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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI 

---o0o--- 

WILLIAM M. HICKS; RALPH BOYEA; MADGE SCHAEFER; MICHAELA IKEUCHI; 

KIMEONA KANE; MAKI MORINOUE; ROBERTA MAYOR; DEBORAH WARD; 

JENNIFER LIENHART-TSUJI; LARRY S. VERAY; and PHILIP BARNES, 

Petitioners, 

vs. 

THE 2021 HAWAIʻI REAPPORTIONMENT COMMISSION AND ITS MEMBERS; 

THE STATE OF HAWAIʻI OFFICE OF ELECTIONS; and SCOTT NAGO, in his 

official capacity as Chief Elections Officer, State of Hawaiʻi, 

Respondents. 

SCPW-22-0000078 

ORIGINAL PROCEEDING 

MAY 9, 2022 

RECKTENWALD, C.J., NAKAYAMA, AND EDDINS, JJ.; WITH McKENNA, J., 

CONCURRING SEPARATELY AND DISSENTING, WITH WHOM WILSON, J., 

JOINS; AND WILSON, J., ALSO DISSENTING SEPARATELY1

OPINION OF THE COURT BY EDDINS, J. 

Article IV of the Hawaiʻi Constitution concerns 

 

1 At the time of this opinion’s publication, Justice Wilson’s dissent is 

forthcoming.

Electronically Filed

Supreme Court

SCPW-22-0000078

09-MAY-2022

08:58 AM

Dkt. 77 OP
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reapportionment, the process through which the state’s 

legislators are distributed and its political districts redrawn. 

It provides that every ten years a nine-member 

reapportionment commission (the commission) shall determine the 

total number of state representatives to which each basic island 

unit2 is entitled. Haw. Const. art. IV, §§ 1, 2 & 4. This 

determination is made “using the total number of permanent 

residents in each of the basic island units” and with the 

“method of equal proportions.” Id. 

Once the commission determines how many representatives 

each basic island unit is entitled to, it must apportion those 

representatives within the basic island units. Id. at § 6. If 

there have been population shifts in the decade since the last 

reapportionment, the commission must redraw district lines to 

ensure that the “number of permanent residents per member in 

each district is as nearly equal to the average for the basic 

island unit as practicable.” Id. 

The commission is also tasked with redrawing congressional 

district lines. Id. at § 9. 

Article IV, section 6 provides eight criteria that the 

commission “shall be guided by” in effecting redistricting. The 

 

2 The four basic island units are: (1) the island of Hawaiʻi, (2) the 

islands of Maui, Lānaʻi, Molokaʻi and Kahoʻolawe, (3) the island of Oʻahu and 

all other islands not specifically enumerated, and (4) the islands of Kauaʻi 

and Niʻihau. Haw. Const. art. IV, § 4.
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sixth is that: “[w]here practicable, [state] representative 

districts shall be wholly included within [state] senatorial 

districts” (the constitutional district within district 

guideline). Id. at § 6. Hawaiʻi Revised Statutes (HRS) Section 

25-2(b)(5) (Supp. 2021) (the statutory district within district 

guideline) similarly requires that “[w]here practicable, state 

legislative [representative and senatorial] districts shall be 

wholly included within [U.S.] congressional districts.” 

On January 28, 2022, the 2021 Hawaiʻi Reapportionment 

Commission (the Commission) approved the 2021 Final Legislative 

Reapportionment Plan (the Plan). 

The Plan places 33 of 51 house districts (64.7%) into two 

or more senate districts. It also places four O‘ahu house 

districts and five O‘ahu senate districts into both U.S. 

congressional districts.

Petitioners, who are registered voters in the State of 

Hawai‘i, argue that the Plan is invalid because it does not give 

adequate effect to article I, section 6’s guidance that “[w]here 

practicable, representative districts shall be wholly included 

within senatorial districts.” See Haw. Const. art. IV, § 6. 

They also argue that the Plan violates HRS § 25-2(b)(5) by 

placing nine O‘ahu legislative districts into both congressional 
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districts.3 Petitioners say they submitted two plans to the 

Commission that not only complied with the district within 

district guidelines, but also had a lower average per-district 

population deviation than the Plan. Petitioners say the 

Commission could have complied with article IV, section 6 and 

HRS § 25-2(b)(5), it just didn’t want to. Petitioners also 

argue that less than perfect compliance with one of the district 

within district guidelines may only be justified by the need to 

comply with the other constitutional and statutory guidelines 

that govern reapportionment. 

