Judicial Watch Statement on Supreme Court Order Temporarily Halting Hawaii from Conducting Race-based Election

(Washington, DC) – Judicial Watch today responded to a Supreme Court order temporarily preventing the State of Hawaii “from counting the ballots cast in, and certifying the winners of” a race-based election restricted to those with Native Hawaiian blood. The order was issued on Friday, November 27 by Associate Justice Anthony M. Kennedy.

The election, which is being conducted by mail-in ballots, ends today, and ballots were initially scheduled to be counted and winners certified by tomorrow, December 1, 2015. The election was conducted using a voter roll developed by Hawaii state agencies. The roll contained the names of individuals confirmed by the State to have Native Hawaiian ancestry. The election itself was made possible by a grant by the State of Hawaii of $2.6 million in public funds.

Judicial Watch President Tom Fitton stated: “We are thankful the Supreme Court put a stop to the racially-discriminatory election in Hawaii at least temporarily. The Supreme Court’s action Friday halted a race-based, state-sponsored, Hawaiians-only election that violates the ‘fundamental constitutional rights’ of American citizens.  Judicial Watch’s clients beat both the State of Hawaii and the Obama administration in persuading the Supreme Court that we were likely to show that it would be in violation of civil rights laws and the U.S. Constitution to conduct an election that was limited to voters of one particular race (Native Hawaiians). It is remarkable and historic that a state election has been stopped on civil rights grounds by the Supreme Court of the United States.”

Robert Popper, director of Judicial Watch’s Election Integrity Project, is Judicial Watch’s lead attorney on the lawsuit.  Mr. Popper was formerly deputy chief of the Voting Section of the Civil Rights Division of the Justice Department.  Michael Lilly of the Honolulu law firm Ning, Lilly & Jones is serving as Judicial Watch’s local counsel for the plaintiffs. H. Christopher Coates is also an attorney for the plaintiffs. Coates is an expert voting rights attorney who most recently served as Chief of the Voting Section of the Civil Rights Division of the Justice Department under President Barack Obama. William S. Consovoy and J. Michael Connolly of Consovoy McCarthy Park PLLC just joined as counsel as the litigation went before the Supreme Court.

Judicial Watch’s attorneys filed an Urgent Motion for an Injunction Pending Appellate Review on October 29 with the United States Court of Appeals for the Ninth Circuit.  A panel for the Ninth Circuit denied the urgent motion on November 19.  Judicial Watch immediately filed an emergency application on November 23 to the Honorable Justice Anthony Kennedy, Associate Justice of the United States Supreme Court who oversees the Ninth Circuit.  On November 27, Judicial Watch replied to Hawaii’s opposition. The day after Thanksgiving, Justice Kennedy issued the following order:

UPON CONSIDERATION of the application of counsel for the applicants, the responses filed thereto, and the reply,

IT IS ORDERED that the respondents are enjoined from counting the ballots cast in, and certifying the winners of, the election described in the application, pending further order of the undersigned or of the Court.

On August 13 Judicial Watch filed the initial lawsuit on behalf of the five Hawaiian residents who joined with a Texas resident of Hawaiian descent to oppose voter registration requirements instituted under Act 195, which became a Hawaiian state law in 2011.  Judicial Watch sought a preliminary injunction on August 28 to stop the vote that had been scheduled for November 2015, arguing that its clients would be denied the right to vote either because of their race or their political views, in direct violation of the U.S. Constitution and the Voting Rights Act of 1965.  Act 195 authorizes the Native Hawaiian Roll Commission (NHRC) to create a list of “Native Hawaiians” who would be eligible to elect delegates to a planned constitutional convention, which would then prepare “governance documents” for a separate Native Hawaiian entity.  After the injunction was denied by the lower court, Judicial Watch unsuccessfully sought an Urgent Motion for Injunction with the U.S. Court of Appeals for the Ninth Circuit.  Following the Ninth Circuit’s rejection on November 19, Judicial Watch sought relief from the High Court.