Meredith, Alyssa
From:
Sent: Thursday, July 6, 20234:44 PM
To: [email protected]
Subject: Districting to Include Housing and Wealth/ Income Equity Attachments: Map 123+127 Includes Housing + Wealth Distribution.jpg CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
To All concerned:
Please consider this map for inclusion during the next redistricting hearing.
Please also consider the attachment to make a small correction to the map that could not be done with the mapping tool online - I've left the map editable for this purpose in case you are able to manipulate the tool in a way that I cannot.
The attachment contains ideas that I tried to capture based on City Council comments and attempts to address some of the extreme income and housing ownership disparity that seemed to be unaccounted for in prior maps. The area shown in green, as drawn differently in prior similar maps, would have given a massive advantage in both income and ownership to every other district. I've tried to make it a crescent shape now, that I hope will show a more equal distribution of ownership and income levels.
I'm certain it was an oversight as our council has expressed a desire for equity through government on many prior occasions and would likely want to ensure that one district is not severely disadvantaged through this process. As near as I can tell, this change does not significantly alter the other factors the Council expressed as being important during the last hearing.
Here is the link to the map in the online tool.
https://davesredistricting.org/join/8935fca9-8a17-4ab4-ad93-4793c71d2bb3 Please feel also to contact me by cell phone as well:
Best regards
Simon Hammel
Resident
Map • 123+127 Combination with Housing and Income Distribution Map error in circled area.
Requires manual correction***
Map attempts to capture City Council preference for general division along major roadways and land features.
Map attempts to retain maximum possible representation of largest known ethnic constituency.
Map attempts account for more equal income group, housing type, and housing ownership distribution among all districts. *** Unable to force online tool to include these single blocks with the district across the street that would be more geographically connected. Please correct if possible prior to publishing this map.
Meredith, Alyssa
From: Steve Chessin on behalf of Steve Chessin
Sent: Wednesday, July 12, 2023 9:19 PM
To: City Council DL
Subject: Districting: Followup to my June 14, 2023, testimony CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
Mayor Anthony, Vice Mayor Schultz, Councilmembers Perez, Takahashi, and Mullins:
This is a followup to my testimony at the June 14, 2023, City Council Special Meeting. I apologize for the length of this email, but there is a lot of ground to cover. A summary would be:
1. Proportional ranked choice voting (PRCV) provides the protected group a much better chance of electing a candidate of their choice than do single-member districts.
2. The National Demographic Corporation has an inherent conflict of interest when it comes to discussions of PRCV.
3. The City Attorney is woefully misinformed about the existing implementations of ranked choice voting in California, both single-winner and PRCV.
As I said in my testimony on June 14, 2023, while I support Mr.
Gutierrez's goal to make sure protected groups get their fair share of representation on the City Council and have the opportunity to elect candidates of their choice, I don't believe any of the maps accomplish that purpose, nor do I think any districting plan can do that.
The highest Latino Citizen Age Voting Population, or CVAP, for any district in any of the maps is 36% (map 138). While one could argue that that is sufficient for an influence district, city-wide proportional ranked choice voting (PRCV) would give the Latino population even more influence in electing one seat in those cycles when three seats are being elected, and still significant influence in electing one seat in those cycles when only two seats are being elected. (I use CVAP rather than total population or voter registration because CVAP represents the pool of eligible voters, the people who could actually participate in an election. Total population includes people not eligible to vote, either because they are too young or they are not citizens. Voter registration ignores people who aren't registered but could register, and might be motivated to do so if they thought they could actually elect someone they like. Hence CVAP is the best indicator of how much strength a protected group has towards electing a candidate of their choice.) A CVAP of 36% in a single-member district is 72% of the way towards 50%; that is, 72% of the way towards enabling the protected group to elect a candidate of their choice.
The five focus maps all have a highest Latino CVAP district of 32%, which is 64% of the way towards electing a candidate of choice.
In contrast, city-wide Burbank is 21% Latino CVAP, which under PRCV is 84% of the way towards electing a candidate of choice when three seats are up for election and 25% of the vote (plus one) is needed to win one seat, and 63% of the way there when two seats are up for election and 33-1/3% of 1 the vote (plus one) is needed to win one seat. When three seats are up, city-wide PRCV is much better than any of the focus maps and even better than the best map for Latinos. When two seats are up, PRCV is just about as good as any of the focus maps.
I must point out, however, that there is no requirement that the City select a map that has the highest district Latino CVAP. Many considerations go into choosing a map, and any population- balanced map will satisfy the CVRA and make Burbank immune to a lawsuit. The worst map for Latinos has a highest Latino CVAP district of only 26% (map 124), which is only 52% of the way towards electing a candidate of choice. Any map with a highest Latino CVAP district of 31% or less will never be as good for the protected group as city-wide PRCV.
So if the goal of the potential plaintiff is to increase the likelihood of electing a candidate of choice by the Latino community, PRCV would be a far better choice than district elections.
The example of Fort Bragg is instructive. In 2018, the City of Fort Bragg received a CVRA notice letter from a local attorney. The City passed a resolution of intent and started the districting process, retaining the services of National Demographics Corporation (NDC). After reviewing proposed maps at the required third public hearing, the City determined that districting would not help protected groups, withdrew its resolution of intent, and ended the districting process. In their out-of-court settlement with the potential plaintiff the City agreed to form an Election System Review Committee, the attorney agreed to accept
$22,000 for his troubles, and both he and the potential plaintiff agreed to both withdrew the CVRA notice letter and never send another one. The Election System Review Committee met a few times in 2019, did not make any recommendations for changing how the City elects its council, and the City made no change to its at-large elections. (I suggest you have your City Attorney contact the Fort Bragg City Attorney for details.)
You should engage the potential plaintiff in a similar discussion. You could point out that PRCV provides Latinos a much better opportunity to elect a candidate of their choice than does a single- member district solution. You should offer the alternative of putting a PRCV charter amendment on the March 2024 ballot that includes a provision that the charter amendment will take effect as soon as the County can conduct a PRCV election.
Of course, one issue is that the LA County Registrar of Voters says he can't do any kind of RCV unless and until Burbank adopts "local authority for RCV". A charter amendment that specifies PRCV and includes the provision described in the previous paragraph would provide the Registrar with that authority. (My organization would be happy to work with City staff to help draft the language for such a charter amendment, as we have done for other California cities.) Simultaneous with that, the City could also explore the option of contracting with a vendor that can do PRCV. Elections Code Section
10402.5 would allow Burbank to do an all-vote-by-mail election on the same November general election day that you currently use, at least until the County can support RCV. Before Burbank dismisses such an approach out of hand, due diligence suggests that you at least investigate how much such a procedure would cost you. The figures that the City Clerk gave ($165,285 for the City- run February 28, 2017 election; $208, 191 for the City-run April 11, 2017 election; $212,241 for the County-run November 8, 2022 election) show that it costs the City less to run its own election than what the County charges.
(The City Clerk did confuse the issue by saying that the City paid less for its 2022 election than it did for the two 2017 elections added together, but no one is asking you to go back to a two-election She also said turnout was much higher in the November 2022 election than in the February and April 2017 elections, but again no one is suggesting you go back to an odd-year election. The suggestion 2 is for an all-vote-by-mail City-run PRCV election in November of even years, contracted to a vendor that can do PRCV, so you have both high voter turnout and potential savings over what Los Angeles County charges
Burbank.)
I do know that at the meeting Douglas Johnson of National Demographics Corporation dismissed the idea of Burbank conducting its own at-large PRCV election. Mr. Johnson is very good at what he does, and I have no doubts of his integrity. He does try to be very fair. However, it is important to recognize that Mr. Johnson does have an inherent conflict of interest here. An inspection of NDC's website indicates that most of their business comes in assisting jurisdictions in all areas related to district elections, including drawing district lines, both when they initially go to district elections, and again after every decennial census when redistricting must occur. A jurisdiction that adopts PRCV has no need of NDC's services. His criticisms of PRCV and of any attempt to use PRCV must be viewed in that light.
