No. 00-17213
IN THE UNITED
STATES COURT OF APPEALS
FOR THE NINTH
CIRCUIT
EARL F. ARAKAKI,
et al.,
Plaintiffs-Appellees,
v.
STATE OF HAWAII,
BENJAMIN J. CAYETANO, in his official capacity as GOVERNOR OF THE STATE
OF HAWAII, DWAYNE D. YOSHINA, in his official capacity as CHIEF ELECTION
OFFICER OF THE STATE OF HAWAII,
Defendants-Appellants.
On Appeal from
the United States District Court
for the District
of Hawaii
Honorable Helen
Gillmor, District Judge
BRIEF AMICUS
CURIAE OF PACIFIC LEGAL
FOUNDATION
IN SUPPORT OF PLAINTIFFS-
APPELLEES
AND IN SUPPORT OF AFFIRMANCE
JOHN H. FINDLEY, CSB No. 50495
ERIC A. GRANT, CSB No. 151064
DEBORAH G. KILEY, CSB No. 204267
Pacific
Legal Foundation
10360
Old Placerville Road, Suite 100
Sacramento,
California 95827
Telephone:
(916) 362-2833
Facsimile:
(916) 362-2932
Counsel for Amicus Curiae
Pacific Legal Foundation
CORPORATE
DISCLOSURE STATEMENT
Pursuant
to Federal Rule of Appellate Procedure 26.1, Amicus Curiae Pacific Legal
Foundation, a nonprofit corporation organized under the laws of California,
hereby states that it has no parent companies, subsidiaries, or affiliates
that have issued shares to the public.
DATED:
April _____, 2001.
TABLE OF CONTENTS
Page
CERTIFICATE OF
COMPLIANCE
33
TABLE
OF AUTHORITIES
Page
Cases
Adarand Constructors, Inc.
v. Pena, 515 U.S. 200 (1995)
9-13
Allen v. State Board of
Elections, 393 U.S. 544 (1969)
19
Anderson v. Martin,
375 U.S. 399 (1964)
13
City of Rome v. United States,
446 U.S. 156 (1980)
19,
20
Dougherty County Board of
Education v. White, 439 U.S. 32 (1978)
19
Hadnott v. Amos, 394
U.S. 358 (1969)
15
Katzenbach v. Morgan,
384 U.S. 641 (1966)
17
Malabed v. North Slope Borough,
42 F. Supp. 2d 927 (D. Alaska 1999)
30
Morse v. Republican Party,
517 U.S. 186 (1996)
16
Morton v. Mancari, 417
U.S. 535 (1974)
3,
22-24, 26
Reynolds v. Sims, 377
U.S. 533 (1964)
14
Rice v. Cayetano, 528
U.S. 495 (2000)
passim
Richmond v. J.A. Croson
Co., 488 U.S. 469 (1989)
12
Shaw v. Reno, 509 U.S.
630 (1993)
8
Smith v. Allwright,
321 U.S. 649 (1944)
15,
16
South Carolina v. Katzenbach,
383 U.S. 301 (1966)
14,
18, 21
Terry v. Adams, 345
U.S. 461 (1953)
16
Thornburg v. Gingles,
478 U.S. 30 (1986)
18,
19
Statutes
Federal
42 U.S.C. * 1973(a)
18
* 1973(b)
18
* 1973c
19
Pub. L. No. 103-150, 107 Stat.
1510 (1993)
12
Pub. L. No. 89-110, 79 Stat.
437 (1965)
17,
18
Pub. L. No. 106-569, 114 Stat.
2944 (2000)
25
State
Haw. Rev. Stat. * 13D-2
4,
6, 19
* 10-2
6
* 10-5
11
* 10-6
11
United
States Constitution
Amendment XIV, * 1
8
Amendment XV, * 1
13,
14
Amendment XV, * 2
17
Hawaii
Constitution
Article XII, * 5
4,
6, 19
Rules
and Regulations
Federal Rule of Appellate Procedure
29(b)
2
Miscellaneous
H.R. 4904, S. 2899, 106th Cong.
(2000)
26
H.R. 617, S. 81, 107th Cong.
(2001)
26
147 Cong. Rec. S338 (daily
ed. Jan. 22, 2001)
26-27
United States Department of
the Interior and United States Department of Justice,
From Mauka to Makai: The River
of Justice Must Flow Freely (Oct. 23, 2000)
27-28
No. 00-17213
IN THE UNITED
STATES COURT OF APPEALS
FOR THE NINTH
CIRCUIT
EARL F. ARAKAKI,
et al.,
Plaintiffs-Appellees,
v.
STATE OF HAWAII,
BENJAMIN J. CAYETANO, in his official capacity as GOVERNOR OF THE STATE
OF HAWAII, DWAYNE D. YOSHINA, in his official capacity as CHIEF ELECTION
OFFICER OF THE STATE OF HAWAII,
Defendants-Appellants.
On Appeal from
the United States District Court
for the District
of Hawaii
Honorable Helen
Gillmor, District Judge
BRIEF AMICUS
CURIAE OF PACIFIC LEGAL
FOUNDATION
IN SUPPORT OF PLAINTIFFS-
APPELLEES
AND IN SUPPORT OF AFFIRMANCE
IDENTITY AND INTEREST OF AMICUSCURIAE
PACIFIC LEGAL FOUNDATION
Pacific
Legal Foundation (PLF) is a nonprofit, tax-exempt organization that has
litigated in the public interest for 28 years. One of PLF*s principal
objectives is to promote equal opportunity and individual rights for
all Americans. Since the 1970s, PLF has participated in numerous cases
before this Court. PLF*s participation in this case is subject to this
Court*s granting PLF*s concurrently filed motion for leave to file an
amicus curiae brief in support of the Plaintiffs pursuant to Federal
Rule of Appellate Procedure 29(b).
