roll Commission publish roll that
would then serve the basis for the eligibility qualified Native Hawaiians
participate the organization the Native Hawaiian governing entity. Id. 10H4. The publication this roll was intended facilitate the process under which
qualified Native Hawaiians may independently commence the organization
convention qualified Native Hawaiians, established for the purpose organizing
themselves. Id. 10H-5. Dr. James Kuhio Asam, President Aupuni, has explained, the
purpose this process establish path possible reorganized Hawaiian
government.
App. 412a, 14(b).
That path has three parts: election,
convention and possible ratification vote whatever the convention decides.
Id., 14(c). Delegates will come from the certified list Native Hawaiians kept
the Native Hawaiian Roll Commission.
Id., 14(d).
The purpose the
convention formulate governance documents for Hawaiian nation, which
means that the convention can considered constitutional convention.
Id., 14(f). the delegates recommend reorganized Hawaiian government,
then ratification referendum vote will held 20l6, restricted those
the roll. Id., 14(g). Dr. Asam explained that the entire process concerned with
possible nationhood for Native Hawaiians. Id., 14(i). According OHA, once
Native Hawaiians achieve self-governance, the assets OHA will transferred the new governing entity. Office Hawaiian Affairs: Governance, available
http://www.oha.org/governance/. OHA aim the legal transfer assets and
other resources the new Native Hawaiian governing entity. Id.
Prospective voters were allowed register online for the roll starting July
2012. App. 404a, 22. order register, the Native Hawaiian Roll Commission
online voter registration process required applicants make three declarations: (1)
that they affirm support for the unrelinquished sovereignty the Native Hawaiian
people and their intent participate self-governance (2) that they have
significant cultural, social, civic connection the Native Hawaiian community
and (3) that they have the racial ancestry defined the Act.
See
https://www.kanaiolowalu.org/registernow/; App. 77a-78a; App. 404a, 13, App.
397a. Unless applicant affirmed all three declarations, that applicant could not
register online for the roll. Id., 13-15. About 38% those the roll for the
current election were registered through this website. App. 78a. addition those whose names were placed the roll because they
deliberately registered and could meet the ancestry and viewpoint-based
requirements Act 195, other individuals who registered for other lists Native
Hawaiians had their names transferred the roll, without their advance
knowledge consent. Id.; App. 405a, 23-24; App. 413a, 14(j); App. 418a, 45; App. 415a, amendment Act 195 authorized this tactic. HAW. REV.
STAT. 10H-3(a)(4). About 62% those the Native Hawaiian voter rolls were
registered this way. App. 78a.
OHA and other state officials set this convoluted process because they
believed that they could not lawfully conduct election using the roll due this
Court decision Rice Cayetano, 528 U.S. 495 (2000). Accordingly, Aupuni
was created, and imbued, least paper, with measure independence,
order allow run such election private actor. The hope was that this
arrangement would avoid defeat litigation. This reasoning was openly discussed OHA trustee meetings. See App. 328a Because the money coming from OHA, state entity, the entire process can challenged under the state
constitution That why they have look creating independent process
id. (the Board must very careful and not step over the line directing
Aupuni desist from certain activities. because may subject
state action attack see also App. 413a, 15(a) (getting money from OHA with
strings attached means the election process will withstand Fourteenth
Amendment challenge
The Formation and Purpose Aupuni
According its President, Aupuni exists for one reason, which
establish path possible reorganized Hawaiian government. App. 412a,
14(b). Aupuni was formed December 2014, more than three years after the
passage Act 195. Aupuni own bylaws show that was formed order
achieve legislative purposes desired OHA.