The Commission says it satisfied its obligations under 

article IV, section 6 and HRS § 25-2(b) by considering the 

constitutional and statutory district within district guidelines 

(collectively the district within district guidelines) in 

developing the Plan. It says Petitioners have not demonstrated 

that the Commission abused its discretion in discharging its 

duties and adopting the Plan. 

 

3 Petitioners also make a third argument. They claim the Commission 

unconstitutionally delegated much of its redistricting work and decision

making to a committee that consisted of just four of the Commission’s nine 

members. This argument lacks merit. The record shows that the Plan was 

considered by all nine members of the bipartisan Commission and that all nine 

members of the Commission participated in the vote regarding the adoption of 

the Plan (eight commissioners voted to adopt the Plan and one voted not to). 

The establishment of the technical committee did not represent an 

unconstitutional delegation of the Commission’s power. To the extent 

Petitioners raise claims under the Sunshine Law, they are not entitled to 

mandamus relief because those claims could have been brought in circuit court 

under HRS § 92-12(c)(2012). 
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We agree. The constitution and HRS § 25-2(b) mandate that, 

in redistricting, the commission “shall be guided” by certain 

enumerated criteria, among them the district within district 

guidelines. The commission is not required to give the district 

within district guidelines any particular effect. Nor is it 

required to disregard factors other than the criteria enumerated 

in article IV, section 6 or HRS § 25-2(b) in redrawing district 

lines. So the Commission discharged its obligations under 

article IV, section 6 and HRS § 25-2(b) by considering the 

district within district guidelines alongside other policy 

objectives. And, by extension, the Plan is valid. 

I. BACKGROUND 

At its May 17, 2021 meeting, the Commission formed a 

“technical” committee consisting of four commissioners. The 

Commission tasked the technical committee with drafting proposed 

reapportionment plans for the Commission’s consideration.

The technical committee presented its proposed 

reapportionment plans to the Commission at the Commission’s 

January 13, 2022 meeting.4

At that same meeting, there was public testimony demanding 

that the Commission explain its failure to better effectuate the 

 

4 The technical committee had previously presented other reapportionment 

plans to the Commission. But these earlier plans had to be amended as a 

result of updated data received from the military in December 2021 that 

impacted the Commission’s assessment of the number of permanent versus 

nonpermanent residents in the state.
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district within district guidelines.

Responding to this public testimony, Commissioner Nonaka 

explained that because of the incongruity between the population 

bases used in congressional districts and those used in state 

legislative districts, it was not possible, let alone 

practicable, to have all state districts wholly within a

congressional district.

Later at the same meeting, Commission Chair Mugiishi

stressed that the Commission was holistically evaluating the 

constitutional and statutory requirements governing 

reapportionment and trying to balance them in a way that 

responded to community concerns. He explained:

[W]e are as a Commission considering all of those statutory 

requirements and constitutional requirements that that

[sic] is asked of us and we are doing our best to make sure 

to the extent that it’s practicable that we are following 

them. But sometimes they’re in conflict with each other 

and that’s where that’s why we have a commission rather 

than a computer program drawing these lines. It’s because 

human beings who are going to care about people and 

individual neighborhoods, are going to make judgment calls 

on what’s the best way to make a practical decision about a 

conflict between two principles. And that’s why I think 

again, and I’ve said it about four times already, but I 

really do appreciate the work of the technical committee 

because they’ve been doing this now for weeks, months, and 

for the last few days every single hour of the day to try 

and consider all of those factors. Because we’re going to 

affect people and that’s so we’re going to follow the 

constitution, we’re going to follow the law and we’re going 

to do our best to take care of people.

The Commission also met on January 20, 21, 22, and 26, 

2022.

At the Commission’s January 20, 2022 meeting, Chair 

Muguiishi read the article IV, section 6 guidelines aloud and 
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explained that “after due consideration the members of the 

technical committee believed that the modified proposed plans 

represent what they the technical committee deemed to be the 

best, best complies with the constitutional guidelines.” 

