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Judicial Watch • Keli’i Akina v Hawaii preliminary injunction 00322

Keli’i Akina v Hawaii preliminary injunction 00322

Keli’i Akina v Hawaii preliminary injunction 00322

Page 1: Keli’i Akina v Hawaii preliminary injunction 00322

Category:Election Integrity

Number of Pages:41

Date Created:August 31, 2015

Date Uploaded to the Library:August 31, 2015

Tags:Kelii, Arakaki, Count, 00322, Fifteenth, PRELIMINARY, Injunction, Akina, Hawaiians, hawaiian, Native, Election, Hawaii, amendment, Plaintiffs, defendants, filed, document, DOJ, Supreme Court, court


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Case 1:15-cv-00322-JMS-BMK Document Filed 08/28/15 Page
NING LILLY JONES
MICHAEL LILLY #1681
707 Richards Street, Suite 700
Honolulu, Hawaii 96813
Telephone: (808) 528-1100; Facsimile: (808) 531-2415
Email: Michael@nljlaw.com
JUDICIAL WATCH, INC
ROBERT POPPER pro hac vice
LAUREN BURKE pro hac vice
CHRIS FEDELI
pro hac vice
425 Third Street,
Washington, 20024
Telephone: (202) 646-5172; Facsimile: (202) 646-5199
Email: rpopper@judicialwatch.org; Email: lburke@judicialwatch.org
Email: cfedeli@judicialwatch.org
LAW OFFICE CHRISTOPHER COATES CHRISTOPHER COATES pro hac vice
934 Compass Point
Charleston, South Carolina 29412
Telephone: (843) 609-080
Email: curriecoates@gmail.com
Attorneys for Plaintiffs KELI AKINA, KEALII MAKEKAU, JOSEPH KENT,
YOSHIMASA SEAN MITSUI, PEDRO KANA GAPERO,
and MELISSA LEINA ALA MONIZ THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT HAWAII
KELI AKINA, KEALII MAKEKAU,
JOSEPH KENT, YOSHIMASA SEAN
MITSUI, PEDRO KANA GAPERO,
and MELISSA LEINA ALA MONIZ,
Plaintiffs,
CIVIL NO: 15-00322 BMK
MOTION FOR PRELIMINARY
INJUNCTION; MEMORANDUM
SUPPORT MOTION FOR
PRELIMINARY INJUNCTION;
vs.
(Caption continued next page)
Case 1:15-cv-00322-JMS-BMK Document Filed 08/28/15 Page
THE STATE HAWAII;
GOVERNOR DAVID IGE, his
official capacity; ROBERT LINDSEY
JR., Chairperson, Board Trustees,
Office Hawaiian Affairs, his official
capacity; 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, their official
capacities; KAMANA OPONO
CRABBE, Chief Executive Officer,
Office Hawaiian Affairs, his official
Capacity; JOHN WAIHE III,
Chairman, Native Hawaiian Roll
Commission, his official
Capacity; LEHU ANTHONY, LEI
KIHOI, ROBIN DANNER, HEALANI WENDT,
Commissioners, Native Hawaiian Roll
Commission, their official capacities;
CLYDE Executive
Director, Native Hawaiian Roll
Commission, his official capacity;
THE AKAMAI FOUNDATION; and
THE AUPUNI FOUNDATION;
and DOE DEFENDANTS 1-50,
Defendants.
DECLARATION KEALII
MAKEKAU; DECLARATION
YOSHIMASA SEAN MITSUI;
DECLARATION PEDRO KANA
GAPERO; DECLARATION
MELISSA LEINA ALA MONIZ;
DECLARATION JOSEPH
WILLIAM KENT; EXHIBIT
DECLARATION DR. KELI
AKINA; EXHIBITS
CERTIFICATE COMPLIANCE
PURSUANT L.R. 7.5(b)
Case 1:15-cv-00322-JMS-BMK Document Filed 08/28/15 Page
MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs KELI AKINA, KEALII MAKEKAU, JOSEPH KENT,
YOSHIMASA SEAN MITSUI, PEDRO KANA GAPERO, and MELISSA
LEINA ALA MONIZ Plaintiffs their attorneys, respectfully move this
Court for Preliminary Injunction. Specifically, Plaintiffs seek the preliminary
relief Order preventing Defendant from undertaking certain voter
registration activities and from calling holding racially-exclusive elections for
Native Hawaiians, explained Plaintiffs Complaint. See Doc. No. 32,
Prayer for Relief.
This Motion made pursuant Local Rule 10.2(g) and Fed. Civ. Pro.
65, and based upon the following memorandum support, the declarations, and
exhibits attached thereto.
DATED: Honolulu, Hawaii, August 28, 2015.
/s/ Michael Lilly
MICHAEL LILLY
ROBERT POPPER
LAUREN BURKE
CHRIS FEDELI CHRISTOPHER COATES
Attorneys for Plaintiffs
KELI AKINA, KEALII MAKEKAU,
JOSEPH KENT, YOSHIMASA SEAN
MITSUI, PEDRO KANA GAPERO, and
MELISSA LEINA ALA MONIZ
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
139 THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT HAWAII
KELI AKINA, KEALII MAKEKAU,
JOSEPH KENT, YOSHIMASA SEAN
MITSUI, PEDRO KANA GAPERO, and
MELISSA LEINA ALA MONIZ,
Plaintiffs,
vs.
THE STATE HAWAII;
GOVERNOR DAVID IGE, his official
capacity; ROBERT LINDSEY JR.,
Chairperson, Board Trustees,
Office Hawaiian Affairs, his official
capacity; 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, their official capacities;
KAMANA OPONO CRABBE, Chief
Executive Officer, Office Hawaiian
Affairs, his official Capacity; JOHN
WAIHE III, Chairman, Native Hawaiian
Roll Commission, his official
Capacity; LEHU ANTHONY, LEI
KIHOI, ROBIN DANNER, HEALANI
WENDT, Commissioners, Native Hawaiian
Roll Commission, their official capacities;
CLYDE Executive Director,
Native Hawaiian Roll Commission, his
official capacity; THE AKAMAI
FOUNDATION; and THE AUPUNI
FOUNDATION; and DOE DEFENDANTS
1-50,
Defendants.
CIVIL NO: 15-00322 BMK
MEMORANDUM SUPPORT
MOTION FOR PRELIMINARY
INJUNCTION
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
140
TABLE CONTENTS
INTRODUCTION AND FACTUAL BACKGROUND ...............................1
Act 195 .........................................................................................................3
The Registration Process for the Roll............................................................4
The Joint Conduct OHA, NHRC, and NAF ........................................6
II.