App. 345a (Section 1.3) (OHA
authorized funds enable Native Hawaiians participate process through
which structure for governing entity may determined
Further, the minutes OHA trustees meeting from January 2015 refer Consortium, now calling themselves Aupuni, and add that OHA sits officio member that Consortium. App. 325a. other words, government
agency, OHA, was that time member Aupuni.1
The Advance Promise Aupuni Run Racially
Exclusive Election
Respondents admit that, prior entering into any contract grant
agreement, [Na Aupuni] informed OHA that intended use the [race-based] disputed whether OHA still officio member Aupuni. the
hearing this matter, Aupuni counsel suggested that OHA was only
officio member the consortium that preceded Aupuni. App. 425a. That
not what the minutes say, however, and unsworn arguments from counsel are not
part the evidentiary record. any case, remains undisputed that OHA was,
least for time, officio member Aupuni.
Roll conduct the planned election. App. 361a, 13. Aupuni also reports
telling OHA that might also look into whether there are other available lists
Native Hawaiians. Id. What was absolutely clear was that the election would
restricted those with Native Hawaiian ancestry. See also App. 341a, (OHA
Chief Executive recalling the same representations from Aupuni).
Any assessment regarding Aupuni independence from OHA must
take into account this advance representation Aupuni that planned use
the racially exclusive Roll developed the Native Hawaiian Roll Commission and
that intended conduct racially exclusive election.
The Election-Related Agreements Between OHA and
Aupuni
Commencing the spring 2015, representatives OHA, the Akamai
Foundation,2 and Aupuni entered into interrelated series agreements,
which were posted Aupuni website.
App. 405a-406a, 26-30; see
http://www.naiaupuni.org/news.html Contracts and Agreements The purpose
these agreements was delegate Aupuni the running the planned
election, and provide with millions dollars government funds conduct
that election.
The Grant Agreement between OHA, the Akamai Foundation, and
Aupuni. The Whereas clauses that agreement expressly refer the purposes
for which OHA has been established, and goals described Act 195, stating
Apparently the Akamai Foundation was included order take advantage its
tax-exempt status. App. 362a, 15.
that OHA has committed allow the use its grant the Akamai Foundation
and Aupuni allow Hawaiians pursue self-determination. The Grant
Agreement details the transfer from OHA the Akamai Foundation, for use Aupuni, $2,598,000 government funds, order that Aupuni may
facilitate election delegates, election and referendum monitoring,
governance Aha [convention], and referendum ratify any recommendation
Id. 221. The agreement expressly provides that the election services describes
will not exclude those Hawaiians who have enrolled and have been verified the
Native Hawaiian Roll Commission. Id.
The Grant Agreement also includes provision purporting guarantee
Aupuni autonomy, stating that neither OHA nor [the Akamai Foundation] will
directly indirectly control affect the decisions [Na Aupuni], that [Na
Aupuni] has obligation consult with OHA [the Akamai Foundation] its
decisions, and that its decisions will not directly indirectly controlled
affected OHA. Id. this provision which the district court ultimately
relied holding that Aupuni was not state actor.
The Letter Agreement also between OHA, the Akamai Foundation, and Aupuni, and concerns the method and timing the disbursement the
approved grant funds OHA the Akamai Foundation for the benefit
Aupuni. App. 370a.
The Fiscal Sponsorship Agreement technically between the Akamai
Foundation and Aupuni although provides its first recital that the grant
agreement with OHA incorporated herein reference. App. 378a. OHA
referred throughout the agreement and even accorded certain specific rights.
See id. 216 (OHA can require timely reporting id. (termination shall occur
[i]n consultation with OHA id. (OHA can require written acknowledgements); id.
(unclaimed funds returned OHA
Finally, June 2015 contract between Aupuni and Election American,
Inc., private New York company, spells out dates and details for the election.
App. 384a. That agreement acknowledges that the company will utilize the Native
Hawaiian
Roll
Commission
current
certified
registry
eligible
Native
Hawaiians. App. 391a. Pursuant the schedule that contract, ballots for the
delegate election were mailed out November 2015 and will tabulated
December 2015. App. 393a.
DOI Proposed Administrative Process
The U.S. Department the Interior (DOI) issued Notice Proposed
Rulemaking September 29, 2015, during the pendency this action, soliciting
public comments proposed rule concerning administrative procedure
which Native Hawaiians might become separate political entity. App. 234a. That
proposed rule adopts the same standard for Hawaiian ancestry Act 195. App.