PLF
participated as amicus curiae in support of petitioner Harold F. Rice
before the Supreme Court of the United States in
Rice v. Cayetano, 528 U.S. 495 (2000). Both
Rice and the present case arise from Article XII, Section 5 of
the Hawaii Constitution, which established the State of Hawaii*s Office
of Hawaiian Affairs (OHA). In Rice, the Supreme Court found
unconstitutional a race-based scheme that allowed only statutorily-defined
"Hawaiians" to vote
for trustees of OHA. This case deals with an equally unconstitutional
race-based scheme that allows only "Hawaiians" to
hold the elected office of OHA trustee. PLF files this brief
to ensure that Hawaii complies with
Rice and treats its citizens with the equality to which they
are entitled under the United States Constitution.
SUMMARY OF ARGUMENT
The
trial court correctly found that the Hawaiian-only trustee requirement
violated the Fourteenth and Fifteenth Amendments of the United States
Constitution and the Federal Voting Rights Act. The lower court*s opinion
is consistent with the Supreme Court*s opinion in
Rice that "the use of racial classifications is corruptive
of the whole legal order democratic elections seek to preserve."
528 U.S. at 517. Accordingly, qualified candidates should not be prohibited
from running for state public office on the basis of their race and
voters for state office should not be required to elect only candidates
of a particular race.
This
Court has been asked to determine which law applies to this case. This
brief will make three points:
* The
Fifteenth Amendment applies where the state permits voters to elect
only candidates of one chosen race. The district court*s determination
that the race-based trustee limitation violates the Fifteenth Amendment
and the Voting Rights Act should be affirmed.
* The
Supreme Court already has determined that its holding in
Morton v. Mancari, 417 U.S. 535 (1974), is strictly limited to
the Federal Bureau of Indian Affairs* hiring preference for tribal Indians
and does not apply to the State of Hawaii*s Office of Hawaiian Affairs.
PLF urges the Court to affirm that the district court correctly applied
the law in determining that the Hawaiian-only trustee requirement violates
the Fourteenth and Fifteenth Amendments and the Voting Rights Act.
ARGUMENT
Hawaii*s
Constitution provides: "There shall be a board of trustees for
the Office of Hawaiian Affairs [OHA] elected by qualified voters who
are Hawaiians, as provided by law. The board members shall be Hawaiians."
Haw. Const. art. XII, * 5; accord Haw. Rev. Stat. * 13D-2 ("No
person shall be eligible for election or appointment to the board unless
the person is Hawaiian . . . .").
In
Rice, the Supreme Court found that the requirement that
voters for the office of trustee be "Hawaiian" was
a race-based voting qualification that violated the Fifteenth Amendment.
See Rice v. Cayetano, 528 U.S. at 524. This case challenges
Hawaii*s requirement that holders
of the office of trustee be "Hawaiian." That requirement
is a racial restriction, appropriately analyzed by the district court
under the Equal Protection Clause of the Fourteenth Amendment, the Fifteenth
Amendment, and the Voting Rights Act.
This
is a Fourteenth Amendment case because the State of Hawaii created a
racial classification that limits the holders of a state public office
to members of only one race, thus excluding members of other races from
running for or holding the office in violation of the Equal Protection
Clause.
This
is also a Fifteenth Amendment case because the State of Hawaii limits
voters to selecting only members of a particular race for a state public
office. This race-based restriction strips the voters of their ability
to participate fully in an electoral process that is free of race discrimination
and therefore abridges their right to vote on account of race, in violation
of the Fifteenth Amendment and the Voting Rights Act.
I
THE
REQUIREMENT THAT ONLY "HAWAIIANS," DEFINED BY ANCESTRY, MAY
HOLD THE OFFICE OF TRUSTEE IS A RACIAL CLASSIFICATION THAT THE TRIAL
COURT CORRECTLY FOUND UNCONSTITUTIONAL BY APPLYING STRICT SCRUTINY UNDER
THE EQUAL PROTECTION CLAUSE
In
their brief, Defendants warn the court in boldface type not to decide
this case adversely by applying strict scrutiny under the Fourteenth
Amendment. See Defendants-Appellants Opening Brief (Defs.* Br.)
at 14, 36, 51-52. Nevertheless, it is apparent that Hawaii*s requirement
that OHA trustees be "Hawaiian" is a state-sponsored racial
classification necessitating strict scrutiny under the Equal Protection
Clause.
A. The
United States Supreme Court Already Has DeterminedThat Hawaii*s Statutory
Definition of "Hawaiian" in theContext of OHA Is a Race-Based
Definition
The
State of Hawaii limits candidates for the Office of Hawaiian Affairs
to people who are "Hawaiian." Haw. Const. art. XII, * 5; Haw.
Rev. Stat. * 13D-2. As defined in the statutes creating the Office of
Hawaiian Affairs,
"Hawaiian"
means any descendant of the aboriginal peoples inhabiting the Hawaiian
Islands which exercised sovereignty and subsisted in the Hawaiian Islands
in 1778, and which peoples thereafter have continued to reside in Hawaii.
Haw. Rev. Stat.
* 10-2. The statute defines "Native Hawaiian" as
any
descendant of not less than one-half part of the races inhabiting the
Hawaiian Islands previous to 1778, as defined by the Hawaiian Homes
Commission Act, 1920, as amended; provided that the term identically
refers to the descendants of such blood quantum of such aboriginal peoples
which exercised sovereignty and subsisted in the Hawaiian Islands in
1778 and which peoples thereafter continued to reside in Hawaii.
Id.
