Supreme Court temporarily blocks vote count in Native Hawaiian election

The Supreme Court has temporarily blocked a vote count from moving forward in a Hawaiian election that was only open to descendants of the islands’ indigenous people.

The election was conducted to elect delegates to an assembly that would provide for greater self-government.

From the Wall Street Journal:

Several Hawaii residents who object to the process sued to cancel the election, contending the state has applied an unconstitutional racial test for voting, among other claims. The state argued the election wasn’t an official act at all, because a private nonprofit, Na’i Aupuni, formally is conducting it with grant funds provided by the Office of Hawaiian Affairs.

The racial test wasn’t the only issue brought by the plaintiffs, however. Other Native Hawaiians objected to the declaration required in order to participate in the election, which required voters to “affirm the unrelinquished sovereignty of the Native Hawaiian people.” Na’i Aupuni is an organization dedicated to Native Hawaiian self-governance.

American imperialism, via Puck Magazine / Wikimedia Commons

American imperialism, via Puck Magazine / Wikimedia Commons

The 9th Circuit Court of Appeals had ruled in favor of allowing the vote count to proceed, but Justice Anthony Kennedy, who oversees the 9th Circuit, overruled. Liberal justices Ginsburg, Kagan, Sotomayor and Breyer reportedly filed a brief supporting the election, but were overruled as the Court’s four conservative justices sided with Kennedy.

The case turned on a 2000 decision, in which the majority opinion was written by Kennedy, holding that separate elections for descendants of Hawai’i’s indigenous peoples violate the 15th Amendment. As the election was being conducted with government funds, it could not reasonably be held that it wasn’t a government-sponsored election. And government-sponsored elections can’t discriminate on the basis of race.

But while the election itself may have constitutional issues, it’s exceedingly rare for the Court to keep ballots from being counted in the first place (one notable exception being Bush v Gore), as election law professor Rick Hasen noted in the Journal’s report. What’s more, Native Hawaiians have been making progress toward having expanded self-governance. As the Journal reported, the Obama administration “has backed Hawaii’s effort to expand rights for Native Hawaiians, which could result in an organization akin to an American Indian tribal government.” The administration also supported Na’i Aupuni in this court case.

The broader push for self-governance was likely the reason why the lower courts allowed the election to proceed. While the results could be challenged later, there’s no harm in at least counting the votes — especially if the election is part of an ongoing process for expanded rights for descendants of the islands’ indigenous peoples.

Na’i Aupuni has extended the deadline to vote in the election to December 21st, by which time they hope the appeals process will have fully run its course.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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3 Responses to “Supreme Court temporarily blocks vote count in Native Hawaiian election”

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  2. BeccaM says:

    Taxpayer funds provided by non-indigenous Hawaii residents were used to fund an election in which they had no right to participate, to create a self-rule governing body in which they would have no representation. That’s the biggest problem right there, I’m afraid.

    Requiring a sworn affirmation for self-rule from the voting-eligible indigenous Hawaiians is another. Imagine if participation in a Texas election required people to swear to support the state’s right to secede before being granted a ballot.

    Never thought I’d lean toward the SCOTUS conservatives’ position, but there it is.

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