Plaintiffs’ Answering Brief (Responding to the Appeal of the Arakaki Decision by the State of Hawai’i in the 9th Circuit Court of Appeals

EARL F. ARAKAKI, EVELYN C. ARAKAKI, PATRICK BARRETT, SANDRA P. BURGESS, EDWARD U. BUGARIN, PATRICIA A. CARROLL, ROBERT M. CHAPMAN, BRIAN L. CLARKE, KENNETH R. CONKLIN, MICHAEL Y. GARCIA, TOBY M. KRAVET, THURSTON TWIGG-SMITH and JEAN YOKOYAMA,

Plaintiffs-Appellees,

vs.

STATE OF HAWAII, BENJAMIN J. CAYETANO, in his official capacity as the GOVERNOR OF THE STATE OF HAWAII, DWAYNE D. YOSHINA, in his official capacity as CHIEF ELECTION OFFICER OF THE STATE OF HAWAI`I,

Defendants-Appellants.

_______________________________

)))))))))))))))))))))))))

Dist. Ct. Civil No. 00-00514 HG

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

Plaintiffs-Appellees (collectively, “Voters”) are thirteen individual citizens and registered voters of the State of Hawaii who sued to protect their rights to vote unabridged by racial disqualification. One Voter, Kenneth R. Conklin, a prospective candidate, also sought to protect his right to run for the public office of trustee of the Office of Hawaiian Affairs (“OHA”) without being disqualified by his race. Solely because of race, the Defendant-Appellants (collectively, “the State”) denied Conklin the right to run and the Voters the right to vote for candidates without regard to race. Just as race cannot be used to deny the right to vote for OHA trustee, Rice v. Cayetano, 528 U.S. 495 (2000), so, too, it cannot be used to abridge the right to vote, or to deny the right to run and serve as OHA trustee. The State’s racial discrimination violates the Fifteenth Amendment, the Fourteenth Amendment Equal Protection Clause and the Voting Rights Act.

The District Court has jurisdiction pursuant to 28 U.S.C. §1331 (federal question jurisdiction) and 28 U.S.C. §1343 (civil rights and elective franchise cases). Voters allege violations of their constitutional rights and the Voting Rights Act, 42 U.S.C. §1973, which were perpetrated under color of state law contrary to 42 U.S.C. §1983.

The District Court entered its Order Granting Plaintiffs’ Cross Motion for Summary Judgment and Denying Defendants’ Motion for Summary Judgment on September 19, 2000. Clerk’s Record/Excerpts of Record (“CR/ER”) 58 at 38-39. On September 27, 2000, the District Court entered its Judgment in a Civil Case (CR/ER 59), which was a final judgment that disposed of all claims against all parties (except for Plaintiffs' motion for award of attorneys' fees and expenses filed October 11, 2000 which has been briefed but not yet adjudicated). The State filed a Notice of Appeal on October 27, 2000. CR/ER 66. This appeal is timely under F.R.A.P. 4(a)(1). This Court has appellate jurisdiction pursuant to 28 U.S.C. §1291. Defendant-Intervenor Office of Hawaiian Affairs did not appeal.

When the State used a racial classification to deny access to the ballot and to limit the choice of candidates in a State election for a State office, did it violate:

The Voters are satisfied with the State's statement of the case, except that the description of the course of proceedings below did not include Plaintiffs' motion for award of attorneys' fees and expenses filed October 11, 2000, which has been briefed but not yet adjudicated.

In compliance with Ninth Circuit Rule 28-2.3, Voters state they intend to seek attorneys’ fees for this appeal pursuant to 42 U.S.C. §§1973l(e) and 1988(b) and F.R.Civ.P. 54(d)(2).

The facts of this case are not disputed. At the August 15, 2000 hearing on Voters' motion for preliminary injunction, the State and Plaintiffs agreed that, if Appellee Dwayne Yoshina (the Chief Elections Officer) and the Voters were called, they would each testify consistent with their declarations; that neither side wished to dispute the facts stated in the other side's declarations; and that there were no disputes as to material issues of fact. (Transcript 8/15/00 p. 7 - 9.)

The Statement of Facts in the State's Opening Brief does not mention a single fact cited to the record or refer to any of the declarations of the parties. Rather, the "facts" recited in the Opening Brief consist of legal arguments based on resolutions and laws. Voters have controverted many of those arguments in, among other places, Plaintiff's Separate Concise Statement of Facts in Opposition to Defendants' Motion for Summary Judgment (Plaintiff’s “SCSFODMSJ”). Supplemental Excerpts of Record (“SER”) 15.

This section of this brief will begin with introductory information about OHA and then summarize the undisputed facts. The State’s legal arguments will be dealt with in the Argument section.

The Office of Hawaiian Affairs ("OHA") is a state agency, established by the state constitution, responsible for the administration of state laws and obligations. Hawai`i Constitution Art. XII, §§5-6; Hawaii Rev. Stat. (“H.R.S.”) §10-3(3). OHA elections are elections of the State of Hawaii. Rice, 528 U.S. at 520-21.

The OHA Board of Trustees is composed of nine members elected at large by qualified state voters. Island residency requirements apply to five of the members. H.R.S. §13D-1. OHA trustees are “elected at a special election held in conjunction with the general election in every even numbered year.” H.R.S. §13D-4. A trustee’s term of office is four years and the terms are staggered so that either four or five of the trustees’ terms expire every even numbered year. H.R.S. §13D-5.

When this suit was filed, the next special election for OHA was scheduled to coincide with the general election on November 7, 2000. 2000 Candidate's Manual, Important Dates, p. 1, SER 14.

All candidates for elective office must file nomination papers to be listed on the State of Hawaii ballot. H.R.S. §12-3.

The last day for OHA candidates to file nomination papers for the 2000 election was Friday, September 8, 2000. H.R.S. §12-6(a). 2000 Candidate's Manual, 2000 Election Calendar, p. 3.

OHA has broad authority to administer two categories of State funds for two categories of the State’s citizens. First, OHA receives twenty percent of the revenues from the lands returned to the State by the United States under §5(b) of the Admissions Act, 73 Stat. 6. OHA is to spend these revenues “for the betterment of the conditions of native Hawaiians.” H.R.S. §10-13.5. Second, OHA administers any state or federal appropriations or private donations that may be made to OHA for the benefit of “native Hawaiians” and/or “Hawaiians.” Haw. Const. Art. XII, §6; see generally H.R.S. §§10-1 to 10-16.

As of April 30, 2000, OHA held cash, receivables and investments of $387,974,482 in these two categories of State funds. SER 4, Exh. B.

“Hawaiian” and “native Hawaiian” are not defined in the Hawai`i Constitution.

“Hawaiian” has been defined by H.R.S. §§10-2 and 11-1 to mean “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 Hawai`i.”

“Native Hawaiian” means a “Hawaiian” who has “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.” H.R.S. §10-2. (In 1778 Captain Cook’s visit ended Hawai`i’s long isolation.)¹

Before the Supreme Court’s decision in Rice, only “Hawaiians” could vote for OHA trustee. H.R.S. §§13D-1, 13D-3(b)(1) (1993); Haw. Const. Art. XII, §5. Being Hawaiian is still a requirement to run for and serve as trustee. Id., H.R.S. §13D-2 (as amended by 2000 Haw. Sess. L. 59).

The Voters are thirteen citizens, registered voters and taxpayers of the State of Hawaii and of the United States. Declarations of Plaintiffs SER 1-11. As citizens of Hawai`i, they are beneficiaries of the public trust in State lands which provides revenue to OHA. Admission Act §5(f); Haw. Const. Art. XII, §4.

They represent a broad cross-section of the population of Hawaii, including English, Japanese, Irish, Okinawan, Portuguese, Chinese, Filipino, French, German, Spanish, Scottish and Hawaiian ancestries. SER 1-11.

All thirteen Voters voted in the general elections in the State of Hawaii in 1996 and 1998. SER 1-11.

Only two of the Voters, Evelyn Arakaki and Sandra Puanani Burgess, both of whom are of part-Hawaiian ancestry, were allowed to vote in the OHA elections in 1996 and 1998. SER 2, 4. The State, acting under color of state law, barred the remaining eleven Plaintiffs and all persons not of Hawaiian ancestry, solely because of their race or ancestry, from voting in the OHA elections of 1996 and 1998.

On February 23, 2000, the Supreme Court of the United States issued its decision in Rice v. Cayetano, holding that the State of Hawaii cannot constitutionally limit, by race, the class of voters who choose the OHA trustees.