ARGUMENT ...............................................................................................8
Legal Statement for Preliminary Relief...............................................8
Plaintiffs Are Likely Succeed the Merits....................................8 Plaintiffs Are Likely Succeed Their Claim That Act 195
Requirement That Voters Have Native Hawaiian Ancestry Violates
the Fifteenth Amendment (Count 1)...............................................9 Plaintiffs Are Likely Succeed Their Claim That Act 195
Requirement That Voters Have Native Hawaiian Ancestry Violates
the Equal Protection Clause the Fourteenth Amendment
(Count 2)......................................................................................11 Plaintiffs Are Likely Succeed Their Claim That Act 195
Requirement That Candidates Have Native Hawaiian Ancestry
Violates the Fifteenth Amendment (Count 5)...............................13 Plaintiffs Are Likely Succeed Their Claim That Act 195
Violates Section the Voting Rights Act Requiring That
Voters and Candidates Have Native Hawaiian Ancestry
(Counts and ..........................................................................15 Plaintiffs Are Likely Succeed Their Claim That Defendants
Requirements Under Act 195 That Applicant for Registration the Roll Affirm His Belief the Sovereignty Native
Hawaiian People and the Applicant Intent Participate SelfGovernance Violates the First Amendment and the Equal
Protection Clause the Fourteenth Amendment (Count .........18
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
141 Plaintiffs Are Likely Succeed Their Claim That Defendants
Requirements, Including the Requirement that Voters Have
Significant Ties the Native Hawaiian Community, Are
Unjustified Restriction the Fundamental Right Vote
Violation the Fourteenth Amendment (Counts and ...... Plaintiffs Are Likely Succeed Their Claim That Defendants
Placement Their Names the Registration Roll Without
Plaintiffs Consent Constitutes the Involuntary Registering
Persons Violation the First Amendment (Count ..............22 Defendants Cannot Avoid the Limitations Imposed
Constitutional and Federal Law Contracting Government
Functions Out Private Parties...................................................23 Defendants Cannot Successfully Argue That the Election Inflicts Present Injury Non-Native Hawaiians ...............................26
The Balance Equities Weighs Favor Granting the Requested
Interim Relief....................................................................................30
III.
Without Preliminary Injunction, Plaintiffs Will Suffer Irreparable
Harm.................................................................................................30
The Public Interest Will Served the Event the Preliminary
Injunction Issues ...............................................................................33
CONCLUSION ..........................................................................................33
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
142
TABLE AUTHORITIES
CASES
PAGE
Alliance for the Wild Rockies Cottrell, 632 F.3d 1127 Cir. 2010) .........18,
American Ass People with Disabilities Herrera (Part 2),
690 Supp. 1163 (D.N.M. 2010)...............................................................22
Anderson Celebrezze, 460 U.S. 780 (1983) ......................................................20
Angle Miller, 673 F.3d 1122 (9th Cir. 2012) ................................................18,
Arakaki Cayetano, 314 F.3d 1091 (9th Cir. 2002) ................ 11, 13, 14, 15, 16,
Arizona Dream Act Coal. Brewer, 757 F.3d 1053 (9th Cir. 2014) ...............32,
Ashcroft Iqbal, 556 U.S. 662 (209)......................................................................4
Bennett Yoshina, 140 F.3d 1218 (9th Cir. 1998)................................................21
Buckley American Const. Law Found., 525 U.S. 182 (1999).............................22
Burdick Takushi, 504 U.S. 428 (1992) ........................................................20,
Daniels-Hall Nat Educ. Ass 629 F.3d 992 (9th Cir. 2010) .............................4
Davis Guam, 785 F.3d 1311 (9th Cir. 2015)......................................................27
Dennis Sparks, 449 U.S. (1980) ...................................................................26
Dixon Maryland, 878 F.2d 776 (4th Cir. 1989) ..................................................22
Elrod Burns, 427 U.S. 373 (1976)...............................................................27,
Flagg Brothers, Inc. Brooks, 436 U.S. 149 (1978) .................................... 24,
Goldie Bookstore, Inc. Sup. Court Cal.,439 F.2d 466 (9th Cir. 1984)..........30
Guinn United States, 238 U.S. 347 (1915) ........................................................10
Guy County Hawaii,Civil No. 14-00400 SOM/KSC,
2014 U.S. LEXIS 132226 (D. Haw.).......................................................8,
Hadnott Amos, 394 U.S. 358 (1969)............................................................13,
Harper Va. Bd. Elections, 383 U.S. 663 (1966).............................................20
Idaho Coalition United for Bears Cenarrusa,
342 F.3d 1073 (9th Cir. 2003).....................................................................18
Johnson Knowles, 113 F.3d 1114 (9th Cir. 1997)..............................................24
Keyoni Enterprises, LLC Cnty.of Maui,
Civil. No. 15-00086 DJW-RLP, 2015 U.S. Dist. LEXIS 40740 ....................8
Klein City San Clemente, 584 F.3d 1196 (9th Cir. 2009) ...............................30
League Wilderness Defenders/Blue Mountains Biodiversity Project
Connaughton, 757 F.3d 755 (9th Cir. 2014).................................................33
Los Angeles Mem Coliseum Comm Nat Football League,
634 F.2d 1197 (9th Cir. 1980) ...............................................................30,
M.R. Dreyfus, 697 F.3d 706 (9th Cir. 2012) ........................................................8
Miller Johnson, 515 U.S. 900 (1995) ................................................................12
Morton Mancari, 417 U.S. 535 (1974) ..............................................................14
iii
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
143
NAACP-Greensboro Branch Guilford County Bd. Elections,
858 Supp. 516 (M.D.N.C. 1994) .......................................................33
Ohno Yasuma, 723 F.3d 984 (9th Cir. 2013) ...............................................23,
Police Dep Chicago Mosley, 408 U.S. (1972)........................................18
R.A.V. St. Paul, 505 U.S. 377 (1992) ................................................................18
Reynolds Sims, 377 U.S. 533 (1964) ................................................................30
Rice Cayetano, 528 U.S. 495 (2000) ..................................... 10, 11, 13, 14,
Richmond J.A. Cronson Co., 488 U.S. 469 (1989) ............................................12
Rogers Lodge, 458 U.S. 613 (1882) ..................................................................12
Romer Evans, 517 U.S. 620 (1996) ..................................................................29
Rosenberger Rector and Visitors Univ. Va.,
515 U.S. 819 (1995)....................................................................................18
Schowengerdt General Dynamics Corp.,
823 F.3d 328 (9th Cir. 1987).......................................................................26
Smith Allwright, 321 U.S. 469 (1944).................................................... 10, 25,
Smith Salt River Project Agric. Improv. Power Dist.,
109 F.3d 586 (9th Cir. 1997)........................................................................17
Swift Lewis, 901 730 (9th Cir. 1990) ...................................................25,
Terry Adams, 345 U.S. 461 (1953)........................................................ 10, 25,
United States Charleston Cnty., 365 F.3d 341 (4th Cir. 2004)...........................16
United States Head, 2013 U.S. Dist. LEXIS 151805 (E.D. Cal.) ........................5
United States Windsor, 570 U.S. ___, 133 Ct. 2675 (2013).............................4
Washington Seattle Sch. Dist. No.1 458 U.S. 457 (1982) ................................29
Winter Natural Res. Def. Council, Inc., 555 U.S. (2008) .................................8
Wooley Maynard, 430 U.S. 705 (1977) .............................................................23
Wrzeski City Madison, 558 Supp. 664 (W.D. Wis.)...................................23
STATUTUES, RULES, AND REGULATIONS
Haw. Rev. Stat. 10H-2 .........................................................................................1
Haw. Rev. Stat. 10H-3(a) ....................................................................................3
Haw. Rev. Stat. 10H-3(a)(2) ................................................................................3
Haw. Rev. Stat. 10H-3(a)(2)(A)...........................................................................4
Haw. Rev. Stat. 10H-3(a)(2)(B) ...........................................................................4
Haw. Rev. Stat. 10H-5 ........................................................................................1 U.S.C. 10301 (a) ...........................................................................................16 U.S.C. 10301 (b) ...........................................................................................16
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
144
MEMORANDUM SUPPORT
MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs respectfully submit this memorandum support their motion
for preliminary injunction pursuant Fed. Civ. 65.
