Judicial Watch Statement on Supreme Court Order Halting Hawaii from Conducting Race-based Election Pending Appeal
DECEMBER 02, 2015
(Washington, DC) – Judicial Watch today responded to the Supreme Court’s issuance of an injunction halting a race-based “Native Hawaiian-only” election in Hawaii. In August, Judicial Watch filed a federal lawsuit on behalf of the five Hawaiian residents and one Texas resident of Hawaiian descent who oppose the discriminatory election process (Keli’i Akina, et al. v. The State of Hawaii, et al. (No. 1:15-cv-00322)).
Judicial Watch President Tom Fitton stated:
“The Supreme Court today issued an injunction that put a hard stop to the race-based, separatist election in Hawaii that violated the ‘fundamental constitutional rights’ of our American citizen clients. Today’s ruling is a historic setback to the State of Hawaii and the Obama administration, which misused public monies to push a racially discriminatory election. President Obama and Hawaiian political leaders should be called to account for their cynical support of a race-based election that violated numerous civil rights laws and the U.S. Constitution. Our clients are brave patriots who took a public stand on behalf of the rule of law. The High Court agreed our clients had an indisputable right to this relief and it is wonderful to see their faith in our Constitution vindicated by today’s Supreme Court ruling. In addition, Judicial Watch’s hundreds of thousands of supporters deserve thanks for providing the voluntary support that allowed our team of hard-working attorneys to stop this corrupt and dangerous election. Kudos also to the Grassroot Institute of Hawaii, a Hawaii-based think tank, that gave invaluable assistance to our efforts.”
Judicial Watch sought a preliminary injunction from the U.S. District Court for the District of Hawaii on August 28 to stop the vote that had been scheduled for November 2015, arguing that its clients would be denied the right to vote either because of their race or their political views, in direct violation of the U.S. Constitution and the Voting Rights Act of 1965. Act 195 authorizes the Native Hawaiian Roll Commission (NHRC) to create a list of “Native Hawaiians” who would be eligible to elect delegates to a planned constitutional convention, which would then prepare “governance documents” for a separate Native Hawaiian entity. After the injunction was denied by the lower court, Judicial Watch unsuccessfully sought an Urgent Motion for Injunction with the U.S. Court of Appeals for the Ninth Circuit. Judicial Watch immediately thereafter filed an emergency application on November 23 to the Honorable Justice Anthony Kennedy, Associate Justice of the United States Supreme Court who oversees the Ninth Circuit. Last Friday, shortly after Judicial Watch replied to Hawaii’s opposition, Justice Kennedy issued an order temporarily enjoining the election pending review by the entire Supreme Court. Today’s full injunction reads:
The application for injunction pending appellate review presented to Justice Kennedy and by him referred to the Court is granted. Respondents are enjoined from counting the ballots cast in, and certifying the winners of, the election described in the application, pending final disposition of the appeal by the United States Court of Appeals for the Ninth Circuit. Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application.
Under federal law, the Supreme Court only issues emergency injunctions when the circumstances presented are “critical and exigent” and the legal rights at issue are “indisputably clear.” Accordingly, today’s Supreme Court decision sends a strong message for the lower courts.
The aborted election, which was being conducted by mail-in ballots, was to have ended in November but the voting deadline was recently extended to midnight Monday, December 21. The election was made possible by a grant by the State of Hawaii of $2.6 million in public funds.
Robert Popper, director of Judicial Watch’s Election Integrity Project, is Judicial Watch’s lead attorney on the lawsuit and lead counsel for all plaintiffs. Mr. Popper was formerly deputy chief of the Voting Section of the Civil Rights Division of the Justice Department. Michael Lilly of the Honolulu law firm Ning, Lilly & Jones, a former Attorney General for Hawaii, is serving as Judicial Watch’s local counsel for the plaintiffs. H. Christopher Coates is also an attorney for the plaintiffs. Coates is an expert voting rights attorney who most recently served as Chief of the Voting Section of the Civil Rights Division of the Justice Department under President Barack Obama. William S. Consovoy and J. Michael Connolly of Consovoy McCarthy Park PLLC just joined as counsel as the litigation went before the Supreme Court.