When it analyzed the Hawaiian-only voting requirement in
Rice, the Supreme Court found that the statutory definition of
"Hawaiian" by ancestry was a race-based definition:
In
the interpretation of the Reconstruction era civil rights laws we have
observed that "racial discrimination" is that which singles
out "identifiable classes of persons . . . solely because of their
ancestry or ethnic characteristics." The very object of the statutory
definition in question and of its earlier congressional counterpart
in the Hawaiian Homes Commission Act is to treat the early Hawaiians
as a distinct people, commanding their own recognition and respect.
The State, in enacting the legislation before us, has used ancestry
as a racial definition and for a racial purpose.
Rice,
528 U.S. at 515 (citation omitted). The Court concluded that "[a]ncestral
tracing of this sort achieves its purpose by creating a legal category
which employs the same mechanisms, and causes the same injuries, as
laws or statutes that use race by name."
Id. at 517.
The
present case examines the same constitutional provision and statutory
definitions as the Court examined in
Rice, 528 U.S. at 508-10. To determine whether the classification
drawn by Article XII, Section 5 is race-based, it is insignificant that
the present case focuses on the discriminatory
office-holding requirement while
Rice examined the discriminatory
voting restriction. Consequently, the Court*s analysis in
Rice of the term "Hawaiian" as used in the state constitutional
provision creating OHA and its implementing statutes applies directly
to this case. As the Supreme Court already decided, the term "Hawaiian"
in the context of OHA is a racial classification.
B. The
Fourteenth Amendment Applies to This Case Becausethe State Has Created
a Classification That DiscriminatesAmong Individuals on the Basis of
Their Race
The
Fourteenth Amendment provides: "No State shall . . . deny to any
person within its jurisdiction the equal protection of the laws."
U.S. Const. amend. XIV, * 1. Plaintiffs in this case include Mr. Kenneth
R. Conklin, a resident and registered voter of Hawaii who is not of
Hawaiian ancestry. See Excerpts of Record (E.R.), Tab 1 at 3-4.
On June 1, 2000, Mr. Conklin attempted to obtain nomination papers
from the state Office of Elections to run for trustee and was barred
because he was not of Hawaiian ancestry as required by state law. E.R.,
Tab 1 at 6. The state constitutional and statutory provisions that
require OHA trustees to be "Hawaiian," and the actions of
the state elections office in barring Mr. Conklin from candidacy on
the basis of his race, obviously implicate the Fourteenth Amendment.
The "central purpose [of the Equal Protection Clause] is to prevent
the States from purposefully discriminating between individuals on the
basis of race." Shaw v. Reno, 509 U.S. 630, 642 (1993)
(citation omitted). In fact, Defendants* brief essentially concedes
that the Fourteenth Amendment applies to this case:
This
is not to say that racial restrictions upon candidacy are automatically
permissible or constitutional. It simply means that any attack upon
such restrictions must be based upon
other provisions of the Constitution, including, most significantly,
the Fourteenth Amendment*s Equal Protection clause, or the Voting
Rights Act, which implements not only the Fifteenth Amendment but the
Fourteenth Amendment as well.
Defs.* Brief
at 17-18 (emphasis in original). Consequently, it appears that Plaintiffs
and Defendants agree that the Fourteenth Amendment applies to this case.
Of
course, the parties differ on which level of scrutiny should be applied
under the Amendment. But the law is clear: the Supreme Court squarely
has held that
all
racial classifications, imposed by whatever federal, state, or local
governmental actor, must be analyzed by a reviewing court under
strict scrutiny. In other words, such classifications are constitutional
only if they are narrowly tailored measures that further compelling
governmental interests.
Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (emphasis added).
This is a case in which citizens are prohibited from running for election
to a state government office solely on the basis of their race. There
can be no doubt that the Fourteenth Amendment applies and that strict
scrutiny is the proper standard under which the office-holding restriction
should be analyzed.1
C. The Court Should Not Be Deterred
from Affirming theDistrict Court*s Application of Strict Scrutiny to
Hawaii*sRacial Qualification To Be an OHA Trustee
Defendants*
brief warns the Court that an adverse ruling based on the application
of strict scrutiny under the Fourteenth Amendment will "risk striking
the deathknell" of OHA and other state and federal programs for
Hawaiians. Defs.* Br. at 51-52; See also id.
at 8-10, 20, 52 (listing threatened programs). Yet, Defendants concede
that this case should be analyzed under the Fourteenth Amendment.
See Defs.* Br. at 17-18. The Supreme Court in
Rice already determined that the use of ancestry to define Hawaiians
in the context of OHA constitutes a racial definition.
See 528 U.S. at 514-17. In Adarand, the Supreme Court
ruled that all racial classifications must be analyzed under strict
scrutiny. Adarand, 515 U.S. at 227. PLF urges nothing more
than that this Court apply existing law to the present question. If
it turns out that Hawaii is administering other unconstitutional programs,
that fact provides greater reason, not less, for this Court to
do its duty under the Constitution.
The
district court appropriately analyzed under strict scrutiny the Hawaiian-only
restriction on OHA trustees because it is a state-sponsored racial classification
that implicates the Equal Protection Clause of the Fourteenth Amendment.
D. The
Hawaiian-only Trustee Restriction Fails StrictScrutiny and Violates the
Equal Protection Clauseof the Fourteenth Amendment
Hawaii
claims two compelling governmental interests: fulfilling a federal
trust obligation to the Hawaiian people by restoring "some measure
of self-governance" and redress of wrongs inflicted by the United
States upon Hawaiians. Defs.* Br. at 49-51. The court below did not
decide whether the two asserted interests were compelling. Instead,
the trial court correctly determined that the Hawaiian-only restriction
did not survive strict scrutiny because non-Hawaiians could fulfill the
obligations of the office of trustee and, therefore, the state had "non-discriminatory
alternatives available to satisfy its objectives." E.R., Tab 58
at 19-20.