Commissioners Ono, Nonaka, and Nekota agreed with the Chair’s 

assessment. Commissioner Nekota added “We really did take 

public testimony to heart. We did not just go draw lines to 

draw lines. We really did and follow the Constitution, as we

perceive it to be, along with our legal counsel.”

During the January 26, 2022 meeting, the technical

committee presented and discussed a new version of its proposed

final legislative reapportionment plans; the only change it had

made to the proposed maps since January 13, 2022, was to the 

boundaries of House Districts 48 and 49 on O‘ahu.

At the January 28, 2022 Commission meeting, the Commission 

discussed, and then voted to approve, the January 26, 2022 

version of the legislative reapportionment plans. In explaining 

his support for the motion to approve the Plan, Commissioner 

Chun pointed to the Commission’s commitment to ensuring that its 

redistricting decisions were made in the context of the article 

IV, section 6 guidelines: 

The constitution states that in effecting such 

redistricting, the commission shall be guided by the 

following criteria. It sets forth guidance rather than 

inflexible standards so as to ensure reasonableness and 

fairness are always a part of the equation in arriving at 

redistricting determinations. I have observed complete 
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objectivity and clear commitment to ensuring that good 

decisions were made in the context of these guidelines and 

as they were applied to the redistricting maps, so I will 

be pleased today to support the motion [to adopt the Plan]. 

Shortly after adopting the final reapportionment plan, the 

Commission authorized staff to make non-substantive changes, 

including changes to better align the representative district, 

Senate district, and council district lines. The staff made 

changes to the Plan so that it would better adhere to the 

constitutional district within district guideline; following 

these changes, there are thirty-three (33) House districts that 

are not wholly inside Senate districts. 

Petitioners challenge the Plan on the grounds that it 

violates article IV, section 6 and HRS § 25-2(b)(5) by failing 

to place districts within districts even where it would have 

been practicable to do so. They argue the Commission erred by 

adopting a Plan that fell short of perfect adherence to the 

district within district guidelines without justifying the 

Plan’s noncompliance in terms of the need to comply with the 

other reapportionment “requirements” enumerated in article IV, 

section 6 and HRS § 25-2(b). 

II. DISCUSSION 

We hold that neither article IV, section 6 nor HRS § 25-

2(b)(5) places concrete limits on the Commission’s discretion to 

craft a reapportionment plan. The Commission must consider the 

district within district guidelines when redrawing district 
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lines. But it is not required to give them any particular 

effect in redistricting. 

The existence of alternative plans that hew closer to the 

district within district guidelines is immaterial to our 

analysis. Our task is not to consider the Plan’s relative 

merits in comparison to other options the Commission could have, 

but did not, adopt. We consider only whether the Plan is 

constitutional under article IV, section 6 and legal under HRS 

§ 25-2(b)(5). See McNeil v. Legis. Apportionment Comm’n of 

N.J., 828 A.2d 840, 858 (N.J. 2003) (“The judiciary is not 

justified in striking down a plan, otherwise valid, because a 

‘better’ one, in its opinion, could be drawn.” (Cleaned up.)). 

Petitioners have not shown that the Commission abused its 

discretion by disregarding or ignoring the district within 

district guidelines. To the contrary, the record suggests that 

the Commission was aware of, discussed, and considered the 

district within district guidelines in redrawing district lines 

and adopting the Plan. So even though we agree with Petitioners 

that the Plan does not give full effect to the constitutional 

district within district guideline,5 we hold that the Commission 

 

5 Petitioners’ argument that the Plan does not give substantial effect to 

the statutory district within district requirement is less convincing than 

its arguments concerning the constitutional district within district 

guideline: the Plan places 88 percent of state house and senate districts 

wholly within a single congressional district.
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did not abuse its discretion in developing and adopting the 

Plan. 

1. Standards of Review 

a. We answer questions of constitutional law de novo 

“Issues of constitutional interpretation present questions 

of law that are reviewed de novo.” League of Women Voters of 

Honolulu v. State, 150 Hawai‘i 182, 189, 499 P.3d 382, 389 (2021) 

(cleaned up). This court is the “ultimate judicial tribunal 

with final, unreviewable authority to interpret and enforce the 

Hawai‘i Constitution.” See Ka Pa‘akai O Ka ‘Aina v. Land Use 

Comm’n, 94 Hawai‘i 31, 41, 7 P.3d 1068, 1078 (2000) (cleaned up). 

