Judicial Watch Wins a Lawsuit Halting Race-based "Native Hawaiian Only" Election in Hawaii

Tom Fitton

Judicial Watch Scores Supreme Court Win

How about a little good news? Your Judicial Watch, on behalf of a group of patriotic Americans, scored a major victory for the U.S. Constitution and national unity before the United States Supreme Court. This week, we convinced the Supreme Court to issue an injunction halting a race-based "Native Hawaiian-only" election in Hawaii. In August, Judicial Watch filed a federal lawsuit on behalf of the five Hawaiian residents and one Texas resident of Hawaiian descent who opposed the discriminatory election process (Keli'i Akina, et al. v. The State of Hawaii, et al. (No. 1:15-cv-00322)).

The Supreme Court victory is remarkable. The JW statement issued to the press puts it all together:

"The Supreme Court today issued an injunction that put a hard stop to the race-based, separatist election in Hawaii that violated the 'fundamental constitutional rights' of our American citizen clients. Today's ruling is a historic setback to the State of Hawaii and the Obama administration, which misused public monies to push a racially discriminatory election. President Obama and Hawaiian political leaders should be called to account for their cynical support of a race-based election that violated numerous civil rights laws and the U.S. Constitution. Our clients are brave patriots who took a public stand on behalf of the rule of law. The High Court agreed our clients had an indisputable right to this relief and it is wonderful to see their faith in our Constitution vindicated by today's Supreme Court ruling. In addition, Judicial Watch's hundreds of thousands of supporters deserve thanks for providing the voluntary support that allowed our team of hard-working attorneys to stop this corrupt and dangerous election. Kudos also to the Grassroot Institute of Hawaii, a Hawaii-based think tank, that gave invaluable assistance to our efforts."

After we filed our lawsuit over the issue in August, we quickly asked the court for apreliminary injunction to stop the vote that had been scheduled for November 2015. Our lawyers argued that our clients would be denied the right to vote either because of their race or their political views - in direct violation of the U.S. Constitution and the Voting Rights Act of 1965. Hawaii's Act 195 authorizes the Native Hawaiian Roll Commission (NHRC) to create a list of "Native Hawaiians" who would be eligible to elect delegates to a planned constitutional convention, which would then prepare "governance documents" for a separate Native Hawaiian entity.

The lower court denied our injunction, so we took it upstairs to the appellate court. We filed an Urgent Motion for Injunction with the U.S. Court of Appeals for the Ninth Circuit. We lost again. Undeterred and confident in our legal arguments, the JW team immediately thereafter filed an emergency application on November 23 to the Honorable Justice Anthony Kennedy, Associate Justice of the United States Supreme Court who oversees the Ninth Circuit. Last Friday, shortly after Judicial Watch replied to Hawaii's opposition, Justice Kennedy issued anorder temporarily enjoining the election pending review by the entire Supreme Court. That was a sweet victory. But this week, the Supreme Court (voting 5-4) granted our request. The December 2, ruling reads:

The application for injunction pending appellate review presented to Justice Kennedy and by him referred to the Court is granted. Respondents are enjoined from counting the ballots cast in, and certifying the winners of, the election described in the application, pending final disposition of the appeal by the United States Court of Appeals for the Ninth Circuit. Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application.

Under federal law, the Supreme Court only issues emergency injunctions when the circumstances presented are "critical and exigent" and the legal rights at issue are "indisputably clear." Accordingly, this Supreme Court decision sends a strong message for the lower courts.

The aborted election, which was being conducted by mail-in ballots, was to have ended in November but the voting deadline was recently extended to midnight Monday, December 21. The election was made possible by a grant by the State of Hawaii of $2.6 million in public funds.

The war isn't over, but this is a significant success for the rule of law. Here, it's important to point out that the Obama administration supported the race-based election in this litigation despite the fact that the State of Hawaii limits eligible voters in the election to those who have at least one drop of Native Hawaiian blood. Go back in history, and you will find that this "one drop of blood" rule is like other laws last seen in the racist Jim Crow era: "It also has an unfortunate resonance in American history. See, e.g., Loving v. Virginia, 388 U.S. 1, 5 n. 4 (1967) (discussing Virginia statute holding that '[e]very person in whom there is ascertainable any Negro blood shall be deemed and taken to be a colored person')."

Imagine if this "one drop of blood" rule had resulted in a new "tribe" that had as its goal "independence" for Hawaii. The precedent could lead to Muslims asserting sovereignty, Hispanics, Scottish-Americans - you get the picture. This case was not only about the rights of our few clients, it was about the future of our nation.

That we were able to stop this potential calamity for our nation the day after Thanksgiving is providential. 

And our legal team requires special recognition, especially as they had to work over Thanksgiving! Robert Popper, director of Judicial Watch's Election Integrity Project, is Judicial Watch's lead attorney on the lawsuit and lead counsel for all plaintiffs. Mr. Popper was formerly deputy chief of the Voting Section of the Civil Rights Division of the Justice Department. Michael Lilly of the Honolulu law firm Ning, Lilly & Jones, a former Attorney General for Hawaii, is serving as Judicial Watch's local counsel for the plaintiffs. H. Christopher Coates is also an attorney for the plaintiffs. Coates is an expert voting rights attorney who most recently served as Chief of the Voting Section of the Civil Rights Division of the Justice Department under President Barack Obama. William S. Consovoy and J. Michael Connolly of Consovoy McCarthy Park PLLC just joined as counsel as the litigation went before the Supreme Court.

The fight isn't over, and the litigation will continue in the lower courts. But the corrupted election won't take place any time soon, and I wouldn't bet, based on this week's extraordinary Supreme Court action, that it will ever take place.