The
inquiry for narrow tailoring includes, for example, asking whether race-neutral
means could have been employed to satisfy the interest or whether the
race-based program was appropriately limited so that it "will not
last longer than the discriminatory effects it is designed to eliminate."
Adarand, 515 U.S. at 238.
Even
if fulfilling a federal trust obligation were determined to be a compelling
governmental interest in this case, there is no reason that members
of only one race are capable of serving as OHA trustees to further the
asserted interest. Certainly, members of races other than statutorily-defined
Hawaiians are competent to administer a trust and direct a government
agency. See Haw. Rev. Stat. ** 10-5; 10-6 (powers and duties of
the OHA Board of Trustees). Consequently, the race restriction is not
narrowly tailored to the interest asserted, and the "trust argument"
fails strict scrutiny.
The
other interest asserted by the state, redress of wrongs, also fails
because the racial classification is not narrowly tailored. Defendants
cite the Apology Resolution in asserting the interest in redressing
"congressionally recognized wrongs" that include deprivation
of native Hawaiians* rights to self-determination. Defs.* Br. at 51.
The Apology Resolution enumerates wrongs caused to the native people
of Hawaii by agents and citizens of the United States leading to the
overthrow of the Kingdom of Hawaii and its eventual annexation. Pub.
L. No. 103-150, 107 Stat. 1510 (1993). However, past societal discrimination
alone cannot serve as the basis for rigid racial preferences.
Richmond v. J.A. Croson Co., 488 U.S. 469, 505 (1989). States
must identify the discrimination with some specificity before using
race- conscious relief. Id.
at 504. The recitations of the Apology Resolution do not provide the
specific evidence of present or past discrimination necessary to compel
a race conscious remedy. Consequently, Hawaii has not demonstrated
that redress of past wrongs is a compelling governmental interest.
However, even if the Apology Resolution provided sufficient evidence
of a compelling interest, the Hawaiian-only trustee restriction is not
narrowly tailored to remedy the discrimination. Grounded in the text
of the state constitution, the Hawaiian-only trustee restriction continues
indefinitely and therefore is not "appropriately limited such that
it *will not last longer than the discriminatory effects it is designed
to eliminate.* "
Adarand, 515 U.S. at 238. Consequently, the "redress of
wrongs" argument also fails strict scrutiny.
At
one time, Louisiana required that its ballots indicate the race of each
candidate for elective office. (In this case, because only "Hawaiians"
may run for trustee, no ballot designation is necessary to identify
the candidate by race.) In finding the Louisiana requirement violated
the Equal Protection Clause, the Supreme Court noted: "Obviously,
Louisiana may not bar Negro citizens from offering themselves as candidates
for public office, nor can it encourage its citizens to vote for a candidate
solely on account of race." Anderson v. Martin,
375 U.S. 399, 402, 404 (1964). In this case, it is equally obvious
that the State of Hawaii may not bar members of all races except "Hawaiian"
from offering themselves as candidates for public office, "nor
can it encourage its citizens to vote for a candidate solely on account
of race." In doing so, Hawaii violates the Equal Protection Clause
of the Fourteenth Amendment. The district court*s decision that Hawaii
has violated the Equal Protection Clause should be affirmed.
II
THE FIFTEENTH AMENDMENT APPLIESWHERE,
AS HERE, RACE-BASED CLASSIFICATIONS IMPACT THE RIGHTS OF VOTERS
The
Fifteenth Amendment provides: "The right of citizens of the United
States to vote shall not be denied or abridged by the United States
or by any state on account of race, color, or previous condition of
servitude." U.S. Const. amend. XV, * 1. The state questions whether
the Fifteenth Amendment applies to impacts on voting based upon the
race of the candidate; however, that application is compelled by precedent.
Plaintiffs
in this case, Mr. Conklin and 13 other residents and registered voters
of Hawaii, are permitted by the laws at issue to elect as OHA trustees
only persons of a designated race. The race restriction on trustee
candidacy deprives the voters of Hawaii of voting effectively for candidates
for this state public office without the burden of invidiously discriminatory
disqualifications.
The
right to vote carries with it the right to an electoral process that
is free of race discrimination. See, e.g., South Carolina v. Katzenbach,
383 U.S. 301, 308 (1966). The franchise would be empty indeed if all
races were permitted to vote, but were required to select leaders of
only one chosen race:
[H]istory
has seen a continuing expansion of the scope of the right of suffrage
in this country. The right to vote freely for the candidate of one*s
choice is of the essence of a democratic society, and any restrictions
on that right strike at the heart of representative government. And
the right of suffrage can be denied by a debasement or dilution of the
weight of a citizen*s vote just as effectively as by wholly prohibiting
the free exercise of the franchise.
Reynolds
v. Sims, 377 U.S. 533, 555 (1964). The progress of voting rights
in this country since Reconstruction would halt if courts in the 21st
century determined that it was constitutional for a state to limit holders
of an elected public office to members of one race.
The
Supreme Court has applied the Fifteenth Amendment to impacts upon the
voting franchise that are based on the race of the candidates. For
example, in Hadnott v. Amos, 394 U.S. 358, 364 (1969), the Court
held that election officials in Alabama violated the First and Fifteenth
Amendments when they disqualified black, but not white, candidates for
failing to meet candidate filing requirements. The Court opined: "We
deal here with Fifteenth Amendment rights which guarantee the right
of people regardless of their race, color, or previous condition of
servitude to cast their votes effectively and with First Amendment rights
which include the right to band together for the advancement of political
beliefs." Id. The trial court in this case correctly concluded
that "Hawaii may not exclude a particular race from serving in
public office while permitting another. Under
Hadnott, the right to vote is abridged in violation of the Fifteenth
Amendment where the state employs invidious discrimination to strip
the effectiveness of its citizens* votes." E.R., Tab 58 at 21.