“We answer questions of constitutional law by exercising our own 

independent constitutional judgment based on the facts of the 

case.” State v. Hanapi, 89 Hawai‘i 177, 182, 970 P.2d 485, 490 

(1998) (cleaned up). Here, this means we give no deference to 

the constitutional interpretations the Commission implicitly 

operationalized in developing the Plan. 

b. We review the Commission’s exercise of its discretion 

using the abuse of discretion standard 

We review the discretionary decisions of public bodies 

using the abuse of discretion standard. See Kawamoto v. Okata, 

75 Haw. 463, 467, 868 P.2d 1183, 1186 (1994). In the context of 

this case, this means we will not substitute our judgment for 

that of the Commission with respect to the Commission’s exercise 
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of discretion given to it by the Hawai‘i Constitution. Instead, 

our determination of whether the Commission has complied with 

article IV, section 6 and HRS § 25-2(b) and other applicable 

laws will hinge on whether the record demonstrates that the 

Commission either did not consider criteria it was required to 

consider or, having considered all relevant criteria, made a 

decision that disregarded the law or exceeded the bounds of 

reason.6

2. Reapportionment commissions must consider the district 

within district guidelines when redrawing districts 

Both the constitution and HRS § 25-2(b) frame the district 

within district guidelines as discretionary, describing them as 

“criteria” that the commission “shall be guided by” in effecting 

redistricting. See article IV, section 6; HRS § 25-2(b). 

In Save Sunset Beach Coal. v. City & Cty. of Honolulu, 102 

Hawai‘i 465, 479, 78 P.3d 1, 15 (2003), we considered whether 

Honolulu’s city council erred in zoning land as “country” where 

 

6 This approach is consistent with that used by other courts reviewing 

the discretionary acts of state reapportionment commissions. See, e.g., 

Hartung v. Bradbury, 33 P.3d 972, 981 (Or. 2001) (en banc) (considering 

constitutional challenges to reapportionment plan and explaining that it 

would void the plan only if it could “say from the record that the Secretary 

of State [the reapportioning body] either did not consider one or more 

criteria or, having considered them all, made a choice or choices that no 

reasonable Secretary of State would have made”); Jamerson v. Womack, 423 

S.E.2d 180, 182 (Va. 1992) (“In this particular litigation, it should be 

remembered that reapportionment is, in a sense, political, and necessarily 

wide discretion is given to the legislative body. An abuse of that 

discretion is shown only by a grave, palpable and unreasonable deviation from 

the principles fixed by the Constitution.” (Cleaned up.)). 
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only two of the four statutory guidelines provided for 

identifying potential “country” district lands were met. We 

concluded that while the “‘use’ or consideration” of the 

statutory guidelines was mandatory, “the ultimate designation 

decision arising out of that mandatory consideration must, of 

necessity, involve the exercise of discretion.” Id. We 

explained that “guidelines,” as used in the statute, “denote[d] 

individual factors that are not mandatory in themselves, but 

instead provide direction or guidance with respect to the 

ultimate decision.” Id. 

A similar analysis informs our interpretation of “guided 

by” as used in article IV, section 6 and HRS § 25-2(b): the 

reapportionment commission must consider the district within 

district guidelines and it must use them in developing and 

adopting congressional and legislative plans. But the 

guidelines are not mandatory “in themselves”; rather, they 

provide “direction or guidance with respect to the ultimate 

decision.” See id. 

 The history of article IV, section 6 reflects that the 

constitutional district within district requirement was not 

intended to curb the reapportionment commission’s discretion to 

redraw district lines. After noting that it placed “a number of 

guidelines for the reapportionment commission to follow when 

redistricting” into article IV, section 6, the Committee on 
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Legislative Apportionment and Districting clarified: 

It is not intended that these guidelines be absolute 

restrictions upon the commission excepting for numbers 1, 

2, 3 and 7 which are stated in mandatory terms. The 

remainder [including the district within district 

guideline] are standards which are not intended to be 

ranked in any particular order. Rather, your Committee 

believes that they are matters that should be considered in 

any decision concerning districting and that the balance to 

be struck among them is a matter for case-by-case 

determination. The inclusion of these guidelines is 

intended to aid the reapportionment commission in 

maintaining impartiality and objectivity in its own 

reapportionment plan and to provide the courts with a 

standard for review of claims of gerrymandering or other 

unfair or partial result in the apportionment plan.