On June 1, 2000, Conklin went to the State Office of Elections and attempted to take out nomination papers so that he could become a candidate and have his name put on the ballot for the November, 2000 election for the OHA trustees. Conklin Declaration, SER 8, ¶ 2.

The Office of Elections refused to issue Conklin the nominating papers, citing as the only reason, the fact that he is not of "Hawaiian" ancestry. Conklin Declaration ¶ 3.

Aside from the "Hawaiian" requirement, Conklin met all the other qualifications for being a candidate for the "at-large" and "Oahu" seats. He is a citizen, registered voter, and taxpayer of the State of Hawaii. Conklin was willing and able to accept the trust responsibilities of an OHA trustee in accordance with the Constitution and laws of the United States and the State of Hawai`i. Conklin Declaration ¶ 1, 4; Conklin Supplemental Declaration, SER 12, ¶¶7, 8.

On July 10, 2000 Mr. Dwayne D. Yoshina, Chief Election Officer of the State of Hawaii, confirmed in writing that he had instructed election officials that it would be appropriate to reject nomination papers by non-Hawaiians and to determine that non-Hawaiian individuals were not qualified to run as candidates in OHA elections. SER 13 (letter from Dwayne D. Yoshina, Chief Election Officer, to H. William Burgess).

All thirteen plaintiffs were otherwise eligible to and intended to vote in the OHA elections scheduled for November 7, 2000. Each declared that to vote effectively, his or her choice of candidates for whom to vote must not be limited by the race or ancestry of the candidates. Declarations SER 1-11.

Both Defendant-Appellant Governor Cayetano and then-OHA Board Chairman Clayton Hee publicly stated that, given Rice, there is no good reason to keep non-Hawaiians from running for OHA trustee. Conklin Declaration 8/8/00; SER 9 Ex. A, (partial transcript KRTR Radio program aired 7/16/00); Burgess Declaration, SER 8, Exh. A (partial transcript of KITV4 News).

On August 15, 2000 the District Court entered its oral order temporarily enjoining the Office of Elections from denying nomination papers solely based on race to any otherwise qualified applicants for the position of OHA trustee. The Court entered its written order on August 21, 2000. CR/ER 40.

On August 16, 2000, Conklin received nomination papers from the Office of Elections. Conklin Supp. Declaration, ¶4.

On August 28, 2000, having obtained the signatures of more than 25 fellow citizens supporting his candidacy, as required by H.R.S. §12-5(c), Conklin filed his nomination papers. He took the oath prescribed by H.R.S. §12-7 to faithfully uphold and defend the Constitution and laws of the United States and the State of Hawai`i. Conklin Supp. Declaration, ¶¶5-6.

On September 8, 2000, the nine OHA trustees resigned their positions. Court Order CR/ER 58, 11, n.6.

Pursuant to state law, the Governor subsequently appointed interim trustees. One of the trustees-appointed by the Governor was a non-Hawaiian, Court Order CR/ER 58, 11, n.6, who was subsequently elected.

The right to be considered for public office and the right to choose for whom to vote, both without the burden of racial disqualification, are fundamental rights protected by the U.S. Constitution.

The State's restriction on eligibility for the OHA board is a racial classification. OHA is a State agency and its elections are State elections to which the Constitution applies.

Restricting Voters' choice of candidates based on the race of the candidates violates the Fifteenth Amendment because it abridges Voters' ability to vote effectively. The Fifteenth Amendment’s ban on racial discrimination is absolute and comprehensive.

The State's racial restriction on eligibility for the OHA board also violates the Fourteenth Amendment. By barring one Plaintiff from running for this public office solely because of his race, it denied to him the equal protection of the laws.

Because it denies fundamental rights and because it is based on a racial classification, the State's restriction is presumptively invalid and cannot be upheld unless the State shows it is narrowly tailored to meet a compelling State interest.

The heavy burden of justification is on the State but the State presented no evidence of either a compelling State interest or narrow tailoring. Legislative findings are not evidence. Congress may not determine the facts in a lawsuit. That is for the courts and evidence is required.

The State’s legal arguments are invalid. The State has not shown, because it cannot show, any legal justification for its racial restriction on eligibility for the OHA Board.

Specifically, the State has not established any legal justification for its claims: that promoting what amounts to a racially exclusive government is a compelling state interest; that the U.S. took lands without compensation or by force from the Hawaiian people; that the U.S. deprived the Hawaiian people of sovereignty; or that State and the United States have a trust relationship with Hawaiians over and above the trust relationship they have with all citizens.

Restricting Voters' choice based on the race of the candidate also violates the Voting Rights Act.

There is no "indigenous people" exception to the Constitution. The State's Mancari argument was rejected by the Supreme Court in Rice.

Moreover, even if Congress had authority, delegated to the State, to treat Hawaiians as tribes, it may not authorize a State to create a voting scheme that limits the eligibility for election to public office to Hawaiians to the exclusion of all other citizens. OHA elections are not elections of a separate quasi-sovereign; they are elections of the State to which the Constitution applies.

The Voters are satisfied with the State’s statement of the standard of review.

The Fourteenth and Fifteenth Amendments prohibit using race to disqualify a candidate or restrict a voter’s choice.

The Constitution “grants to all citizens a right to participate in the choice of elected officials without restriction by any State because of race.” Smith v. Allwright, 321 U.S. 649, 664 (1944). “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society.” Shaw v. Reno, 509 U.S. 630, 639 (1993), because it is grounded on the “fundamental principle of our representative democracy” that “in Hamilton's words, . . . ‘the people should choose whom they please to govern them,’” Powell v. McCormack, 395 U.S. 486, 547 (1969).

Because the fundamental “rights of voters and the rights of candidates do not lend themselves to neat separation,” Bullock v. Carter, 405 U.S. 134, 143 (1972), representative democracy “is undermined as much by limiting whom the people can select as by limiting the franchise itself.” Powell v. McCormack, 395 U.S. at 547 (citing James Madison).

There is a "federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications.” Turner v. Fouche, 396 U.S. 346, 362-363 (1970). “Restrictions on access to the ballot burden two distinct and fundamental rights, ‘the right of individuals to associate for the advancement of political beliefs and the right of qualified voters . . . to cast their votes effectively.’” Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979).

To run for and hold office as an OHA trustee, a candidate must be “Hawaiian.” Hawai`i Constitution, Art. XII, §5, H.R.S. §§13D-1, 13D-2, 2000 Sess. L. 59 (amending §13D-2 to expressly insert that requirement).

In Rice, the United States Supreme Court held that these definitions are racial classifications: “Ancestry can be a proxy for race. It is that proxy here.” Rice, 528 U.S. at 514. The Supreme Court held that the State “has used ancestry as a racial definition and for a racial purpose.” Id. 528 U.S. at 515. Consequently, “[t]he State’s electoral restriction enacts a race-based voting qualification.” Id. 528 U.S. at 518. Precisely the same classification — “Hawaiian” — with precisely the same definition, limits the class of persons who may serve as an OHA trustee. H.R.S. §10-2.

Based on Hawai`i law, the Supreme Court held in Rice that “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. It is “an arm of the State.” Id. at 521. Therefore, “the elections for OHA trustee are elections of the State . . . and they are elections to which the Fifteenth Amendment applies.” Id. at 522.

Excluding non-Hawaiian candidates from OHA elections “abridge[s]” the right to vote “on account of race” in violation of the Fifteenth Amendment. The State cannot salvage the remnant of its unconstitutional electoral scheme by distinguishing between racial discrimination against voters and racial discrimination against candidates. The Fifteenth Amendment forbids both. “The use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve.” Rice, 528 U.S. at 517.

The Fifteenth Amendment, §1, provides that “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.” (Emphasis added.)

To “abridge” is to “diminish or curtail.” Black’s Law Dictionary 8 (6^th ed. 1990). Any diminution of the right of voters to choose among candidates, based on the candidates’ race, abridges their right to vote because it diminishes their choices.

The effect is the same whether the State denies racial equality by discriminating against the voters directly or by abridging their right to vote by excluding candidates. The Fifteenth Amendment “nullifies sophisticated as well as simple-minded modes of discrimination.” Gomillion v. Lightfoot, 364 U.S. 339, 342 (1939).

The Supreme Court has long recognized that denying the right of candidates to run on account of their race abridges the rights of voters.

