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Judicial Watch • AKINA v Hawaii race-based election appeal 17134

AKINA v Hawaii race-based election appeal 17134

AKINA v Hawaii race-based election appeal 17134

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Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-1, Page THE UNITED STATES COURT APPEALS
FOR THE NINTH CIRCUIT
No. 15-17134
KELII AKINA, KEALII MAKEKAU, JOSEPH KENT, YOSHIMASA SEAN
MITSUI, PEDRO KANAE GAPERO, and MELISSA LEINA ALA MONIZ,
Plaintiffs-Appellants,
THE STATE HAWAll; GOVERNOR DAVID IGE, his official capacity;
ROBERT LINDSEY JR., Chairperson, Board Trustees,
Office Hawaiian Affairs, his officjal capacity; COLETTE MACHADO,
PETER APO, HAUNANI APOLIONA, ROWENA M.N. AKANA,
JOHN WAIHEE IV, CARMEN HULU LINDSEY, DAN AHUNA,
LEINA ALA AHU ISA, Trustees, Office Hawaiian Affairs, their official
capacities; KAMANAOPONO CRABBE, Chief Executive Officer,
Office Hawaiian Affairs, his official Capacity; JOHN WAIHEE III,
Chairman, Native Hawaiian Roll Commission, his official Capacity; ALEHU ANTHONY, LEI KIHOI, ROBIN DANNER,
MAHEALANI WENDT, Commissioners, Native Hawaiian Roll Commission, their official capacities; CLYDE NAMUO, Executive Director,
Native Hawaiian Roll Commission, his official capacity;
THE AKAMAI FOUNDATION; and THE NAI AUPUNI FOUNDATION,
Defendants-Appellees.
URGENT MOTION UNDER CIRCUIT COURT RULE 27-3(b)
PLAINTIFF-APPELLANTS URGENT MOTION
FOR INJUNCTION WHILE APPEAL PENDING
NECESSARY ACTION BEFORE NOVEMBER 30, 2015 Appeal from the United States District Court
for the District Hawaii
Civil No. 15-00322 JMS-BMK
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-1, Page
NING LILLY JONES
MICHAELA.LILLY #1681
707 Richards Street, Suite 700
Honolulu, Hawaii 96813
Telephone: (808) 528-1100
Facsimile: (808) 531-2415
Email: Michael@nlilaw.com
JUDICIAL WATCH, INC
PAUL ORF ANEDES
425 Third Street,
Washington, 20024
Telephone: (202) 646-5172
Facsimile: (202) 646-5199
Email: porfanedes@judicialwatch.org
Attorneys for Plaintiffs-Appellants
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-1, Page
TABLE CONTENTS
Introduction ................................................................................................................
Background Facts .......................................................................................................
The Creation and Its Connection With State Agencies
OHA and NHRC ........................................................................................................ The Formation ....................................................................................... The Advance Promise Run Racially Exclusive Election ................ Election-Related Agreements Between OHA and ......................................
Proceedings this Action .....................................................................................
Legal Standard .........................................................................................................
Argument .................................................................................................................
Plaintiffs Are Likely Succeed The Merits .................................... and OHA are Engaged Joint Action ..............................
II. Holding this Election, Engaging
Public Function ........................................................................
There Compelling Justification for the
Planned Election .......................................................................
The Other Applicable Factors Support the Issuance Injunction ...
Conclusion ...............................................................................................................
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-1, Page
TABLE AUTHORITIES
CASES
PAGE
Alaska Conservation Council US. Army Corps Engrs., .3d 1097 (9th Cir. 2006) .....................................................................
Alliance for the Wild Rockies Cottrell, 112 (9th Cir. 2011) .....................................................................
Arakaki Hawaii, 314 F.3d 1091 (9th Cir. 2002) .................................................
Ashcroft Iqbal, 556 U.S. 662 (2009) ....................................................................
Bay Area Addiction Research Treatment, Inc. City ofAntioch,
179 .3d 725 (9th Cir. 1999) .........................................................................