Supp. Stand. Comm. Report No. 58, in 1 Proceedings of the 

Constitutional Convention of Hawai‘i of 1968, at 265 (1973) 

(emphases added). Elsewhere in the same report, the Committee 

observed that the reapportionment plan it proposed substantially 

complied with the district within district guideline; but, it 

remarked, it adopted that criterion “in a more general, less 

restrictive manner for future reapportionment.” Id. at 247. 

 Two aspects of this committee report support our conclusion 

that the constitutional district within district guideline is a 

factor the commission must consider, not a requirement it must 

meet. 

 First, the committee report describes the guideline as a 

criterion “that should be considered” and recognizes that the 

extent to which it will be followed in any given reapportionment 

year is a “matter for case-by-case determination.” Id. at 265. 

It says it adopted the guideline in a “more general” and “less 
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restrictive manner for future reapportionment.” Id. at 247. 

Collectively, this language indicates that while the commission 

must “be guided by” and consider the guideline, the decision to 

give it effect, or not, remains discretionary. 

 Second, the report indicates that, in the context of 

judicial review of reapportionment plans, the purpose of the 

district within district guideline is “to provide the courts 

with a standard for review of claims of gerrymandering or other 

unfair or partial result in the apportionment plan.” Id. at 

265. This language affirms that the district within district 

guideline is not an inflexible requirement that the 

reapportionment commission can fall short of by adopting a plan 

with too many house districts that span senate district lines. 

It suggests that the constitutional district within district 

guideline is, rather, a general guideline or a best practice. 

This is not to say that the effect the reapportionment 

commission gives to the district within district guideline will 

always be immaterial to the question of a reapportionment plan’s 

constitutionality. A reapportionment commission’s failure to 

give full effect to the district within district guideline would 

be appropriately considered in the context of a claim that a 

reapportionment plan was unconstitutionally gerrymandered, 

biased, or otherwise contrary to the equal protection principles 

that animate article IV, section 6 and article I, section 5. 
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For example, the fact that a reapportionment commission placed 

nearly two thirds of house districts into two or more senate 

districts could, if presented alongside other credible evidence 

of bias, lend substantial support to a claim that a 

reapportionment plan was unconstitutionally partial to a 

particular person or party. But this does not mean that failure 

to substantially comply with the district within district 

guideline is, standing alone, a constitutional violation.7

Based on the plain language of article IV, section 6 and 

the framers’ intent as revealed by legislative history, we 

conclude that reapportionment commissions do not have a 

constitutional obligation to give the district within district 

guideline any particular effect. They may not disregard or 

ignore the district within district guidelines (or the other 

reapportionment guidelines that are to be followed where 

“practicable” or “possible”). They must consider them when 

redistricting and should, where practicable, endeavor to 

 

7 Justice McKenna’s dissent highlights the constitutional district within 

district guideline’s role in “facilitating political organization and 

developing accountability of senators to communities of common interest.” 

Dissent at 12. 

We do not dispute the wisdom of the guideline from a policy 

perspective. But the question of whether compliance with the district within 

district guideline is “normal and preferable,” see dissent at 11 (quoting 

Ethan Weiss, Partisan Gerrymandering and the Elusive Standard, 53 Santa Clara 

L.Rev. 693, 697 (2013)), is not before us. And the contention that, from a 

policy perspective, a reapportionment plan that gives full effect to the 

district within district guideline would be better than one that doesn’t 

cannot curtail the reapportionment commission’s ability to exercise 

discretion granted to it by the constitution.
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effectuate them. But they have no rigid statutory or 

constitutional obligation to effectuate them. Put plainly, the 

guidelines must shape the reapportionment commission’s exercise 

of its discretion, but they do not impose any hard limits on 

it.8,9

Petitioners’ contention that the Commission must “justify” 

the level of consideration it gave, or did not give, to the 

district within district guidelines reflects a misunderstanding 

about both the scope of the Commission’s discretion to develop 

and adopt reapportionment plans and this court’s role in 

reviewing the constitutionality of reapportionment plans. Burns 

v. Richardson, 384 U.S. 73 (1966), is instructive. 

