Hale Pai
Pacific American-News Journal
`Okakopa - October 1996 Volume 2 Issue 10
The Hawaiian Vote
ROBERT M. REES
The most significant Hawaiian vote of this year, or any other,
has taken place. Hawaiians were asked, “Shall the Hawaiian
people elect delegates to propose a Native Hawaiian
government?” Of the 33,000 Hawaiians who responded by
mail-in ballot, over 22,000 voted yes.
The announcement of the tally came only after Hawaii's U.S
District Court, in a decision just as important as the vote
itself, lifted a temporary restraining order that had prohibited
the release of the election results. While ostensibly conducive
to sovereignty, the Court's decision - one of the most
significant ever made on the overall status of Hawaiians - is
every bit as delimiting as the vote was expansive.
The election was conducted by the Hawaiian Sovereignty
Elections Council. Created by state Act 359 in 1993, the
Elections Council was charged with holding a plebiscite “to
determine the will of the indigenous Hawaiian people to restore a
nation of their own choosing.”
The Hawaiian Sovereignty Elections Council was not without
opposition from Hawaiians. The sovereignty group Ka Lahui Hawaii,
perhaps motivated by a desire to control the process, depicted
the Elections Council as a pawn of the state's “Final
Theft.”
After three years of disputes, the one-month's balloting
finally began on July 15 of this year, only to be challenged by
federal suits.
At an Aug. 16 hearing attended by about 200 people - mostly
from the Hawaiian community, but including the only Honolulu TV
news anchor who actually leaves the studio in search of news,
KITV's Tina Shelton - U.S. District judge David Ezra granted a
temporary restraining order that sealed the election results
until he could hear arguments on the constitutional issues.
There were many issues in the case, but at the core was a
basic question: whether the state of Hawaii can be involved in an
election that disqualifies voters on the basis of race.
A full hearing was held on Aug. 30, this one also before a
packed courtroom. Then, on Sept. 6, Ezra issued a scholarly
52-page decision that released the vote. Ezra, who has indicated
to this writer that he is an admirer of former state Supreme
Court Chief Justice William Richardson - the creator of the
hybrid of American jurisprudence and Hawaiian tradition that we
enjoy today - ruled that Hawaiians have a special political
status not unlike that of Native Americans. This special status,
declared Ezra, allows for special treatment by the government.
“While there is undoubtedly a racial component to the
voter qualifications for the Native Hawaiian vote,” wrote
Ezra, and while “Native Hawaiians are not now a federally
recognized tribe...they nevertheless have a special relationship
with the United States that removes Act 359 from heightened
constitutional scrutiny.”
Ezra was careful to note, however, that the highly touted
federal Apology Bill of 1993 has no bearing on the special status
of Hawaiians. In a footnote, he wrote, “While the United
States expressed its deep regret...the Apology Bill creates no
specific Native Hawaiian rights.”
Ezra was also careful to note, “While the State may have
narrow authority to canvass the sentiment of the Native Hawaiians
on the issues of sovereignty... the State cannot take any
affirmative action that would run contrary to the interests of
other citizens of this state, to whom it also owes exacting trust
duties under the public trust created by the Admission Act.”
Any affirmative action, wrote Ezra, “would be subject to
strict scrutiny.” Strict scrutiny is a test that the state
almost always fails. It requires the demonstration of a
“compelling interest” in denying constitutional rights.
It is the standard of review being applied to the state's efforts
to ban same-sex marriage.
In the decision's Footnote 11, one that will be cited
frequently, Ezra states that constitutional concerns about future
state involvement in specific activities having to do with
sovereignty or transfer of land may be well founded.
The net result of the decision is to remove the state from the
sovereignty process until such time as the state can demonstrate
to the courts a “compelling interest” for providing
special treatment based on race.
A demonstration of compelling state interest when it comes to
correcting the egregious wrongs of the past against Hawaiians is
not out of the question. In fact, it offers the constitutional
path of least resistance.
The U.S. Supreme Court, in U.S. v. Paradise, approved
Alabama's plan to promote black state troopers on a 1-1 ratio
with whites. The plan was approved because it was premised on
providing a remedy for Alabama's egregious discrimination of the
past.
Last year, in Adarand v. Pena, the U.S. Supreme Court held
that programs that classify people by race are presumably
unconstitutional, but noted. “We wish to dispel the notion
that `strict scrutiny is strict in theory but fatal in
fact.'”
Certainly, Hawaii and the federal government have a compelling
interest in rectifying the harm done to Hawaiians.
The content of Ezra's decision, due to a press evidently
unable to handle significant news even when the news is literally
handed to it, has gone mostly unnoticed. The decision was
released on Sept. 6 at 8:50 a.m., yet the afternoon
Star-Bulletin, at least in its early editions, did not mention
the decision. In fact, the Star-Bulletin didn't even bother to
add it to its Web page.
Other than a teaser on KITV, the 5pm television news didn't
cover the story at all. On the 6 pm news, only KITV led with it.
The nest morning, the Advertiser ran a self-centered
editorial, “Better late than never,” which defended its
own absurd view that the seven days Ezra took to consider his
decision after final oral arguments was too long.
As a result of our wayward press, Hawaii has yet to grasp the
beauty of Ezra's decision. All in one syllogism, it allowed the
vote, clarified the issues and reminded us that absent a
compelling state interest, the U.S. Constitution provides equal
protection for all its citizens.
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Copyright © 1996 Hale Pai Pacific American-News Journal
Last modified: February 28, 1998
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