Among
the "white primary" cases, the Supreme Court found violations
of the Fifteenth Amendment where voters were prohibited on the basis
of race from participating in the selection of candidates who later
would appear on the ballot. In Smith v. Allwright, 321 U.S.
649, 656-67 (1944), the Democratic primary in Texas was limited to white
voters. The Court found that these primary elections were conducted
by the party under state statutory authority and therefore were subject
to the Fifteenth Amendment. Id.
at 663-64. Critical to the Court*s reasoning that the discriminatory
candidate-selection procedure violated the Fifteenth Amendment was the
fact that the "choice of the electorate in general elections for
state offices" was limited to those candidates selected in the
discriminatory party primary. Id.
at 664. Similar to the situation in Hawaii, race was employed in
Allwright in the candidate-selection procedure so that voters
were required to choose from a ballot that was limited by racial discrimination.
In
Terry v. Adams, 345 U.S. 461, 463-64 (1953), black voters were
denied on the basis of race the right to participate in nominating candidates
for the Democratic primary election in a Texas county. The purpose
of the pre-primary nomination process was to limit the voters to choosing
candidates selected by white people.
Id. The situation in Terry is similar to the present
situation in Hawaii because, in both instances, voters have been required
to choose from a ballot limited by race discrimination. As Justice
Breyer has observed:
States
had tried to maintain that status quo through the "all-white"
primary--a tactic that tried to avoid the Fifteenth Amendment by permitting
white voters alone to select the "all-white" Democratic Party
nominees, who were then virtually assured of victory in the general
election.
Morse v.
Republican Party, 517 U.S. 186, 235 (1996) (Breyer, J., concurring).
These "white primary" cases support the proposition that candidates
who ultimately are elected should reflect the will of all voters, without
being restricted by race. These cases affirm that the Fifteenth Amendment
is implicated when race is employed to determine who may run for office.
Restricting candidates for a public office to members of one race places
a race-based limitation on choices of the voters and presents them with
a ballot tainted by racial discrimination. As a result, the voters*
freedom to exercise the electoral franchise is restricted on the basis
of race. Consequently, the Fifteenth Amendment applies to*and indeed
prohibits*restrictions on the race of the candidates. Therefore, the
Amendment condemns the Hawaiian-only trustee restriction imposed by Article
XII, Section 5.
B. The District Court Was Correct That
the Hawaiian-only Trustee Restriction Abridges the Right To Votein Violation
of the Voting Rights Act
The
Fifteenth Amendment provides: "Congress shall have power to enforce
this article by appropriate legislation." U.S. Const. amend. XV,
* 2. Congress* primary purpose in adopting the Voting Rights Act of
1965 was "[t]o enforce the fifteenth amendment to the Constitution
of the United States."2 Pub. L. No. 89-110, 79 Stat.
437 (1965). "The Voting Rights Act of 1965 reflects Congress*
firm intention to rid the country of racial discrimination in voting."
South Carolina v. Katzenbach,
383 U.S. at 315. Section 2 of the Voting Rights Act provides:
No
voting qualification or prerequisite to voting or standard, practice,
or procedure shall be imposed or applied by any State or political subdivision
in a manner which results in a denial or abridgement of the right of
any citizen of the United States to vote on account of race or color
. . . .
42 U.S.C. * 1973(a).
A
violation of subsection (a) is established if, based on the totality
of circumstances, it is shown that the political processes leading to
nomination or election in the State or political subdivision are not
equally open to participation by members of a class of citizens protected
by subsection (a) in that its members have less opportunity than other
members of the electorate to participate in the political process and
to elect representatives of their choice. The extent to which members
of a protected class have been elected to office in the State or political
subdivision is one circumstance which may be considered: Provided,
That nothing in this section establishes a right to have members of
a protected class elected in numbers equal to their proportion in the
population.
42 U.S.C. 1973(b).
The
central theme of cases interpreting Section 2 of the Voting Rights
Act is that, but for a discriminatory electoral law or practice, voters
would have an equal opportunity to elect representatives of their choice.
See, e.g., Thornburg v. Gingles,
478 U.S. 30, 50-51 (1986). The district court demonstrated that
the Supreme Court specifically has interpreted candidate qualification
requirements as a "standard, practice or procedure with respect
to voting" under Section 5 of the Voting Rights Act, 42 U.S.C.
* 1973c.3 E.R., Tab 58 at 23-25 (citing
Dougherty County Board of Education v. White, 439 U.S. 32, 36-37
(1978) (candidates required to take unpaid leave of absence to campaign
for office); Allen v. State Board of Elections,
393 U.S. 544, 569-70 (1969) (increased qualifications for independent
candidates); City of Rome v. United States, 446 U.S. 156, 160-61
(1980) (candidate residency requirements)). Hawaii requires that candidates
for OHA trustee be "Hawaiian," defined by ancestry. Haw.
Const. art. XII, * 5; Haw. Rev. Stat. * 13D-2. The Supreme Court already
has determined that the Hawaiian-only requirement is a racial classification.
Rice, 528 U.S. at 517. In creating the race-based trustee requirement,
Hawaii has established a "standard, practice or procedure"
under the Voting Rights Act. A complicated examination is not necessary
to determine whether the election restriction in this case is discriminatory
because the Hawaiian-only requirement is racially discriminatory on its
face.
