SCPW-21-0000342

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

 

STATE OF HAWAI#I ex rel. Clare E. Connors,

Attorney General, Petitioner,

vs.

STATE OF HAWAI#I 2021

REAPPORTIONMENT COMMISSION, Respondent.

 

ORIGINAL PROCEEDING

ORDER GRANTING PETITION FOR WRIT OF MANDAMUS

OR EXTRAORDINARY WRIT

(By: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.)

The State of Hawai#i ex rel. Clare E. Connors, Attorney

General of the State of Hawai#i (“Petitioner”) has filed a

petition for writ of mandamus or extraordinary writ, with the

support of the State of Hawai#i 2021 Reapportionment Commission

(“Commission”), to adjust the deadlines for the Commission to 

(1) issue public notice of its proposed legislative and

congressional reapportionment plans and (2) file its final

legislative and congressional reapportionment plans, by slightly

less than six months. Upon consideration of the petition and the

supporting documents, and given the unique circumstances faced by

the Commission, the requested extraordinary writ is necessary and

within this court’s authority.

Electronically Filed

Supreme Court

SCPW-21-0000342

07-JUL-2021

01:50 PM

Dkt. 3 OGP
At the start of every decade, the United States Census

Bureau (“Census Bureau”) counts the total number of persons in

each state. The following year, the Commission uses the data

collected in the decennial census to reapportion the members of

both houses of the State Legislature and the members of the U.S.

House of Representatives allocated to Hawai#i among districts

that are as of nearly equal population as is practicable. This

year, however, due to the federal government’s unprecedented and

unforeseeable delay in transmitting census data to the States as

a result of the COVID-19 pandemic, it is impossible for the

Commission to meet the deadlines for issuing public notice of its

proposed legislative and congressional reapportionment plans and

filing its final legislative and congressional reapportionment

plans as set forth under Haw. Const. art. IV, § 2 and HRS § 25-2.

Article IV, Section 2 of the Hawai#i Constitution sets

forth deadlines regarding the formation of the Commission and the

submission of legislative reapportionment and congressional

reapportionment plans:

Section 2. A reapportionment commission shall be

constituted on or before May 1 of each reapportionment

year and whenever reapportionment is required by court

order. The president of the senate and the speaker of

the house of representatives shall each select two

members. Members of each house belonging to the party

or parties different from that of the president or the

speaker shall designate one of their number for each

house and the two so designated shall each select two

members of the commission. The eight members so

selected, promptly after selection, shall be certified

by the selecting authorities to the chief election

officer and within thirty days thereafter, shall

select, by a vote of six members, and promptly certify

to the chief election officer the ninth member who

shall serve as chairperson of the commission.

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. . . .

Not more than one hundred fifty days from the

date on which the members are certified, the

commission shall file with the chief election officer

a reapportionment plan for the state legislature and a

reapportionment plan for the United States

congressional districts which shall become law after

publication as provided by law.

HRS § 25-2(a), which was recently amended by Act 14, Session Laws

of Hawai#i 2021, sets forth additional requirements and deadlines

for legislative reapportionment:

Legislative reapportionment. The commission

shall reapportion the members of each house of the

legislature on the basis, method, and criteria

prescribed by the Constitution of the United States

and article IV of the Hawaii State Constitution. For

purposes of legislative reapportionment, a “permanent

resident” means a person having the person’s

domiciliary in the State. In determining the total

number of permanent residents for purposes of

apportionment among the four basic island units, the

commission shall only extract non-permanent residents

from the total population of the State counted by the

United States Census Bureau for the respective

reapportionment year. The commission shall conduct

public hearings and consult with the apportionment

advisory council of each basic island unit. No more

than one hundred days from the date on which all

members are certified, the commission shall cause to

be given in each basic island unit, public notice[] of

a legislative reapportionment plan prepared and

proposed by the commission. At least one public

hearing on the proposed reapportionment plan shall be

held in each basic island unit after initial public

notice of the plan. At least twenty days’ notice

shall be given of the public hearing. The notice

shall include a statement of the substance of the

proposed reapportionment plan, and of the date, time,

and place where interested persons may be heard

thereon. The notice shall be given at least once in a

basic island unit where the hearing will be held. All

interested persons shall be afforded an opportunity to

submit data, views, or arguments, orally or in

writing, for consideration by the commission. After

the last of the public hearings, but in no event later

than one hundred fifty days from the date on which all

members of the commission are certified, the

commission shall determine whether the plan is in need

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of correction or modification, make the correction or

modification, if any, and file with the chief election

officer, a final legislative reapportionment plan. 

