Fed appeals court considers if Hawaiian election case moot

HONOLULU (AP) – A group that sued to stop a Native Hawaiian election is persisting with its lawsuit because it fears another race-based vote will happen.

Even though the organizers of a vote to elect delegates to a Native Hawaiian self-governance convention called off the election amid the legal challenges that reached the U.S. Supreme Court, the lawsuit isn’t resolved, a lawyer representing the election opponents argued before a panel of federal appeals court judges in Honolulu Friday.

The group of Hawaiians and non-Hawaiians who sued on the basis that a race-based election is unconstitutional fear that another organization will form to hold another vote in the future, said one of the group’s lawyers, Bob Popper from Washington, D.C.-based conservative group Judicial Watch.

Nai Aupuni, the now-dissolved organization that formed to guide the election, says the lawsuit is moot because the vote was called off and its leaders aren’t attempting a future election.

The election was to select 40 delegates who would meet at a convention to come up with a self-governance document.

A federal district court judge in Honolulu ruled last year the purpose of the private election is to establish self-determination for the indigenous people of Hawaii.

The challengers appealed to the 9th U.S. Circuit Court of Appeals and also filed an emergency motion to block the votes from being counted. The appeals court denied the emergency motion, prompting the challengers to appeal to the high court.

Voting was ongoing when the Supreme Court issued an injunction that prevented votes from being counted. Saying the legal battle would take years to resolve, Nai Aupuni then called off the election and invited all 196 candidates to participate in a gathering that took place in February.

Plaintiffs argue that the lawsuit isn’t moot because there’s a fundraising effort underway for a ratification vote on a proposed constitution drafted at the gathering. They want the court to order the Office of Hawaiian Affairs not to fund any future vote.

In 2011, the state passed a law recognizing Hawaiians as the first people of Hawaii and the governor appointed a commission to produce a roll of qualified Native Hawaiians interested in participating in their own government.

The Office of Hawaiians Affairs must be prevented “from funneling millions of government dollars to another supposedly private entity under its de facto control for the purpose of holding a ratification vote using the race-based roll,” the plaintiffs say in a court brief last month.

The state isn’t planning any ratification vote, deputies for the state attorney general’s office wrote in a brief: “The Native Hawaiian Roll Commission is not planning, organizing or holding a ratification vote for the proposed constitution, and neither is the governor.”

If another group with enough funding comes along and wants to use the roll for a vote, then the plaintiffs can file another lawsuit, the state’s brief said.

It’s not clear when the 9th Circuit will issue a decision.