Showing some skepticism that an election now taking place in Hawaii is a purely private matter, Supreme Court Justice Anthony M. Kennedy on Friday temporarily blocked the ballot-counting after all the votes are in on Monday.  The order was not a final action, hinting that there could be other orders within coming days.

The balloting on a proposal to begin the process toward setting up a new nation of “native Hawaiians” within the state of Hawaii actually began on November 1, and concludes on November 30.  Only “native Hawaiians” can vote.  The challengers, contending that the election is an official election that is race-based and thus violates the Constitution, had not asked that the balloting be stopped, and Kennedy’s order does not do so.

The state of Hawaii, with strong support from the federal Department of the Interior, favors a plan to create a new entity, something like an Indian tribe, that would give those who can show Hawaiian ancestry the right of self-determination, leading to the status of a sovereign nation.

Residents of the islands who do not meet that category argued in their plea to Justice Kennedy and the Court that the election, to be followed by a constitutional convention, was not a private matter left to those with the ancestral claim but was a government-sponsored and financed election that must conform to both the Fourteenth and Fifteenth Amendments.  The outcome of the election, they asserted, will have a major public policy impact.

The state of Hawaii and the non-profit corporation that was set up to actually run the election both told the Court that the election was entirely a private affair, and that those who do not have the ancestral connection have no role to play in the process.  That is also the view of the Department of the Interior, which has started a process toward recognizing a new nation as an equal government.

The challengers’ application asked the Court to do two things: first, to prohibit the counting of the ballots and the certification of the winners of the convention delegate seats “during the pendency of this appeal”; and, second, as an alternative, to temporarily block the counting and certifying “to allow full consideration” of the application by the Supreme Court.

Kennedy’s order was worded as if it were approval of the second option.  It blocked the counting and certifying action “pending further order of the undersigned or of the Court.”

The case is now under review in the U.S. Court of Appeals for Ninth Circuit, after a federal trial judge ruled that the election was a private matter that did not violate the Fifteenth Amendment.  Both the trial judge and the Ninth Circuit denied requests to block the post-balloting part of the election process.

The challengers then moved on to the Supreme Court, beginning with Justice Kennedy, who handles emergency matters for the geographic region that is the Ninth Circuit — which includes Hawaii.  Kennedy had the option of acting at this point on his own or sharing the issue with his colleagues.

Because of the holiday weekend, it may be that the full Court will consider the matter further when the Court returns to public sessions next Monday.  In the meantime, the cast ballots may not be opened for counting and the outcome cannot be certified officially.

The challengers are relying heavily upon a 2000 decision by the Court, Rice v. Cayetano, striking down an election for directors of a state agency, the Office of Hawaiian Affairs, because it was limited to “native Hawaiians.”

More than sixty percent of those who registered to vote in the current balloting were qualified because their names were already on a list compiled by state officials.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Kennedy temporarily blocks Hawaii vote count, SCOTUSblog (Nov. 27, 2015, 1:06 PM), https://www.scotusblog.com/2015/11/kennedy-temporarily-blocks-hawaii-vote-count/