INTRODUCTION AND FACTUAL BACKGROUND July 2011, then-Hawaii Governor Neil Abercrombie signed Act 195 into
law. Akina Decl., The Act states that its 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. clearly
explained those charged with implementing the Act, the means and methods envisions are elections which only Native Hawaiians who hold particular
views may register and vote select delegates convention, which would
then draft the governance documents Native Hawaiian entity. Kent Decl.,
12-14. this way, the roll qualified Native Hawaiians will result
convention qualified Native Hawaiians, established for the purpose
organizing themselves. HAW. REV. STAT. 10H-5.
This civil action brought five citizens and residents the State
Hawaii who are registered vote elections Hawaii, and one citizen and
resident the State Texas. Compl. 6-11. Plaintiffs Keli Akina and
Kealii Makekau are descendants the aboriginal people who, prior 1778,
occupied and exercised sovereignty Hawaii, and they therefore satisfy Act 195
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
145
race-based ancestry requirement. However, these Plaintiffs cannot register vote elections held under Act 195 because they cannot affirm certain viewpointbased positions that are required Defendants registration process and that
pertain whether they favor Native Hawaiian sovereignty and self-governance
becoming part Hawaii law. Akina Dec., 11-15; Makekau Decl.,
6-10.
Plaintiffs Joseph Kent and Yoshimasa Sean Mitsui are citizens and residents the State Hawaii who are registered vote Hawaii. These Plaintiffs are
not descendants the aboriginal people who occupied and exercised sovereignty Hawaii prior 1778. They are therefore prevented from registering vote
elections held under Act 195 because the race-based ancestry requirements
the Act and other restrictions and qualifications imposed and enforced
Defendants. Kent Dec., 2-8; Mitsui Decl., 2-7.
Plaintiff Pedro Kana Gapero citizen, resident and registered voter
the State Hawaii. Plaintiff Melissa Leina ala Moniz citizen and resident
the State Texas. Plaintiffs Gapero and Moniz are descendants the aboriginal
people Hawaii, and both have been registered vote elections held
under Act 195 without their knowledge consent. Gapero Dec., 2-4; Moniz
Decl., 4-6.
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
146
Defendants are the State Hawaii, its governor and various other state
officials their official capacities, and two private organizations that are now
involved the registration/election/convention process1 under Act 195.
Act 195
The Act created within Defendant-Office Hawaiian Affairs OHA
administrative subdivision that Defendant-Native Hawaiian Roll Commission NHRC 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).
Act 195 provides that qualified Native Hawaiian individual whom
the NHRC has determined meet the criteria eligibility established the Act.
HAW. REV. STAT. 10H-3(a)(2). The first criterion based upon ancestry.
defines qualified Native Hawaiian person who descendant aboriginal
peoples who, prior 1778, occupied exercised sovereignty the Hawaiian
islands who was eligible 1921 for Hawaiian Homes Commission Act
The term registration/election/convention process will used this
memorandum refer all the activities that are being taken implement Act
195, which include the registration Native Hawaiians the Roll, the holding election select delegates the constitutional convention, the holding the
convention, and the holding referendum election approve disapprove the
recommendations the convention.
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
147 HHCA lease, descendant such person; who satisfies the
ancestry requirements Kamehameha Schools any Hawaiian registry
program the office Hawaiian affairs. HAW. REV. STAT. 10H-3(a)(2)(A). addition, the Defendants registration process under Act 195 provides that
order placed the Roll, otherwise qualified individual must have
maintained significant cultural, social, civic connection the Native
Hawaiian community, and the person must also wish[] participate
organization the Native Hawaiian governing entity. HAW. REV. STAT. 10H3(a)(2)(B).
The Registration Process for the Roll
Prospective voters were allowed begin registering online for the Roll
July 2012. Akina Decl., 22. Registration has been closed and reopened since
then. Id. Registration presently available online. Compl., 39; see
https://www.kanaiolowalu.org/registernow/. addition the individuals whose
The HHCA was enacted Congress 1920 address concerns over
poverty and population decline among the native population Hawaii. H.R. Rep.
No. 839, 66th Cong., 2nd Sess. (1920). The HHCA defines Native Hawaiian any descendant not less than one-half part the blood the races
inhabiting the Hawaiian Islands prior 1778. Compl., 21. well-settled that courts may judicially notice facts government
website self-authenticating. See, e.g., Ashcroft Iqbal, 556 U.S. 662, 667
(2009) (judicial notice facts DOJ website); United States Windsor, 570
U.S. ___, 133 Ct. 2675, 2690 (2013) (Maine website); Daniels-Hall
National Educ. Ass 629 F.3d 992, 998-99 (9th Cir. 2010) (school websites);
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
148
names have been placed the Roll because they satisfied the ancestry and
viewpoint-based requirements Act 195, tens thousands people whose
names appeared other lists Native Hawaiian two whom are Plaintiffs
Gapero and Moniz were subsequently registered for the Roll without their
knowledge consent. Akina Decl., 23-24 Ex. Kent Decl., 14(j); Gapero
Decl., 4-5; Moniz Decl.,
During the online voter registration process available the NHRC
website, applicants are presented with three Declarations that require they affirm:
(1) the unrelinquished sovereignty the Native Hawaiian people and their
intent participate the process self-governance; (2) that they have
significant cultural, social, civic connection the Native Hawaiian
community; and (3) that they satisfy the Native Hawaiian race-based ancestry
requirement. Akina Decl, Ex. Kent Decl., Unless
applicant can affirm all three Declarations, that applicant cannot register for the
Roll. Akina Decl, 13-15 Ex. Kent Decl., addition, the President the Board Aupuni has explained that any
person who hopes delegate the planned convention must registered for
the Roll. Kent Decl., 14(d). consequence, delegates the convention
United States Head, 2013 U.S. Dist. LEXIS 151805, n.2 (E.D. Cal.) may
take judicial notice information posted government websites can
accurately and readily determined from sources whose accuracy cannot
reasonably questioned.