Hawaii
has established a political process leading to election of OHA trustees
that is not equally open to participation by non-Hawaiians because only
"Hawaiians" can appear on the ballot for the office of OHA
trustee. In Hawaii*s elections for OHA trustees, the voters cannot
possibly have an equal opportunity to elect representatives of their
choice because all choices are restricted by law to candidates of only
one race.
By
limiting candidates for trustee to members of one race, the State of
Hawaii has imposed a "standard, practice, or procedure" that
abridges on the basis of race the right of citizens to vote. As a result,
the Hawaiian-only trustee requirement violates the Voting Rights Act.4
Consequently,
the district court*s determination that the Hawaiian-only trustee requirement
violated both the Fifteenth Amendment and the Voting Rights Act should
be affirmed.
III
THE SUPREME COURT ALREADY HAS HELDTHAT
MORTON v. MANCARI DOES NOT APPLY TOHAWAII*S OFFICE OF HAWAIIAN
AFFAIRS BECAUSE THAT RULING WAS NARROWLY CRAFTED TO COVER ONLY A FEDERALHIRING
PREFERENCE FOR TRIBAL INDIANS
Defendants
assert that the Supreme Court decision in
Morton v. Mancari, 417 U.S. 535 (1974), "saves" the
Hawaiian-only trustee restriction from violating the Fourteenth and Fifteenth
Amendments, as well as the Voting Rights Act. Defs.* Br. at 19, 31,
46. As explained below, however,
Mancari has no place in this case.
The
Court in Mancari upheld under rational basis review a Federal
Bureau of Indian Affairs (BIA) employment preference for tribal Indians
under the theory that the preference was for members of a quasi-sovereign
authority and not for members of a particular race.
Id. at 554-55. In Rice, the Court determined that
Mancari did not apply to OHA.
See 528 U.S. at 520-22.
That
determination governs this case whether the Hawaiian-only restriction
is analyzed under the Fourteenth Amendment, the Fifteenth Amendment,
or the Voting Rights Act. The Court*s determination in
Rice did not rest on the fortuity that
Rice construed the Fifteenth Amendment rather than the Fourteenth
Amendment.5 Rather, the Court*s decision that
Mancari does not apply to OHA rested on the fact that
Mancari dealt with the federal government*s relationship with
Indian Tribes, while the Rice case (like this case) dealt
with a race restriction established by a
state government. See 528 U.S. at 519-22. The race restriction
on OHA trustees is a violation of civil and political rights that cannot
be "saved" by analogy to a case that the Supreme Court already
has determined does not apply.
A. The Federal Hiring Preference Upheld
in Mancari Is Very Different from the Race Restriction Pertaining
to OHA
The
Court has drawn a sharp distinction between the preferences upheld in
Mancari and the status of OHA.
Rice, 528 U.S. at 518-19. In
Mancari, the Federal BIA provided an employment preference for
individuals who were "one-fourth or more degree Indian blood and
. . . a member of a Federally-recognized tribe."
Mancari, 417 U.S. at 554 n.24. The Court reasoned: "The
preference, as applied, is granted to Indians not as a discrete racial
group, but, rather, as members of quasi-sovereign tribal entities whose
lives and activities are governed by the BIA in a unique fashion."
Mancari, 417 U.S. at 554.
The
Court in Rice pointed out that various Indian tribes retained
some elements of quasi-sovereign authority even after ceding their lands
to the United States. See 528 U.S. at 518. "The retained
tribal authority relates to self-governance."
Id.
The
BIA preference was held not to offend the Constitution because it could
be rationally tied to fulfilling Congress* "unique obligation toward
the Indians" and was "reasonably and rationally designed to
further Indian self-government."
Rice, 528 U.S. at 520 (quoting
Mancari, 417 U.S. at 555). "The [Mancari] opinion
was careful to note, however, that the case was confined to the authority
of the BIA, an agency described as *sui generis.* "
Id.
"Hawaii
would extend the limited exception of
Mancari to a new and larger dimension," the Court said of
Hawaii*s contention in Rice that OHA "fits the model of
Mancari." Id. "It does not follow from
Mancari, however, that Congress may authorize a State to establish
a voting scheme that limits the electorate for its public officials
to a class of tribal Indians, to the exclusion of all non-Indian citizens."
Id. Applying the logic of Rice to the present case, it
does not follow from Mancari that Congress may authorize the
State of Hawaii to limit holders of a state public office to members
of a particular race.
To
support their view in this case that
Mancari applies because Hawaiians are like an Indian Tribe, Defendants
quote various phrases from the "Findings" section of the Hawaiian
Homelands Homeownership Act of 2000, which is part of the American Homeownership
and Economic Opportunity Act of 2000, Pub. L. No. 106-569, 114 Stat.
2944. However, the legislative findings in a federal housing assistance
law are irrelevant to this case, which deals with a race restriction
placed by a state government on elected public officials. The Supreme
Court dismissed similar arguments in
Rice. To apply Mancari to OHA, the
Rice Court noted that it would have to accept premises "not
yet established in our case law."
Rice, 528 U.S. at 518. Thus,
it
would be necessary to conclude that Congress,
in reciting the purposes for the transfer of lands to the State
* and in other enactments such as the Hawaiian Homes Commission Act
and the Joint Resolution of 1993 * has determined that native Hawaiians
have a status like that of Indians in organized tribes, and that it
may, and has, delegated to the State a broad authority to preserve that
status.
Id.
(emphasis added). The Court observed that it would be constitutionally
difficult, if not impossible, to make such a determination: "It
is a matter of some dispute, for instance, whether Congress may treat
the native Hawaiians as it does the Indian tribes."
Id.
The Court
in Rice also noted: "Congress may fulfill its treaty obligations
and its responsibilities to the Indian tribes by enacting legislation
dedicated to their circumstances and needs."
