Race
Matters
A
kama‘äina rancher's fight to take part in the Hawaiians-only
vote moves into the view of the U.S. Supreme Court.
Robert M. Rees
April 28, 1999
Now the U.S. Supreme Court, in a case called Harold F. Rice vs. Gov. Benjamin Cayetano, is considering some aspects of the issue. This fall, it will hear oral arguments on whether the state of Hawai‘i may restrict to Hawaiians only the right to vote for leadership of a state agency that administers funds on behalf of Hawaiians. (Rice’s petition for a writ of certiorari filed with the U.S. Supreme Court puts it this way: "This case presents the question whether the Constitution permits a state to impose a racial qualification for voting in a statewide election.")
Harold F. Rice, called Freddie by all who know him, is a rancher who lives in Kamuela on the Big Island. He is Caucasian, descended from missionary settlers, and his family has lived in Hawai‘i for five generations — since before the Kingdom of Hawai‘i was overthrown in 1893.
The 65-year-old Rice has from time to time challenged government programs limited to Hawaiians. As he expected, when he attempted to register for statewide elections in 1996, in the process indicating that he wanted to vote in the election of trustees for the state’s Office of Hawaiian Affairs, he was turned down. The explanation was that by statute, only those with some quantum of blood from the aboriginal peoples who inhabited the islands prior to the arrival of the first haole, Captain James Cook, in 1778, are eligible to vote for the OHA trustees.
OHA was established by amendment to the state Constitution in 1978. Its purpose is to administer funds on behalf of Native Hawaiians (defined as "any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778") and on behalf of Hawaiians (defined as any person with any quantum of Hawaiian blood). OHA’s funding comes from the state Legislature and from a portion of revenues generated by nearly 2 million acres of ceded lands held by the state as a public trust.
To Rice, the statute limiting the vote for OHA trustees to Hawaiians seemed both a violation of the 15th Amendment to the U.S. Constitution, that the right of citizens to vote shall not be denied because of race, and of the Equal Protection Clause of the 14th Amendment. He filed suit in 1996, and in Rice vs. Cayetano asked the U.S. District Court of Hawai‘i to disallow the OHA election process. At the same time, Rice challenged a special state-funded Hawaii-ans-only vote on whether Hawaiians should convene to discuss their next steps toward sovereignty.
In a maneuver that turned out to be ironic, Mililani Trask, now an OHA trustee but then a leader of Ka Lähui, a Hawaiian sovereignty group that opposed state interference in anything to do with sovereignty, urged Rice’s attorney, John Goemans, to consolidate his case with another, Kakalia vs. Cayetano. The consolidated case asked only for a preliminary injunction on the sovereignty-related vote, and the OHA portion was left for later.
The consolidated case of Rice vs. Cayetano and of Kakalia vs. Cayetano set some important parameters for the OHA portion of the case, now before the U.S. Supreme Court. Importantly, in defending the constitutionality of a special Hawaiians-only vote, the state relied heavily on a 1974 Supreme Court case, Morton vs. Mancari. Morton established that preferential treatment for American Indians is not a denial of equal protection, because the preference isn’t based on race but rather on a special political relationship that exists between Congress and federally recognized Native American tribes.
U.S. District Court Judge David Ezra, in September 1996, agreed with the view that Hawaiians have a similar special relationship with the state and federal governments: "While ... Native Hawaiians are not now a federally recognized tribe ... they nevertheless have a special relationship that removes [the question of voter eligibility in a special election] from heightened constitutional scrutiny."
"Constitutional scrutiny" is a reference to the three levels of hurdles that our courts apply in determining the constitutionality of legislation. The most rigorous, strict scrutiny is invoked when fundamental constitutional rights are involved.
When strict scrutiny is applied, the courts presume a statute to be unconstitutional. All legislation that classifies people by race or religion must pass strict scrutiny. As the U.S. Supreme Court has said, "such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests."
A step below strict scrutiny is heightened scrutiny, where the government must show a substantial interest. The lowest hurdle is ordinary scrutiny. Ordinary scrutiny assumes the legislation in question is constitutional, and requires only that the government demonstrate that any classifications used — such as age, income or place of residence — are reasonably related to a legitimate government interest.
In the Morton case, the U.S. Supreme Court applied the lowest level of scrutiny to preferential treatment for Native Americans: "As long as the special treatment … can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed."
Judge Ezra applied this rational-basis test of ordinary scrutiny in leaving the Hawaiians-only vote undisturbed, noting that the state was simply "polling" Native Hawaiians on their views. The judge warned that if the state went further than this, such as getting involved in the drafting of a constitution for Hawaiians, then, "Plaintiffs’ concerns regarding the constitutionality of the state’s involvement ... may be well-founded."
Ezra also added a cautionary footnote: "There are clearly situations where state or federal action directed at persons of Native Hawaiian ancestry as a racially-defined class would be subject to strict scrutiny."