Daniels-Hall National Educ. Ass 629 F.3d 992 (9th Cir. 2010) ......................
Davis Guam, 785 F.3d 1311 (9th Cir. 2015) .......................................... 13, 14,
Flagg Brothers, Inc. Brooks, 436 U.S. 149 (1978) ............................................
Fox Vice, 131 Ct. 2205 (2011) ........................................................................
Goldies Bookstore, Inc. Superior Court Cal,
739 F.2d 466 (9th Cir. 1984) .........................................................................
vurry, t:.31 J,...d. J,. r9t Llr .LU ................................................... aggaru ,,...,
r-1
Inland Bulk Transfer Co. Cummins Engine Co.,
332 F.3d 1007 (6th Cir. 2003) ......................................................................
Koon United States, 518 U.S. (1996) .............................................................
Lane Wilson, 307 U.S. 268 (1939) .....................................................................
Loving Virginia, 388 U.S. (1967) ....................................................................
Ohno Yasuma, 723 F.3d 984 (9th Cir. 2013) ................................................ 12,
Reynolds Sims, 377 U.S. 533 (1964) ...................................................................
Rice Cayetano, 528 U.S. 495 (2000) ........................................................ 12,
Schowengerdt General Dynamics Corp., 823 .3d 328 (9th Cir. 1987) .............
Smith Allwright, 321 U.S. 649 (1944) ................................................................
Strauss Comm the Soc. Sec. Admin., 635 F.3d 1135 (9th Cir. 2011) ............
Swift Lewis, 901 F.3d 730 (9th Cir. 1990) ..........................................................
Terry Adams, 345 U.S. 461 (1953) ................................................................ 17-18
United States Martin, 278 .3d 988 (9th Cir. 2002) ...........................................
United States Windsor, 133 Ct. 2675 (2013) ....................................................
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CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. XV, ...................................................................................
U.S. CONST. amend. XIV, .................................................................................
STATUTES, RULES, AND REGULATIONS
Haw. Rev. Stat. lOH-2 ...........................................................................................
Haw. Rev. Stat. 10H-3(a) .............................................................................. passim
Haw. Rev. Stat. lOH-5 ...........................................................................................
MISCELLANOUS
U.S. Census Bureau, State and County QuickFacts, Hawaii http://quickfacts.census.gov/qfd/states/15000.html>
(last visited Oct. 28, 2015) ...........................................................................
111
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INTRODUCTION
This motion seeks stop unconstitutional, race-based, state-sponsored,
Hawaiians-only election. November 2015, Defendant Nai Aupuni (NA)
will mail out ballots for election using registration roll (the Roll) prepared two state agencies, Defendants the Office Hawaiian Affairs (OHA) and the
Native Hawaiian Roll Commission (NHRC). the close the day
November 30, 2015 the date which decision respectfully requested for this
motion will count all ballots received that election and certify the results.
Plaintiffs respectfully request that the counting those ballots enjoined.
The Roll was prepared these state agencies pursuant the explicit
direction Act 195, state law passed 2011. That statute provides that one
could register for the Roll who was not qualified Native Hawaiian, which
defined relevant part descendant the aboriginal peoples who, prior
1778, occupied and exercised sovereignty the Hawaiian islands, the area that
now constitutes the State Hawaii. REV. STAT. 10H-3(a)(2)(A). other words, registration for the Roll was restricted race. intends use that race-qualified Roll conduct election delegates planned
convention, the stated purpose which determine the future relationship
Native Hawaiians the governments Hawaii and the United States. Defendants
have characterized that election involving the public interest and historic.
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-1, Page
Plaintiffs sued enjoin that election alleging, among other things,
violation the Fifteenth and Fourteenth Amendments. Yet the district court
denied Plaintiffs request for preliminary injunction and ruled that the election
based the NHRCs race-based Roll can proceed. See Ex. The court held that
Defendant which, undisputed, was organized foundation late
2014 for the sole purpose carrying out the election contemplated Act 195,
and which was granted $2.6 million government funds OHA order was private actor holding private election. Accordingly, the district court
held that conduct the planned election was beyond the reach the
Fifteenth and Fourteenth Amendments and the other constitutional and statutory
provisions relied upon Plaintiffs. The grounds advanced here were submitted
the district court.