Id. at 519. Accordingly, "every piece of legislation dealing
with Indian tribes and reservations . . . singles out for special treatment
a constituency of tribal Indians."
Id. (quoting Mancari, 417 U.S. at 552). Hawaii asserts
that "Hawaiians too are Indian Tribes." Defs.* Br. at 36.
Nevertheless, the federal government does not recognize Hawaiians as
an Indian Tribe.
Legislation
to create a Native Hawaiian government that would be recognized by the
United States Government was introduced in Congress during the summer
of 2000; however, that legislation was not enacted.
See H.R. 4904, S. 2899, 106th Cong. (2000). The bill has been
reintroduced by the Hawaii delegation in both houses in the current
Congress. See H.R. 617, S. 81, 107th Cong. (2001).
When
introducing the bill this year, Senator Akaka of Hawaii stated:
The
measure that we are introducing today extends the federal policy of
self-determination and self-governance to Native Hawaiians by authorizing
a process of reorganization of a native Hawaiian government for the
purposes of a federally recognized government-to-government relationship
with the United States. This measure establishes parity in federal
policies towards American Indians, Alaska Natives and Native Hawaiians.
147 Cong. Rec. S338 (daily ed. Jan. 22, 2001). If the Hawaiian people
already were Indian Tribes as Defendants assert, there would be no need
for Hawaii*s congressional delegation to try to enact a law that calls
for the federal government to treat Hawaiians like a tribe.
On
October 23, 2000, the United States Department of the Interior and the
United States Department of Justice jointly issued a report that recommended:
As
a matter of justice and equity, the Departments believe the Native Hawaiian
people should have self-determination over their own affairs within the
framework of Federal law, as do Native American tribes. . . . To safeguard
and enhance Native Hawaiian self-determination over their lands, cultural
resources, and internal affairs, Congress should enact further legislation
to clarify Native Hawaiians* political status and to create a framework
for recognizing a government-to-government relationship with a representative
Native Hawaiian governing body. The determination of precisely how
and whether a Native Hawaiian governing body should be recognized is
a task that Congress should undertake in consultations with Native Hawaiian
people.
United States
Department of the Interior and United States Department of Justice,
From Mauka to Makai: The River of Justice Must Flow Freely,
at 17 (Oct. 23, 2000), available at http://www.doi.gov/nativehawaiians.
The report observed:
Far
and away the greatest number of statements received concerned Native
Hawaiians* desire to have greater control over their present lives and
their destinies as well as the lives and destinies of their children.
The Departments believe that these goals can be achieved through recognition
by the United States of a Native Hawaiian governing body similar to
Native American tribes. Because practical considerations suggest that
Federal legislation would be the best method for ensuring such recognition,
the Departments believe strongly that all concerned should focus their
energies on obtaining this legislative recognition immediately.
Id.
Again, if Hawaiians already were an Indian Tribe, there would have been
no need for two Federal Executive Branch departments to recommend as
recently as October, 2000, that Congress enact legislation to treat
Hawaiians like tribes.
It
is obvious from the Rice decision that the Supreme Court did
not find that Hawaiians were an Indian Tribe: "It is a matter
of some dispute, for instance, whether Congress may treat the native
Hawaiians as it does the Indian tribes." 528 U.S. at 518. The
Supreme Court also noted that the issue in
Rice wasn*t about tribal status; rather, the issue was whether
a state government could create a race-based voting qualification.
Id. at 522. Whether Congress has the authority to treat Hawaiians
as it does Indian Tribes, and whether Congress can delegate that authority
to a state is as irrelevant in this case as it was in
Rice. The only issue in this case is whether a state government
can dictate which race can and cannot hold a particular public office.
Hawaii
asserts that the trustee restriction is justified because it promotes
Hawaiian "self-governance" in the same way that the Indian
preference in Mancari was to further the cause of Indian self-government.
Defs.* Br. at 21, 45. However, in finding that the Hawaiian-only voter
restriction violated the Fifteenth Amendment, the Supreme Court clearly
distinguished the two situations:
[T]ribal
elections . . . are the internal affair of a quasi-sovereign. The OHA
elections, by contrast, are the affair of the State of Hawaii. OHA
is a state agency, established by the State Constitution, responsible
for the administration of state laws and obligations . . . .
Rice,
528 U.S. at 520. Furthermore,
elections
for OHA trustee are elections of the State, not of a separate quasi-sovereign,
and they are elections to which the Fifteenth Amendment applies. To
extend Mancari to this context would be to permit a State, by
racial classification, to fence out whole classes of its citizens from
decisionmaking in critical state affairs. The Fifteenth Amendment forbids
this result.
Id.
at 522. Therefore, the Court held that even if it were "to take
the substantial step of finding authority in Congress, delegated to
the State, to treat Hawaiians or native Hawaiians as tribes, Congress
may not authorize a State to create a voting scheme of this sort."
Id. at 519. By analogy, even if there were a relationship that
permitted the state to treat Hawaiians or native Hawaiians as tribes,
Congress could not authorize the State of Hawaii to create a racially
restricted state public office.
D. In
Rice, the Supreme Court Declined to Extend
Mancari Beyond Its Existing Bounds
Even
putting aside all the reasons why Mancari does not apply to this
case, there is a serious question whether
Mancari is even viable after
Adarand. As Judge Sedwick has observed:
The
continuing validity of Mancari*s analysis is subject to some
question. In Adarand Constructors, Inc. v. Pena, the United States
Supreme Court held a preference favoring "Native Americans"
among others was subject to strict scrutiny. In
Williams [v. Babbitt, 115 F.3d 657 (9th Cir. 1997)], .