In Hadnott v. Amos, 394 U.S. 358 (1969), the Supreme Court applied the Fifteenth Amendment to bar exclusion of candidates from the ballot on racial grounds. In 1968, the Alabama Democratic Party had split along racial lines. The black faction of the party organized itself as the National Democratic Party of Alabama (NDPA) and fielded candidates. In one county, the probate judge (who, under Alabama law administered elections) used certain legal technicalities to exclude the NDPA’s candidates from the ballot. Similarly situated white candidates were not so excluded. The NDPA and some of its officers and candidates filed a class action challenging the racial exclusion of candidates. A three-judge federal court denied relief. The Supreme Court reversed and ordered a special election in which the black candidates could run.

The Court based its decision on both “Fifteenth Amendment rights which guarantee the right of people regardless of their race . . . to cast their votes effectively and with First Amendment rights which include the right to band together for the advancement of political beliefs.” 394 U.S. at 364.

In Hadnott, there was no allegation that blacks were prevented from voting. The violation of Fifteenth Amendment rights arose from denying black candidates a place on the ballot because of their race and thereby abridging the right to vote by limiting the right to choose among candidates. The State admits that Hadnott at least “raised the possibility” that the Fifteenth Amendment “prohibits abridging the right to vote on the basis of the race of the candidate, as opposed to the race of the voter.” OB, 16 (emphasis in the original). The State attempts to distinguish the case by arguing that the Fifteenth Amendment was superfluous because the Court also cited the First Amendment. However, the Court relied equally on two independent grounds: excluding a candidate because of his race and because of his political opinions violates both “Fifteenth and the First Amendments rights.” 394 U.S. at 364.

The White Primary Cases, discussed by the Supreme Court in Rice, 528 U.S. 513-14, illustrate the principle that racial discrimination at any step of the electoral process violates the Fifteenth Amendment, even though the general election itself is open to voters of all races. A primary election is a necessary step on the way to the final election of public officials. Even if all citizens can vote in the general election, the Fifteenth Amendment right to vote without account of race is abridged if race is taken into account in the process of selecting candidates for the general election.

The first two White Primary Cases were decided on Fourteenth Amendment grounds, demonstrating the overlapping constitutional prohibitions of racial discrimination in the election process. In Nixon v. Herndon, 273 U.S. 536 (1927), the Supreme Court struck down an explicit statutory prohibition against non-white voters participating in a primary. Texas then enacted a statute empowering party executive committees to set requirements for primaries. The Democratic executive committee promptly disqualified non-whites from participating in Democratic Party primaries. The Supreme Court struck down that law, too. Nixon v. Condon, 286 U.S. 73 (1932).

The Texas Democratic Party convention then adopted its own rule excluding blacks from primary elections. The Democratic Party claimed to act as a private entity so that there would be no state action within the scope of the Fourteenth and Fifteenth Amendments. However, in Smith v. Allwright, 321 US. 649 (1944), the Supreme Court applied the Fifteenth Amendment to invalidate that rule because whoever won the whites-only primary was the candidate in the general election. Justice Cardozo for the Court pointed out that “all citizens have a right to participate in the choice of elected officials without restriction by any State because of race” and that “constitutional rights would be of little value if they could be thus indirectly denied.” Id. 321 U.S. at 664. The Court grounded its opinion on the fact that the primaries were a part of a state-regulated process by which state officials were elected: “When primaries become a part of the machinery for choosing officials . . . the same tests to determine the character of discrimination or abridgment should be applied to the primary as are applied to the general election.” Id.

Finally, in Terry v. Adams, 345 U.S. 461 (1953), the Supreme Court held that the Fifteenth Amendment barred exclusion of non-whites from the Jaybird Democratic Association’s pre-primary election which, in turn, selected candidates for the primary which selected the candidates for the general election. The candidates selected by the Jaybirds were invariably white. “It violates the Fifteenth Amendment for a state, by such circumvention, to permit within its borders the use of any device that produces an equivalent of the prohibited election.” Id. 345 U.S. at 813.

The lesson of the White Primary Cases is that the Fifteenth Amendment prohibits states from taking race into account to limit choices at any stage of the electoral process leading up to the voters’ choice at the general election. An indirect abridgement of the right to vote is still an abridgement of the right to vote.

The State admits that the restriction on candidacy diminishes the voters’ rights: “a ‘racial’ candidate restriction, impact[s] to some degree the right to vote by limiting the voters’ ability to express their political preference by voting for a racially excluded candidate” but “does not completely destroy one’s right to vote – one can still vote, albeit with less choice.” State Opening Brief (“OB”) at 34, (emphasis in original). In short, the racial restriction to Hawaiian candidates abridges voters’ right to vote and does so on account of race.

The restriction is intended to and does ensure that non-Hawaiians cannot get on the ballot and the voters cannot even consider voting for them. OB, 50. Representative democracy in Hawaii is undermined “as much by limiting whom the people can select as by limiting the franchise itself.” Powell v. McCormack, 395 U.S. at 547. The racial restriction conflicts with “[t]he design of the [Fifteenth] Amendment” which “is to reaffirm the equality of races at the most basic level of the democratic process.” Rice, 528 U.S. at 512.

Hawai`i State law creates and defines the nomination process by which a candidate is placed upon the OHA ballot, just as state law creates and defines the primary process. Taking out and submitting nomination papers and being placed upon the ballot is essential to getting elected as an OHA trustee, just as winning a primary was essential to getting elected in Texas. Therefore, “the same tests to determine the character of discrimination or abridgment should be applied” to the requirements for becoming an OHA candidate as the Supreme Court in Rice “applied to the general election” for OHA trustees. See Smith v. Allwright, 321 US. at 664. Given that the Fifteenth Amendment prohibits using the “Hawaiians-only” rule in the general election, it equally prohibits using that rule to exclude candidates because that is a “device that produces an equivalent of the prohibited election,” Terry v. Adams, 345 U.S. at 813, by ensuring that non-Hawaiians cannot get on the ballot and the voters cannot even consider voting for them.

Hawaii continues to apply a law that, like the Texas statute in Nixon v. Herndon, expressly excludes everyone who is not a member of the favored racial group. By barring non-Hawaiians from being elected as and voting as OHA trustees, the “State’s position [still] rests, in the end on the demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain matters. That reasoning attacks the central meaning of the Fifteenth Amendment.” Rice, 528 U.S. at 524.

The Fifteenth Amendment’s ban on racial discrimination is “absolute” and “comprehensive.” Rice, 528 U.S. at 512. Once the Supreme Court held in Rice that the Hawaiians-only rule was a race-based restriction of the right to vote in a state election for OHA trustees, it reversed and remanded the case. The Court did not need to consider whether there might be some compelling state interest that justified the discrimination. “Fundamental in purpose and effect and self-executing in operation the Amendment prohibits all provisions denying or abridging the voting franchise of any citizen or class of citizens on the basis of race.” Id.

It is “hard to imagine a more direct and obvious infringement of the Fourteenth” Amendment than a law which expressly excludes some people on grounds of race from full participation in our democracy. Nixon v. Herndon, 273 U.S. at 541. The “State may not deny to some the privilege of holding public office that it extends to others on the basis of distinctions that violate federal constitutional guarantees.” Turner v. Fouche, 396 U.S. at 362-63. Despite the State’s professed good intentions, the racial exclusion of candidates in OHA elections fails strict scrutiny. “Discrimination is wrong even if the beneficiaries are members of groups whose fortunes we would like to advance.” Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 708 (9^th Cir. 1997).

As the State argues, “[r]acial candidate restrictions must be scrutinized on . . . grounds, including the Fourteenth Amendment.” OB, 11. The State not only bars non-Hawaiians from being candidates, in violation of the Fifteenth Amendment, it also bars them from serving as trustees if elected. Haw Const. Art. XII §5 (“board members shall be Hawaiian”); H.R.S. §10-2 (racial definition of “Hawaiian”). The constitutional prohibition on corruptive racial qualifications would be frustrated if a non-Hawaiian candidate who won the support of a majority of voters were to be barred from serving as trustee. Furthermore, H.R.S. §13D-2 disqualifies any non-Hawaiian from being appointed to fill a vacancy on the Board between elections. H.R.S. §17-7 (remaining trustees or the governor fill the vacancy by appointment). Counsel for the State pointed out in oral argument below that only the Fourteenth Amendment can reach these racial restrictions on serving as trustee, as distinguished from running for trustee. Transcript 9/8/00, pp. 52-53.