Because the district court erred, set forth herein, its interpretation the
law regarding state action, this appeal likely succeed and Plaintiffs are likely show that their Fifteenth and Fourteenth Amendment rights have been violated.
BACKGROUND FACTS July 2011, Act 195 was signed into law. Ex. 191, The Acts
purpose provide for and implement the recognition the Native Hawaiian
people means and methods that will facilitate their self-governance.
REV.
STAT.
lOH-2. The means and methods envisions are elections,
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which only those with Native Hawaiian ancestry (descendant[s] the aboriginal
peoples who, prior 1778, occupied and exercised sovereignty the Hawaiian
islands) may register vote. HAW. REV. STAT. 10H-3(a)(2)(A). Act 195 also
requires that registrants must have significant cultural, social, civic
connection the Native Hawaiian community and must wish[] participate
organization the Native Hawaiian governing entity. HAW. REV. STAT. 10H3(a)(2)(B). The roll qualified Native Hawaiians intended result
convention qualified Native Hawaiians, established for the purpose
organizing themselves. HAW. REV. STAT. lOH-5. Dr. James Kuhio Asam, NAs President, has publicly explained, the
purpose this process establish path possible reorganized Hawaiian
government. Ex.Eat 187, 14(b). That path has three parts: election,
convention ... and possible ratification vote concerning whatever the
convention decides. Id., 14(c). Delegates will come from the certified list
Native Hawaiians kept the NHRC. Id., 14(d). The purpose the
convention formulate governance documents for Hawaiian nation, which
means that the convention can considered constitutional convention.
Id., 14( recommends reorganized Hawaiian government, then
ratification referendum vote will held 2016, restricted those the
Roll. Id., 4(g). Dr. Asam explained that the entire process concerned with
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-1, Page
possible nationhood for Native Hawaiians. Id., 14(i).
Act 195 created Defendant NHRC administrative subdivision with
Defendant OHA. Act 195 makes the NHRC responsible for [p]reparing and
maintaining Roll qualified Native Hawaiians and c]ertifying that the
individuals the Roll qualified Native Hawaiians meet the definition
qualified Native Hawaiians. HAW. REV. STAT. 10H-3(a).
Prospective voters were allowed register online for the Roll starting
July 2012. Ex. 192, 22. The NHRCs online voter registration process
presented applicants with three declarations, requiring that they affirm: the
unrelinquished sovereignty the Native Hawaiian people and their intent
participate self-governance; (2) their significant cultural, social, civic
connection the Native Hawaiian community; and (3) their racial ancestry
defined the Act. See https://www.kanaiolowalu.org/registemow/3 Ex.Bat 89; Ex. 192, 13, Ex.Fat 197. Unless applicant affirmed all three
declarations, that applicant could not register online for the Roll. Id.,
ilil 13-15. addition those whose names were placed the Roll because they
None these statements were disputed either Defendants Dr. Asam,
who subsequently submitted declaration for and testified the hearing.
OHA arm the state. See Rice Cayetano, 528 U.S. 495, 521 (2000).
Courts may judicially notice facts government website selfauthenticating. See, e.g., Ashcroft Iqbal, 556 U.S. 662, 667 (2009) Gudicial
notice facts DOJ website); United States Windsor, 133 Ct. 2675, 2690
(2013) (Maines website); Daniels-Hall National Educ. Ass 629 .3d 992,
998-99 (9th Cir. 2010) (school websites).
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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. Ex.Bat Ex. 193, iii! 23-24; Ex.Eat 188, 14G);
Ex. 181, iii! 4-5; Ex.Hat 183, amendment Act 195 authorized this
tactic. HAW. REV. STAT. 10H-3(a)(4).
The district court accepted that about 100,000 people were currently
registered the Roll (Ex.Bat 27); and that approximately 38% these were
registered through the NHRCs online process, while 62% were transferred from
other racially exclusive lists. Id.