I also reviewed the video of the meeting and there were many misstatements made by the City Attorney. At about 1:30:45 into the video, he says "the California Voting Rights Act basically says that under certain circumstances the law requires cities to transition from at-large to by-district elections". The CVRA is a bit more nuanced than that. Election Code Section 14029 does say that "In a finding of a violation of Section 14027 and Section 14028, the court shall implement appropriate remain But it dis the inses elections do cored etie star, ra are ter remedy is more appropriate, the court need not impose district-based elections. The court could impose an alternative remedy.
At 1:36:39, he says "Redondo Beach enacted a charter amendment to go to proportional ranked choice voting by districts [..]. They are implementing proportional ranked choice voting within districts." That is a contradiction in terms. By definition, ranked choice voting in single-member districts, which is what Redondo Beach adopted, is not a proportional system. He goes on to say that "the County has not indicated that they're even preparing to start that process for Redondo Beach." Redondo Beach runs its own elections on Hart Intercivic equipment that it owns; their only dependency on the County is to obtain the list of registered voters who live in Redondo Beach. It costs them a lot less to run their own elections than the County would charge to conduct them. They will be conducting their own RCV elections on their Hart Intercivic equipment. (I suggest you have your City Clerk contact the Redondo Beach City Clerk for details as to how they run their elections and how much it costs them and their plans to use RCV in their next City Council election.) At 1:37:15 he says "With regard to the City of Albany [...] I believe Albany is in one of the counties where they already conduct proportional ranked choice voting in the County election." That is not quite correct.
Alameda County does not conduct ranked choice voting for its own elections; it only conducts ranked choice voting for the four cities within the County that use it: the single-winner form for Oakland, Berkeley, and San Leandro, and the proportional multi-seat version for Albany.
At 2:19:15, Councilmember Takahashi asks if it would be possible for the City to adopt an ordinance that says the City would go to ranked choice voting as soon as the County made it available. (While for Burbank it would probably have to be a charter amendment, this is exactly the kind of provision that cities routinely put into their RCV legislation and that I alluded to above.) The City Attorney responds by saying that "there are multiple types of ranked choice voting. I would not encourage you to speculate that at some unknown future date you're automatically going to put some method in place that we haven't even studied."
That is not how the first three cities in Alameda County that went to ranked choice voting wrote their enabling language. They were very specific in describing the kind of ranked choice voting they 3 would use, and made sure that they all described the same kind. The language that the three cities adopted guided Alameda County in getting their vendor to implement RCV. The charter amendment Councilmember Takahashi envisions would specify which form(s) of RCV Burbank could use (single- winner for district elections, proportional if Burbank remains at-large), and that specific language would then guide Los Angeles County as to how it should implement RCV.
There were also misstatements made by Mr. Johnson. At 1:40:54 he begins a criticism of proportional ranked choice voting and refers to Palm Desert's implementation of a two-district system, one that elects one City Council member from a single-member district for a four year term using single-winner RCV, and one that elects four members, two every two years using proportional RCV. He says that "they [the voters] thought they would still get to vote for five, and you don't. With ranked choice voting you only get to vote for one per election." That is a mischaracterization of how proportional RCV works. In the Palm Desert district with four members, two elected each cycle by proportional RCV, voters are permitted to rank as many candidates as they wish and a voter's ballot could help two candidates win, not just one candidate.
Similarly, at 1:41:15 he says "So if you had ranked choice voting you'd get to vote for one every two years, so everyone would be voting for two council members, but you don't get to vote for five, because you list your rankings, but the moment your ranking kicks in, then it stops." That convoluted statement does not accurately describe how PRCV works. A voter's vote could help elect one, two, or (when three seats are up) three candidates, depending on how many people support the same candidates. (Compare that to district elections, where each voter truly does only get to help elect at most one candidate.) In "winner take all" districts that use RCV, close to half of all voters could end up picking a losing candidate and help elect no one. And if a plurality (most votes
wins) system is used, the winning candidate could be elected with far less than a majority of the vote. With PRCV, far more voters are going to help elect at least one of their favorite candidates.
As I said above, Mr. Johnson has an inherent conflict of interest when describing a system that does not involve the use of districts, and his description of PRCV must be viewed in that light.
If you would like to learn more about PRCV, I or one of my colleagues would be happy to come to a study session to give a presentation on PRCV and answer any questions you or your staff may have about it. Currently you are not being well-served by your staff or your consultant in this regard.
I am also happy to answer any questions you may have about any of the points I made above.
Sincerely,
-Steve Chessin
President, Californians for Electoral Reform
https://gcc02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.cfer.org%2F&data=05%7C 01%7CKAnthony%40burbankca.gov%7Cc89256e891e742665ed208db83583e8e%7C648dae31182b4 da299ef2581ab8e8bea%7C0%7C0%7C638248187265540259%7CUnknown%7CTWFpbGZsb3d8eyJWlj оiМС4wLjAwMDAiLCJQIjoiV2luМzliLCJBТiІ6Ik1haWwiLCJХVCl6Мn0%3D%7C3000%7C%7C%7C&sdata=| GjyfTqТhOJQМab3О29kYВinc%2BkyPnT8%2B3NmKZfa7vw%3D&reserved=0 [email protected]
, CA 94040
4 Meredith, Alyssa
From: Bob Schmitt •
Sent: Thursday, July 13, 2023 2:54 PM
To: City Council DL
Subject: Redistricting
Attachments: AHistoryOfRecentReapportionmentinHawaii.pdf CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
Council members -
I apologize for being "late to the party" on this issue and perhaps the time for comments has passed.
However, in 1983-84 I was employed by the Office of Lieutenant Governor for the State of Hawaii and was part of a team to create legally acceptable maps tor the entire State of Hawaii.
One issue at that time was to select and justify a "reapportionment base". Choices included total population, registered voters, and eligible voters. Because there was a large non-resident military population at that time, we requested assistance from the military and the census bureau to produce census tract and block tabulations that could be used as a baseline for creating electoral districts.
Attached is a report I wrote on this process for 1990 Hawaii Bar Journal: "A History of Recent Reapportionment in Hawaii"
Our tools at that time were elementary compared to the process which was available to Burbank residents. However, it seems "population only" was a criteria that was considered to create "fair" districts.
Burbank has a different set of issues, but the solution may be similar.
My limited research shows that the "CVRA invalidates not only at-large elections that prevent minority voters from electing their chosen candidates, but also those that impair the ability of minority voters to influence elections."
Perhaps the minority/ethnic component of population will be considered by the National Demographics Corporation, but after all the public input, isn't that "putting the cart before the horse?"
Sincerely,
Bob Schmitt
Burbank resident
1 HAWAII BAR JOURNAL
STATE
VOL. XXII NO. 2
1990
Overview of the Hawaii Attorney Discipline System 83
Gerald H. Kibe
Interview of Warren Price
Attorney General of the State of
Hawaii 105
Comments to the Hawaii Uniform
Limited Partnership Act (1985)
(Modified) 117
Michael P. Porter
A History of Recent Reapportionment
in Hawaii 171
Robert G. Schmitt
OFFICIAL PUBLICATION OF THE HAWAII STATE BAR ASSOCIATION VOL. XXII NO. 2 RECENT REAPPORTIONMENT IN HAWAII 171
A HISTORY OF RECENT REAPPORTIONMENT
IN HAWAII
ROBERT G. SCHMITT*
I. SYNOPSIS
Under presumably unique circumstances, the State of Hawaii was "reapportioned" three times in three years, twice by the State Reapportionment Commission and once by the United States District Court for the District of Hawaii. These reapportionments had several interesting and controversial aspects, which should cause the electorate and the legislature to consider amendments to the reapportionment process outlined in the state constitution and statutes. The final reapportionment, by virtue of its approval by the Department of Justice Voting Rights Act "preclearance", and the end of litigation in the federal district courts, has given Hawaii stability in its election districts until 1990. Following this final state reapportionment, the State also achieved "bailout" from the preclearance of all electoral changes by the Department of Justice and is no longer subject to this aspect of the Voting Rights Act.