273a.
Further, the United States submitted amicus brief the Ninth Circuit
confirming that this election will, under its proposed rules, constitute the first step process leading Native Hawaiian entity. App. 190a-191a. DOI intends
allow Native Hawaiians utilize the results the ongoing election part
administrative
procedure
that
would
authorize
government-to-government
recognition Native Hawaiian entity. Id.
Procedural History
The complaint this matter was filed August 13, 2015. App. 146a.
August 28, 2015, the plaintiffs moved for preliminary injunction the district
court. October 23, 2015, the district court issued oral ruling and then
minute order denying the plaintiffs motion for preliminary injunction, and
denying the plaintiffs motion for injunction pending appeal. App. 70a.3
Plaintiffs-Appellants filed their Notice Appeal October 26, 2015. App.
67a. October 29, 2015, Plaintiffs-Appellants filed Urgent Motion for
Injunction While Appeal Pending. motions panel for the Ninth Circuit denied
that motion November 19, 2015. App. 1a.
ARGUMENT
The All Writs Act, U.S.C. 1651(a), authorizes individual Justice the
Court issue injunction when (1) the circumstances presented are critical and
exigent (2) the legal rights issue are indisputably clear and (3) injunctive
relief necessary appropriate aid [the Court jurisdictio[n].
Ohio
Citizens for Responsible Energy, Inc. Nuclear Regulatory Comm 479 U.S. 1312 that October 23, 2015, Order, Judge Seabright indicated that written order
would follow, which was intended, appeal taken from ruling, aid the appellate process. App. 76a, citing Inland Bulk Transfer Co. Cummins
Engine Co., 332 F.3d 1007 (6th Cir. 2003). His written order was issued October 29,
2015. App. 3a.
(1986) (Scalia, J., chambers) (quoting Fishman Schaeffer, 429 U.S. 1325, 1326
(1976) (Marshall, J., chambers)).
This extraordinary relief warranted
cases involving the imminent and indisputable violation voting rights. See Lucas Townsend, 486 U.S. 1301, 1305 (1988) (Kennedy, J., chambers) (enjoining
election where applicants established likely violation Voting Rights Act); Am.
Trucking Assocs. Gray, 483 U.S. 1306, 1308 (1987) (Blackmun, J., chambers)
(granting injunction); Williams Rhodes, Ct. (1968) (Stewart, J.,
chambers) (same).
Applicants present such case.
APPLICANTS FACE CRITICAL AND EXIGENT CIRCUMSTANCES.
The right vote precious and fundamental right. Harper Va. State
Bd. Elections, 383 U.S. 663, 670 (1966). Other rights, even the most basic, are
illusory the right vote undermined. Wesberry Sanders, 376 U.S.
(1964); see also Yick Hopkins, 118 U.S. 356, 370 (1886) (finding that the right vote preservative all rights [A] citizen has constitutionally protected
right participate elections equal basis with other citizens the
jurisdiction.
Dunn Blumstein, 405 U.S. 330, 336 (1972).
Our Constitution
leaves room for classification people way that unnecessarily abridges [the
right vote.] Wesberry, 376 U.S. 17. seven days, Applicants Joseph William Kent and Yoshimasa Sean
Mitsui well countless other Hawaiian residents who cannot meet the racial
criteria required statute will forever lose this fundamental right. November
30, the polls will close, the votes will counted, and the delegates will chosen.
These delegates will charged with historic task drafting new constitution
form government that will represent sizable section the Hawaiian population.
Yet Applicants and others will excluded from voting this historic
election one that guaranteed affect their lives and the lives everyone
their State solely because their race.
Without doubt, the loss these
constitutional rights constitutes irreparable harm warranting this Court
immediate intervention. See Lucas, 486 U.S. 1305 (enjoining election because
irreparable harm likely would flow from denial injunctive relief see also, e.g.,
Elrod Burns, 247 U.S. 347, 373 (1976).