THE CREATION AND ITS CONNECTION
WITH STATE AGENCIES OHA AND NHRC. more less freely admitted, OHA and other state officials believed
that they could not lawfully conduct election using the Roll. Accordingly,
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 Ex. 1114 (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
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directing Nai Aupuni desist from certain activities .... because may
subject state action attack); see also Ex.Eat 188, 15(a) (getting money
from OHA with strings attached ... means the election process will withstand 14th Amendment challenge.).
The undisputed facts establish the connections, promises, and concerted
actions relevant the true relationship between and other state actors.
The Formation NA.
Dr. Asam publicly stated that Nai Aupuni exists for one reason, which
establish path possible reorganized Hawaiian government. Ex. 187,
14(b). was formed December 2014, more than three years after the passage Act 195. NAs own bylaws show that was formed order achieve
legislative purposes desired OHA. Ex. 644 (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 Nai Aupuni, and add that OHA sits officio member that Consortium. Ex. 1111. other words,
government agency, OHA, member NA. the hearing this matter, NAs counsel suggested that OHA was only
officio member the consortium that preceded Nai Aupuni. Ex.Bat 83. That not what the minutes say, however, and unsworn arguments from counsel should
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Finally, noteworthy that, from the time was formed, NAs VicePresident has been Pauline Namuo. Ex.Kat 1111. Ms. Namuo married
Defendant Clyde Namuo, Executive Director Defendant the NHRC, which
the state agency charged with creating the Roll. Ex. 1093, 13.
The Advance Promise Run Racially Exclusive Election.
Defendants own declarations clearly establish that, prior entering into
any contract grant agreement, informed OHA that intended use the
[race-based] Roll conduct the planned election. Ex.Lat 585, 13. 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 Ex.Mat
971, (OHAs Chief Executive recalling the same representations from NA).
Any assessment regarding NAs independence from OHA must take into
account this advance representation that planned use the racially
exclusive Roll developed the NHRC and that intended conduct racially
exclusive election.
Election-Related Agreements Between OHA and NA.
Commencing the spring 2015, representatives OHA, the Akamai
not credited evidence. any case, remains undisputed that OHA was,
least for time, officio member NA.
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Foundation (AF), and entered into interrelated series agreements,
which were posted NAs website. Ex. 193-94, 26-30; Exs. see
http://www.naiaupuni.org/news.html (Contracts and Agreements). The purpose these agreements was delegate the running the planned election, and provide with millions dollars government funds conduct that election.
The Grant Agreement between OHA, AF, and NA. The Whereas
clauses that agreement expressly refer the purposes for which OHA has been
established, and goals described Act 195, stating that OHA has committed allow the use its grant and allow Hawaiians pursue selfdetermination. Ex.Pat 220. The Grant Agreement details the transfer from OHA AF, for use NA, $2,598,000 government funds, order that 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
NAs autonomy, stating that neither OHA nor will directly indirectly
control affect the decisions NA, that has obligation consult with
Apparently was included order take advantage its tax-exempt status.
Ex.Lat 586, 15.
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OHA its decisions, and that its decisions will not directly
indirectly controlled affected OHA. Id. this provision which the
district court ultimately relied holding that was not state actor.
The Letter Agreement also between OHA, AF, and NA, and concerns
the method and timing the disbursement the approved grant funds OHA for the benefit NA. Ex. 225.
The Fiscal Sponsorship Agreement technically between and NA,
although provides its first recital that the grant agreement with OHA ...
incorporated herein reference. Ex. 214. 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 and Election American, Inc.
(EAI), private New York company, spells out particular dates and details for
the planned election. Ex. That agreement acknowledges that EAI will utilize
the Native Hawaiian Roll Commissions current certified registry eligible
Native Hawaiians. Id. 209. Pursuant the schedule that contract, ballots
for the delegate election will mailed out November 2015 and will
tabulated December 2015. Id. 211.
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PROCEEDINGS THIS ACTION.