In addition to providing an overview of the reapportionment process in Hawaii during 1983 and 1984, this article gives a background of geographical, political, and population factors in Hawaii which have caused the State, during the last 30 years, to approach the reapportionment issue from a different perspective than most other jurisdictions. The most notable difference in Hawaii had been the use of a registered voter population base for reapportionment as the best approximation of permanent state residents. This population base had been specifically approved by the United States Supreme Court in 1966 in Burns v. Richardson.* In the 1983-1984 reapportionment, the State of Hawaii Reapportionment Commission took a comprehensive approach to the process which included an evaluation of changes in legal stan- dards, demographics, and technology relevant to reapportionment.
II. REAPPORTIONMENT IN HAWAII—A BRIEF BACKGROUND
Two factors have caused the reapportionment history of Hawaii to differ from that of other urisdictions. These factors are the geography of the State-seven islands making up four coun ies, with dramatic geographical features on the islands forming natural boundaries and th substantial transient population which does not participate in the political process. These factors liscussed in more detail below, led to decisions by Hawaii's political leaders which resulted ir techniques of reapportionment to compensate for the unusual geography and the population com- ponents and distribution.
Although the current reapportionment plan has not been constrained by previous solutions to these factors, some historical background of reapportionment in Hawaii is necessary to under- * Member, Hawaii State Bar and State Bar of California: J.D. 1976, William S. Richardson School of Law. The round of reapportionment based upon the 1990 census.
• 384 U.S. 78 (1966).
172 HAWAII BAR JOURNAL VOL. XXII NO. 2
stand which issues have been-and still may be-important in the State because of its unique attributes. The historical background demonstrates that issues which are traditionally important in other jurisdictions, such as the "gerrymandering" of communities or the submergence of ethic minorities, have not been issues in Hawaii simply because its geography and population distribu- tion alone create difficult problems of districting.
A. A Brief History of Reapportionment in Hawaii
Although Hawaii was not admitted to Statehood until 1959, the Organic Act which formed ne basıs for the Territorial Government called for the reapportionment of the Territorial Legisla ure after each decennial census. However, as in other political jurisdictions in the United States this provision of the Act was ignored by the conservative agricultural interests in the Territory who wished to continue the "rural" domination of legislature over the "urban" interests ol Honolulu.
A gradual shift of economic and political power from the Caucasian business and agricul- tural interests to second-generation leaders of Asian origin was interrupted by World War II, when all political control was by the military government until 1945. Changes after the end of the war, however, were rapid, as returning veterans, primarily second-generation Japanese "ni- , reorganized the Democratic party and presented the first serious challenge to Republican domination of politics since 1912. The growth of Democratic power was steady, winning a major- ity in the Territorial legislature in 1954, the governorship in 1962, and the mayoralty of Honolulu Reapportionment, however, did not become a serious issue in Hawaii until it received simi- lar attention on the mainland United States. The State Constitutional Convention of 1950 antici- pated statehood and made changes in the apportionment of the legislature approximately in line with contemporary political theory, but largely continued the disportionate power of the rural "Neighbor" Islands over the principal, and most populated, Island of Oahu. The decision of the United States Supreme Court in Reynolds v. Sims,* caused attention to reapportionment in Ha- waii, substantially for the first time. Indeed, it is obvious from a perusal of the court's opinion in the first federal court litigation brought in Hawaii following Reynolds that no one previously had really been concerned with malapportionment in the State of Hawaii.® The then-governor of Hawaii, John Burns, moved decisively at the beginning of the special legislative session, called only five weeks after the Reynolds decision, to introduce and implement reapportionment reform legislation. Since this legislation essentially proposed to reduce radically the disproportionate strength of the Neighbor Islands in the Legislature, Neighbor Islands oppo- sition produced a stalemate and the reapportionment issue soon was in litigation in both state and federal courts.® In a second federal district court hearing, the court directed the Legislature to adopt an interim reapportionment plan, pending a state constitutional convention on the issue and final court approval.*
Although many issues were presented to the federal district court in Hawaii, the primary issues that remained for appeal to the United States Supreme Court were whether Hawaii's use of registered voters (rather than total population) as an apportionment base was constitutionally valid and whether multi-member districts would similarly be acceptable.
Each of the federal courts recognized that the composition of Hawaii's population was unique among all states because a substantial portion of the population could be identified as "transients" who were not true "residents" of the State. By far the largest component of this transient population was military personnel and their dependents, which the federal district court = Hawaii Organic Act, 31 Stat. 152 (1900), 48 U.S.C. § 619. 3 See Baker v. Carr, 369 U.S. 186 (1961).
* 377 U.S. 533 (1964).
• Holt v. Richardson, 238 F. Supp. 468 (D. Haw. 1965)
• Guntert v. Richardson, 47 Haw. 662, 394 P.2d 444 (1964); Holt v. Richardson, 238 F. Supp. 468 (D. Haw. 1965).
- Holt v. Richardson, 238 F. Supp, 468 (D. Haw. 1965).
VOL. XXII NO. 2 RECENT REAPPORTIONMENT IN HAWAII 173
n Hawaii found had varied from 5% to 50% of the total state population in the previous twent years (1944-1964).® The United States Supreme Court, in Burns v. Richardson, agreed with th line of reasoning of the lower courts concerning the use of registered voters as a population base in Hawaii.®
B. Burns v. Richardson
The Court also upheld the use of multi-member districts for either or both houses of the Legislature, absent a showing that a specific plan ".. would operate to minimize or cancel out the voting strength of racial or political elements of the voting population." The Court found no such problem with Hawaii's proposed multi-member districting plan."* C. 1968 State Constitutional Convention
Since the federal courts had conditioned their approval of Hawaii's apportionment plan as "interim" pending a constitutional convention, such an assembly was formed in 1968 primarily for the purpose of establishing new apportionment standards. The standards that resulted have been hailed as models for other states:
1. Establishment of a legislatively appointed, bi-partisan reapportionment commission for future apportionments;
2. Districts to be compact and contiguous, following natural or easily recognized bounda- ries and census tract lines, where feasible;
3. Where practicable, submergence of different socio-economic area in larger districts to be avoided and representative districts wholly within senatorial districts;
4. Districts not to extend beyond "basic island unit" nor, if multimember, have more than four representatives; and
5. Registered voters as a reapportionment base.
The Convention additionally devised an apportionment plan to serve until 1973, making extensive use of data analysis and public input."
Several features of the proposed state constitutional provisions were challenged in federal district court. In its 1970 opinion in Burns v. Gill, the Hawaii federal district court noted the • Id. at 474-75.
• Burns v. Richardson, 384 U.S. 73, 97 (1966).
10 Id. at 90-97.
1 Id. at 94-95.
1 Id. at 96-97.
13 Id. at 88.
14 Report of the 1968 Constitution Convention.
10 316 F. Supp. 1285 (D. Haw. 1970).
1 Id. at 1299,
174 HAWAII BAR JOURNAL
VOL. XXII NO. 2
D. 1973 Apportionment by Commission
The work of the first Reapportionment Commission, established by the 1968 amendments to the State Constitution, closely followed the guidelines and work of the Convention. The com- mission drafted a plan that made minor adjustments, primarily based on new population statistics from the 1970 census. The Commission made one departure from the new state constitutional standards when they decided to assign three representatives to Kauai instead of the two that had been dictated by the mathematical "method of equal proportions," since the Commission deter- mined that a "overage" of representatives would balance the "underage" caused by Kauai having only one state senator and thereby lower the overall deviations from ideal representation.
A challenge was brought on this issue in the Hawaii Supreme Court. In Blair v. Arivoshi,18 the Hawaii Supreme Court noted that the "method of equal proportions" would not always have given constitutionally sound deviation levels and since "fractional voting" had been disapproved by the federal district court in 1970, the Commission's solution was the best compromise, even though it violated a state constitutional provision."