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
149
necessarily will have had affirm the truth the same three declarations that all
other registrants for the Roll had affirm.
Plaintiffs Akina and Makekau could not affirm the viewpoint-based
requirement asserted Declaration One, and Plaintiffs Kent and Mitsui could not
affirm the connections the Native Hawaiian community and the ancestry
requirements Declarations Two and Three. Akina Decl, 12; Makekau Decl., Kent Decl., 4-8; Mitsui Decl., 3-7.
The Joint Conduct OHA, NHRC, and NAF
Commencing the spring 2015, representatives OHA and the Akamai
Foundation and Aupuni Foundation NAF two private nonprofit
organizations, entered into interrelated series four agreements, which have
been posted NAF website. Akina Decl., 26-30 Exs. and F.4
The Grant Agreement between OHA, AF, and NAF. details the
transfer from OHA AF, for use NAF, $2,598,000 government funds,
order that NAF may facilitate election delegates, election and referendum
monitoring, governance Aha [convention], and referendum ratify any
Statements OHA trustees and NAF President confirm that the
intention this web arrangements was defeat any Fourteenth Amendment
litigation, presumably allowing the argument that and NAF are not state
actors. Compl., 58; Akina Decl., Ex. Kent Decl., 15(a). set
forth below point II.B.8, this argument does not come close working. Under
applicable case law, Defendants cannot avoid liability for their constitutional and
statutory violations contracting with private parties, such and NAF,
carry out their election-related duties.
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
150
recommendation the delegates arising out the Aha. Akina Decl., Ex. The Letter Agreement also between the same three parties, and concerns
the method and timing the disbursement the approved grant funds OHA for the benefit NAF. Akina Decl., Ex.
The Fiscal Sponsorship Agreement technically between and NAF,
although OHA referred throughout and even accorded certain specific
rights. For example, the Termination paragraph provides that, consultation
with OHA, this Agreement shall terminate and when Sponsor [AF] and OHA
determine that the objectives the Project can longer reasonably
accomplished Akina Decl., 28(b) Ex. This Agreement also provides
that act the fiscal sponsor restricted funds from OHA pursuant
the grant agreement with OHA that incorporated reference. Akina Decl.,
28(a) Ex.
Finally, June 2015 contract between NAF and Election American, Inc. EAI private New York company, spells out particular dates and details for
the planned election. Akina Decl., Ex. Pursuant the schedule that
contract, ballots for the delegate election will mailed out November 2015
and must mailed back Defendants December Id.
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
151
II.
ARGUMENT
Legal Standard for Preliminary Relief.
Courts may enter preliminary injunction plaintiff shows: [1] that
likely succeed the merits, [2] that likely suffer irreparable harm the
absence preliminary relief, [3] that the balance equities tips his favor, and
[4] that injunction the public interest. Winter Natural Res. Def.
Council, Inc., 555 U.S. (2008). Accord, M.R. Dreyfus, 697 F.3d, 706, 725
(9th Cir. 2012) (quoting Winter); and Guy County Hawaii, Civil No. 14-00400
SOM/KSC, 2014 U.S. Dist. LEXIS 132226 (D. Haw.). the alternative, plaintiff entitled interim relief the Ninth Circuit shows that plaintiff claims raise serious questions the merits and the
hardships tip sharply toward the moving party (and the other two Winter tests are
satisfied). Alliance for the Wild Rockies Cottrell, 632 F.3d 1127, 1132 (9th Cir.
2010). See also Keyoni Enterprises, LLC Cnty. Maui, Civil No. 15-00086
DJW-RLP, 2015 U.S. Dist. LEXIS 40740 (D. Haw. 2015). set forth
below, Plaintiffs submit that they should prevail under both the Winter standard
and the modified preliminary injunction test Alliance for the Wild Rockies.
Plaintiffs Are Likely Succeed the Merits.
Plaintiffs are likely succeed all nine their Counts alleged their
complaint.
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
152
Plaintiffs Are Likely Succeed Their Claim that Act
195 Requirement that Voters Have Native Hawaiian
Ancestry Violates the Fifteenth Amendment (Count 1).
Plaintiffs Fifteenth Amendment claim Count controlled the U.S.
Supreme Court decision Rice Cayetano, 528 U.S. 495 (2000). Rice, 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, the Rice 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 selfexecuting operation, the Amendment prohibits all provisions
denying abridging the voting franchise any citizen class
citizens the basis race.
Id. 511-12.
The Court then took note the many decisions the U.S. Supreme Court
that have struck down race-based limitations the right vote. Id. 512-14,
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
153
citing e.g., Guinn United States, 238 U.S. 347, 363 (1915) (Oklahoma
grandfather clause);5 Smith Allwright, 321 U.S. 469 (1944) and Terry Adams,
345 U.S. 461 (1953) (all-white primary cases). Justice Kennedy, writing for the
majority, opined that the Fifteenth Amendment was quite sufficient invalidate
scheme which did not mention race but instead used ancestry attempt
confine and restrict the voting franchise. Rice, 528 U.S. 513. And the Court
Rice went reason 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 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 Court Rice addressed and rejected the State Hawaii argument
that the exclusion non-Native Hawaiians from voting the elections for the
OHA Board was permitted under precedents, such Morton Mancari, 417 U.S. Guinn, the State Oklahoma had enacted literacy requirement for
voting eligibility but exempted persons whose ancestors were entitled vote
January 1866 any time prior that date. 238 U.S. 364-365. Before that
date black persons were not allowed vote Oklahoma. Id.
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
154
535 (1974), allowing preferential treatment for members some Indian tribes. Id. 518-22. Accord, Arakaki Cayetano, 314 F.3d 1091, 1094-95 (9th Cir. 2002).
Thus, Defendants here are precluded from successfully defending Act 195
challenged voting procedures the grounds that the Indian tribe cases support the
race-based ancestry voting requirement here. Quite simply, the context
Native Hawaiians that argument has been made and rejected the Supreme
Court. The State position rests the demeaning premise that citizens
particular race are somehow more qualified than others vote certain matters.
That reasoning attacks the central meaning the Fifteenth Amendment. Rice,
528 U.S. 523.
There principled way that the ruling Rice can distinguished from
the Fifteenth Amendment challenge made Count regarding the exclusion
non-Native Hawaiians from participating this registration/election/convention
process under Act 195. Therefore, Plaintiffs are likely prevail this claim.