The next year, the continued portion of Rice vs. Cayetano, Rice argued that he was barred from OHA elections because of race-based standards. In spite of Judge Ezra’s previous disclaimers and warnings, he ruled again that the Hawaiians-only voter criterion was based not on race, but on a recognition of the unique "guardian-ward relationship" that exists between the federal and state governments and Native Hawaiians.
With regard to the 14th Amendment’s guarantee of "one person, one vote," the state relied on a 1973 Supreme Court case, Salyer Land Company vs. Tulare Lake Basin Water Storage District. In Salyer, the Supreme Court permitted a "special purpose" election exception to the one person, one vote rule, upholding an election permitting only California landowners to vote for the managers of their water-storage districts. The court reasoned that landowners were the only ones with a "substantial" and "legitimate" interest in an election that was otherwise narrow in impact and scope. Ezra agreed with the state’s application of Salyer, ruling that OHA does not have the broad and general powers that would invoke the demands of the one person/one vote doctrine.
Based on these premises — that Hawaiians enjoy a special relationship with government, and that OHA elections are special-purpose elections exempt from the one person, one vote doctrine — Ezra applied ordinary scrutiny to the OHA election, concluding in May 1997 that it was constitutional.
Following Rice’s loss in the District Court, funding for the expensive legal effort dried up. Rice and attorney Goemans turned first to the American Civil Liberties Union of Hawai‘i for help with regard to the 15th Amendment claims. Attorney Ed Kemper of the local ACLU responded that national ACLU policy favors affirmative action.
Rice and Goemans then asked for help from a controversial Houston, Texas, organization called the Campaign for a Color-Blind America — known for its support of lawsuits, based on the Equal Protection Clause, which have sought to overturn affirmative-action programs. CCBA has drawn criticism: The Houston Lawyer’s Association, a group of African-American attorneys, has even accused it of being racist. CCBA denies this, however, and points out that its chairman is African American, and that Linda Chavez, a former member of the Equal Employment Opportunity Commission, is on its board.
CCBA’s support made an appeal possible. As Goemans later put it in a CCBA publicity release, "Without the support of the Campaign for a Color-Blind America, we would not have been able to pursue the appeal."
On June 22, 1998, the 9th Circuit Court of Appeals affirmed Ezra’s decision. Perhaps catching the eye of the U.S. Supreme Court with its hubris, the Court of Appeals gratuitously noted, "Even if the voting restriction must be subjected to strict judicial scrutiny because the classification is based explicitly on race, it survives because [of] the state’s compelling responsibility to honor the trust." This was almost a direct challenge to the Supreme Court, which of late has used strict scrutiny to strike down several race-based programs.
Following their loss at the 9th Circuit, Rice and Goemans enlisted the aid of Gibson, Dunn & Crutcher, a national firm with a branch in Washington, D.C. The high-priced firm, known for its conservative views of the law, is working on a pro bono basis. The counsel of record is Theodore Olson, a former Justice Department official in the Reagan administration. In addition, eight other Gibson, Dunn & Crutcher attorneys are working on the case, all at no cost.
On Nov. 17, Gibson, Dunn & Crutcher petitioned the Supreme Court to consider the case. The brief is a work of art, and Goemans, who is working in Washington with the firm, says, "It’s 10 times what I could have done alone."
Following an unusual three months of discussions that began in January, the Supreme Court granted certiorari. Certiorari requires only four of nine votes, and we’re not sure why at least four justices think the Circuit Court’s decision ought to be reviewed.
We do know that the 9th Circuit itself is under strict scrutiny: Its reversal rate is now the highest of the 13 circuits in the nation. In 1996, for example, the Supreme Court overruled 10 of 12 appeals it took from the 9th Circuit. Says Goemans, "You’ve got to figure we’ve got an 80 or 90 percent chance to win."
Hawai‘i, defending the OHA elections, will be represented by the state Attorney General’s Office. Attorney General Margery Bronster, who has been busy in her role as parens patrie for the beneficiaries of Hawai‘i’s largest private trust, Bishop Estate, acknowledges that she is looking for outside legal help — soliciting attorneys through ads in The Washington Post, as well as looking elsewhere for top-ranked counsel. (Bronster called Harvard University’s constitutional law expert, Lawrence Tribe, who successfully defended the state in 1984 with regard to its leasehold-to-fee-simple conversion law aimed at Hawaiian landowners. This time around, because he is on sabbatical, Tribe’s office declined.)
The state has asked OHA to contribute to the cost of retaining outside legal counsel — an expense that may run as high as $500,000. OHA, however, because the Attorney General’s Office has opposed it on cases involving ceded land payments due Hawaiians, maintains that the Attorney General has a conflict and shouldn’t be involved in the case at all. (In fact, OHA Trustee Frenchy DeSoto testified "strongly in opposition" at Bronster’s April 16 reappointment hearing before the Senate Judiciary Committee.)