The district plan of the 1973 Commission was to be used in the 1974 elections and re- mained in effect for the elections in 1976, 1978, and 1980. The records show no adverse public reaction to this plan.**
E. 1978 Constitutional Convention
Whereas the 1968 State Constitutional Convention was primarily called to bring Hawaii's districting in line with current Supreme Court decisions, the 1978 State Constitutional Conven- • tion was designed to analyze comprehensively the entire State Constitution. Delegates were pro- vided with extensive research and history on many issues, including reapportionment. Although there was extensive debate on several reapportionment issues, most notably the use of multi- member districts, the Convention did not make any major changes to Hawaii's Constitution on this issue. The Convention did:
1. Assign Congressional redistricting to the Reapportionment Commission;?
2. Lengthen the Commission work-period from 120 to 150 days;22
3. Change the reapportionment time from every eight to every ten years, to coincide with the U.S. Census:23 and
4. Recommend to future Commissions that if multi-member districts were created, they be limited to less than four representatives."
All the recommended constitutional provisions of the Convention were approved by the electorate and 1981 was established as an apportionment years.
III. THE 1981 REAPPORTIONMENT COMMISSION
A. Authority from Constitution and Statutes
The authority of the 1981 Reapportionment Commission was derived from both the Consti- tution and statutes of the State of Hawaii. As was basically established by the 1968 State Constitutional Convention, reapportionment in Hawaii is to be effected by a Commission of nine members, eight appointed by the majority and minority legislative leadership, the ninth to be selected by the Commission as the Chair.
* Report of the 1973 Constitutional Convention.
1* 55 Haw. 85, 515 P.2d 1253 (1973) (per curiam), cert. denied, 416 U.S. 945 (1974). 1 Id., at 88-89, 515 P.2d at 1256.
ao Public Comment files, Office of the Lieutenant Governor. 21 Constitution of the State of Hawaii, Article IV, Section 2. 37 jd.
* Id., Article IV, Section 1.
" Id., Article IV, Section 6.
* Id., Article IV, Section 2; HAW. REV. STAT. § 25-2.
VOL. XXII NO. 2 RECENT REAPPORTIONMENT IN HAWAII 175
The Commission is to meet on March 1 of the designated apportionment year. Within 50 days after all members are certified, it must prepare a plan which follows all the guidelines of the Hawaii Constitution and implementing state statutes.
State statutes also provide for advisory councils in each county (basic island group) who are empowered to hold hearings and otherwise advise the Commission.2* fter the Commission has drafted a plan, it must be described to the public in publishe otices. The commission must hold public hearings, take testimony, and correct or amend th plan as necessary before presenting an apportionment plan to the Chief Election Officer of the state, the Lieutenant Governor."
B. Role of the Lieutenant Governor
By statute, the Lieutenant Governor is designated as the Chief Election Officer of the State of Hawail. Among other responsibilities assigned to the Lieutenant Governor in this capacity is the duty to "maintain data concerning registered voters, elections, apportionment, and district- ing." The Lieutenant Governor is required to "use this data to assist the reapportionment com- mission.. '28
The State Constitution also provides that the Lieutenant Governor:
... shall be the secretary of the commission without vote and, under the direction of the commission, shall furnish all necessary technical services.2° C. Chronology of Reapportionment Process
The 1981 Reapportionment Commission became certified on May 1, 1981, after the Hawaii Supreme Court appointed and certified its chairman, the Commission failing to agree on a chairperson of its own. The Commission immediately began the process of reapportionment. It also made use of the reports of the 1973 Commission and an analysis of federal caselaw by its staff attorney and attorneys assigned by the State of Hawaii Office of the Attorney General.
One early part of the Commission's work was the conduct of public hearings, optional, but not mandated by state law. These hearings were held in June, 1981 on each island. The Advisory Council also held hearings and reported to the Commission.
With the assistance of the Lieutenant Governor's staff, the Commission developed alterna- tive plans for apportionment. The Advisory Council and the public also provided plans to the Commission. A total of 65 plans were reviewed by the Commission before their selection of a proposed plan. This plan was announced to the public by legal notice. Hearings were held on all islands during August, 1981.
Lieutenant Governor, Jean King, on September 28, 1981. This plan closely followed the guide- adopting a combination of single and multi-member districts, and in making an initial assignment of legislators wholly within basic island units.
Opposition to this plan, almost wholly political, decided that federal court was the forum for further amendment.
D. Court Challenge and Litigation History
On November 13, 1981, The Executive Director of the Republican Party of Hawaii, Craig * HAW. REV. STAT. § 25-7.
" HAW. REV. STAT. § 25-2.
28 HAW. REV. STAT. § 11-2(c).
2 Constitution of the State of Hawaii, Article IV, Section 2. 176 HAWAII BAR JOURNAL VOL. XXII NO. 2
votes. It was asserted that the plan also unduly favored a particular political group, in contraven- tion of the state constitution guidelines. The final major allegation was that the use of registered voters as an apportionment base was a violation of federal constitutional standards. 3° The Island of Hawaii Democratic Party and the League of Women Voters also joined the suit, repeating some of the original allegations and in addition expressing dissatisfaction with particular district boundaries, ®1
tered voters as an apportionment based was equivalent to a more traditional apportionment base."
The court was concerned about possible disruption to election administration in Hawaii if it allowed the Commission to re-draft the plan, so it decided to appoint Special Masters to prepare an interim districting plan for the state.
The Masters, with the assistance of the Lieutenant Governor's staff and other consultants, reported a plan to the court that used a different apportionment base and disregarded the county (island) boundaries to minimize deviations. The plan additionally created only single-member districts, since federal courts may not use multi-member districts in their creation of interim The apportionment base used by the Masters was "total population less non-resident mili- tary and dependents," which the Masters felt was the closest approximation to a "state citizen" base that they could determine, given their limitations on data analysis. However, to determine even this limited population based required making use of an estimate and data projection to both identify the non-voting military population and to locate that population in census tracts. As will be explained below, this estimate caused some probable inaccuracies in districting, which was reflected in uneven election participation.
The most controversial feature of the Masters' plan, however, was the use of "combined county" districts, which "straddled" election districts between two islands. The Masters created one senatorial district that included parts of both Hawaii and Maui and one house district that combined parts of both Oahu and Kauai. The rationale for this technique was that court-drafted plans were self-limited, by previous practice, to deviations in election districts that were much lower than legislative-drafted plans." The Masters had received specific directions from the court to prepare alternative plans for the court's consideration, and the direction included a plan with single member districts and minimum deviations. This was the plan recommended by the Masters and accepted by the court.
Although the Master's plan was vigorously opposed by the State Reapportionment Com- mission, which continued to draft improved plans and submit them to the court, the court noted that any plan other than the one specifically drafted by the Masters for the court was required, under the Voting Rights Act, to be "pre-cleared" before implementation. The court then noted that since the Department of Justice was authorized 60 days for review and could take another 60 days for review if it felt the plan submission inadequate, it would not be practical or prudent for the court to give serious consideration to any plan other than its own without jeopardizing the timely conduct of the 1982 elections.
30 Travis v. King, 552 F. Supp. 554 (D. Haw. 1982) (Civil Nos. 81-0433 & 81-0438). " Id., Complaint Challenging Reapportionment Plan Adopted September 27, 1981. 32 Id., Interlocutory Order, March 25, 1982.
38 Id., Final Report and Recommendation of the Special Masters Submitted Pursuant to Order of the Court, April 7, 1982.
34 1d
38 Id.
36 Id., Order, May 4, 1982.
VOL. XXII NO. 2 RECENT REAPPORTIONMENT IN HAWAII 177
IV. THE 1981 REAPPORTIONMENT COMMISSION REORGANIZED IN 1982 It is well-established in federal caselaw that apportionment and districting are state func- tionment Commission:
Members of the commission shall hold office until each reapportionment plan becomes ef- fective or until such time as may be provided by law.2* Although elections had been held in 1982 under the court-ordered plan, it was recognized by the Hawaii Legislature and its newly-elected Chief Election Officer, Lieutenant Governor John Waihee, that the State had a continuing duty and responsibility to fashion a permanent plan of apportionment.
the 1981 Reapportionment Commission, Dr. Reuben Mallari, who had moved from the State without giving notice of his pending resignation from the Commission.