Within fourteen days after the filing of the final

reapportionment plan, the chief election officer shall

cause public notice [] to be given of the final

legislative reapportionment plan which, upon public

notice, shall become effective as of the date of

filing and govern the election of members of the next

five succeeding legislatures.

(Emphases added). HRS § 25-2(b) sets forth additional

requirements and deadlines for congressional reapportionment:

The commission shall first determine the total number

of members to which the State is entitled and shall

then apportion those members among single member

districts so that the average number of persons in the

total population counted in the last preceding United

States census per member in each district shall be as

nearly equal as practicable. . . . Not more than

one hundred days from the date on which the members

are certified, the commission shall cause public

notice to be given of a congressional reapportionment

plan prepared and proposed by the commission. The

commission shall conduct public hearings on the

proposed plan in the manner prescribed under

subsection (a). At least one public hearing shall be

held in each basic island unit after initial public

notice of the plan. After the last of the public

hearings, but in no event later than one hundred fifty

days from the date on which all members of the

commission are certified, the commission shall

determine whether or not the plan is in need of

correction or modification, make the correction or

modification, if any, and file with the chief election

officer, a final congressional reapportionment plan. 

Within fourteen days after filing of the final

reapportionment plan, the chief election officer shall

cause public notice to be given of the final

congressional reapportionment plan which, upon public

notice, shall become effective as of the date of

filing and govern the election of members of the

United States House of Representatives allocated to

this State for the next five succeeding congresses.

(Emphases added).

Under the present constitutional and statutory

framework, the Commission’s deadline to issue public notice of

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its proposed legislative and congressional reapportionment plans

is July 22, 2021, and its deadline to file its final legislative

and congressional reapportionment plans is September 10, 2021. 

Due to COVID-19-related delays, the Census Bureau has

announced that it will not be able to provide 2020 census data to

the states until between August 15 and August 31, 2021, and that

delivery of the 2020 redistricting data would be delayed from

March 31, 2021 to September 30, 2021. Given this forecasted

delay in the Census Bureau’s release of the data, the Commission

is unable to meet the time requirements under Haw. Const. art.

IV, § 2 and HRS § 25-2. 

The purpose of the deadlines set forth in Haw. Const.

art. IV, § 2 and HRS § 25-2 is to provide a means for timely

action by the Commission to conduct a reapportionment. Taking

this into consideration, together with the impossibility of

compliance with the deadlines due to the extraordinary and

unprecedented circumstances that we have faced over the past year

–- a global public health crisis that has compelled the federal

government to pause the decennial census and seek congressional

authorization for an extension of its own deadline –- compels

this court to provide relief in this instance. The Hawai#i State

Senate also recognized the need for relief when it adopted Senate

Resolution No. 220, S.D. 1, which requested the Attorney General

“to begin legal proceedings to . . . petition the Hawaii Supreme

Court seeking relief to prevent action against the

Reapportionment Commission for the Reapportionment Commission’s

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failure to meet statutory or constitutional deadlines relating to

the 2021 reapportionment plans resulting from the United States

Census Bureau’s delay in delivering high quality data to the

states and public[.]”

Thus, pursuant to this court’s jurisdiction under

article VI, section 1 of the Constitution of the State of

Hawai#i, which provides this court with authority under HRS §

602-5(6) “[t]o make and award such judgments, decrees, orders and

mandates, . . . and do such other acts and take such other steps

as may be necessary to carry into full effect the powers . . .

given to it by law or for the promotion of justice in matters

pending before it[,]” and in light of the extraordinary and

unprecedented circumstances at issue here, a narrow, one-time

adjustment to the deadlines, to enable the relevant

constitutional and statutory redistricting provisions otherwise

to operate as written and intended, is appropriate. Accordingly, 

IT IS HEREBY ORDERED that the petition for writ of

mandamus or extraordinary writ is granted. The Commission shall:

(1) issue a public notice of the Commission’s proposed

legislative and congressional reapportionment plans no later than 

January 8, 2022; and

(2) file its final legislative and congressional

reapportionment plans with the Chief Election Officer no later

than February 27, 2022. 

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We emphasize that these adjustments to the relevant

deadlines are solely limited to the required notice and filing

set forth in (1) and (2), above. Should the federal government

release the census data sooner, the Commission should make every

effort to expedite its process and issue its public notice and

final reapportionment plans in advance of the deadlines set forth

in this order. 

DATED: Honolulu, Hawai#i, July 7, 2021.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Todd W. Eddins

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