This election not, the district court appeared believe, process with consequences. The current election critical component preordained
process that will lead constitutional convention, the drafting documents and
recommendations, and the subsequent ratification rejection these. Applicants
total exclusion from this process denies them the equal opportunity participate
the entire political process. See Morse Republican Party Va., 517 U.S. 186, 198200, 207-213 (1996) (nominating delegates the functional equivalent the
political primary and exclusion from either that primary convention
exclusion from integral part the election process); see also Romer Evans,
517 U.S. 620, 633-34 (1996) (invalidating state constitutional amendment that
denied gays and lesbians equal opportunity pass laws protect their interests);
Washington Seattle Sch. Dist. No.1, 458 U.S. 457, 471-74 (1982) (nullifying
initiative that allocated government power racially discriminatory matter).
Nor are the results this election merely symbolic.
Enormous political,
social, and economic consequences are stake. The delegates chosen through this
election will decide whether adopt new government that will affect every
individual living the State, well hundreds thousands individuals
identified Native Hawaiians. App. 275a. Moreover, OHA has announced its
intention convey the lands currently holds trust the new entity created
through this convention. And the DOI has made clear, the United States
almost certain formally recognize the new entity the official government
Native Hawaiians.
App. 190a-191a. thus surprise that Respondents
themselves have characterized this election historic and critical protecting
the public interest. App. 426a Your Honor, stand the cusp historic
election. id. [W]e talking about historic hundred-plus year opportunity that
has finally come the Hawaiian people. id. 424a (quoting Respondents the
public interests involved).
Finally, and critical importance, Applicants will have remedy the
votes this election are counted and the results certified. This election cannot
undone.
Under the DOI administrative process, the agency can accept this
election the will Hawaiians even this election some day recognized
being unconstitutional. other words, the DOI proceeds has indicated,
there will subsequent state federal election ratification which non-
Native Hawaiians, like Applicants, will allowed have their say. This
doubt why Respondents have moved fast they can complete this election
before judicial intervention can occur. See Aupani, Frequently Asked
Questions,
available
http://www.naiaupuni.org/faq.html After
careful
consideration longer timetable, Aupuni does not believe delaying this
process will improve the outcome there will always people seeking delay the
election delegates and convening Aha merely stopping them from
proceeding altogether. Aupuni wants keep the current timetable reduce
the risk that the process may stopped.
The only way ensure that this does not happen issue the injunction
Applicants request. See, e.g., Lucas, 486 U.S. 1305. This injunction would allow
both the Ninth Circuit and this Court, necessary, review the actions
Respondents and address the harms suffered Applicants. This injunction should issued.
II.
APPLICANTS HAVE INDISPUTABLY CLEAR RIGHT
RELIEF. Aupuni Clearly State Actor And Its Conduct Violates
the Fifteenth Amendment. Rice Cayetano, 528 U.S. 495 (2000), the plaintiff challenged provision the Hawaiian Constitution that limited the right vote elections for OHA
Board members Native Hawaiians, who were defined almost the identical
way that Native Hawaiians are defined Act 195. Id. 499. striking down
this voting limitation, this Court elaborated the meaning the Fifteenth
Amendment:
The purpose and command the Fifteenth Amendment are set forth language both explicit and comprehensive. Enacted the wake the Civil War, the immediate concern the Amendment was
guarantee the emancipated slaves the right vote. Vital its
objective remains, the Amendment goes beyond it. [T]he
Amendment cast fundamental terms, terms transcending the
particular controversy which was the immediate impetus for its
enactment. The Amendment grants protection all persons, not just
members particular race.
The design the Amendment reaffirm the equality races the
most basic level the democratic process, the exercise the voting
franchise. Fundamental purpose and effect and self-executing
operation, the Amendment prohibits all provisions denying
abridging the voting franchise any citizen class citizens the
basis race.
Id. 511-12.