As a result, the Legislature appropriated support funds for both the Reapportionment Com- mission and the Officer of the Lieutenant Governor to begin population data analysis and conduct other studies in preparation for the formal re-constitution of the Commission.
A. Lieutenant Governor's Role in Analysis of Reapportionment Plan The Lieutenant Governor, required by law to provide technical support to the Reapportion- ment Commission, initially began this support in two areas:
1. Analysis of the court-ordered Masters' plan; and
2. Analysis of population data deficiencies.
•Since the federal district court had noted its interest in both of these issues,*° development of data would not only provide necessary material to the Reapportionment Commission, but alsc iustify to the federal court the planned work by the State on reapportionment. position of the individual districts and the technical administration of elections related to those districts (which were primarily concerned with the assignment of registered voters to precincts and districts).
In summary, the problems identified by the legislators and county election clerks were of several types:
1. Districts that were "technically gerrymandered" by sole reliance on Census Bureau pop- 37 Id.
38 E.g., Gaffney v. Cummings, 412 U. 735 (1973); Burns v.Richardson, 384 U.S. 73, 92 (1966), * Constitution of the State of Hawaii, Article IV, Section 2. 10 Travis v. King, 552 F. Supp, 554, 568, 572 (D. Haw, 1982). 178 HAWAII BAR JOURNAL VOL. XXII NO. 2
ulation components in tracts and blocks."! As will be explained below, this created dis- tricts that were numerically accurate, but illogical and inconvenient to voters;
2. Districts that, as a result of errors in the transfer of district descriptions to elections maps, mis-assigned voters; and
3. Districts which were created by deliberate decision by the Masters' and ill-favored by the public and legislatures, i.e., the island "straddled" districts. 'he staff of the Office of the Lieutenant Governor also performed an analysis of the 198 lections plan and the methodology that was used to create this plan*2 The analysis determine that there were additional probable errors in the plan, caused by the inadequate population data that was available to the Masters. The analysis concluded:
• The Masters had available to them incomplete, summary population data. This popula ion data was from the STFI Bureau of Census file, which essentially gave only a tota count of population for each census block, block group (or enumeration district), an ract. No census data was available for military occupation codes, other transients, o
2. Census tracts and blocks did not always follow "logical" or easily identifiable bounda- ries. In a few cases, blocks and block groups were wholly within a non-matching tract.
3. Data on military personnel, their dependents, and probable state of voting/residency was not available from either the military or other sources. The Masters relied on a projec- tion to 1980 done from a sample survey in 1976. The accuracy of the survey and the judgments made in the projection were questionable and did not correlate with actual 1982 voting. (The 1982 election districts that included large sections of military housing had extremely low voter participation. If the Masters' assumptions had been correct, participation in all districts should have been roughly equal.).
4. The actual districting by the Masters was a list of census tracts and blocks and there was no court-drafted "reapportionment map." If the military data assumptions were cor- rect, the apportionment numbers were correct, but election districts did not exist until the tract/block listing was transferred, by the Lieutenant Governor's staff, to election maps. A wholly accurate transfer was not possible because of a lack of good block/tract boundary descriptions.
5. The county clerks made assignment of registered voters to precinct and districts using an address coded, Census Bureau DIME file, which gave tract and block listings. This file was incomplete and reference to the election maps was necessary for some assignments.
In a few cases, the file inadequacy was in the same areas where mapping transfer errors occurred and the assignment error was undetected until the election. The clerks making assignments, because of time limitations, did not keep a record of assignment methodol- ogy. Nor was a comprehensive record kept of errors on either elections maps or DIME files for purposes of correction.
In summary, the Lieutenant Governor was able to classify problems with the court-ordered plan as "data errors", "mapping errors", or convenience errors.
B. Reorganization of Commission and Chair
In addition to Article IV of the State Constitution which authorized the 1981 Reapportion- ment Commission to continue work, the Legislature in 1982 amended Section 25-1 of the Hawaii Revised Statutes to read:
Reapportionment commission. A reapportionment commission shall be constituted af- ter the third Wednesday of January but before March 1 of each reapportionment year, and commencing with the 1981 reapportionment year, the members shall be appointed and cer- tified to hold office until a general election is held under a reapportionment plan of the " A census tract has been the historic and nominally "stable" geographical area which the Bureau of Census uses to enumerate population and other data. It is normally established on the recommendation of local statistical per- sonnel. A small subdivision, the census block, is used in urban areas to further subdivide a census tract. • Lieutenant Governor's Report to Reapportionment Commission, March 15, 1983.
VOL. XXII NO. 2 RECENT REAPPORTIONMENT IN HAWAII 179
commission or a new commission is constituted under Article IV, Section 2 of the State Constitution, whichever event shall occur first.**
The legislative history of this amendment indicates that the intent of the legislature was to clarify that the Reapportionment Commission's duty does not end with the publication of a plan that may later be found to be invalid, but rather that it must draft a plan useful for an election.
The Lieutenant Governor received the resignation of the chairman of the 1981 Reappor- tionment Commission, Dr. Reuben Mallari, on February 17, 1983. The first task of the Commis- sion, therefore, was the selection of a new chairperson.
The first meeting of the Commission was held on March 15, 1983. At this meeting the Special Deputy Attorney General, James Funaki, briefed the Commission on the legality of its authority and a probable hearing in federal court on an extension of the court's jurisdiction. A status report on the Lieutenant Governor's map and data analysis was also given to the Commis- sion by the Lieutenant Governor, who also noted the need to select a new chairperson.* The approach for data analysis suggested by the Lieutenant Governor was to obtain more precise population component data to replace the estimate used by the Masters.
The Commission meeting of March 21, 1983 discussed candidates for the chair and at the meeting of March 28, 1983, attorney Yukio Naito was nominated and unanimously selected.* The other initial business of the Commission was obtaining an appropriation from the Leg- islature for Commission administration expenses and technical support. The Commission was briefed on May 14, 1983 on a scheduled hearing in federal district court on the jurisdiction issue and the work of the Lieutenant Governor in analyzing the Masters' plan for presentation to the court was outlined. The Lieutenant Governor had retained both a mapping and data consultant to provide technical assistance to his staff for prospective Commission work.*® C. Approach to Studies and Data
In addition to the technical deficiencies of the Masters' plan, the Lieutenant Governor had outlined a plan to the Commission which was designed to cure long-standing population data problems for the State of Hawaii and also provided specific legal and socio-economic material to the Commission on issues noted in both the previous Commission report and by the federal court.*
This approach was to catalog data sources relevant to reapportionment, to identify sources for areas where the data was deficient, and to prepare reports on four major issues unresolved from the federal court litigation:
1. Composition, legality, and selection of a population base for reapportionment;
2. The role of county integrity ("basic island units") in Hawaiian politics and the impacts of split counties;
3. An analysis of the law and impacts of using multi-member districts vis-a-vis single member districts; and
4. The rationale and impacts of using registered voters as an apportionment base.
The objective of the Lieutenant Governor's support to the Commission was to provide basic information and a set of options on issues where there was a probable conflict between federal standards and the State Constitution. Although not explicitly stated, the result would be a com- prehensive overview of basic reapportionment issues unique to Hawaii. • HAW. REV. STAT. § 25-1; Act 249, 1982 Hawaii Session Laws, Section 2. 1 Minutes of Reapportionment Commission Meeting, March 15, 1983. * Minutes of the Reapportionment Committee Meetings, March 21 and March 28, 1983. * Minutes of the Reapportionment Committee Meetings, May 14, 1983 and June 9, 1983. 180 HAWAII BAR JOURNAL VOL. XXII NO. 2
1. Commander-in-Chief, Pacific Ocean-Admiral Robert Long and his successor, Admiral William J. Crowe, provided the full cooperation of their commands to produce statistics on active-duty military and their dependents in the State of Hawaii. This information was produced in two-phases: May, 1983 and September, 1983. The initial report by the dependents and residency, polic could be correlated titted ensus race/block says on. lependents and residency,
2. Bureau of the Census— With the assistance of the State of Hawaii Department of Plan- ning and Economic Development, a special tabulation of census data was contracted for to provide demographic data (including military occupation, citizenship, age, ethnicity, language ability) for tract/block system. This data is either not normally tabulated or would be reported several years after the actual census.