Plaintiffs Akina and Makekau are Native Hawaiians within the meaning
Act 195 who could not affirm the viewpoint-based requirement Declaration
One. Plaintiffs Kent and Mitsui could not affirm connections the Native
Hawaiian community and the racial ancestry requirements Declarations Two
and Three. Plaintiffs Gapero and Moniz objected being placed the Roll
without their consent. The complaint, filed August 13, 2015, alleged claims under
the First, Fourteenth, and Fifteenth Amendments; under the Civil Rights Act
1871; and under the Voting Rights Act 1965. See Ex. (Complaint). August 28, 2015, Plaintiffs moved for preliminary injunction.
Following hearing October 20, 2015 (Ex. S), the district court issued oral
ruling denying Plaintiffs motion October 23, 2015. Ex. The court indicated
that written order would follow, which was intended, appeal taken from ruling, aid the appellate process. Id. citing Inland Bulk
Transfer Co. Cummins Engine Co., 332 F.3d 1007 (6th Cir. 2003).
Plaintiffs filed their notice appeal October 26, 2015. While Plaintiffs
have appealed from the district courts entire ruling, this particular motion
predicated solely claims under the Fifteenth and Fourteenth Amendments,
which constitute sufficient grounds for granting the requested injunction.
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LEGAL STANDARD injunction pending appeal requires party show either combination probable success the merits and the possibility irreparable harm that
serious questions are raised and the balance hardships tips sharply his favor.
See Alaska Conservation Council US. Army Corps Eng rs., .3d 1097,
1100 (9th Cir. 2006) (quotation marks omitted). See also Alliance for the Wild
Rockies Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011) (reaffirming the alternative
serious questions test formulation); Haggard Curry, 631 F.3d 931, 935 (9th
Cir. 2010) (per curiam) (identifying the most important factor whether the
appealing party has made strong showing likely success the merits its
appeal the district courts decision). Both tests are satisfied here.
ARGUMENT
Plaintiffs Are Likely Succeed the Merits.
This Court reviews district courts denial preliminary injunction for abuse discretion. Bay Area Addiction Research Treatment, Inc. City
Antioch, 179 .3d 725, 730 (9th Cir. 1999). district court definition abuses
its discretion when makes error law. Koon United States, 518 U.S. 81,
100 (1996) (citation omitted); Strauss Comm the Soc. Sec. Admin., 635 F.3d
1135, 1137 (9th Cir. 2011); United States Martin, 278 F.3d 988, 1001 (9th Cir.
2002) district court abuses its discretion when makes error law,
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when its discretion was guided erroneous legal conclusions) (citing Koon); see
also Fox Vice, 131 Ct. 2205, 2216-17 (2011) (recognizing trial court has wide
discretion when, but only when, calls the game the right rules).
The lynchpin the district courts ruling denying Plaintiffs motion for
preliminary injunction was the crucial finding that conducting private
election next month. lfNA engaged state action, then the race-based election plainly proscribed Rice Cayetano, 528 U.S. 495 (2000), and Arakaki
Hawaii, 314 .3d 1091 (9th Cir. 2002). set forth below, the district court erred finding that the impending election did not constitute state action because
did not alter existing laws elect public officials, (2) failing rule, matter law, that the undisputed facts before was engaged joint action with
government agencies that constituted state action, and (3) finding that
Defendants had shown compelling justification under the Fourteenth Amendment
for using the 11. Holding this Election, Engaging Public Function.
Private entities persons will found engaging state action for
the purposes constitutional analysis they are performing public function.
Ohno Yasuma, 723 F.3d 984, 996 (9th Cir. 2013). This doctrine treats private
actors state actors when they perform task exercise powers traditionally
reserved the government. Id. The Supreme Court has noted that [o]ur cases
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make clear that the conduct the elections themselves exclusively public
function. Flagg Brothers, Inc. Brooks, 436 U.S. 149, 158 (1978).
The court below wrongly concluded that the impending election did not fall
within this doctrine but was, instead, private election. The court was persuaded the argument that this election will not result any federal, state county
officeholder and will not result itself any change federal state laws
obligations. Ex. 13. While might result constitution Native
Hawaiian governing entity, further state federal action would needed before
that entity attained any lawful status. Id. The entity may recommend change, but
cannot alter the legal landscape its own. Id. 15.