This Court recognized the many decisions the U.S. Supreme Court that
have struck down race-based limitations the right vote. Id. 512-14 (citing
e.g., Guinn United States, 238 U.S. 347, 363 (1915) (Oklahoma grandfather
clause); Smith Allwright, 321 U.S. 469 (1944) and Terry Adams, 345 U.S. 461
(1953) (all-white primary cases)). The Court reasoned that [a]ncestry can
proxy for race, id. 514, and that enacting this racial limitation voting, the
State Hawaii ha[d] used ancestry racial definition and for racial purpose.
Id. 515. The Court found:
The ancestral inquiry mandated the state implicates the same
grave concerns classification specifying particular race name.
One the principal reasons race treated forbidden
classification that demeans the dignity and worth person
judged ancestry instead his her own merit and essential
qualities. inquiry into ancestral lines not consistent with respect
based the unique personality each possesses, respect the
Constitution itself secures its concern for persons and citizens.
Id. 517.
The same considerations apply the similar provisions Act 195. The only
meaningful distinction between the instant case and Rice identified the district
court was Respondents claim that Aupuni private actor, which case the
election issue can considered private election not covered the U.S.
Constitution. App. 38a, 44a. The district court was persuaded the provisions Aupuni contracts with OHA that accorded Aupuni autonomy its
conduct the disputed election. App. 45a. The district court erred.
When comes voting rights, this Court has shown patience for any
kind subterfuge and has applied the Fifteenth Amendment nullif[y]
sophisticated well simple-minded modes discrimination. Lane Wilson,
307 U.S. 268, 274 (1939). This Court consistently has conducted clear-eyed and
practical analyses electoral arrangements, emphasizing substance rather than
form detect unlawful racial discrimination.
For example, Terry Adams, 345 U.S. 461, 462-63 (1953), membership Texas political organization called the Jaybird Democratic Association Jaybird
Party was open only the white residents the county. was run like other
political parties. Id. 463. Its expenses were not paid government revenue
but the assessment candidates for office its primaries. Id. While there
was legal compulsion successful Jaybird candidates enter Democratic
primaries, they [had] nearly always done and with few exceptions they won the
subsequent Democratic primaries and general elections.
Id. response
Fifteenth Amendment challenge, the Jaybirds argued that applies only
elections primaries held under state regulation, that their association not
regulated the state all, and that self-governing voluntary club. Id. rejecting such formalistic arguments, this Court observed that the
constitutional right free from racial discrimination voting not
nullified State through casting its electoral process form which permits
private organization practice racial discrimination the election. Id. 466
(citing Smith Allwright, 321 U.S. 649, 664 (1944)). result, violates the
Fifteenth Amendment for state permit within its borders the use any device
that produces equivalent the prohibited election. Id. 469.
Respondents here likewise hope that formalistic view their institutional
arrangements will obscure the obvious purpose their arrangements.
Indeed,
Respondents arguments below parallel those asserted the defendants Terry.
But the reality what happening this case simple. Respondents knew that would violate the Constitution OHA conducted election using the race-based
voter roll. Accordingly, Respondents gave public money ostensibly private
organization, Aupuni, conduct the election that OHA wished conduct,
while using the very same race-based roll created the State. Respondents should
not permitted circumvent constitutional protections these means.
Under the applicable legal standards, Aupuni must deemed
state actor. Aupuni Engaged Public Function.
State action present the exercise private entity powers
traditionally exclusively reserved the State. Jackson Metropolitan Edison
Co., 419 U.S. 345, 352 (1974) (citing, inter alia, Nixon Condon, 286 U.S. (1932) election and Terry election )); see Flagg Brothers, Inc. Brooks, 436 U.S. 149,
158 (1978) [W]ith regard the election public officials, our cases make clear
that the conduct the elections themselves exclusively public function. Terry, the Court held that the Fifteenth Amendment established right
not discriminated against voters elections determine public
governmental policies select public officials.
