Judicial Watch Files Civil Rights Lawsuit to Stop Race-Based Separatist Vote in Hawaii

(Washington, DC) – Judicial Watch announced today that it filed a lawsuit in United States District Court for the District of Hawaii that seeks to stop a scheme by the State of Hawaii to use a voting list restricted by both race and viewpoint to conduct an election for Native Hawaiian “self-government.”  The suit is filed on behalf of Hawaiian residents who, either because of their race or viewpoint, are explicitly denied the right to vote, in violation of the U.S. Constitution and the Voting Rights Act (Keli’i Akina, et al. v. The State of Hawaii, et al. (No. 1:15-cv-00322))

On August 13, 2015, Judicial Watch filed the lawsuit against the state of Hawaii, the Office of Hawaiian Affairs (OHA) and the Native Hawaiian Roll Commission (NHRC), asking the court to declare that the process required to register for the Native Hawaiian voter roll violates constitutional rights found in the First, Fourteenth and Fifteenth Amendments, as well as federal voting laws.

An enrollment list is being created under Act 195, the 2011 Hawaii law that authorizes the NHRC to create a list of “Native Hawaiians” who would be eligible to submit amendments to the State constitution at a planned constitutional convention and to vote on issues concerning the sovereignty of the “Native Hawaiian people.”  Act 195 defines a “Native Hawaiian” as any person whom the government determines to be a direct descendant of the State’s aboriginal peoples.

On July 20, 2012, using taxpayer funds from the State’s Office of Hawaiian Affairs, the NHRC launched the Kana’iolowalu campaign, opening a registration process for Native Hawaiians who desired to vote for a new race-based sovereign government.  A person may register for the Kana’iolowalu if, besides meeting the law’s racial requirements, that individual has “maintained a significant cultural, social, or civic connection to the Native Hawaiian community” and “wishes to participate” in organizing an anticipated “Native Hawaiian governing entity.”

The new lawsuit alleges Hawaii and other defendants have unlawfully restricted voter access by requiring voters to certify particular racial characteristics and to acknowledge their agreement with the Hawaiian “sovereignty” movement.  Hawaiian residents wishing to register for the Native Hawaiian voting roll are required to affirm all three of the following declarations:

• Declaration One. I affirm the unrelinquished sovereignty of the Native Hawaiian people, and my intent to participate in the process of self-governance.
• Declaration Two. I have a significant cultural, social or civic connection to the Native Hawaiian community.
• Declaration Three. I am a Native Hawaiian: a lineal descendant of the people who lived and exercised sovereignty in the Hawaiian islands prior to 1778, or a person who is eligible for the programs of the Hawaiian Homes Commission Act, 1920, or a direct lineal descendant of that person.

Judicial Watch argues:

[T]he restrictions on registering for the Roll violate the U.S. Constitution, including the Equal Protection Clause of the Fourteenth Amendment, the Fifteenth Amendment, the First Amendment, and the Due Process Clauses of the Fourteenth and Fifth Amendments; and federal law, including the Civil Rights Act of 1871, 42 U.S.C. § 1983, and Section 2 of the Voting Rights Act of 1965, 52 U.S.C. § 10301.

Judicial Watch argues that the state’s requirements, which exclude certain Native Hawaiians from registering for the roll, represent violations of numerous constitutional rights, primarily the Fifteenth Amendment protection against voting restrictions based on race:

The defendants fully intended to restrict who may register for the Roll on the basis of ancestry, as shown by the plain text of Act 195 as well as the text of the online registration procedures, and as shown by numerous public statements by the defendants, including those made on their registration website…Act 195 and the defendants’ registration procedures deny and abridge the plaintiffs’ rights to vote on account of race, in violation of the Fifteenth Amendment.

The lawsuit also alleges a violation of the Equal Protection Clause of the Fourteenth Amendment:

Act 195 and the registration process used by the defendants discriminate against the plaintiffs on account of the fact that they are not Native Hawaiians, as defined by their ancestry. Accordingly, Act 195 and the registration process used by the defendants discriminate against the plaintiffs on account of their race…Act 195 and the registration process used by the defendants violate the plaintiffs’ rights under the Fourteenth Amendment to the equal protection of the laws.

Additionally, the voting roll procedures violate the Voting Rights Act:

Section 2 of the Voting Rights Act, 52 U.S.C. § 10301, proscribes any “qualification or prerequisite to voting or standard, practice, or procedure . . . imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” The defendants fully intended to restrict who may register for the Roll on the basis of race. Act 195 and the registration process used by the defendants restrict who may register for the Roll on the basis of individuals’ Hawaiian ancestry, which is a proxy for race.

Judicial Watch also argues that the procedures represent viewpoint discrimination and race-based discrimination against potential convention candidates.

In separate litigation, Judicial Watch forced the release of the actual enrollment list, which includes the names of the Hawaiian residents placed there without their permission.  The Obama administration has been criticized for taking executive action towards “the reestablishment of a government-to-government relationship with the Native Hawaiian community.”

“Who would believe that in this day and age U.S. citizens are being denied access to the right to vote explicitly because of their race and their points of view,” said Judicial Watch President Tom Fitton. “Using a race-based enrollment list to help radicals in Hawaii tear the State apart and break away from the United States of America is a violation of the U.S. Constitution and basic federal voting rights law.  And that Hawaiian officials would prevent you from voting if you don’t sign up for their racial apartheid theories is an affront to the First Amendment.  Our clients who are being denied their core constitutional rights believe courts can’t shut down this racist scheme soon enough.”

The Grassroot Institute of Hawaii, a Hawaii-based think tank, has been helping Judicial Watch to investigate Hawaii’s plan for a race-based election. Keli’i Akina, Ph.D., President of the Grassroot Institute and a plaintiff in the case said, “Instead of OHA and the State continuing to waste millions of dollars on the pursuit of a political sovereignty campaign, they need to use these precious funds to meet the real needs of Hawaiians for housing, jobs, education, and health care. Given the low enrollment in the certified Native Hawaiian Roll, it is clear that the Native Hawaiian people themselves have rejected OHA-backed efforts to create a racially exclusive nation.  The time has come to stop dividing Hawaii’s people and start uniting them.”

Robert Popper, director of Judicial Watch’s Election Integrity Project, is Judicial Watch’s lead attorney on the lawsuit.  Mr. Popper was formerly deputy chief of the Voting Section of the Civil Rights Division of the Justice Department.

Michael Lilly of the Honolulu law firm Ning, Lilly & Jones is serving as Judicial Watch’s local counsel for the plaintiffs.