“A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.” Personal Adm’r of Massachusetts et al. v. Feeney, 442 U.S. 256, 272 (1979). Because “Hawaiian” is a racial classification, Rice, 528 U.S. at 514-17, its use is presumptively invalid and can be upheld only if it satisfies strict scrutiny. See Shaw v. Reno, 509 U.S. 630, 641-44 (1993); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 229-30 (1995); City of Richmond v. J.A. Croson, 488 U.S. 469, 496-97 (1989). A racial classification is a racial classification whether it is challenged under the Fifteenth or the Fourteenth Amendment. The Fourteenth Amendment requires strict scrutiny of racial classifications applied to voting and holding office. Shaw v. Reno; Turner v. Fouche, 396 U.S. at 362-63; Anderson v. Martin, 375 U.S. 399, 401-02 (1964).

To survive strict scrutiny under the Equal Protection Clause, state-sponsored racial classifications must be justified by a compelling state interest and must be narrowly tailored to achieve that interest. Adarand Constructors, Inc. v. Pena, 515 U.S. at 227; City of Richmond v. J.A. Croson, 488 U.S. at 496-97.

The burden is on the State to prove that its use of a racial classification to restrict fundamental political rights satisfies strict scrutiny. “Once a prima facie case of invidious discrimination is established, the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result.” Alexander v. Louisiana, 405 U.S. 625, 632 (1972). See Miller v. Johnson 515 U.S. 900, 920 (1995) (to satisfy strict scrutiny, State must demonstrate that its legislation is narrowly tailored to achieve a compelling interest); University of California Regents v. Bakke, 438 U.S. 265, 305 (1978) (“to justify the use of a suspect classification, a state must show its purpose and interest is both constitutionally permissible . . . and . . . its use necessary”); Loving v. Virginia, 388 U.S. 1, 9 (1967) (statutes containing racial classifications face very heavy burden of justification).

A state interest is “compelling” only when it rests on a “strong basis in evidence” that government action favoring one race over another is “necessary.” Croson, 488 U.S. at 493, 500; Adarand, 515 U.S. at 226, 228, 236.

Similarly, a governmental program is “narrowly tailored” only when the government can meet the heavy burden of showing that it has no other choice. A state may impose racial classifications only as a “last resort.” Croson, 488 U.S. at 519 (Kennedy, J.) It must show that it has attempted or considered alternative, race-neutral means but has determined that they cannot succeed. Croson, 488 U.S. at 507. The chosen racial classification must minimize any encroachment on the constitutional rights of other citizens. Id., 488 U.S. at 510-11. The government must maintain “the most exact connection between justification and classification.” Adarand, 515 U.S. at 236. A program that takes race into account must be “limited such that it “will not last longer than the discriminatory effects it is designed to eliminate.” Id., quoting Fullilove v. Klutznick, 448 U.S. 448, 513 (1980).

The District Court below noted the absence of concrete evidence and that “[n]either Defendants nor OHA have explained why it is necessary that only Hawaiians serve as trustees.” CR/ER 58 at 19.

The only evidence that the State put in the record in this case are the two declarations by the Chief Election Officer, Dwayne Yoshina, dealing with the details of the election process. CR 15, 19. In those declarations, Mr. Yoshina does not say anything about why it is necessary that only Hawaiians serve as trustees. No evidence in the record meets the State’s burden of proving that it has a compelling interest in requiring OHA trustees to be Hawaiian.

Indeed, the facts shown by the evidence, and stipulated to as undisputed by the parties, indicate the opposite: The Governor of the State of Hawaii said, “Frankly I really believe that anyone should be able to run. There’s a lot of expertise in the State and many people who are not Hawaiian would like to help out.” SER 4, Exh. A. Then-Chairman of OHA, Clayton Hee said, “And frankly, if everybody can vote, the question of why shouldn’t everybody run, common sense.” ... “So if Mr. Conklin wants to run, as far as I’m concerned have at it…. That’s what democracy’s all about.” SER 9, Exh. A. Individual Voters, whose ancestries represent a broad cross-section of the multi-ethnic population of Hawaii, each said to be able to vote effectively, his or her choice of candidates for whom to vote must not be limited by the race or ancestry of the candidates. SER 1-11.

Thus, everyone whose statements about the subject are in evidence in this case, including the highest officers of both the State and OHA, deny that the State has a compelling interest in restricting eligibility for the OHA board by race.

Likewise, there is no evidence of narrow tailoring. Under Adarand, this lack alone is fatal. In Adarand, the Court remanded because the lower court “did not address the question of narrow tailoring in terms of our strict scrutiny cases, by asking, for example, whether there was any ‘consideration of the use of race-neutral means to increase minority business participation’ in government contracting, [cite omitted] or whether the program was appropriately limited such that it ‘will not last longer than the discriminatory effects it is designed to eliminate.’ 515 U.S. at 237-38.

Rather than introduce evidence to support its claim of a compelling governmental interest and a narrowly tailored program, the State relies on legislative findings to justify its race-based restriction. At oral argument, in response to the trial court’s question whether the State was asking the court to find historical facts, the State’s counsel said that the State’s concise statement of fact relied on “statutes and resolutions” and the court could rule as a matter of law. Transcript 9/8/00, 33-34.

Statutes and resolutions do not prove facts. Of course, there is no dispute that Congress in fact passed the resolutions and laws the State cites but that does not establish the truth or accuracy of the assertions in the preambles or findings of such legislation. As a matter of basic separation of powers, Congress does not and cannot determine the facts of a judicial case.

As the Supreme Court has explained, “[w]hatever deference is due legislative findings would not foreclose our independent judgment of the facts bearing on an issue of constitutional law.” Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115, 129 (1989). When a state “seeks to justify race-based remedies to cure the effects of past discrimination,” the courts “do not accept the government’s mere assertion” but rather “insist on a strong basis in evidence of the harm being remedied.” Miller v. Johnson, 515 U.S. 900, 922 (1995). This is because “blind judicial deference to legislative . . . pronouncements of necessity has no place in equal protection analysis.” Croson, 488 U.S. at 501. Nor can a state get by with a citation to congressional fact-finding. “If all a state . . . need do is find a congressional report on the subject to enact” a race-based program, “the constraints of the Equal Protection Clause will, in effect, have been rendered a nullity.” Id. at 504.

The State relies chiefly on the factual assertions in the “whereas” clauses of the preamble to the so-called “Apology Resolution,” 107 Stat. 1510 (1993). Legislative statements in a preamble may help a court interpret the operative clauses of a particular statute by clarifying the legislative intent, but they do not legislate facts or confer rights. Singer, Sutherland on Statutory Construction, §20.03 (5^th ed. 1993). The Apology Resolution has no legally operative provisions. Indeed, it expressly settles no claims. 107 Stat. 1510 §3. The committee report says that the Resolution has no regulatory impact and does not change any law. S. Rep. 123-126. Its sponsor assured the Senate that it is only “a simple resolution of apology” and that it “has nothing to do” with “the status of Native Hawaiians.” 139 Congressional Record S14477, S14482 (October 27, 1993), SER 14. The Supreme Court in Rice demonstrated how to deal with the Apology Resolution: the Court cited it but decided the case based on the facts in the record.

The State’s position is not improved by citing similar recitations in the preliminary findings sections of the Native Hawaiian Health Care Act, 42 U.S.C. §11701, and the Hawaiian Homelands Homeownership Act of 2000, Pub.L. 106-568, §202, Pub.L. 106-569, §512, 25 U.S.C. §4101 note. Neither has any relevant substantive provision about voting or candidacy. The Healthcare Act provides for health programs and the Hawaiian Homelands Act provides funds for housing on land managed by the Department of Hawaiian Homelands, a different agency than OHA.

The State chose not to try to prove its case at an evidentiary hearing but it cannot rely on legislative findings to prove facts in court. It has no factual basis for claiming that its racial restriction on candidacy and office-holding are narrowly tailored to a compelling state interest.

Hawai`i’s Hawaiian voters are self-governing as equal citizens who participate in the governments of the State of Hawai`i and the United States. Nonetheless, to justify its absolute ban on non-Hawaiian candidates and trustees, the State relies on an alleged compelling interest in fostering a racially exclusive government for Hawaiians. OB, 21, 26, 50.

Not only is this not a compelling state interest, it is not even a legitimate interest. A racially discriminatory program can never be justified by a racially discriminatory goal. See, Loving v. Virginia, 388 U.S. at 11 n.11 (state purpose of protecting racial “integrity” is repugnant to Fourteenth Amendment and did not justify anti-miscegenation laws).

The idea of a “government of the race, by the race, and for the race” is anathema to American democracy. “The legal rights of Americans are personal” and “are not conferred upon us as members of any group or . . . racial identification.” Ho v. San Francisco Unified School District, 147 F.3d 854 (9^th Cir. 1998). Because the race of a candidate is irrelevant to qualification for public office, promoting candidates of one race over others is not a legitimate interest. Anderson v. Martin, 375 U.S. at 403. “Race cannot qualify some and disqualify others from full participation in our democracy.” Rice, 528 U.S. at 523.

