Constitution of Hawaii — Article 4

ARTICLE IV

 

REAPPORTIONMENT

 

Note

 

  This article, entitled "Reapportionment," is new, added by Const Con 1978 and election Nov 7, 1978.  The former Article IV, entitled "The Executive," now appears as Article V.

 

Cross References

 

  Statutory provisions, see chapter 25.

 

Law Journals and Reviews

 

  A History of Recent Reapportionment in Hawaii.  22 HBJ 171.

 

REAPPORTIONMENT YEARS

 

     Section 1.  The year 1973, the year 1981, and every tenth year thereafter shall be reapportionment years. [Add Const Con 1978 and election Nov 7, 1978]

 

 

REAPPORTIONMENT COMMISSION

 

     Section 2.  A reapportionment commission shall be constituted on or before May 1 of each reapportionment year and whenever reapportionment is required by court order.  The commission shall consist of nine members.  The president of the senate and the speaker of the house of representatives shall each select two members.  Members of each house belonging to the party or parties different from that of the president or the speaker shall designate one of their number for each house and the two so designated shall each select two members of the commission.  The eight members so selected, promptly after selection, shall be certified by the selecting authorities to the chief election officer and within thirty days thereafter, shall select, by a vote of six members, and promptly certify to the chief election officer the ninth member who shall serve as chairperson of the commission.

     Each of the four officials designated above as selecting authorities for the eight members of the commission, at the time of the commission selections, shall also select one person from each basic island unit to serve on an apportionment advisory council for that island unit.  The councils shall remain in existence during the life of the commission and each shall serve in an advisory capacity to the commission for matters affecting its island unit.

     A vacancy in the commission or a council shall be filled by the initial selecting authority within fifteen days after the vacancy occurs.  Commission and council positions and vacancies not filled within the times specified shall be filled promptly thereafter by the supreme court.

     The commission shall act by majority vote of its membership and shall establish its own procedures, except as may be provided by law.

     Not more than one hundred fifty days from the date on which its members are certified, the commission shall file with the chief election officer a reapportionment plan for the state legislature and a reapportionment plan for the United States congressional districts which shall become law after publication as provided by law.  Members of the commission shall hold office until each reapportionment plan becomes effective or until such time as may be provided by law.

     No member of the reapportionment commission or an apportionment advisory council shall be eligible to become a candidate for election to either house of the legislature or to the United States House of Representatives in either of the first two elections under any such reapportionment plan.

     Commission and apportionment advisory council members shall be compensated and reimbursed for their necessary expenses as provided by law.

     The chief election officer shall be secretary of the commission without vote and, under the direction of the commission, shall furnish all necessary technical services.  The legislature shall appropriate funds to enable the commission to carry out its duties. [Add Const Con 1978 and election Nov 7, 1978; am HB 2322 (1992) and election Nov 3, 1992]

 

 

CHIEF ELECTION OFFICER

 

     Section 3.  The legislature shall provide for a chief election officer of the State, whose responsibilities shall be as provided by law and shall include the supervision of state elections, the maximization of registration of eligible voters throughout the State and the maintenance of data concerning registered voters, elections, apportionment and districting. [Add Const Con 1978 and election Nov 7, 1978]

 

 

APPORTIONMENT AMONG BASIC ISLAND UNITS

 

     Section 4.  The commission shall allocate the total number of members of each house of the state legislature being reapportioned among the four basic island units, namely:  (1) the island of Hawaii, (2) the islands of Maui, Lanai, Molokai and Kahoolawe, (3) the island of Oahu and all other islands not specifically enumerated, and (4) the islands of Kauai and Niihau, using the total number of permanent residents in each of the basic island units and computed by the method known as the method of equal proportions; except that no basic island unit shall receive less than one member in each house. [Add Const Con 1978 and election Nov 7, 1978; am HB 2327 (1992) and election Nov 3, 1992]

 

Case Notes

 

  Plaintiff citizens had not shown a likelihood of succeeding on their claim that Hawaii's legislative reapportionment plan's use of a permanent resident base, coupled with extraction of military personnel, their dependents, and students, constituted an equal protection violation for the purpose of a preliminary injunction; further, the equities and public interest tipped overwhelmingly in defendant reapportionment commission's favor, as any preliminary relief at this stage would significantly upend the election process; plaintiff's motion for preliminary injunction denied.  878 F. Supp. 2d 1124 (2012).