Plaintiffs Are Likely Succeed Their Claim that Act
195 Requirement that Voters Have Native Hawaiian
Ancestry Violates the Equal Protection Clause the
Fourteenth Amendment (Count 2). addition their Fifteenth Amendment claim, Plaintiffs also challenge Act
195 exclusion non-Native Hawaiians from voting under the Fourteenth
Amendment Equal Protection Clause. axiomatic that the Equal Protection
Clause prohibits discrimination the basis race voting. See e.g., Miller
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Johnson,6 515 U.S. 900, 905 (1995) (in the context redistricting, [r]acial and
ethnic distinctions any sort are inherently suspect and thus call for the most
exacting judicial examination Rogers Lodge, 458 U.S. 613, 617 (1882)
(intentional racial purpose underlying the enactment maintenance at-large
method election violates the Equal Protection Clause).
There question that the provisions Act 195 that exclude non-Native
Hawaiian from voting, their face and enforced Defendants implementing
procedures, involve the intentional creation racial classifications that are
intended used deny non-Native Hawaiian the right participate the
registration/election/convention process under Act 195. Defendants will not
able demonstrate that this race-based denial the right vote narrowly
tailored achieve compelling state interest, Miller, 515 U.S. 920, because
race discrimination voting does not further any compelling state interest, only
the interests the perpetrators the discrimination. Accordingly, Plaintiffs are
likely prevail this claim well.
Miller stated that the Equal Protection Clause prohibition against racial
discrimination applies regardless the race those burdened benefited
particular classification, quoting Richmond J.A Croson Co., 488 U.S. 469, 494
(1989). other words the important inquiry under equal protection analysis
whether racial discrimination has occurred and not what racial group was the
perpetrator the victim the discriminatory conduct.
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Plaintiffs Are Likely Succeed Their Claim that Act
195 Requirement that Candidates Have Native Hawaiian
Ancestry Violates the Fifteenth Amendment (Count 5).
The President NAF Board has stated that any delegates the planned
convention will drawn from those who are registered for the Roll. Kent Decl.,
14(d). This means that candidates will qualified according the same criteria
applicable registrants for the Roll. particular, means that candidates will
have meet the ancestry requirements that govern the Roll.
Plaintiffs are likely prevail their claim that such candidate restriction
based race violates the Fifteenth Amendment. The claim Count
controlled the Ninth Circuit ruling Arakaki Cayetano. Arakaki,
challenge was made Hawaii constitutional and statutory provisions requiring
that all candidates for the OHA Board Trustees Native Hawaiians. 314 F.3d 1093. The definition used define Native Hawaiian issue Arakaki was
essentially the same definition used Act 195 and issue Rice. Id. 1093,
n.3.
The State Hawaii argued Arakaki that the plaintiffs were not harmed
the requirement that all candidates for the OHA Board Native Hawaiian light the ruling Rice that non-Native Hawaiians could vote for members the
OHA Board. Id. 1094. However, relying upon the ruling Hadnott Amos,
394 U.S. 358, 364 (1969), case decided Fifteenth Amendment grounds, the
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157
court appeals Arakaki held that voters were harmed when candidates faced
racial barriers:
Although the language the Fifteenth Amendment does not
explicitly extend its protections the abridgement the right vote account race-based candidate qualifications, the Court has
acknowledged that the disqualification candidates the basis
race implicates voters Fifteenth Amendment rights. See Hadnott
Thus, candidate restriction which directly and expressly excludes all
non-[Native] Hawaiians from qualifying candidate for the office OHA trustee, compels the conclusion that the candidate restriction
abridges the right vote and thus prohibited the Fifteenth
Amendment.
Arakaki, 314 F.3d 1095. Therefore, under Arakaki all Plaintiffs, voters, are
injured the candidate restrictions issue here.
Significantly, the Ninth Circuit Arakaki refused accept the State
Hawaii argument that Native Hawaiians, like members Indians tribes, have
special needs that justify excluding non-Hawaiians from service the OHA
Board Trustees. Id. 1094-95. Relying upon the ruling the same issue
Rice, the court Arakaki noted that the Supreme Court had rejected the State
attempt set apart the elections based the special purpose OHA the
status native Hawaiians and Hawaiians special beneficiaries its programs.
Id. 1095. The Court Appeals went hold that all citizens have interest voting elections that select officials who will make policy choices that will
affect them, even those policies will affect some groups more than others. Id.,
citing Rice, 528 U.S. 523.
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158 the registration/election/convention process under Act 195,
recommendations are likely made concerning the profoundly important issue whether Hawaii law should altered provide sovereignty and selfgovernment for Native Hawaiian. these circumstances, manifestly obvious
that non-Native Hawaiian citizens the State have real and weighty interests
the outcome this political process that has the potential for altering the way
which their State governed. The candidate restriction non-Native Hawaiians
running for the delegate position directly abridges non-Native Hawaiians right
vote guaranteed the Fifteenth Amendment. Arakaki, 314 F.3d 1095.
There principled way that the ruling Arakaki can distinguished
from the Fifteenth Amendment challenge made here Count the exclusion
non-Native Hawaiians candidates from running for the position delegate under
Act 195. Therefore, Plaintiffs are likely prevail this Fifteenth Amendment
claim well.
Plaintiffs Are Likely Succeed Their Claim that Act
195 Violates Section the Voting Rights Act
Requiring that Voters and Candidates Have Native
Hawaiian Ancestry (Counts and 6).
Plaintiffs are also likely prevail regarding their claims that Act 195
exclusion non-Native Hawaiians from voting the impending elections (Count and from running for delegate positions (Count violate Section the
Voting Rights Act. Section proscribes the denial abridgement the right
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any citizen the United States vote account race color U.S.C.
10301(a). provides that violation established if, based the totality circumstances, shown
that the political processes leading nomination election the
State political subdivision are not equally open participation
members class citizens protected [against such denial
abridgement] that its members have less opportunity than other
members the electorate participate the political process and
elect representatives their choice. U.S.C. 10301(b). Along with intentional discrimination, Section proscribes
voting practices that operate, designedly otherwise, deny abridge
voting rights contravention the statute. U.S. Charleston Cnty., 365 F.3d
341, 345 (4th Cir. 2004). this case, Defendants clearly intended ensure that the political process
leading convention was not equally open non-Native Hawaiians and
guarantee that they could not participate that process elect representatives their choice. The blanket exclusion non-Native Hawaiians also had that
desired result. Thus, Section was violated.7
Note that the time the ruling Arakaki, the exclusion non-Native
Hawaiians from voting OHA trustee elections had already been struck down
the U.S. Supreme Court Rice some two years earlier, which meant that the Ninth
Circuit did not have rule that claim. Nevertheless, Arakaki persuasive
authority for the proposition that the Ninth Circuit would find Act 195 exclusion non-Native Hawaiians from voting for delegates violation Section set forth the text, the Ninth Circuit concluded Arakaki that the exclusion
non-Native Hawaiians from running for the OHA Board violates Section
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160
Further, addition its Fifteenth Amendment analysis, the Court
Appeals Arakaki analyzed the candidate restriction for the OHA Board under the
anti-race discrimination standard Section 314 F.3d 1095-97. The Ninth
Circuit pointed out that Section prohibits voting practices that result
discrimination account race. Id. 1096, citing Smith Salt River Project
Agric. Improvement Power Dist., 109 F.3d 586, 595 (9th Cir. 1997). Applying
the discriminatory result standard Section the candidate exclusion nonNative Hawaiians from the OHA Board, the court concluded that systematically disqualifying all non-[Native] Hawaiians from
running for the office OHA trustee the basis their race alone the trustee qualifications ensures that the political processes
leading nomination election the State are not equally open participation citizens who are not [Native] Hawaiian.
