Splitting five to four, the Supreme Court on Wednesday afternoon extended an order that will keep the results of a Hawaii election from being known or approved while a court test of the balloting rules goes on. In a brief order, the Court blocked the counting of the ballots and certification of the results at least until a Federal Appeals court rules on the election’s validity.
A group of Hawaii residents has complained that voting in the election is limited to those who can claim ancestry as “Native Hawaiians.” They argue that this is a race-based exclusion in violation of the Fifteenth Amendment. The sponsors of the election insist that it is a private affair, not subject to constitutional limitations.
The order split the Court along ideological lines, with the more conservative Justices in the majority and the more liberal ones in dissent. The State of Hawaii and the Obama administration strongly support the election as now being conducted as a prelude to the creation of a new independent nation, like an Indian tribe, within Hawaii. The voters will be choosing delegates to a convention to write a new constitution for a tribe-like, sovereign nation.
Last Friday, Justice Kennedy, in his role as Circuit Justice for the Ninth Circuit, which includes Hawaii, had issued a temporary order against counting and certification of results until the Justices could consider the plea for delay of the results during the challengers’ appeal. The full Court presumably considered the issue at a private Conference held after oral argument.
Originally, the election, which started on a continuous basis on November 1, was scheduled to end this past Monday, November 30. However, the organization that is managing the election, believing that Justice Kennedy’s order in the waning days of balloting would discourage some from voting, extended the balloting through midnight (Hawaii time) until December 21.
The extension of balloting was announced in a press release on Monday. A copy of that press release was sent to the Court on Wednesday to notify it, but no mention was made of that in the Court’s order.
The Court did not issue an opinion explaining the order, but it appeared that the majority was inclined to believe that the election was not truly a private affair, but was instead officially ordered and at least partly financed by the state, thus raising the question whether it could constitutionally be confined along an ethnic or racial line. And it appeared that the dissenting Justices were at least partially persuaded that this is a matter relating only to self-determination of a cohesive ethnic community. That is the argument made for the election and constitutional convention by the Obama administration and the State of Hawaii.
The challengers to the balloting limitation are relying mainly upon a seven-to-two decision by the Court in the 2000 case of Rice v. Cayetano, striking down a similar limitation for the election of officials in a state agency, the Office of Hawaiian Affairs. This time, supporters of the election contend it is for the selection of delegates to a convention among ethnic Hawaiians only, to draft a constitution for the proposed new nation.
Five members of the current Court took part in the 2000 decision, along with now-retired colleagues. Justice Kennedy wrote the majority ruling, joined by Justices Scalia and Thomas. Justice Breyer supported the result, but not the reasoning of the majority. Justice Ginsburg dissented.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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