The district court erred denying Plaintiffs constitutional protections
these grounds. Its approach flatly contradicted Davis Guam, 785 F.3d
1311 (9th Cir. 2015), which illustrates how broadly courts interpret the kind
elections that are subject constitutional protections. That election was
proposed plebiscite restricted Native Inhabitants Guam, intended elicit
their views Guams relationship the United States. Id. 1313. The election
would affect laws and lead result other than nonbinding
recommendation. Id. Indeed, the election might never occur because registration
goals might never met. Id. 1314. Even so, the Ninth Circuit reinstated
constitutional claims dismissed the district court, noting that [i]f the plebiscite
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-1, Page held, this would make more likely that Guams 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. Id.
1315 (emphasis added).
The election issue here far more consequential than any plebiscite. The
delegates who win will attend convention which they may draft governance
documents for all-Native Hawaiian entity. Their decisions could affect the
legal, social, and financial relationships huge numbers Americans. 2010
there were 1.36 million people Hawaii. The Department the Interior
estimates that there are 527,000 Native Hawaiians the United States, whom
290,000 reside Hawaii. Ex.Tat 743. Indeed, Defendants themselves
characterized the elections historic and involving the public interest. Ex. 108 (Your Honor, stand the cusp historic election.); id. (were
talking about historic hundred-plus year opportunity that has finally come the
Hawaiian people); id. (quoting Defendants the public interests involved).
Like the plaintiffs Guam, Plaintiffs here have views whether change
appropriate and, so, what that change should be. 785 F.3d 1315. They
should not shut out because they are the wrong race. final point, the U.S. Department the Interior (DOI) issued Notice
See http://quickfacts.census.gov/qfd/states/15000.html.
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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.
Ex. That proposed rule adopts the same standard for Hawaiian ancestry Act
195. Id. 741. Further, the invitation the district court, the DOI submitted amicus brief. Ex. makes clear, the DOI intends allow Native
Hawaiians utilize the results the planned election part administrative
procedure that would authorize government-to-government recognition
Native Hawaiian entity. Id. 1170-1172. other words, the DOI proceeds has indicated, there will
subsequent state federal election ratification which non-Native Hawaiians,
like Plaintiffs Mitsui and Kent, will allowed have their say. the contrary,
the DOI appears ready administratively approve Native Hawaiian entity based the results the impending election. Ex. (this may actually turn out the ball game .... there will Native Hawaiian governing entity and this will
have been plaintiffs opportunity say something about and will
gone.). This makes Plaintiffs request for injunction even more urgent. and OHA are Engaged Joint Action.
Where private entity engaged joint action with government agent, may deemed state actor for constitutional purposes. Joint action
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exists where the government affirms, authorizes, encourages, facilitates
unconstitutional conduct through its involvement with private party, where
has far insinuated itself into position interdependence with private actor
that must recognized joint participant the challenged activity. Ohno,
723 F.3d 996; see Swift Lewis, 901 F.3d 730, 732 n.2 (9th Cir. 1990) (private
party who had contracted with state prison officials work relating inmates
had become willful participant joint action with the state its agents and its
actions were state action) (citation omitted); Schowengerdt General Dynamics
Corp., 823 .3d 328, 1332 n.3 (9th Cir. 1987) (joint participation search
federal officials and private actor was sufficient establish that the latters
actions were state action).
The district court refused find joint action between and OHA, citing
the autonomy clause the Grant Agreement. Ex. 17. the courts view,
OHA has control over NA, who acting completely independently. Id.
Plaintiffs respectfully submit that the district courts view contradicted mass evidence suggesting joint action, bordering times outright
collusion, between and OHA. was formed, three years after Act 195 was
passed, for other purpose than hold the election that OHA could not. NAs
bylaws refer OHAs legislative goals. OHA was, least for time, member NA. NAs vice-president married the CEO the NHRC. was given
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-1, Page
millions dollars public money hold election described state law, Act
195, series contracts with OHA, wherein OHA retains all sorts special
rights and privileges. decided use the race-based Roll the NHRC had
been developing for years, and that OHA statutorily required use, and
decided hold racially exclusive election.