When an elective body “is created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only members of that group.” Shaw v. Reno, 509 U.S. at 648. OHA displayed this belief when its argued that Conklin is unfit to serve as a trustee because he has expressed views critical of racially exclusive government. See CR/ER 58, at 35-37 (trial court rejecting OHA’s argument). OHA’s attitude “is altogether antithetical to our system of representative democracy.” Shaw, 509 U.S. at 648.

When racial … lines are drawn by the State, the multiracial . . . communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race . . . rather to than to political issues are generated; communities seek not the best representative but the best racial . . . partisan. Since that system is at war with the democratic ideal, it should find no footing here.

Shaw v. Reno, 509 U.S. at 648, quoting Wright v. Rockefeller, 376 U.S. 52, 66, 67 (1964)(Douglas, J. dissenting).

The State’s claim that the voters of Hawai`i approved a racially exclusive government for Hawaiians is neither relevant nor true.

An unconstitutional state law is not saved by being enacted by a popular vote. This Court has given such laws even less deference than legislative enactments receive because the public is less well informed than legislators are. Jones v. Bates, 127 F.3d 839, 859-60 (9^th Cir. 1997).

The concern that the public may not have been informed of what it was voting on was true in the case of the 1978 amendments to the Hawai`i Constitution. In Kahalekai v. Doi, 60 Haw. 324, 342, 590 P.2d 543, 555 (1979), the Hawai`i Supreme Court held that because the voters were not informed of the definition of “Hawaiian” that would restrict the right to vote and hold office in OHA, that definition had not been ratified. The voter information pamphlet did not mention self-governance as a goal or effect of the constitutional amendment that created OHA. It merely said that if adopted, that amendment would “set[] forth the trust corpus and beneficiaries of the Admissions Act” and “establish an Office of Hawaiian Affairs with an elected board of trustees and provide[]for an effective date." Id. at 350, Exh. B to court’s opinion (copy of voter pamphlet). See Jones, 127 F.3d at 845, (state law enacted by popular vote cannot impose a severe limitation on fundamental rights when it fails to mention the limitation.).

The 1978 OHA amendments which were adopted as Haw. Const. Art. XII, §§4, 5, 6, do not support the claim that the voters endorsed “self-government” or “self-determination” or “sovereignty” for a racial group. They do not mention those terms. Because the Court found the racial restriction was not properly put to the voters, supporters turned to the legislature, which adopted the statutes challenged here. H.R.S. §§ 10-2,

11-1.

The State also argues that it has a compelling interest in fulfilling an alleged “trust obligation to the Hawaiian people by restoring some measure of self governance,” St. Br. 50, for the racial class of “Hawaiians.” There are three fatal problems with this argument.

First, it merely restates the illegitimate interest in promoting racially exclusive government and repeats an argument the Supreme Court rejected in Rice. The State’s position still “rests in the end on the demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain matters.” Rice, 528 U.S. at 523. In Rice, the State claimed that citizens of Hawaiian race were “more qualified” to vote on OHA matters. Having lost Rice, the State retreats to arguing that citizens of Hawaiian race are still “more qualified” to vote on OHA matters as trustees. The State’s premise is still demeaning. There is no more room under the Fourteenth Amendment than under the Fifteenth Amendment for “the concept that the right to vote can be allocated based on race.” Id. The principle announced in Rice is guaranteed by the Fourteenth Amendment as well as by the Fifteenth: By denying non-Hawaiians the right to run and the opportunity to serve if elected, the State is still disqualifying them from “full participation in our democracy.” Rice, 528 U.S. at 523.

Consequently, as in Rice, the racial restriction on participating in the democratic government of OHA is unconstitutional even assuming the validity of the underlying trust. Id. at 521-22.

Secondly, if this Court were to conclude that it must consider the validity of an alleged underlying trust, Justice Breyer dealt with the issue in his Rice concurrence: “there is no ‘trust’ for native Hawaiians here.” 528 U.S. at 525. Justice Breyer noted that, “[a]s the majority makes clear, OHA is simply a special purpose department of Hawai`i’s state government.”

Third, the public trust in public land, which the State discusses at length, cannot give rise to a trust obligation to foster race-based government for a racial subset of the public.

In Hawai`i, the public land trust dates back to Hawai`i’s annexation to the United States in 1898. The Annexation Resolution, 30 Stat. 750 (1898), required the United States to hold the revenues and proceeds of the lands ceded by Hawai`i to the U.S. (the “ceded lands”) “solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.” There was no racial restriction. See 22 Op. Atty. Gen. 574 (1899); State v. Zimring, 58 Hawaii 106, 124, 125 (1977) (the people of Hawai`i are the equitable owners of the public land). Most of the inhabitants of Hawai`i in 1898 were not “Hawaiians” in the racial sense defined in H.R.S. §10-2. See Rice, 528 U.S. at 506-07.

The Annexation Resolution was confirmed by the Organic Act that created the Territory of Hawai`i and assigned it the bulk of the public lands, free of any trust except for the general public. Act of April 30, 1900, ch. 339, §§91, 99, 31 Stat. 159.

In 1921, Congress enacted the Hawaiian Homes Commission Act (“HHCA”), Act of July 9, 1921, c. 42, 42 Stat. 108, providing homesteading opportunities, but only to “native Hawaiians” – those of 50% Hawaiian “blood.” The program still exists as a state program and is administered by the Department of Hawaiian Home Lands (“DHHL”), not by OHA. Issues concerning the HHCA trust lands do not come into this case because those lands are in a distinct trust that does not generate revenue for OHA.²

The Admission Act, making Hawai`i a state, carried on the public trust and returned title to most of the ceded land to Hawai`i for the benefit of all of the public. Pub.L. 86-3, 73 Stat. 4 (1959) §5. State Attorney General Opinion July 7, 1995 to Governor Cayetano.

This Court has held that the federal government does not have a trust relationship to native Hawaiians or Hawaiians based on the HHCA or the Admissions Act. Keaukaha-Panaewa Community Association v. Hawaiian Homes Commission, 588 F.2d 1216, 1224 (9th Cir. 1978); Han v. Department of Justice, 824 F.Supp. 1480 (D. Haw. 1993), aff'd 45 F.3d 333 (9th Cir. 1995).

The Admission Act did not impose on the State any trust obligation to Hawaiians except insofar as they are part of the general public. The Act provided that the lands and revenue from the lands would be held in a “public trust” to be “managed and disposed of for one or more” of five purposes:

for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible, for the making of public improvements, and for the provision of lands for public use.

Sec. 5(f) places no special requirements or form of management on how the State administers the public trust. Price v. State of Hawai`i 921 F.2d 950, 955-56 (9^th Cir. 1990) (“All property held by a state is held upon a ‘public trust.’”).³ For the first 20 years, the State complied with the trust by spending nearly all the money on public education. Rice, 528 U.S. at 508.

The State tries to derive from §5(f)’s reference to optional assistance to “native Hawaiians” a trust obligation to all “Hawaiians” that justifies barring non-“Hawaiians” from serving as OHA trustees. However, as the Supreme Court pointed out in Rice “ this contention founders on its own terms” on the distinction between the narrow class of “native Hawaiians” (those with 50% or more Hawaiian ancestry), referenced in the HHCA and Admissions Act, and the broader class of “Hawaiians” favored by the OHA electoral laws.

Trust duties are not “in the air,” rising like a mist from general references in legislation about other matters. The State cites congressional findings in statutes authorizing expenditures on a health program, Native Hawaiian Health Care Improvement Act, 42 U.S.C. §11701, and a housing program, Hawaiian Homelands Homeownership Act of 2000, Pub.L. 106-568, §202, Pub.L. 106-569, §512. These statutes do not concern the governance of OHA and do not impose on the State a trust duty to exclude most of it citizens from eligibility for the OHA Board.

Neither federal nor state sources of the public trust create a compelling state interest in creating a race-based government for OHA.

The State suggests that while racially exclusive government is generally unconstitutional, the peculiar history of Hawai`i converts it into a compelling state interest: OHA is a partial restoration of stolen land and “sovereignty.” Supposedly, the ancestors of today’s Hawaiians lost their land and sovereignty when the race-based government of the Kingdom of Hawai`i was overthrown with American help in 1893. OB 23-27.