  Where the final reapportionment plan included thousands of non-permanent university student residents and non-permanent active duty military residents, as well as thousands of other non-permanent residents who were the dependents of the non-permanent active duty military residents, the plan disregarded the express mandate of this section that only permanent residents be counted in the population base for the purpose of reapportionment of the state legislature; the inclusion of non-permanent residents was an error in the plan rendering the plan constitutionally invalid under this section.  126 H. 283, 270 P.3d 1013 (2012).

 

 

MINIMUM REPRESENTATION FOR BASIC ISLAND UNITS

 

     Section 5.  The representation of any basic island unit initially allocated less than a minimum of two senators and three representatives shall be augmented by allocating thereto the number of senators or representatives necessary to attain such minimums which number, notwithstanding the provisions of Sections 2 and 3 of Article III shall be added to the membership of the appropriate body until the next reapportionment.  The senators or representatives of any basic island unit so augmented shall exercise a fractional vote wherein the numerator is the number initially allocated and the denominator is the minimum above specified. [Am Const Con 1968 and election Nov 5, 1968; ren Const Con 1978 and election Nov 7, 1978]

 

Note

 

  A proposal of the 1978 Constitutional Convention deleting this provision from the Constitution was not validly ratified. Kahalekai v. Doi, 60 H. 324, 590 P.2d 543.  In view of the holding, the revisor has restored this provision (formerly a part of section 4 of the old Article III), with a necessary change in reference, and renumbered it as section 5 under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

 

 

APPORTIONMENT WITHIN BASIC ISLAND UNITS

 

     Section 6.  Upon the determination of the total number of members of each house of the state legislature to which each basic island unit is entitled, the commission shall apportion the members among the districts therein and shall redraw district lines where necessary in such manner that for each house the average number of permanent residents per member in each district is as nearly equal to the average for the basic island unit as practicable.

     In effecting such redistricting, the commission shall be guided by the following criteria:

     1.  No district shall extend beyond the boundaries of any basic island unit.

     2.  No district shall be so drawn as to unduly favor a person or political faction.

     3.  Except in the case of districts encompassing more than one island, districts shall be contiguous.

     4.  Insofar as practicable, districts shall be compact.

     5.  Where possible, district lines shall follow permanent and easily recognized features, such as streets, streams and clear geographical features, and, when practicable, shall coincide with census tract boundaries.

     6.  Where practicable, representative districts shall be wholly included within senatorial districts.

     7.  Not more than four members shall be elected from any district.

     8.  Where practicable, submergence of an area in a larger district wherein substantially different socio-economic interests predominate shall be avoided. [Add Const Con 1978 and election Nov 7, 1978; am HB 2327 (1992) and election Nov 3, 1992]

 

Note

 

  A proposal of the 1978 Constitutional Convention adding to the second paragraph an item 9 reading:  "9.  No consideration shall be given to holdover senators in effecting redistricting." was not validly ratified.  Kahalekai v. Doi, 60 H. 324, 590 P.2d 543.  In view of the holding, the revisor has deleted the provision under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

  In view of the addition to this article of a new section 5, the revisor has renumbered this section as section 6 under the authority of Resolution No. 29.

 

Case Notes

 

  Plaintiff citizens had not shown a likelihood of succeeding on their claim that Hawaii's legislative reapportionment plan's use of a permanent resident base, coupled with extraction of military personnel, their dependents, and students, constituted an equal protection violation for the purpose of a preliminary injunction; further, the equities and public interest tipped overwhelmingly in defendant reapportionment commission's favor, as any preliminary relief at this stage would significantly upend the election process; plaintiff's motion for preliminary injunction denied.  878 F. Supp. 2d 1124 (2012).

  "Compact and contiguous" districts discussed in context of council district reapportionment plan under city charter.  75 H. 463, 868 P.2d 1183.