3. State Departments of Electronic Data Processing, Taxation, Health, and Educa- tion—These departments provided data analysis in specialized areas, primarily to vali- date Bureau of the Census material.
4. City and County of Honolulu-It primarily provided assistance with an analysis of reg- istered voter data and the geo-coding of such data in a format compatible with Bureau of Census systems. Specialized assistance was also available in specific departmental With the cooperation of these agencies and with the contractual assistance of the Social Sciences Research Institute at the University of Hawaii, work was started on a data system to assist the Reapportionment Commission.
D. District Court Hearing and Decision
The litigation in Travis v. King was continued in a hearing in the District Court of Hawaii on June 20, 1983. The issue at this hearing, as presented by the plaintiff-intervenor, the League of Women Voters, was whether the court-ordered Masters' plan of 1982 should remain as a permanent districting plan for the State of Hawaii until the next reapportionment year, 1991.4 Although the brief of the League of Women Voters argued for the permanence of the court plan and presented some analysis to the effect that the county split did not cause a serious impact on the candidates for those seats, there was general agreement that the "errors" of the plan should be corrected.**
The Reapportionment Commission argued that it was well-established in federal case law that reapportionment was a function that belonged to state governments and that federal courts had always recognized that their plans were necessarily interim solutions to meet election sched- diles tric and a sch else of ts proposed data ford bond-economic nates plan because of its The court, in both oral and written opinions, concurred that the State had the right and duty to conduct reapportionment and extended its jurisdiction over the case, but restricted future intervention without the prior approval of the court. By recognizing that the Masters' plan was an interim solution to the 1982 elections, the court also effectively dismissed the possibility that the Masters' plan could be revived" at a future date and rejected the need for continued corrections to the Masters' plan." The court later adopted the timetable for election plan completion * Travis v. King, Civil Nos. 81-0433 & 81-0438, U.S. District Court, Hawaii. 19 Id.
a0 Id.
51 Id.
52 Id.
VOL. XXII NO. 2 RECENT REAPPORTIONMENT IN HAWAII 181
V. COMMISSION WORK IN 1983
The Commission had concurred with the Lieutenant Governor's suggested approach for A. Study of Individual Policy Issues
1. Permissible Population Base
Although the State Constitution established the use of registered voters as an apportion- ment base and the federal district court had not specifically ruled its use to be unconstitutional, the Commission had recognized in its previous work and report that registered voters had been adopted by the State of Hawaii as a compromise solution to the problem of insufficient data for a population base defined as "eligible voter" or "state citizen". Using as a premise the development of data for other population bases, the Commission examined a comprehensive analysis of the following alternate population formulas.
1. Total Population — Total population is the primary product of the federal decennial census and is the apportionment base used by most jurisdictions. While its use would probably be routinely approved by federal courts, all federal decisions concerning Ha- wail's apportionment situation have noted the potential distortion that would be caused to the political process if such were used. While total population is an "exact" count, other statistics from the Bureau of the Census at the block/enumeration district level. necessary for apportionment, may be the result of "sample" data and subiect to sam- pling errors.**
2. State Citizens — Several jurisdictions have used "state citizens" for election purposes, usually defined as the "residents" of a state, with certain categories of persons excluded, most notably aliens and/or the legal residents of other states. Although the issue of excluding aliens from a representation base had not been squarely faced as yet by fed- eral courts, the expansion of alien rights in other areas has led some commentators to suggest that aliens have a right to "equal representation."s
3. Eligible voters — Although no jurisdiction currently uses "eligible voters" as an appor- tionment base and no federal court has specifically ruled on its legality, it has been suggested as a population base. This base has been commonly defined as the state citizen population, less minors not eligible to vote. Similar to the issue of aliens rights, the increased attention to the rights of minors has led to a suggestion that minors also de- serve "equal representation."5e
4. Registered Voters — "Registered voters" remains the population based required by the Constitution of the State of Hawaii. However, as noted above, it has an historical basis as a compromise and both the Commission and federal courts have found problems with its continued use. 57
Development of statistics on the components of each population base began in April, 1983 and continued through October, 1983. The components of each population base were identified as: non-resident military (active duty and dependents), aliens, and minors. Statistics were assem- bled for all census geographical units for each component and the "data base" approach allowed the Commission to assemble all the permutations of these components to create all reasonable "Selection of a Constitutionally Permissible Population Base for Ha- walls Legislative Apportionmem, Robert , Schmit (August 30, 1930) 54 Id. at 4,
06 Id. at 7.
50 Id. at 13. See also Brown v. United States, 486 F.2d 658 (8th Cir. 1973). $ 1981 Reapportionment Committee Study, supra note 53, at 13. 182 HAWAII BAR JOURNAL VOL. XXII NO. 2
definitions of "state citizen" or "eligible voter". Since the final statistics on these population bases
2. Basic Island Units
The second major issue of concern to the Commission was whether County integrity could and should be preserved, avoiding the "split-county" districts used by the 1982 plan. A report oi this issue was presented to the Commission on September 16, 1983,5€ The report traced the political history of Hawaii from the independent kingdoms in pre- monarchy times to the current importance of county government and the strong identification of Hawaii's citizens with their counties
which, relative to other states, have considerably less power over local matters. The Hawaii State Legislature, therefore, has substantial control over areas that are more commonly within the pur- view of local government in other states.
The report also noted that the fundamental problem with maintaining county integrity was a population distribution not easily divisable by the current number of legislators with a yield of a reasonable deviation range after such an allocation. As was to be later confirmed by the popula- tion statistics, no population base could follow the State Constitution and yield a deviation range of less than 21%. Further, this 21% could only be obtained by creating "perfect" districts of a specific size on each island and the likely result would then be a major disruption of traditional community lines within the islands."*
Judging apportionment plans by relative percentages causes Hawaii to be severely ham- pered by its small size. When the same percentage deviation rule is applied to Hawaii and to a large state, the absolute harm done to voters is much less in Hawaii. This is because the same percentage deviation of differing populations means that population equality does not have the same significance in terms of the numbers of people affected. Hawaii's number of people per state representative-about 19,000, is one of the lowest among states. For comparison, California has about 296,000 residents per state house member. The "allowable" deviation of 16.4 percent ap- plied to California would affect 48,500 people, while only about 3,100 residents would be affected in Hawaii,®°
Because of the state constitutional guidelines, the strong public reaction to the court-or- dered 1982 plan and the arguments of this report, the Commission adopted an initial orientation towards maintaining county integrity in the drafting of reapportionment plans.®1
3. Equality of Voter Registration
A third report was provided to the Commission on September 21, 1983 on the issue of qualizing voter registration. The topic of this report was chosen because of its direct relation t he rationale for the use of registered voters as an apportionment base in the State since 1950.° 08 1981 Reapportionment Commission Study, "Reapportionment and County Integrity," Jeffrey M. Smith (Sep- tember 16, 1983).
* Id. "Perfect" districts are simple mathematical divisions that also must ignore geographical features, roads, military bases, etc.
do Id.
•1 Minutes of Reapportionment Commission Meeting, September 16, 1983. 621981 Reapportionment Commission Study, "Equality of Voter Registration as a State Goal and its Implications for Reapportionment," Jeffrey M. Smith (September 21, 1983).