Arakaki, 314 F.3d 1096 (citations omitted).
There principled way that the ruling Arakaki can distinguished
from Plaintiffs Section claim here Count concerning the exclusion nonNative Hawaiians from running for delegates under Act 195. Therefore, Plaintiffs
are likely prevail this Section claim well.
stands reason that would most certainly have found that the exclusion nonNative Hawaiians from voting under Act 195 likewise violation Section
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161
Plaintiffs Are Likely Succeed Their Claim that The
Requirements That Applicant Affirm the Sovereignty
the Native Hawaiian People and Express Intent
Participate Self-Governance Violate the First
Amendment and the Equal Protection Clause the
Fourteenth Amendment (Count 4). axiomatic that the government may not regulate speech based its
substantive content the message conveys. Rosenberger Rector and
Visitors University Virgina, 515 U.S. 819, 828-29 (1995). Where government
restrictions are placed protected activities such the right vote, courts have
analyzed the constitutional issues under both the First Amendment and the Equal
Protection Clause. See Police Dep Chicago Mosley, 408, U.S. 92, 94-95,
100 (1972) (the city ordinance impermissibly prohibited First Amendment activity picketing terms subject matter and therefore denied equal protection).
Further, given the fundamental nature the right vote democratic society,
restrictions that right that are based upon content viewpoint discrimination
are subject strict scrutiny, and are presumptively invalid. R.A.V. St. Paul,
505 U.S. 377, 382 (1992). See also Angle Miller,673 F.3d 1122, 1127-28, 1132
(9th Cir. 2012) (election limitations that impose severe burdens the right vote
must pass strict scrutiny deemed violation the First Amendment); Idaho
Coalition United for Bears Cenarrusa, 342 F.3d 1073, 1076 (9th Cir. 2003) (state
law placing conditions ballot-initiative process raised serious Equal Protection
issues).
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162
Plaintiffs Akina and Makekau are not able register for the Roll because
they are not able affirm that they support the unrelinquished sovereignty the
Native Hawaiian people and that they intend participate the process selfgovernance for Native Hawaiian people.8 Not being the Roll will deny them
the right participate the registration/election/convention process under Act
195. These denials will occur even though both these Plaintiffs satisfy the
raced-based ancestry requirement Act 195. This type content viewpoint
discrimination can only justified, all, showing that the affirmation
requirements Act 195 are narrowly tailored and advance compelling state
interest. Angle, 673 F.3d 1132. Defendants cannot meet this heavy burden.
The viewpoint discrimination enforced Defendants demonstrates that
they not intend get accurate reading the sentiments all Native
Hawaiians the questions sovereignty. Instead, the effect this viewpoint
discrimination limit the number Native Hawaiians who can participate
the registration/election/convention process under Act 195 those who favor
altering Hawaiian law provide for Native Hawaiian self-governance.
Native Hawaiians such Plaintiffs Akina and Makekau who not have
the preapproved accepted viewpoint are simply excluded from the entire
Furthermore, Plaintiff Akina has stated that would like run
delegate the planned convention. Akina Decl., 19-21. Accordingly, also
has standing potential candidate challenge the viewpoint restriction.
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163
process. There legitimate and compelling government interest stacking the
electoral deck this fashion. Accordingly, Plaintiffs are likely succeed this
claim.
Plaintiffs Are Likely Succeed Their Claim that
Defendants Requirements, Including the Requirement
that Voters Have Significant Ties the Native Hawaiian
Community, Are Unjustified Restriction the
Fundamental Right Vote Violation the Fourteenth
Amendment (Counts and 8).
Recognizing the precious nature the fundamental right vote, but also
the need establish reasonable rules for administering elections, the U.S. Supreme
Court has developed balancing test determine whether administrative election
rules violate the Fourteenth Amendment. Anderson Celebrezze, 460 U.S.
780,789 (1983); Burdick v.Takushi, 504 U.S. 428, 434 (1992). Burdick, the
Court stated: court considering challenge state election law must weigh the
character and magnitude the asserted injury the rights protected the First and Fourteenth Amendments that the plaintiff seeks
vindicate against the precise interests put forward the State
justifications for the burden imposed its rule
504 U.S. 434 (quotations omitted). Importantly, the Burdick balancing test does
not look the impact the challenged election provision isolation, but within
the context the election scheme whole. Id. 438-39. See also, Harper
Virginia Bd. Elections, 383 U.S. 663, 666-67 (1966) (Equal Protection Clause
prohibits the states from fixing voter qualifications that invidiously discriminate);
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164
Bennett Yoshina, 140 F.3d 1218, 1226, 1228 (9th Cir. 1998) (holding that
election requirements deny substantive due process when they are fundamentally
unfair and that states may not require voters, prerequisite voting,
espouse positions they not support, quoting Burdick) (emphasis added).
Declaration Two the registration process implemented Defendants
under Act 195 requires that applicants for placement the Roll must affirm that
they have significant cultural, social civic connection the Native Hawaiian
community. Kent Decl., Plaintiffs Kent and Mitsui cannot affirm
Declaration Two and have been denied the right have their names placed the
Roll because their inability so. Id., Mitsui Decl., Further, all
Plaintiffs who desire register are improperly burdened the three declarations
required the NHRC. These election requirements not further any legitimate
interest that the State Hawaii has the conduct elections such election
integrity administrative convenience. Instead, they are unnecessary and unjust
burdens Plaintiffs right vote, and therefore constitute violations the Equal
Protection and Due Process Clauses. Burdick, 504 U.S. 438-39; Bennett, 140
F.3d 1226.
Accordingly, Plaintiffs are likely succeed their Fourteenth Amendment
claims Counts and
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165
Plaintiffs Are Likely Succeed Their Claim that
Defendants Placement Their Names the Registration
Roll Without Plaintiffs Consent Constitutes the
Involuntary Registering Persons Violation the First
Amendment (Count 9).
Plaintiffs Gapero and Moniz satisfy the race-based ancestry requirement
Act 195, but they not wish (and have made effort) placed the Roll.
Their names were placed the Roll, however, without their knowledge
consent. Compl. 10-11.