 

 

ELECTION OF SENATORS AFTER REAPPORTIONMENT

 

     Section 7.  Regardless of whether or not a senator is serving a term that would have extended past the general election at which an apportionment plan becomes effective, the term of office of all senators shall end at that general election.  The staggered terms of senators in each district shall be recomputed as established by the next section in this article, and the number of senators in a senatorial district under the reapportionment plan of the commission. [Add Const Con 1978 and election Nov 7, 1978; am SB 2234 (1992) and election Nov 3, 1992; am HB 1 (2000 2d) and election Nov 7, 2000]

 

Revision Note

 

  Renumbered from section 6 under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

 

 

STAGGERED TERMS FOR THE SENATE

 

     Section 8.  The reapportionment commission shall, as part of the reapportionment plan, assign two-year terms for twelve senate seats for the election immediately following the adoption of the reapportionment plan.  The remaining seats shall be assigned four-year terms.  Insofar as practicable, the commission shall assign the two-year terms to senate seats so that the resident population of each senate district shall have no more than two regular senate elections for a particular senate seat within the six-year period beginning in the even-numbered year prior to the reapportionment year; provided that in the event of a multi-member senate district, the senators elected with the highest number of votes in that district in the election immediately following the adoption of the reapportionment plan shall fill the senate seats in that district which were assigned the four-year terms by the commission. [Add Const Con 1978 and election Nov 7, 1978; am HB 572 (1987) and election Nov 8, 1988; am SB 2234 (1992) and election Nov 3, 1992; am HB 1 (2000 2d) and election Nov 7, 2000]

 

Revision Note

 

  Renumbered from section 7 under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

 

 

CONGRESSIONAL REDISTRICTING FOR

UNITED STATES HOUSE OF REPRESENTATIVES

 

     Section 9.  The commission shall, at such times as may be required by this article and as may be required by law of the United States, redraw congressional district lines for the districts from which the members of the United States House of Representatives allocated to this State by Congress are elected. [Add Const Con 1978 and election Nov 7, 1978]

 

Revision Note

 

  Renumbered from section 8 under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

 

Case Notes

 

  Plaintiff citizens had not shown a likelihood of succeeding on their claim that Hawaii's legislative reapportionment plan's use of a permanent resident base, coupled with extraction of military personnel, their dependents, and students, constituted an equal protection violation for the purpose of a preliminary injunction; further, the equities and public interest tipped overwhelmingly in defendant reapportionment commission's favor, as any preliminary relief at this stage would significantly upend the election process; plaintiff's motion for preliminary injunction denied.  878 F. Supp. 2d 1124 (2012).

 

 

MANDAMUS AND JUDICIAL REVIEW

 

     Section 10.  Original jurisdiction is vested in the supreme court of the State to be exercised on the petition of any registered voter whereby it may compel, by mandamus or otherwise, the appropriate person or persons to perform their duty or to correct any error made in a reapportionment plan, or it may take such other action to effectuate the purposes of this section as it may deem appropriate.  Any such petition shall be filed within forty-five days of the date specified for any duty or within forty-five days after the filing of a reapportionment plan. [Add Const Con 1978 and election Nov 7, 1978]

 

Revision Note

 

  Renumbered from section 9 under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

 

Attorney General Opinions

 

  Delegates to convention devising reapportionment plan are not prohibited from becoming candidates under the new plan.  Att. Gen. Op. 77-3.

 

Case Notes

 

  Use of registered voters as basis of apportionment.  384 U.S. 73, 84, 90, upon review of 238 F. Supp. 468, 240 F. Supp. 724.

  Whether reapportionment can be as infrequent as every ten years if registered voters used as basis raised but not decided.  384 U.S. 73, 96, upon review of 238 F. Supp. 468, 240 F. Supp. 724.

  Last clause providing for minimum representation is invalid.  316 F. Supp. 1285.

  Method of equal proportions is constitutionally permissible; so is use of registered voters as basis of apportionment.  316 F. Supp. 1285.

  Provisions for minimum representation and fractional voting are invalid.  316 F. Supp. 1285.

  Direction for first reapportionment held applicable to initial state elections held pursuant to §§6 and 7(a) of Hawaii Admission Act, 73 Stat 4.  43 H. 261.

  Departure from strict adherence to allocation under method of equal proportions permitted to balance off inequities.  55 H. 85, 515 P.2d 1253.

  Determination that first senatorial district shall consist of the whole island of Hawaii does not violate criterion that "insofar as practicable, districts shall be compact".  55 H. 89, 515 P.2d 1249.