Hawai`i would not be alone in having a history of racially exclusive government. The Fourteenth and Fifteenth Amendments were enacted to uproot historic racial discrimination. The Fourteenth and Fifteenth Amendments do not exempt the peculiar institutions of any state from constitutional scrutiny.

However, there is no precedent in Hawaiian history for OHA’s racially exclusive government. The racial class of “Hawaiians,” as defined by the State, did not lose their sovereignty or land when the Kingdom of Hawai`i ended in 1893 because, as a matter of law, no racial class had sovereignty or special rights to the public land. Individual Hawaiians alive in 1893 had no special rights or status that distinguished them from the other subjects of the multi-ethnic Kingdom of Hawai`i.

After 107 years, the subjects of the Kingdom have died. The question is who, if anyone, inherits a claim. The State has answered that question by favoring racial “Hawaiians,” i.e. “descendants of the inhabitants of Hawai`i in 1778,” – a date 115 years before the monarchy fell.

However, many of the subjects of the Kingdom were not racial Hawaiians. Under the Kingdom’s laws in 1893, a person did not have to be a racial Hawaiian to be a subject of the Kingdom and did not have to be a subject to have political rights. Hawaiians as a distinct ethnic group did not have any “sovereignty” to lose. Rex v. Booth, 2 Haw. 616 (1863) (only king was sovereign). The Kingdom followed the common law rule of jus soli: everyone born in the country and subject to its jurisdiction is a citizen, no matter where his or her family came from. Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure, § 92.04[3] (1999); Wong Foong v. United States, 69 F.2d 681, 682 (9^th Cir. 1934). The Kingdom offered easy naturalization of immigrants and offered political rights even to immigrants who did not wish to give up their citizenship in the countries from which they had come. 1884 Civil Code, § 428-434. Many thousands of immigrants arrived and became a majority of the inhabitants. See Rice, 528 U.S. at 506-07 (history of immigration and demographics). Many immigrants and descendants of immigrants held public office. Plaintiffs’ SCSFODMSJ 5.

Under the Monarchy, the public lands of Hawai`i were government lands held by the government for the benefit of all inhabitants of Hawaii, not just racial Hawaiians. See In re Estate of His Majesty Kamehameha IV, 2 Haw. 715, 718-23 (1864); Rice, 528 U.S. at 501-04 (summarizing history of transformation of Hawaiian land law); Kuleana Act, 1850 Sess. Laws. p. 202 (abolishing right of individuals to grow crops and pasture animals on Government land); Liliuokalani v. United States, 45 Ct. Claims 418 (1910) (queen’s claim for taking of Crown Lands rejected because in 1893 Crown Lands had belonged to institution of the Crown, not to any individual); Plaintiffs’ SCSFODMSJ 2-3. Hawaiians (as defined by the State) did not have any special rights in the public lands as a group or as individuals. Hanifin, Hawaiian Reparations: Nothing Lost, Nothing Owed, 17 Haw. B.J. 107, 110-18 (1982).

Moreover, when the U.S. accepted the ceded lands, it not only agreed that the lands would be devoted to the benefit of the inhabitants of Hawai`i, it also assumed Hawai`i’s public debt of up to $4 million. Annexation Resolution 30 Stat. 750 (1898). Assumption of debt of a landowner is compensation to the landowner. Thus, the transfer of the lands to the U.S. was not uncompensated, as the State now alleges, OB 24. Today, these lands are still government lands held by the State for the benefit of all its inhabitants.

The State does not contend that Hawaiians were the peculiar victims of discrimination after Annexation. To the contrary, the State cites a series of statutes going back to 1920 that show that Hawaiians have been the special favorites of the law. OB, 8-10, 26.

Nothing in the history or law of Hawai`i converts race-based government from anathema to compelling interest.

The District Court correctly applied Rice to determine that, even if there is a trust for racial Hawaiians or a valid claim for wrongs committed against the ancestors of living Hawaiians, the mandate that OHA trustees be Hawaiian is not narrowly tailored to serving a legitimate trust purpose. CR/ER 58,18-19.

The racial restriction fails the “narrow tailoring” test for the same reason the Supreme Court rejected the State’s trust argument in the Fifteenth Amendment context. “Hawai`i may not assume, based on race that . . . any

. . . of its citizens will not cast a principled vote,” Rice, 528 U.S. at 523 – for trustee or as trustee. “The assertion that non-Hawaiians are incapable of fulfilling the obligations of the public office of OHA trustee is” as “untenable” as the assertion that they are incapable of fulfilling the obligations of voters for OHA trustees. CR/ER 58, 20.

The State imposes a rigid racial quota for seats on OHA’s board: 100% of the seats are permanently assigned to ethnic Hawaiians and 0% to non-Hawaiians. There is no evidence or allegation that the State ever considered a racially neutral alternative to excluding non-Hawaiians from being OHA trustees. (For instance, if the State fears that trustees may breach their fiduciary duties, it could invoke H.R.S. §10-16, which authorizes the Attorney General and any private citizen to sue a trustee for breach of trust.

Parts of the State’s brief approximate an affirmative action argument: that the racially exclusive government of OHA is intended to redress wrongs allegedly committed against Hawaiians, chiefly by American involvement in the overthrow of the Kingdom in 1893. OB 24-25. However, in oral argument the State explicitly denied that this is an affirmative action case. Referring to the leading affirmative action cases, Adarand and Croson, the State’s counsel said “those cases are simply plain old vanilla affirmative action cases, which this case is not.” Transcript 9/8/00, 34. The State did not attempt to introduce the kind of detailed evidence that would be needed to demonstrate a narrowly tailored affirmative action program under Adarand. Transcript 9/8/00 at 33-34. Whatever else OHA may be, it is not an affirmative action program.

The challenged laws violate the Fourteenth Amendment because they are not narrowly tailored to meet any compelling state interest.

Congress adopted the Voting Rights Act (the “Act”) to enforce the Fourteenth and Fifteenth Amendments. South Carolina v. Katzenbach, 383 U.S. 308 (1966); 1965 U.S. Code Cong. & Admin. News at 2437 (the Act was “designed primarily to enforce the Fifteenth Amendment”). The Act created a private right of action to sue for its enforcement and has exercised Congress’ power under the Fifteenth Amendment to abrogate the state’s Eleventh Amendment immunity and authorize suits directly against states. Morse v. Republican Party of Virginia, 517 U.S. 186, 232 (1996); Mixon v. State of Ohio, 193 F.3d 389, 406 (6^th Cir. 1999).

Section 2(a) of the Voting Rights Act provides that “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State . . . 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.” The Act provides that a state is in violation if

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 [all races] 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.

Moreover, the Act specifically provides that one circumstance to be considered in identifying a violation is the “extent to which members of a protected class have been elected to office in the State or political subdivision.” Id. The State’s open bar against non-Hawaiian candidacy for the OHA Board of Trustees obviously fails this test.⁴

On their face, the State’s racial restrictions on who can be a candidate ensure that “the processes leading to nomination or election” to the OHA Board “are not equally open to participation” by citizens who are not classified as “Hawaiian.”

The terms “vote” and “voting” are defined in the Act to “include all action necessary to make a vote effective . . . including . . . other action required by law prerequisite to voting.” Voting Rights Act §14, 42 U.S.C. §1973l. The right to vote is less effective when the choice of candidates is racially restricted by prerequisites to voting, such as a prohibition on anyone of an excluded race filing nomination papers.

The Supreme Court has held that §2 covers all non-primary nomination methods and “the political process leading to nomination or election.” It “‘adopts the functional view of ‘political process’ and applies to ‘any phase of the electoral process.’” Morse v. Republican Party of Virginia, 517 U.S. at 209. In Morse, the Voting Rights Act was applied to party conventions, relying in part on the White Primary Cases. The Court held that §5 of the Act required preclearance by the U.S. Attorney General of a party rule that all registered voters who declared they would support the party’s nominees could participate as convention delegates to nominate a Senatorial candidate if they also paid a registration fee.

The Attorney General has promulgated regulations giving examples of the kind of changes that require preclearance under Voting Rights Act §5. These include “any change affecting the eligibility of persons to become or remain candidates, to obtain a position on the ballot in primary or general elections, or to become or remain holders of elective office.” 28 C.F.R. §51.13(g). This regulation shows that qualifications for candidates are subject to the Voting Rights Act when they deny a person the right to run on account of race. Thus, such qualifications are also within the substantive scope of the Fifteenth and Fourteenth Amendments.