. . . Judge Kozinski observed that "Mancari*s days are numbered"
if one assumes that Justice Stevens* dissent in
Adarand is right. Mancari has not been overruled. However,
application of its principles in each case must be made with reference
to its purpose.
Malabed v. North Slope Borough,
42 F. Supp. 2d 927, 938 n.88 (D. Alaska 1999) (citations omitted).
Judge Sedwick*s observation is valid because the Supreme Court in
Rice made clear that Mancari is not to be expanded beyond
its application to the federal government*s relationship with Indian
Tribes.
Consequently,
the Mancari decision is irrelevant to the present case. In
Rice, Mancari did not "save" the State of Hawaii*s
requirement that voters for OHA trustee be Hawaiian from violating the
Fifteenth Amendment. Here, Mancari does not save the State of
Hawaii*s requirement that OHA elected trustees be Hawaiian from violating
the Fourteenth and Fifteenth Amendments and the Voting Rights Act.
The trial court in this case was correct in holding that
Morton v. Mancari does not apply to OHA.
CONCLUSION
This
case involves a state-sponsored racial classification that must be strictly
scrutinized and found unconstitutional in accordance with the Fourteenth
Amendment*s guarantee of equal protection of the laws. This case also
involves an abridgment of the right to vote on the basis of race in
violation of the Fifteenth Amendment and the Voting Rights Act.
"The
Constitution of the United States . . . has become the heritage of all
the citizens of Hawaii." Rice, 528 U.S. at 524. The State
of Hawaii*s race-based trustee requirement is just as noxious to our
constitutional principles as the state*s race-based voting rule was.
The Supreme Court decision in Morton v. Mancari does not apply
to the facts of this case and, therefore,
Mancari doesn*t "save" Hawaii*s race-based limitation
on OHA trustees from violating either constitutional provision. The
district court analyzed this case appropriately under both the Fourteenth
and Fifteenth Amendments as well as the Voting Rights Act, and its decision
should be affirmed.
DATED:
April _____, 2001.
FORM 8. CERTIFICATE
OF COMPLIANCE PURSUANT
TO
FED. R. APP. 32(a)(7)(C) AND CIRCUIT
RULE
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___1. Pursuant
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opening/ answering/reply/cross-appeal brief is
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___2. The
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* Pursuant
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is proportionally spaced, has a typeface of 14 points or more and contains
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__________________
______________________________________
Date
Signature
of Attorney or Unrepresented Litigant
CERTIFICATE OF SERVICE
I
hereby certify that the foregoing
BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION IN SUPPORT OF PLAINTIFFS-APPELLEES
AND IN SUPPORT OF AFFIRMANCE was sent to the Clerk this __th day
of April, 2001, via two day Federal Express. I further certify that two
copies of the foregoing brief were served this day via first-class mail
upon each of the following:
1 In Part III below, this brief disputes
the Defendants* erroneous argument that rational basis is the proper
level of review for this state-sponsored race discrimination.
2
The Supreme Court also has found the Voting Rights Act to enforce the
Equal Protection Clause of the Fourteenth Amendment.
See Katzenbach v. Morgan, 384 U.S. 641, 652 (1966).
3
Section 5 of the Voting Rights Act requires certain jurisdictions to
obtain preclearance from the United States District Court for the District
of Columbia or the Attorney General of the United States before implementing
a new "standard, practice, or procedure with respect to voting."
42 U.S.C. * 1973c.
4
Defendants erroneously assert that the Voting Rights Act would be unconstitutional
if it prohibited the trustee restriction while the Fourteenth and Fifteenth
Amendments did not. Defs.* Br. at 47. Although it is not necessary
to belabor the point because there is no question that the discriminatory
office-holder restriction violates both the Fourteenth and Fifteenth
Amendments, the constitutionality of the Voting Rights Act is not an
issue in this case. The Supreme Court has held: "[U]nder * 2
of the Fifteenth Amendment Congress may prohibit practices that in and
of themselves do not violate *1 of the Amendment, so long as the prohibitions
attacking racial discrimination in voting are *appropriate,* as that
term is defined in McCulloch v. Maryland and Ex parte Virginia, 100
U.S. 339 (1880)." City of Rome v. United States,
446 U.S. at 177. The Court also has set forth the definitions of "appropriate:"
The
basic test to be applied in a case involving *2 of the Fifteenth Amendment
is the same as in all cases concerning the express powers of Congress
with relation to the reserved powers of the States. Chief
Justice Marshall
laid down the classic formulation, 50 years before the Fifteenth Amendment
was ratified:
Let
the end be legitimate, let it be within the scope of the constitution,
and all means which are appropriate, which are plainly adapted to that
end, which are not prohibited, but consist with the letter and spirit
of the constitution, are constitutional.
McCulloch v. Maryland, 4 Wheat. 316, 421.
The
Court has subsequently echoed his language in describing each of the
Civil War Amendments:
Whatever
legislation is appropriate, that is, adapted to carry out the objects
the amendments have in view, whatever tends to enforce submission to
the prohibitions they contain, and to secure to all persons the enjoyment
of perfect equality of civil rights and the equal protection of the
laws against State denial or invasion, if not prohibited, is brought
within the domain of congressional power.
Ex parte Virginia, 100 U.S., at 345-346.
South Carolina
v. Katzenbach, 383 U.S. at 326-27.
5
Defendants acknowledge that Mancari
did not apply to the race-based voter restriction in
Rice. Defs.* Br. at 28. Defendants try to distinguish between
voters and candidates to support their argument that
Rice left open the question under the Fifteenth Amendment whether
Mancari applies to race-based candidate restrictions. Defs.*
Br. at 32. Such distinctions are irrelevant because both the voter
restriction and the office-holding restriction are racial classifications
established by a state government; hence,
Mancari is inapplicable in either circumstance.