Bronster bristles at the idea of a conflict, and notes that she is defending the state Constitution and a state statute, not OHA. In fact, Bronster implies that how she goes about defending the case is none of OHA’s business — pointing out that OHA, except for its amicus brief, was not involved in her earlier and successful litigation of Rice vs. Cayetano. (In the meantime, the Weekly has learned, OHA Trustees Hannah Springer and Rowena Akana have been interviewing attorneys in Washington, D.C.)
The run-up to the U.S. Supreme Court decision has ignited the local community. The chairperson of OHA, Rowena Akana, questions Rice’s motives. Writing in The Honolulu Advertiser, Akana said, "Perhaps this fifth-generation descendant of missionaries ... has a different agenda than the one he states."
On public-access television, OHA Trustee Mililani Trask and her sister, sovereignty advocate and UH Hawaiian Studies Professor Haunani-Kay Trask, without mentioning Mililani Trask’s previous involvement with Rice’s attorney, announced that it had been discovered that Rice’s grandfather once proposed those of "low capacity" be sterilized.
Rice responds: "People are trying to make this an Hawaiian issue. It’s not. It’s a constitutional issue." (Rice also says the attacks by Hawaiians have stimulated his supporters to increase their contributions to his legal fund.)
Emotions are high because the case is vital to Hawai‘i, and there are a number of important alternatives that the Supreme Court might consider. First, the Supreme Court might simply affirm the 9th Circuit’s decision. This, as Linda Greenhouse of The New York Times points out, would leave us with an important but Hawai‘i-specific decision that recognizes the unique history and status of Native Hawaiians. Such a decision would endorse the existence of a special relationship between the state and Hawaiians, and allow for more state and federal "guardian/ward" programs.
Conversely, the U.S. Supreme Court may determine that Native Hawaiians do not constitute a distinct political society or tribe, and that they do not have the sort of special relationship with government that justifies the use of ordinary instead of strict scrutiny. (The concept of a "special relationship" was first articulated by Chief Justice John Marshall in the Cherokee cases of the 1830s, and is based on the power of Congress to regulate commerce with Indian tribes and to ratify treaties with Indian nations and tribes. Marshall ruled that the Cherokees are "a distinct political society.")
Further, the Supreme Court could determine that there is no such thing as a "special relationship" between any state and its native people. In a case involving the Yakima Indian Nation and the state of Washington, the Court ruled in 1979 that the states do not enjoy a unique relationship with Indian tribes, and cannot single them out in legislation unless "under explicit authority granted by Congress."
If there is no special relationship between Hawai‘i and Hawaiians, then the OHA voter restrictions are by definition based not on a special political relationship but on race. The Fifteenth Amendment would then apply. Rice believes this is the direction the Supreme Court will take. "We think the mistake Judge Ezra and the Appeals Court made is in the special relationship," he says. "It would allow any group in any state to argue that they have a special relationship, and to take money from the general funds."
Haunani-Kay Trask, on the other hand, cites the "nearly two dozen existing federal programs earmarked for Hawaiians" outstanding. In an opinion piece she authored for The Honolulu Star-Bulletin, she concludes, "Hawaiians occupy a special category of citizens. Because of their uniqueness as indigenous people, preferential programs for Hawaiians, such as University of Hawai‘i tuition waivers, are based on political rather than racial classifications. … If UH can waive tuition for … the athletes, then why not for native students?"
The Supreme Court may also consider the one person, one vote doctrine as it applies to OHA elections. In 1989, in Board of Estimate of City of New York vs. Morris, it struck down what was presented as a special-purpose election on the grounds that the elected body fell "comfortably within the category of government bodies whose ‘powers are general enough and have sufficient impact’ ... to require that elections to the body comply with equal-protection strictures."
In addition, the Supreme Court may rule that Salyer was never meant to carve out an exception to prohibitions against racial discrimination in elections.
Even if the Supreme Court finds there is no special relationship, and even if it rules that the election of OHA trustees does not qualify as a special-purpose election, or that in any case special-purpose elections do not enjoy an exemption from prohibitions against racial discrimination, it could still determine that the Hawaiians-only election of OHA trustees furthers a compelling state interest. The Supreme Court may equate the Hawaiians-only vote to an affirmative-action program, as Rice argues; then, applying strict scrutiny, the Court would have to determine that race-based elections in Hawai‘i are narrowly tailored to remedy the effects of past discrimination.
One reason that the U.S. Supreme Court granted certiorari may be that some justices see the need to examine whether and under what circumstances state elections might ever be race-based. In 1995, when the Court disallowed Georgia’s use of race as a predominant factor in drawing electoral-district boundaries, the majority in the 5-4 Miller vs. Johnson decision noted, "Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may Balkanize us into competing racial factions."
Nobody knows which way the Supreme Court will go. Whatever happens, the decision will consider a problem familiar to all Americans: A need to remedy wrongs of the past while providing equal protection in the present.
At a minimum, the decision will help to clarify the relationship between Hawaiians and their government, and to shed light on the status of Hawaiians in Hawai‘i.