VOL. XXII NO. 2 RECENT REAPPORTIONMENT IN HAWAII 183
the aspects of numerical equality of representation and of equality of participation in the election process. In the words of the report:
Although it is never directly stated, a reapportionment plan must answer the basic ques- tion— "what is to be made equal?" The drafters of a plan are constrained by practical considerations—lack of data, time, or resources—to emphasize per capita equality of repre- sentation, which is invariably expressed as minimizing the deviations of population when different election districts are compared. But other aspects of equality are found in reappor- tionment decisions of the Supreme Court.
Therefore, although an apportionment body will choose absolute numerical equality as a goal, it also must consider many other factors in a districting plan. These considerations may be maintenance of political subdivisions, establishing compact election districts, or pre- serving the voice of particular ethnic groups. Clearly, an apportionment body should also consider the practical aspects of equalizing voter participation as a factor in drafting its plans. One method of accomplishing this factor is to examine voter registration and/or participation statistics of the newly created election districts.
The traditional focus on numerical equality may be analyzed as "per capita equality" of representation, or what we shall term "passive representation." It focuses on protecting and equalizing the right to be represented in legislative bodies. It is most clearly stated in Reyn- olds v. Sims: " ... the fundamental principle of representative government in this country is one of equal representation for equal numbers of people..." It refers to the constituency a legislator speaks for in conducting his business.
The aspect of equality related to voter participation is actually an equality of active repre- sentation." It focuses on protecting and equalizing the right to participate in elections and The report concluded that the state constitutional guidelines requiring the use of registered voters as an apportionment base could be viewed as mandating the opportunity for equality of participation in the election process and would be satisfied, in substance, by selection of a popula- tion base which correlated well with registered voters or, in other words, was substantially "registerable" e
4. Multi-Member Districts
A final legal and political study on the use of multi-member districts in an apportionment plan was delivered to the Commission on September 29, 1983.00 The issue facing the Reapportionment Commission was whether, and to what extent, multi- member districts should be used in a new apportionment plan for the State legislature. The study concluded that single member districts should not be an apportionment scheme, nor the reverse.
Each type of district should be judged in terms of how it contributes to goals that the State wants to achieve, goals involving both the fairness of representation and governance.®® The report noted that the legal standards from Supreme Court litigation for determining the fairness of a districting plan focus on whether the plan, in the context of local political, economic and social conditions, has the discriminatory effect of submerging the minority vote." These standards were developed in an attempt to frustrate the efforts of Southern states and municipalities to minimize the representation of the emerging black vote. The report explained:
Although multimember districts are not inherently unfair, when implemented in a geo- graphical region where discrimination in all aspects of life has hindered minority progress and participation in the political process, the courts have questioned the Constitutional va- lidity of these plans. It has been suggested that in the larger multimember district, the e4 Id.
$ 1981 Reapportionment Commission Study, "Multimember Districts: A Legal and Policy Analysis," Jeffrey M.
Smith. Amaza Reid & Robert G. Schmitt (September 29, 1983). es Id. at 1.
67 Id. at 19.
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VOL. XXII NO. 2
majority might be able to elect all the representatives from the district while the minority is The report extracted aspects of "fairness" for multi-member districts that should be rele- (a) The fairness standard does not compel avoidance of multimember districting in Ha- waii. Special circumstances are required before the courts will take the unusual step of declaring that a particular racial minority has a "right" to elect members of its own group to office in rough proportion to its population share. These include a polarized racial situation and a dominant racial majority purposely practicing electoral discrimi- nation against a racial minority. These do not pertain to Hawaii. (b) The main criterion to guide districting suggested by the fairness standard is the homo. geneity or diversity of the election district. When applied to apportionment, the fairness standard prefers smaller districts (single member) to larger ones (multimember) be- cause smaller ones are presumably more homogeneous. However, it does not provide any absolute standard to indicate what would be too small, and it does not tell how to balance the virtues of smallness with the benefits of bigness. Therefore, when consider- ing the homogeneity or diversity of areas in making districting decisions, the Commis- sion will have to develop its own standards for district diversity in light of the kind of representation it would like to see.
(c) A districting system made up of small, homogenuous districts and one made up of larger, more diverse districts have differing bases for deciding whether more diversity or more "sameness" in districting is desirable.
We can infer from studies of single member and multimember districts that smaller, more homogeneous districts have closer, more personal ties with their legislator, are oriented to "personality" rather than issues in election choice, are concerned with nar- rower and more parochial issues, and are "safer" for incumbents. Larger, more varied districts have legislators who are more issue oriented, rely more on mediating groups and organizations, concern themselves with broader issues more relevant to the general community, and face more competition at election time.
(d) Consistent application of desirable standards such as the diversity of community inter- ests to be incorporated in a district means that the emerging apportionment plan will probably not contain single members districts only or multimember districts only.
Choice of a large (multimember) district or smaller (single member) districts as repre- sentation would depend on the specific characteristics-ethnic composition, employ- ment patterns of the communities involved, and would vary from area to area and island to island, ®*
The Commission decided to examine both single-member district plans and plans making use of both single and multi-member districts. The Commission felt that the report had noter that "fairness" was the dominant theme of federal guidance on this issue and fairness could only be determined by viewing the impacts of both types of plans on communities and population groups in Hawaii.7°
B. Analysis of 1982 Election Districts
The development of population data, started in April, 1983, produced a first analysis for the Commission on September 27, 1983. This analysis concerned the 1982 election districts and in cluded the "total" (census) population of those districts and the "state resident" population of those same districts. For the definition of state resident, the total/census population was used, less 68 Id. at 1.
09 Id. at 38.
10 Minutes of Reapportionment Commission Meeting, September 29, 1983.
VOL. XXII NO. 2 RECENT REAPPORTIONMENT IN HAWAII 185
the non-resident military personnel and their dependents.
The military statistics were obtained from the Commander-in-Chief, Pacific, as part of the previously described project with CINCAC. A statistical consultant for the Commission corre- lated these military statistics with the Bureau of Census geographical system (tracts). It was noted that statistics obtained from the military, for both 1980 and 1982, produced a geographic distribution different than that used by the Masters, primarily in areas of new military housing construction after 1976. Since the Masters had relied on a 1976 survey projected to 1980, it did counties, this population was:
Oahu 647,499
Hawaii 91,541
Maui - 70,991
Kauai - 38,64772
The Commission also examined 1982 election district statistics for registered voters. Each of the proposed new apportionment bases were tabulated in the existing 1982 districts. There was a significant variation between the census population, state resident, and registered voter popula- tion bases when these bases were compared in the 1982 election districts.
Also at this state of data development, the Commission examined population component statistics for different "population bases" which showed the population distribution of these bases in each of the counties and the resulting allocation of Senate and House seats under each popula- tion base. After this allocation, the best theoretical deviations under any of the population bases were known to the Commission.
The allocation of legislative seats is done, according to the Constitution of the State of Hawaii, under the "method of equal proportions." The method of equal proportions is a mathe- matical procedure which assigns legislative seats by comparing, seat-by-seat, the remaining popu- lation of each county to determine how the "next seat" will be assigned. It is a method to avoid arbitrary decisions about such assignments where "fractional seats" remain after a county popu- lation is divided by the number of the "ideal district" inhabitants. The Masters' plan for the 1982 election had assigned two "straddled county" seats.
The federal courts have assigned great importance to the numerical overall range of devia- tions under the "one-person, one-vote" principle. The "overall range of deviations" is the sum of deviations from the most populous district to the least populous district, ignoring the "+" "" signs. It is very important to note that even this "theoretical" deviation is possible only if the "onsideration is be siven lond urad boundaries and commanity or asping a district, some C. Commission Draft Plan Consideration and Direction
As the initial population data became available, the Commission directed the Lieutenant Governor to prepare a districting map that would follow, as closely as possible, the 1982 elections map, but use the updated and corrected statistics for a corresponding population base, that of "state residents" (census population less non-resident military and dependents). However, be- cause the allocation of legislators was different (increase of representatives by one to County to Hawaii), it was evident that creation of a districting map would need more criteria from the * According to the compilation of residency statements, less than 5% of all active duty military and their deper lents had declared Hawaii as a state of residency and therefore would be likely to register and vote in an electior See "Estimating in Hawaii," James E. Dannemiller, December, 1983. "* Statistical Analysis, "Population Distribution in Counties," Office of Lieutenant Governor Special Report (Sep- tember 20, 1983).