In Burns, the Supreme Court considered the 

constitutionality of an interim Hawai‘i state senate 

 

8 This analysis concerns the non-mandatory guidelines of article IV, 

section 6 and HRS § 25-2(b) only. The reapportionment commission must give 

full effect to those constitutional and statutory requirements that are not 

modified by “where practicable” or “where possible,” for example article IV, 

section 6’s requirement that “[n]ot more than four members shall be elected 

from any district.”

9 We note that the constitutional district within district guideline is 

not a general principle bereft of legal force absent implementing laws or 

statutes. It is, rather, self-executing in that it “supplies a sufficient 

rule by means of which . . . the duty imposed may be enforced.” See Morita 

v. Gorak, 145 Hawai‘i 385, 392, 453 P.3d 205, 212 (2019) (cleaned up). The 

constitution imposes a duty on reapportionment commissions to “be guided” by 

the criterion that, “[w]here practicable, representative districts shall be 

wholly included within senatorial districts.” Haw. Const. art. IV, § 6. It 

also provides the means for the enforcement of that duty. See Haw. Const. 

art. IV, § 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 . . . .”).
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apportionment plan. A three-judge panel of the United States 

District Court for the District of Hawai‘i had disapproved of the 

interim plan on the grounds that instead of accounting for 

population increases on O‘ahu by creating new single-member 

senatorial districts for the island, the plan merely increased 

the number of multi-member senatorial districts on Oʻahu from two 

to five. Id. at 82. The district court had concerns about 

“what it considered to be a difference in representational 

effectiveness between multi-member and single-members 

legislative districts.” Id. at 86. The Supreme Court overruled 

the district court, explaining that absent evidence of an Equal 

Protection Clause violation, the district court was wrong to 

second-guess the legislature’s exercise of its discretion to 

redistrict.10 The Court said that given the absence of a showing 

that the interim reapportionment plan raised equal protection 

concerns, the district court should not have even required the 

legislature to justify its reliance on multi-member legislative 

districts: 

 

10 The Court explained:

In relying on conjecture as to the effects of multi-member 

districting rather than demonstrated fact, the court acted 

in a manner more appropriate to the body responsible for 

drawing up the districting plan. Speculations do not 

supply evidence that the multi-member districting was 

designed to have or had the invidious effect necessary to a 

judgment of the unconstitutionality of the districting. 

Burns, 384 U.S. at 88-89.
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Indeed, while it would have been better had the court not 

insisted that the legislature ‘justify’ its proposal, 

except insofar as it thus reserved to itself the ultimate 

decision of constitutionality vel non, the legislature did 

assign reasons for its choice. Once the District Court had 

decided, properly, not to impose its own senate 

apportionment but to allow the legislature to frame one, 

such judgments were exclusively for the legislature to 

make. They were subject to constitutional challenge only 

upon a demonstration that the interim apportionment, 

although made on a proper population basis, was designed to 

or would operate to minimize or cancel out the voting 

strength of racial or political elements of the voting 

population. 

Id. at 89 (emphases added) (footnote omitted). 

This court plays a critical role in ensuring that the 

voters of our state “choose their representatives, not the other 

way around.” Arizona State Legislature v. Arizona Indep. 

Redistricting Comm’n, 576 U.S. 787, 824 (2015) (cleaned up). We 

have intervened, and will continue to intervene, when necessary 

to ensure that Hawai‘i’s reapportionment commission creates 

reapportionment plans that comply with the Equal Protection 

Clause, the four mandatory requirements in article IV, section 

6, and all other constitutional and statutory mandates 

concerning redistricting. Cf. Solomon v. Abercrombie, 126 

Hawai‘i 283, 270 P.3d 1013 (2012) (holding that reapportionment 

plan was invalid under article IV, section 4 of our constitution 

because it included non-permanent residents in the population 

base for reapportionment). But as Burns makes clear, absent a 

showing that a reapportionment plan is unconstitutional or 

illegal we should not second-guess the reapportionment 
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commission’s exercise of its discretion to redistrict. Cf. 