Indeed, particularly telling that gave OHA assurances that would
use the race-based Roll hold race-based election before the two parties entered
into contracts awarding millions dollars hold that election. Those
promises make the autonomy clause the Grant Agreement seem like trick
and make vaunted independence seem like sham. There not genuine
autonomy when one has assurance how another party going act.
That looks more like concerted action.
When comes voting rights, the Supreme Court has shown patience
for subterfuge, and has applied the Fifteenth Amendment nullifly] sophisticated well simple-minded modes discrimination. Lane Wilson, 307 U.S. 268,
274 (1939). Terry Adams, 345 U.S. 461 (1953), the Court warned 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,
HAW. REV. STAT. 10H-4(b).
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citing Smith Allwright, 321 U.S. 649, 664 (1944) (emphasis added). Thus,
violates the Fifteenth Amendment for state permit within its borders the use any device that produces equivalent the prohibited election. Id. 469.
There Compelling Justification for the Planned Election.
The district court held that, even there were state action, Plaintiffs
Fourteenth Amendment claim fails because Hawaii has compelling interest
facilitating the organizing the indigenous Hawaiian community, and that the
restriction Native Hawaiians precisely tailored meet the States compelling
interest. Ex. 23. fact, the standard used determine ancestry, and the viewpoint-qualified
registration process, prove the opposite. The one drop blood rule employed Act 195 utterly arbitrary. Mr. 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).
Further, the fact that those who registered the NHRCs website 38% those the Roll had affirm Declaration One, highly contentious political 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).
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-1, Page
statement written government official, guarantees that the Roll will not
represent the Native Hawaiian community. Simply put, the registrants have been
pre-screened for their political views. This process not narrowly tailored
produce true community.
Finally, the undersigned know case (not subsequently vacated) where
racial discrimination voting has survived strict scrutiny account
compelling justification. The district courts ruling this regard appears
totally unprecedented.
II.
The Other Applicable Factors Support the Issuance Injunction.
The injury this election will inflict Plaintiffs severe. The Fifteenth
Amendment guarantees that the right vote shall not denied abridged ... account race [or] color, and the Fourteenth Amendment provides that
State shall deny any person within its jurisdiction the equal protection the
laws. U.S. CONST. amend. XV, amend. XIV, Plaintiffs Mitsui and Kent,
who could not register for the Roll because they are not Native Hawaiians within
the meaning Act face imminent and irreparable deprivation these
fundamental constitutional rights. Within days, historic election concerning
matter great public interest will commence, and will conclude within
month. But Plaintiffs Mitsui and Kent along with hundreds thousands other
Hawaiians will barred from voting that election solely because their race.
Case: 15-17134, 10/29/2015, ID: 9738748, DktEntry: 9-1, Page
The right vote ... the essence democratic society, and any restrictions that right strike the heart representative government. Reynolds Sims,
377 U.S. 533, 555 (1964). alleged constitutional infringement will often alone
constitute irreparable harm. Goldies Bookstore, Inc. Superior Court Cal,
739 F.2d 466, 472 (9th Cir. 1984).
Any claim Defendants legitimate interest imposing voting
scheme that violates the Fifteenth and Fourteenth Amendments untenable.
Further, because this not regularly scheduled election, current officeholder
will have held over, nor there any risk constituency will left without
representation any existing legislative body. This election can enjoined
pending the outcome this appeal without any harm Defendants. Both the
balance equities and the public interest strongly favor the issuance
injunction preventing the counting ballots the certifying election results
from the election scheduled for November.
CONCLUSION
Appellants respectfully request that this Court enjoin Appellees pending
appeal.
DATED this 29th day October, 2015.
/s/ Michael Lilly
MICHAEL LILLY
Attorney for Plaintiffs-Appellants