Both §§2 and 5 of the Voting Rights Act have been held to prohibit interference with candidacies on account of race because such interference abridges the right to vote on account of race. In Dougherty County Bd. of Education v. White, 439 U.S. 32 (1978), the Supreme Court held that the Voting Rights Act applied to a rule of a local Board of Education that required its employees to take unpaid leaves of absence while they were running for elective office. Even though the Board of Education was not in charge of voter registration or elections, the rule was a “standard, practice or procedure” regarding voting and the evidence showed that the rule was targeted at a candidate on grounds of race. “[T]he Rule burdens entry into elective campaigns and, concomitantly, limits the choices available to . . . voters.” Id. at 40.

In Hadnott v. Amos, 394 U.S. at 366, the Supreme Court held that an Alabama statute requiring independent candidates to declare their intention to seek office two months earlier than under prior procedures imposed "increased barriers" on candidacy and therefore warranted §5 scrutiny.

In Dillard v. Town of North Johns, 717 F.Supp. 1471 (M.D. Ala. 1989), town officials failed to notify black candidates of new filing requirements and provide them the required forms, although they did give notice and forms to the white candidates. The court held that this violated the Voting Rights Act because it abridged the right to vote by excluding candidates based on their race.

The Voting Rights Act has also been applied in a series of cases alleging that gerrymandering has effectively denied some voters on grounds of race the equal opportunity to elect members of a particular racial group to public office. See, e.g., Abrams v. Johnson, 521 U.S. 74 (1996). In deciding these cases, the courts consider “the extent to which members” of the group have actually “been elected to the office” in question. Voting Rights Act §2(b).

The State of Hawai`i has not engaged in subtle tricks likes hiding forms, switching filing deadlines, requiring leaves of absence, charging membership fees, or gerrymandering. It openly discriminates against all non-Hawaiians. Rice, 528 U.S. at 514. The number of non-Hawaiians elected to OHA in its entire history is zero because they have been expressly disqualified. Given the Supreme Court’s decision in Rice that “Hawaiian” is a racial classification that violates the Fifteenth Amendment, the Voting Rights Act bans the related practice of denying non-Hawaiians the right to run for OHA trustee. Furthermore, the State of Hawai`i cannot be allowed to perpetuate part of its historical practice of racial discrimination. “Congress may under the authority of §2 of the Fifteenth Amendment, prohibit state action that, though in itself not violative of §1, perpetuates the effects of past discrimination.” City of Rome, 446 U.S. at 176. See, City of Boerne v. Flores, 521 U.S. at 518-19.

The Eleventh Amendment does not bar suing the State itself under the Voting Rights Act. Congress has exercised its power under the Fifteenth Amendment, §2, to abrogate the States’ Eleventh Amendment immunity and authorize suits directly against States. Mixon v. State of Ohio, 193 F.3d 389, 398-99 (6^th Cir. 1999). There is a private right of action to sue under Voting Rights Act §2. Morse v. Republican Party of Virginia, 517 U.S. 186, 232 (1996); Mixon 193 F.3d at 406. Therefore, the federal courts have jurisdiction over the Voters’ claims against the State under the Voting Rights Act. (Voters do not seek relief directly against the State under the Fifteenth and Fourteenth Amendments; their claims under those Amendments are against the Appellee state officials.)

Thus, the Voting Rights Act, §2, is another basis for affirming the District Court.

The State is attempting to re-fight the war it lost in Rice over its claim that OHA is the government of a constructive “Indian tribe” that falls outside the Fifteenth and Fourteenth Amendments. The decisive issue in Rice was the threshold issue: was it a voting rights case or an American Indian tribe case? Ultimately, the Supreme Court decided that Rice was a voting rights case, applied the Fifteenth Amendment, and reversed. That characterization determines this case as well.

The State is making two arguments based on Morton v. Mancari, 417 U.S. 535 (1974), that are inconsistent with the Supreme Court’s interpretation of Mancari in Rice and inconsistent with each other.

Primarily, the State contends that Hawaiians are “indigenous people” because they can trace part of their ancestry in Hawaii back before the Europeans arrived; any group of “indigenous people” is an “Indian tribe’ for the purposes of the Commerce Clause, Art. I., § 8, clause 3, (OB 37-39); under the Commerce Clause, Congress and states can enact special legislation concerning “indigenous people” that is exempt from strict scrutiny even though “indigenous people” are defined by ancestry, race or ethnicity, OB 38, 43. No existing or historically continuous political organization is necessary to establish the existence of an “Indian tribe.” OB 41. Federal recognition is not necessary to qualify a group as an Indian tribe, OB 13, so it does not matter that “Hawaiians are not a ‘federally recognized Indian tribe,’” OB 13, 38.

In Rice, the State made this “Mancari argument” -- that under Mancari, any ”indigenous people” may be singled out whether or not they are members of organized tribes.⁵ The State’s Opening Brief focuses extensively, almost exclusively, on the argument that Hawaiians are the legal equivalent of Indians or an Indian tribe and that the Mancari doctrine, therefore, “saves” the racial disqualification.

The U.S. Supreme Court rejected these arguments. Although, as the State notes at OB 27, the Rice Court declined to rule on the applicability of Mancari to Hawaiians, the high court said clearly that under Mancari only members of organized Indian tribes may be singled out for differential treatment:

If Hawaii’s restriction were to be sustained under Mancari we would be required to accept some beginning premises not yet established in our case law. Among other postulates, it would be necessary to conclude that Congress . . . 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. These propositions would raise questions of considerable moment and difficulty.

528 U.S. at 518 (emphasis added). If simply having some indigenous ancestry sufficed to be an “Indian tribe” then the State would have prevailed in Rice. But the Supreme Court rejected the State’s argument and insisted that there would have to be a showing of the existence of an organized, federally recognized tribe to come within Mancari.

This holding is fatal to the State’s defense. The State concedes that Hawaiians are not a federally recognized tribe under existing law, OB 13, 38, and admitted to the Supreme Court that there never has been a Hawaiian tribe: “The tribal concept simply has no place in the context of Hawaiian history.” (State’s Brief in Opposition to Certiorari in Rice v. Cayetano, (Addendum 5 to Plaintiff’s Brief in Support of Motion for Preliminary Injunction).

In Rice, the Supreme Court explained what is different about Indian tribes: they are quasi-sovereign governmental entities but not federal or state instrumentalities. 528 U.S. at 518. Indian tribes pre-existed the United States and “retained some elements of quasi-sovereign authority even after cession of their lands to the United States.” Id. Their lingering remnants of original sovereignty – “quasi-sovereignty” as the Supreme Court described it – are not created by or derived from the United States or any State. Id. United States v. Wheeler, 435 U.S. 313, 322-323 (1978). This has two constitutional consequences.

First, because Indian tribes are not agencies of the United States or any state, tribal elections are not subject to the Fourteenth or Fifteenth Amendments. See, Talton v. Mayes, 163 U.S. 376 (1896) (tribe not limited by Fifth Amendment to US Constitution when dealing with its members). Rather, tribal elections “are the internal affair of a quasi-sovereign.” Rice 528 U.S. at 520.

Second, because Indian tribes have lingering remnants of sovereignty not derived from the United States or any State, the United States enters into political relations with them, government to government. As part of that political relationship, the federal BIA exercises a guardian’s power over Indian tribes. See Mancari, 417 U.S. at 541-42, 551 (plenary power of Congress exercised through BIA as guardian of tribal wards). Exercising that power, the BIA promulgated the regulation at issue in Mancari concerning enrolled members of federally recognized Indian tribes. The Supreme Court concluded that the regulation was based on the unique political relationship between the BIA and Indian tribes and so was a political classification, not a racial classification. Id. 417 U.S. at 554, n.24. Because a tribe must be a political institution, “racial or ancestral commonality isn’t enough without a continuously existing political entity to constitute a tribe.” Miami Nation of Indians v. Babbitt, 112 F.Supp.2d 742,746 (N.D. Ind. 2000) (when political organization ceased, Indian group ceased to be tribe)

By contrast, OHA is not an Indian tribe or tribal government but a state agency. Its “elections . . . are elections of the State, not of a separate quasi-sovereign, and they are elections to which the Fifteenth Amendment applies.” Rice, 528 U.S. at 522. When the State enacts laws that give its Hawaiian citizens voting rights that it denies to its other citizens, it deals with its own citizens, not with a distinct sovereign. “To extend Mancari to this context would be to permit a State, by racial classification, to fence out whole classes of its citizens from decision-making in critical state affairs.” Rice, 528 U.S. at 522.