345 U.S. 467 (emphasis
added). Accordingly, the Amendment includes any election which public issues
are decided public officials selected. Id. 468 (emphasis added). The election issue here may lead decision alter the status hundreds thousands
Hawaiians, perhaps placing between one-fifth and one quarter the population
under the jurisdiction new governmental entity. See, e.g., Davis Guam, 785
F.3d 1311 (9th Cir. 2015) the plebiscite held, this would make more likely
that Guam relationship the United States would altered This change will
affect Davis, who doubtless has views whether change appropriate and,
so, what that change should be. This clearly election determine public
governmental policies and decide public issues. Aupuni Engaged Joint Action With OHA.
There joint action where state officials and private parties have acted
concert effecting particular deprivation constitutional rights where the
government affirms, authorizes, encourages, facilitates unconstitutional conduct
through its involvement with private party. Ohno Yasuma, 723 F.3d 984, 996
(9th Cir. 2013) (citations omitted); see Adickes Kress Co., 398 U.S. 144,
152 (1970) (it enough that private actor willful participant joint activity
with the State its agents (internal quotation marks omitted) (citation omitted).
Every fact relevant the authorization for and conduct this election shows
that Aupuni acting jointly with OHA. Aupuni was formed, three years
after Act 195 was passed, for other purpose than hold this election.
Aupuni bylaws refer OHA legislative goals. OHA was, least for time, officio member Aupuni. Aupuni was given millions dollars
public money hold election described state law, Act 195, series
contracts with OHA, wherein OHA retains numerous special rights and privileges. Aupuni supposed autonomy deciding how conduct this election,
which the district court credited finding private actor fact empty.
The autonomy clause the Grant Agreement must understood light the
crucial fact that OHA received advance assurances from Aupuni that
planned use the race-based roll developed the Native Hawaiian Roll
Commission before OHA and Aupuni signed the Grant Agreement.
This
reveals the autonomy clause for what is: sham, inserted the Grant
Agreement for the sake appearances the event future litigation, rather than bona fide grant independence. Simply put, once OHA knew that Aupuni
would use the roll, including the autonomy clause became meaningless gesture.
OHA and Aupuni were, and are, acting concert.
Indeed, neither OHA nor Aupuni has the discretion ignore the
provisions Act 195. The Act states that the rolls created the Native Hawaiian
Roll Commission shall serve the basis for the eligibility qualified Native
Hawaiians participate the organization the Native Hawaiian governing
entity. HAW. REV. STAT. 10H-4(b) (emphasis added). The Act uses the mandatory
shall, not the precatory may. Hawaii law further provides that all grants
OHA shall used for activities that are consistent with the purposes this
chapter. Id. 10-17(a)(6). grant defined award funds the office specified recipient support the activities the recipient that are consistent
with the purposes this chapter. Id. 10-2. Thus, all OHA grants must
further OHA public purpose. The grant Aupuni must well. OHA
would not fulfilling its statutory obligations under Act 195 allowed
Aupuni use its grant for wholly private purposes, truly accorded
Aupuni complete discretion how conduct the election.
Under the public function test, the joint action test, and the practical,
commonsense analysis this Court applies racial restrictions relating voting, clear that Aupuni state actor. consequence, its use the race-based
roll supplied the Native Hawaiian Roll Commission violates Applicants
Fifteenth Amendment rights.
The Challenged Election Could Not Satisfy Strict Scrutiny.
Under the Equal Protection Clause the Fourteenth Amendment, all racial
classifications imposed government must analyzed reviewing court
under strict scrutiny.
Grutter Bollinger, 539 U.S. 306, 326 (2003) (citation
omitted). This means that such classifications are constitutional only they are
narrowly tailored further compelling governmental interests. Id.
The district court found that even Aupuni conduct the election
were deemed state action Hawaii has compelling interest facilitating the
organizing the indigenous Hawaiian community, and that the restriction
Native Hawaiians precisely tailored meet the States compelling interest.
App. 92a. holding, the district court issued the only extant decision
American law which compelling state interest justified racially exclusive
election.