Supp. Stand. Comm. Report No. 58, in 1 Proceedings of the 

Constitutional Convention of Hawai‘i of 1968, at 266 (1973) 

(“Judicial review is provided in the form of a mandamus to 

require the commission to do its work, correct any error or 

effectuate the purposes of the reapportionment provisions 

contained in the Constitution.”) 

3. The Commission did not abuse its discretion in developing 

the Plan 

Our constitution requires that the reapportionment 

commission consider the district within district guidelines. 

See supra section II(2). But it does not dictate what that 

consideration should look like. Decisions about when and how 

the guidelines ought to be considered are left to the discretion 

of the reapportionment commission. 

The record in this case shows that the Commission did not 

abuse that discretion: it adequately considered the 

constitutional district within district guideline in developing 

and approving the Plan. 

Chair Mugiishi’s statements at the January 13, 2022 meeting 

concerning the Commission’s commitment to “consider[ing] all of 

those factors,” “follow[ing] the constitution,” and doing its 

best to “take care of people” speaks to the fact that the 

constitutional district within district guideline was one of the 
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factors the Commission considered in exercising its discretion. 

As does Commissioner Chun’s remark at the January 28, 2022 

meeting that he had “observed complete objectivity and clear 

commitment to ensuring that good decisions were made in the 

context of these guidelines and as they were applied to the 

redistricting maps.”

The Commission’s consideration of the constitutional 

district within district guideline is also evidenced by the fact 

that after the January 28, 2022 approval of the Plan, Commission 

staff made minor changes to the Plan in order to improve its 

compliance with the constitutional district within district 

guideline. If the Commission was indifferent to the guideline 

it would not have tweaked the Plan to better comply with it. 

Finally, declarations provided by members of the 

Commission’s technical committee speak to the Commission’s 

consideration of the district within district guidelines. 

Commissioner Nonaka declared that: 

the Technical Committee was guided by the applicable 

constitutional and statutory provisions, including the 

eight (8) criteria listed in Article IV, Section 6 of the 

Hawai‘i Constitution. We considered the criteria to comply 

with the Constitution while striving to produce plans that 

would best serve the State as a whole. The Technical 

Committee also did its best to be responsive to public 

testimony while following the criteria.11

 

11 In explaining why the Commission declined to more perfectly adhere to

the constitutional district within district guideline, Commissioner Nonaka

said that “it would be extremely difficult to consider other crtieria [sic]

if that one principle was used as a guiding factor. The Commission would 

have to prioritize drawing arbitrary lines without regard for community 

input.”
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Commissioner Ono, who like Commissioner Nonaka was on the 

technical committee, declared that the committee considered the 

district within district guidelines in developing the Plan and 

that, in her opinion, the Plan “achieve[s] the overriding 

objective of voter equality and best represent[s] the balancing 

of constitutional and statutory redistricting criteria.”

Petitioners may disagree with the weight the Commission 

assigned to the district within district guidelines, but they 

have not shown that the Commission disregarded them in 

developing and adopting the Plan. To the contrary, the record 

reflects that the Commission holistically considered the 

district within district guidelines when exercising its 

discretion to develop and adopt the Plan. The Commission’s 

consideration of the district within district guidelines was 

thus adequate under both article IV, section 6 and HRS § 25-

2(b)(5).12

 

12 We base this holding solely on the information in the record concerning 

the Plan’s development. The Commission’s argument that the Plan is 

constitutional because the number of state house districts split by state 

senate districts in the Plan (33) is in line with that found in previous 

reapportionment plans lacks merit. The Commission is right that the Plan’s 

compliance with the constitutional district within district guideline is 

similar to that of the 2012, 2001, and 1991 reapportionment plans, which 

split 30, 31, and 38 state house districts across state senate districts. 