Expanding the definition of an “Indian tribe” to a group of persons having certain ancestry, as the State suggests, would destroy the crucial constitutional distinction between an Indian tribe and a racial group. This would be inconsistent with Mancari itself which noted that the BIA hiring preference excluded many individuals who are racially Indians but did not belong to a tribe. 417 U.S. 525, 553 n.24. “To allow any group of persons to ‘bootstrap’ themselves into formal ‘tribal’ status – simply because they are all members of a larger aboriginal ethnic body would be to ignore the concept of ‘tribe’ as a distinct sovereignty set apart by historical and ethnological boundaries.” Price v. State of Hawai`i, 764 F.2d 623, 627 (1985) (group of Hawaiians are not a tribe).

Concurring in Rice, Justice Breyer noted that the State’s definition of “Hawaiian” is “not analogous to the membership in an Indian tribe” and to define “membership in terms of 1 possible ancestor out of 500, thereby creating a vast and unknowable body of potential members . . . goes well beyond any reasonable limit.” Rice, 528 U.S. at 526, 527.

At some points in its brief, the State also appears to be arguing, inconsistently with its ancestry test, that Congress has almost unbridled discretion to define an Indian tribe, OB 40, enact special legislation for that “Indian tribe” and authorize the States to do so, OB 44-46. Yet no formal federal recognition is necessary. It suffices that Congress enact any sort “special” legislation for the group to make it an “Indian tribe” or merely appropriate money for a program which helps some members of the group. OB 46. Then special legislation, whether federal or state, becomes exempt from constitutional strict scrutiny.

This Court need not address hypothetical “questions of considerable moment and difficulty” about whether Congress could invent a “Hawaiian tribe” analogous to an Indian tribe with a race-based government. Rice, 528 U.S. at 518. See United States v. Sandoval, 231 U.S. 28 (1913) (Congress may not “bring a community or body of people within the range of” its Indian commerce power “by arbitrarily calling them an Indian tribe”). Like the Supreme Court, this Court “can stay far off that difficult terrain.” Id. at 519.

Even assuming arguendo that Congress could recognize Hawaiians as a kind of Indian tribe, “it does not follow from Mancari” under the Fourteenth Amendment any more than the Fifteenth “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. at 520. OHA is a state agency, not an Indian tribe, and this case challenges State laws concerning state elections for the state office of OHA trustee. This is not a case in which Congress has expressly authorized a state to regulate some particular aspect of the affairs of a federally recognized Indian tribe. Compare Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 501 (1979) (state exercised specifically granted authority to extend state jurisdiction over Indian reservation).

Furthermore, in Rice, the State cited many of the same materials that it cites here (the Apology Resolution, Hawaiian Homes Commission Act, assorted statutory findings), but failed to persuade the Supreme Court that Congress has tried to grant the State the power to operate a racially exclusionary state electoral process. 528 U.S. at 518-19. An alleged “longstanding policy of Congress” does not effect federal recognition of an Indian tribe absent explicit recognition by statute. United Houma Nation v. Babbitt, 1997 U.S. Dist. Lexis 10095 *24 (D. D.C. 1997).⁶

Mancari is irrelevant to this case. In Rice, the Supreme Court restricted Mancari to its peculiar facts: an affirmative hiring preference in the Bureau of Indian Affairs (“BIA”) for enrolled members of federally recognized Indian tribes. Rice, 528 U.S. at 518- 522. The Court read Mancari as crucially depending on the limitation of the hiring preference to “members of federally recognized tribes.” Rice, 528 U.S. at 519-520, quoting Mancari, 417 U.S. at 553 n. 24. The Supreme Court also stressed that the BIA is “sui generis” -- different from every other agency, particularly OHA. Rice, 538 U.S. at 520 quoting Mancari, 417 U.S. at 554.

Even before Rice, this Court also rejected a broad reading of Mancari. Williams v. Babbitt 115 F.3d 657, 663 (9^th Cir.) (preference at issue in Mancari only applied to BIA and cannot justify an absolute ban on non-Indian participation).

By confining Mancari to its facts, the Supreme Court reconciled it with later cases that apply strict scrutiny to programs that give preferences to individuals of American Indian ancestry. Adarand, 515 U.S. at 204 (federal race-based programs), and to “American Indians, Eskimos,” and “Aleuts”) Croson, 488 U.S. at 478 (state programs). See Benjamin, Equal Protection and the Special Relationship 106 Yale L.J. at 558-71 (Mancari can be reconciled with Adarand only by limiting Mancari to federally recognized Indian tribes).

Strict scrutiny applies to every racial classification, including classifications that favor “Native Americans,” Adarand, 515 U.S. at 204, and “American Indians, Eskimos,” and “Aleuts,” Croson, 488 U.S. at 478. After Rice, there is no room to argue for an exception to the Constitution for any variety of allegedly “indigenous people.” The Equal Protection Clause affords equal protection to every citizen, regardless of ancestry.

The State’s Mancari argument contradicts basic principles of Indian law. “Miscellaneous Indians do not make a tribe.” United Houma Nation v. Babbitt, 1997 U.S. Dist. Lexis 10095 (D. D.C. 1997). Canby, American Indian Law in a Nutshell 8 (1998) (for many federal jurisdictional purposes, to be an “Indian” one must be a member of a federally recognized Indian tribe “and there can be no Indian without a tribe”); See 25 C.F.R. §§ 83.1, 83.7 (listing mandatory criteria for federal acknowledgement including a governing body that has maintained continuous political influence or authority over its members since contact with non-Indians.)

Mancari does not punch an “indigenous people” loophole through the Fourteenth Amendment.

For the reasons stated above, Plaintiffs-Appellees request that this Court affirm the decision of the District Court granting summary judgment in their favor and permanently enjoining the State of Hawai`i and the Defendant-Appellant state officials from barring on grounds of race or ancestry any candidate for trustee of the Office of Hawaiian Affairs.

Plaintiff-Appellees are aware of no case pending in this Court that is related to this case.

I certify that pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit rule 32-1, the attached answering brief is proportionately spaced, has a typeface of 14 points and contains _____ words.

I hereby certify that two copies of the foregoing were of the foregoing were duly served on each of the following persons by depositing the same in the U.S. mails, first class, postage pre-paid, on April 9, 2001.

¹ This brief uses “Hawaiian” and “native Hawaiian” in senses defined in HRS § 10-2. They use “non-Hawaiian” to refer to all persons who are neither “Hawaiian” nor “native Hawaiian.” It should be noted that in daily discourse and political debate “Hawaiian” is given several other meanings as well. For instance the Supreme Court described Freddy Rice as “a citizen of Hawai`i and thus himself a Hawaiian in a well-accepted sense of the term.” Rice, 528 U.S. at 499 (2000).

² While all racial classifications are presumptively invalid, Shaw v. Reno, 509 U.S. at 641-44, there is no need to consider whether the HHCA’s race-based leasing program could survive constitutional challenge because it is entirely separate from OHA and is not involved in this case.

³ If Admissions Act § 5(f) were interpreted to require the State to give special treatment to the members of the racial class of “native Hawaiians”, it would raise serious constitutional issues under the Equal Footing Doctrine. See Pollard’s Lessee v. Hagen, 44 U.S. (3 How.) 212 (1845); Coyle v. Smith, 221 U.S. 559 (1911); Escanaba Co. v. Chicago, 107 U.S. 678, 689 (1883); Utah Div. of State Lands v. United States, 482 U.S. 193 (1987). These issues should be avoided by reading § 5(f) to mean what it says.

⁴ Congress cannot use its enforcement power under the Fourteenth and Fifteenth Amendments to expand the scope of a constitutional right. City of Boerne v. Flores, 521 U.S. 507, 517-20 (1997). At the same time, Congress can use its enforcement power to outlaw procedures which, while not unconstitutional, have been used to achieve unconstitutional discrimination. Id. at 518. While the Voters assert that the racial restriction on OHA candidacy violates both the Fourteenth and Fifteenth Amendments, such a finding would not be necessary to apply the plainly stated prohibitions in the Act to the matter at bar.

“That unique legal or political status - not recognition of ‘tribal’ status, under the latest executive transmutation of what that means - is the touchstone for application of Mancari when, as here, Congress is constitutionally empowered to treat an indigenous group as such.

⁶ Proponents of a Hawaiian “Indian tribe” are trying to get Congress to enact a bill that would recognize Hawaiians, thereby demonstrating that Hawaiians do not already have “Indian tribe” status. Senate Bills S81, S746 and House Bill HR617, 107^th Congress. Even if one of these bills were to pass, it would not affect this case. Rather, it would create a new federal organization that would be distinct from OHA.