Courts have indicated that individual decisions whether register and
vote are political expressions worthy First Amendment protection. Buckley
American Constitutional Law Foundation, 525 U.S. 182 (1999), the Court
addressed, inter alia, challenge state requirement that persons who circulate
petitions seeking have initiative placed referendum ballot must,
themselves, registered voters. The Court Buckley took note trial testimony
that some initiative-petition circulators were not registered vote form
protest against what they believed unresponsive political process.
Buckley, 525 U.S. 196. The Court then concluded that the choice not register
implicates political thought and expression, which choice was unduly burdened the voter registration requirement. Id.; see Dixon Maryland, 878 F.2d 776,
782 (4th Cir. 1989) surely the right vote for the candidate one choice
includes the right say that candidate acceptable American Ass
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166
People with Disabilities Herrera (Part 2), 690 Supp. 1163, 1216 (D.N.M.
2010) the choice not register vote also conveys political expression and
therefore constitutionally protected); Wrzeski City Madison, Wis., 558
Supp. 664, 667 (W.D. Wis. 1983) (the First Amendment protects the right city
council member not vote proposed ordinance because protects both the
right speak freely and the right refrain from speaking all quoting Wooley Maynard, 430 U.S. 705 (1977).
Accordingly, the involuntary registration Plaintiffs the Roll violates
their First Amendment right not register vote, and therefore Plaintiffs are
likely succeed this claim.
Defendants Cannot Avoid the Limitations Imposed
Constitutional and Federal Law Contracting
Government Functions Out Private Parties. Ohno Yasuma, 723 F.3d 984, 995-96 (9th Cir. 2013), the Ninth Circuit
stated that the Supreme Court has developed four tests for determining
whether actions non- government entities persons amount state action
for the purposes constitutional analysis: (1) the public function test;9 (2) the
joint action test;10 (3) the state compulsion test;11 and (4) the government nexus
This test treats private actors state actors when they perform task
exercise powers traditionally reserved the government. Id. 996.
This test inquires into whether government officials and private actors have
acted concert causing the deprivation rights. Id. 996.
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test. Id. 995. explained Ohno, the public function and joint action tests
largely subsume the state compulsion and governmental nexus test because they
address the degree which the state intertwined with the private actor
action. Id. 995, n.13.
The applicable precedents this area establish that all election-related
activities AF, NAF and their subcontractors should deemed state action
under the public function and joint action standards. noted above, OHA has
entered into contractual arrangement with and NAF for these entities carry
out duties assigned OHA and the NHRC under Act 195. addition, NAF has
entered into contract with EAI related the latter carrying out some these
duties. Id. the Supreme Court has explained, [o]ur cases make clear that the
conduct the elections themselves exclusively public function. Flagg
Brothers, Inc. Brooks, 436 U.S. 149, 158 (1978). Thus, Defendants cannot
avoid constitutional restraints attempting transfer this exclusively public
function private parties.
This test requires showing that the state has exercised coercive power
provided such significant encouragement, either overt cover, that the [private
actor choice must law deemed that the State. Id. 995, n.13,
quoting Johnson Knowles, 113 F.3d 1114, 1119 (9th Cir. 1997).
Under this test the private party acts are deemed under color state
law there sufficiently close nexus between the state and the challenged
action the regulated entity that the action the latter may fairly treated
that the State itself. Id. 995, 13.
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168 its analysis Flagg Brothers, id. 158, the Supreme Court relied upon
the all-white primary cases Terry Adams, 345 U.S. 461, 469-70, 484 (1953),
and Smith Allwright, 321 U.S. 649 (1944). those cases, the Supreme Court
squarely rejected the argument state officials that constitutional protections
against racial discrimination voting did not apply primary elections conducted
entirely private political organizations. Terry, Allwright, and Flagg
Brothers establish, the public function holding elections, which Act 195
assigned government agencies OHA and the NHRC, cannot immunized from
constitutional scrutiny the simple expedient contracting with private parties.
When AF, NAF and EAI seek register voters and conduct delegate elections
pursuant Act 195, they are state actors.
The same result reached under the joint action test. Swift Lewis, 901
F.3d 730 (9th Cir. 1990), state prison officials had contracted with private party
make recommendations concerning whether the plaintiff, inmate, should
classified member religious group. Swift, 901 F.3d 732 n.2. The
plaintiff Swift sued both the prison officials and the private contractor, alleging
constitutional deprivation related the conditions his incarceration. The
private contractor moved have the constitutional claims against him dismissed the grounds that his actions were not under color state law. Id.
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However, the Ninth Circuit determined that where state officials had
contracted with private party work relating inmates, the private party had
become willful participant joint action with the state its agents, and its
actions were state action. Swift, 901 F.3d 732, citing Dennis Sparks, 449
U.S. 24, 27-28(1980). See also, Schowengerdt General Dynamics Corp., 823
F.3d 328, 1332, n.3 (9th Cir. 1987) (joint participation search third party federal officials and private actor was sufficient establish that the latter
actions were state action). the same vein, the fact that and NAF have
entered into contractual arrangements which they spend government funds
work relating voting means that they are willful participants joint action with
OHA.
The election-related actions undertaken AF, NAF and EAI the
contractual direction OHA constitute state action under both the public function
and the joint action tests.
Defendants Cannot Successfully Argue that the Election
Inflicts Present Injury Non-Native Hawaiians.
Defendants might attempt argue that the indeterminate nature what the
planned convention might recommend, the fact that does not have
authority pass laws, means that those who cannot register vote for delegates,
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
170 run delegates, that convention can claim harm.13
The recent ruling Davis Guam, 785 F.3d 1311 (9th Cir. 2015) shows
that this argument unavailing. Davis, the Guam Legislature had passed law
that provided for the holding plebiscite Guam future relationship with the
United States. Davis, 785 F.3d 1132. Non-native inhabitants Guam were not
allowed register for, vote in, that plebiscite. Despite the fact that the
plebiscite had not even been scheduled, plaintiff filed suit seeking registration
the ground that the non-native inhabitant classification was impermissible proxy
for race. Id. 1313-1314. The lower court dismissed grounds standing and
ripeness. Id. appeal the Ninth Circuit reversed and remanded for ruling
the merits. Id. 1316. reversing, the Court Appeals concluded that the unequal treatment
plaintiff was suffering was sufficient establish both standing and ripeness. Id.
1315. The Court noted that [i]f the plebiscite held, this would make more
likely that Guam relationship the United States would altered conform the preference favored the plebiscite. Id.
Note that this argument can have bearing Plaintiffs First Amendment
claims, because the injuries issue those claims necessarily accrue the time
Plaintiffs viewpoint either burdened compelled. See Elrod Burns, 427
U.S. 347, 373 (1976) (plurality opinion) The loss First amendment freedoms,
for even minimal periods time, unquestionably constitutes irreparable injury.