But this fact has no bearing on our analysis: even the most longstanding 

practice cannot transform unconstitutional actions into constitutional ones.
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4. The Commission did not abuse its discretion by considering 

factors other than those enumerated in article I, section 6 

and HRS § 25-2(b) 

The Commission must consider the article IV, section 6 and 

HRS § 25-2(b) guidelines in reapportionment. But it is not 

prohibited from pursuing other rational and non-discriminatory 

policy goals through its redistricting.13 So Petitioners’ claim 

that the Plan is invalid because the Commission unlawfully 

allowed its “preference” for preserving legacy districts to get 

in the way of drawing a reapportionment plan that better 

effectuated the district within district guidelines has no 

merit. 

There are two reasons why the Commission did not abuse its 

discretion by crafting and adopting a plan that sought the 

preservation of legacy district boundaries. 

First, the constitution explicitly contemplates that 

reapportionment will involve the redrawing of district lines. 

 

13 McNeil provides a good example of a rational state policy that the 

reapportionment commission must consider alongside article IV, section 6 and 

HRS § 25-2(b)’s requirements and guidelines: compliance with the federal 

Voting Rights Act. In McNeil, the New Jersey Supreme Court considered a 

challenge to the New Jersey constitution’s requirement that no county or 

municipality should be divided between legislative districts. Under New 

Jersey’s constitution, “[u]nless necessary to meet the [contiguity, 

compactness or equal population] requirements, no county or municipality 

shall be divided among Assembly districts unless it shall contain more than 

one-fortieth of the total number of inhabitants of the state.” 828 A.2d at 

845 (cleaned up). The court held this constitutional requirement was 

preempted by the federal Voting Rights Act, since full compliance with it 

would result in the “packing” of minority voters and the dilution of their 

electoral influence. Id. at 857.
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See Haw. Const. art. IV, § 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 [to equalize the 

population in each district as much as practicable].” (Emphasis 

added.)). This use of the word “redraw” presumes that existing 

districts may serve as the starting point for redistricting. 

The commission is required to consider the constitutional 

district within district guideline in adjusting district lines 

to account for population changes since the last 

reapportionment; but because it is tasked with redrawing it is 

also implicitly authorized to consider the boundaries of 

existing legislative districts. 

Second, the Supreme Court has recognized that “preserving 

the cores of prior districts” is a legitimate state legislative 

policy that may justify minor deviations from the requirement 

that each district should have an equal population. In Karcher 

v. Daggett, 462 U.S. 725 (1983), the court explained that it was 

“willing to defer to state legislative policies, so long as they 

are consistent with constitutional norms, even if they require 

small differences in the population of congressional districts.” 

Id. at 740. The court continued, explicitly recognizing that 

keeping legacy districts intact was a “legitimate objective:”
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Any number of consistently applied legislative policies 

might justify some variance, including, for instance, making 

districts compact, respecting municipal boundaries, 

preserving the cores of prior districts, and avoiding 

contests between incumbent Representatives. As long as the 

criteria are nondiscriminatory, these are all legitimate 

objectives that on a proper showing could justify minor 

population deviations.

Id. (emphasis added)(citation omitted). 

 To the extent that the reapportionment commission sought to 

preserve legacy districts, that was a “legitimate objective.” 

See id.; see also Chapman v. Meier, 407 F.Supp. 649, 664 (D.N.D. 

1975) (adopting a court-ordered apportionment plan and 

explaining that though the court had “altered most of the 

existing legislative districts to comply with the one man-one 

vote standard” it also “endeavored to retain the core 

of existing districts in the new reapportionment plan” so that 

“extreme disruption in the election processes may be avoided”). 

We see no reason to conclude that article IV, section 6 or 

HRS § 25-2(b) limit the commission’s discretion to craft a 

reapportionment plan that complies with constitutional equal 

protection mandates, strictly conforms to the mandatory 

requirements of article IV, section 6 and HRS § 25-2(b), and 

also seeks to promote stability by preserving legacy districts. 
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25 

III. CONCLUSION 

 The Plan complies with article IV, section 6 and HRS § 25-

2(b); Petitioners have not shown that they are entitled to the 

requested relief. The Petition is denied. 

Mateo Caballero,

for petitioners 

Lauren K. Chun 

(Patricia Ohara, Lori N. 

Tanigawa, and Reese R. Nakamura 

on the briefs), 

for respondents

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama 

/s/ Todd W. Eddins