The district court ruling was clearly incorrect, however, because the
election Aupuni holding not narrowly tailored uphold the identified
state interest, for three reasons.
First, 38% those the roll registered through the Native Hawaiian Roll
Commission website, which means that they had positively affirm their belief
the unrelinquished sovereignty the Native Hawaiian people.
Filtering the
community indigenous people for this (or any) viewpoint simply not necessary allow[] starting point for the process self-determination. Indeed, enforcing
such ideological litmus test guarantees that only part the relevant
community being consulted.
Second, 62% those the roll were transferred there from other
governmental lists Native Hawaiians, without their prior knowledge
agreement. Forcibly registering the members indigenous community not
logical appropriate way gauge their views regarding their own community,
self-determination, any other matter. the most basic, practical level, those
who remain unaware that they have been placed the roll will not participate,
while those who learn that they were subject compulsory registration may refuse participate.
Third, the one drop blood rule employed Act 195 utterly arbitrary.4 Justice Breyer opined Rice, define tribal membership terms possible
ancestor out 500 goes well beyond any reasonable limit. was not tribe,
but rather the State Hawaii, that created this definition and not like any
actual membership classification created any actual tribe. Rice, 528 U.S. 527
(Breyer, J., concurring the result). real community can defined such
tenuous link.
The means employed Hawaii registering voters for this election was not
narrowly tailored achieve the interest identified the district court.
Respondents actions fail strict scrutiny. also has unfortunate resonance American history. See, e.g., Loving
Virginia, 388 U.S. (1967) (discussing Virginia statute holding that [e]very
person whom there ascertainable any Negro blood shall deemed and taken colored person
III.
INJUNCTIVE RELIEF WOULD AID THIS COURT JURISDICTION. injunction under the All Writs Act would aid this Court
certiorari jurisdiction. See U.S.C. 1651(a). The Court authority under the All
Writs Act extends the potential jurisdiction the appellate court where
appeal not then pending but may later perfected. FTC Dean Foods Co., 384
U.S. 597, 603 (1966). The Court may issue writ maintain the status quo and
take action aid the appellate jurisdiction which might otherwise defeated.
McClellan Carland, 217 U.S. 268, 280 (1910); New York Kleppe, 429 U.S. 1307,
1310 (1976) (Marshall, J., chambers) Perhaps the most compelling justification
for Circuit Justice upset interim decision court appeals would
protect this Court power entertain petition for certiorari before after the
final judgment the Court Appeals. set forth above, once this election finished and certified the damage has
been done. Every step the process (of which this election but single part)
inflicts new injury Applicants denying them the equal opportunity
participate the political process. Every subsequent step the convention, the
creation documents and recommendations, and the ratification the delegates
actions eliminates the Court ability return the status quo ante. Indeed,
even subsequent decision invalidate the elections order new elections will
not matter DOI chooses honor the results the current election its
administrative process.
The Court must act now will lose the ability
effectively review this case.
CONCLUSION
For all the foregoing reasons, Applicants respectfully ask the Court enter injunction against Respondents under the All Writs Act during the pendency
this appeal enjoining them from counting the ballots cast and certifying the
winners the election delegates the upcoming constitutional convention.
Finally, minimum, Applicants request temporary injunction allow
for full briefing and consideration this Application.
Respectfully submitted,
Michael Lilly
NING LILLY JONES
707 Richards Street, Suite 700
Honolulu, Hawaii 96813
(808) 528-1100
michael@nlilaw.com
Robert Popper
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street,
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org Christopher Coates
LAW OFFICES CHRISTOPHER COATES
934 Compass Point
Charleston, South Carolina 29412
(843) 609-7080
curriecoates@gmail.com
William Consovoy Michael Connolly
CONSOVOY MCCARTHY PARK PLLC
3033 Wilson Boulevard
Arlington, Virginia 22201
(703) 243-9423
will@consovoymccarthy.com
Attorneys for Applicants