Furthermore, this argument also should have bearing the claim that
restricting candidates the basis race infringes voters Fifteenth Amendment
rights, this injury logically occurs when those restrictions are imposed.
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The view that the Constitution protects the right participate fully
political process that can influence final political result has been widely
recognized U.S. Supreme Court cases. See, e.g., Smith Allwright, 321 U.S.
663-66 (holding that exclusion black Americans from primary election denied
them equal opportunity participate the general election officials); Terry Adams, 345 U.S. 461, 468 (1953) (the Fifteenth Amendment applicable
any election which public issues are decided public officials selected.
Here, the Hawaii Legislature has enacted legislation that uses public
officials, and millions dollars public monies, set and implement
registration, election, and convention process. Under this process, the delegates
elected the constitutional convention are likely, minimum, make
recommendations the State federal government concerning the profoundly
important issue whether the law should altered provide sovereignty and
self-government Native Hawaiians. Indeed, anticipated that those delegates
may choose more than make recommendations.14 Those who cannot register
for the Roll will have lost the opportunity participate fully the
For example, representatives Aupuni have stated, among other
things, that the convention will about possible nationhood for Native
Hawaiians, that the purpose the convention draft governance documents,
and even that convention delegates might take any plans they developed directly
the United Nations. Kent Decl., 14(f) (i), 15.
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registration/election/convention process.15 these circumstances, manifestly obvious that non-Native Hawaiian
citizens the State have real and weighty interests the outcome this issue
that has the potential for altering the way which their State governed.
Plaintiffs exclusion from participation the registration/election/convention
process under Act 195 will deny them the opportunity participate fully the
controversy over Native Hawaiian sovereignty. Because this so, that exclusion prohibited constitutional and statutory protections the right vote. See
also Romer Evans, 517 U.S. 620, 633-34 (1996) (invalidating state
constitutional amendment that denied gays and lesbians equal access
government the 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).
Therefore, arguments Defendants that injury inflicted non-Native
Hawaiians the registration/election/convention process Act 195 should
rejected.
Certainly Defendants suggest that the failure participate has significant
consequences. OHA newsletter plainly indicated that the failure register
could lead loss rights, even property, future sovereign Native
Hawaiian entity. Akina Decl., Ex.
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Without Preliminary Injunction, Plaintiffs Will Suffer
Irreparable Harm.
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). The deprivation constitutional
rights, even for brief period time, amounts irreparable injury. See Elrod,
427 U.S. 373 (plurality opinion) The loss First amendment freedoms, for
even minimal periods time, unquestionably constitutes irreparable injury.
the Ninth Circuit has opined, [a]n alleged constitutional infringement will often
alone constitute irreparable harm. Goldie Bookstore, Inc. Superior Court
Cal, 739 F.2d 466, 472 (9th Cir. 1984). Accord, Klein City San Clemente, 584
F.3d 1196, 1207-08 (9th Cir. 2009).
Plaintiffs, along with many thousands Hawaiian citizens, will suffer
irreparable harm without preliminary injunction enjoining the various illegal
activities carried out the registration/election/convention process under Act
195. Accordingly, Plaintiffs can satisfy their burden showing irreparable harm the requested injunction does not issue.
The Balance Equities Weighs Favor Granting the
Requested Interim Relief. considering the balances equities, this Court must balance the interests all parties and weigh the damage each[.] Los Angeles Mem Coliseum
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
174
Comm Nat Football League, 634 F.2d 1197, 1203 (9th Cir.1980). This Court
should identify the harms which [preliminary injunction] might cause
defendants and weigh these against plaintiff threatened injury. Id. Defendants are allowed proceed with the challenged activities under
Act 195, great and substantial harm will done the constitutional and
statutory rights Plaintiffs and hundreds thousands other citizens the
State Hawaii. The deprivations involved, moreover, concern such fundamental
constitutional guarantees the First Amendment rights freedom speech and
freedom from compelled speech, the Fourteenth Amendment rights the equal
protection the laws and due process, the Fifteenth Amendment right vote
free from denial abridgment account race, and the basic antidiscrimination
provisions the Voting Rights Act 1965. the other hand, the only plausible harm done Defendants the
issuance preliminary relief would the loss time implementing their
nation-building scheme while the matter being litigated and the loss public
monies already spent carrying out registration and election activities. Given that
Defendants project has inherent deadline timeframe and also given the fact
that might still pursued the interim other, lawful ways any loss time not great harm. for the loss public monies, this lessened the extent
that expenditures are not irretrievably lost. For example, the Roll were upheld
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
175
lawful and constitutional, monies spent registering voters and publicizing the
effort will not have been wasted. Furthermore, Plaintiffs are correct some
all their constitutional and statutory claims the issuance interim relief will
the long run actually benefit Defendants. Quite simply, the longer the State
Hawaii engages the practices challenged this lawsuit and the more public
monies spends doing so, the greater the loss will Defendants and the
public treasury Hawaii when these practices are ultimately held illegal
final judgment. the Ninth Circuit recently observed, the balance the equities favor[s]
preventing the violation party constitutional rights. Arizona Dream Act
Coal. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014). Indeed, given the gravity
the deprivation rights involved and the minimal potential loss the State, the
balance hardships tips sharply favor Plaintiffs. For this reason,
preliminary injunction warranted even under the sliding scale test Alliance
for the Wild Rockies, 632 F.3d 1134-35. Pursuant that test, even Plaintiffs
failed show the preliminary injunction stage that they were likely prevail
the merits, this Court still should issue injunction because Plaintiffs have clearly
raised serious questions the merits while the balance hardships tips
sharply their favor.
Accordingly, the balance the equities here clearly weighs favor
Case 1:15-cv-00322-JMS-BMK Document 47-1 Filed 08/28/15 Page
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Plaintiffs and the granting the preliminary injunction.
The Public Interest Will Served the Event the
Preliminary Injunction Issues. determine whether the issuance preliminary injunction the
public interest, this Court should look the impact the preliminary injunction non-parties. League Wilderness Defenders/Blue Mountains Biodiversity
Project Connaughton, 757 F.3d 755, 766 (9th Cir. 2014). See Arizona Dream
Act Coal., 757 F.3d 1069; Guy County Hawaii, 2014 U.S. Dist. LEXIS
132226 *13. There extraordinary public interest preventing the right
vote from being denied abridged. See NAACP-Greensboro Branch Guilford
County Bd. Elections, 858 Supp. 516, 529 (M.D.N.C. 1994) [T]he
public interest election that complies with constitutional requirements served granting preliminary injunction.
III.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully submit that their Motion for Preliminary Injunction should granted.
DATED: Honolulu, Hawaii, August 28, 2015.
/s/ Michael Lilly
MICHAEL LILLY
ROBERT POPPER
LAUREN BURKE
CHRIS FEDELI CHRISTOPHER COATES
Attorneys for Plaintiffs