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Commission.
At its meeting of October 6, 1983, the Commission requested the Lieutenant Governor to prepare several alternative districting plans. These plans were to use three different population bases: (I) census population, (2) "state resident" population (defined above), and (3) "eligible voters" population base (population over 18, less non-resident military and aliens). Additionally, the plans were to follow alternative criteria of both preserving the county integrity and "strad- dling," and the use of single-member districts only or the use of a combination of both single and multi-member districts,**
The Commission also discussed the criteria of "allowable deviations" for districting plans During several more meetings in October, 1983, the Commission examined alternative dis- tricting maps using the aforementioned criteria, except that the request for a plan based on "cen- sus population" was withdrawn, primarily because its lack of relevance to either legal or histori- cal criteria in Hawaii. In addition to the maps, the Commission was also supplied with population statistical analysis of each plan examined. The primary focus of the Commission on the statistical analysis was the range of deviations that resulted under each criteria.
D. Commission Decision
The decision on an apportionment base was made by the Commission at its meeting of October 20, 1983, Several Commission members recommended the use of "eligible voters" as the base, primarily because of its strong relation to the historical use of registered voters in Hawaii and also because the statistical analysis showed that a slightly better range of deviations would be possible with this base if county integrity was to be preserved. Several other commissioners thought there should be some consideration given to "representational equality", the theme devel- oped in the second Lieutenant Governor's study as relevant to the prior use of the registered voters apportionment base. By tie-breaking vote of Chairman Naito, the "state resident" appor- tionment base was chosen. Mr. Naito stated that he had made choice because of an important state policy to represent all residents of the state, including minors and aliens, who need represen- tation in the state legislature.*
meeting of November 1, 1983. The initial discussion of this issue indicated that the Commission strongly favored the preservation of county integrity, but were very concerned that such preserva- tion would result in a plan that would have deviations in excess of the maximum allowable under federal constitutional standards. To meet both of these objectives, the Commission discussed the possibility of directing that further districting plans should "preserve the basic island units to the greatest extent possible." Further discussion showed that this statement would be too subjective as a districting criteria. The Commission therefore voted unanimously to disregard county lines for the proposed districting plan, noting that this decision could be amended after the public hearings if there was strong public sentiment on this issue. The Commission also voted unani- mously in favor of using only single-member districts in future distrieting plans.? districting plan for the Commission. The experiences and comments of the Commission members were incorporated into a draft plan presented to the Commission in large-format maps, with accompanying statistical data, at a meeting on November 3, 1983.
The Commission carefully examined these maps in a district-by-district presentation by the Lieutenant Governor, which highlighted the geographic features of the maps. The maps had also been made available, in the technical support section of the Lieutenant Governor's office, for 73 Minutes of Reapportionment Committee Meeting, October 6, 1983. See also "Population Deviations in Coun ties," Office of Lieutenant Governor Special Report (September 20, 1983) (Revised February 27, 1984). 14 Minutes of Reapportionment Committee Meeting, October 20, 1983. 75 Minutes of Reapportionment Committee Meeting, November 1, 1983.
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letailed examination by the Commission members prior to the meeting. This plan was unani nously adopted by the Commission."
E. Advisory Council Coordination
As previously noted, the Commission decided on July 14, 1983 not to conduct preliminary E. Public Notice
As required by the State Constitution and statutes, the Commission made public notice and distribution of its draft plan and scheduled a series of public hearings in each of the counties.
The public notice appeared in newspapers in each county. Additionally, another 400 ethnic organizations were separately contacted to make them aware of the reapportionment process.
Newspapers, radio and television stations broadcasting in Japanese and Tagalog were also noti- fied, requesting their cooperation in broadcasting and printing public notices of the reapportion- ment process.
Distribution of the draft districting maps and supporting population data began on Novem- ber 9, 1983. These maps were made available in the Lieutenant Governor's office, county clerk's offices and the regional libraries. The distribution was planned to provide ready access to the public for a set of maps in each section of the State and was only limited by the relatively high cost of each set of the "full size" maps. Distribution of each map was individually checked to ensure delivery in the required 10 days prior to the public hearings scheduled in a particular F. Public Hearings
The Commission scheduled public hearings on the draft plan in each county and, where the size or population of the county required, additional hearings on Oahu and Hawaii. The reaction to the draft plan was primarily of two types: objection to the "straddling" of the counties and objection to individual district boundaries.
The objection to individual district lines was relatively minor compared to the "straddling" issue and was primarily in two areas where residents thought that their communities were being split. These two areas were Moanalua Gardens on Oahu and the Mountain View area near Hilo.
Neither of these areas are political subdivisions and the splits were caused by creating lines nec- essary to minimize deviations.
Some objections to the draft plan were also raised by legislators, who feared that their electoral districts had been altered. These situations were also created by the over-riding policy criteria to minimize the deviation range, for it is not possible both to create "ideal" districts and to preserve each neighborhood community.
G. Analysis of Ethnic Impacts of Plan
The first report of the Reapportionment Commission and the opinion of the federal district court in Travis v. King had each expressed a strong interest in obtaining "socio-economic" infor- mation, including ethnic data, to aid future reapportionment decisions. This information had been available in the State of Hawaii through the Health Surveillance surveys of the Department ol lealth and from the Research and Statistics Office of the Department of Planning and Economi 7ª Minutes of Reapportionment Committee Meeting, November 3, 1983. 188 HAWAII BAR JOURNAL
VOL, XXII NO. 2
Since Hawaii is a relatively small state, great disparities of population density, the tradi- tional use of census tracts as the basic "building blocks" of elections districting does not produce uniform results, since the tracts in Hawaii do not follow either natural boundaries or community lines. A sub-group of the tract system, the census block, does provide the needed small geographi- cal units of "population counting." However, the Bureau of Census does not routinely report all data at the census block level and, where the populations of a block are small, the Bureau rou- tinely suppresses the data as part of its policy to prevent the identification of individuals.
A further limitation on some types of census data is that some statistics, such as total population, are the result of the "full count" of every individual on census day. Other data, including ethnic identification is the result of the "16% sample," where one in every six persons is asked more detailed questions. The Bureau of Census then expands this "sample" data to produce useful statistics comparable to the "full count", but notes that this data is subject to statistical sampling errors.
Because the Lieutenant Governor was aware of the need for ethnic, age, and language statistics for reapportionment, but also knew of its non-availability, he contracted with the Bu- reau of Census on June 30, 1983 to produce this information for the State, at the census block level. The Lieutenant Governor also met directly with Bureau of Census personnel in August, 1983 to further specify and obtain priority for this data. The Bureau of Census provided great cooperation and the Lieutenant Governor received this special tabulation on October 15, 1983.
Although ethnic data was provided to the Commission, no use was made of this data in the decision to adopt the draft plan, as the primary concern of the Commission was the range of deviations from the population base. It was feared that inclusion of ethnic considerations at this stage of the reapportionment process would potentially distract the focus from this constitutional standard. The Commission did direct the Lieutenant Governor to provide a comprehensive analy- sis of the ethnic implications of the draft plan, which was used to check the final version of the apportionment plan.™
The Commission was very mindful of the mandates of the Voting Rights Act, as this stat- ute had been discussed in the study report on multi-member districts. Although multi-member districts were not used in the final plan, the study had noted that some jurisdictions had used single-member jurisdictions to "racially gerrymand" districts and submerge certain ethnic minor- ities. For these reasons, the racial analysis was to provide a final check on the Commission plan.
Since the distribution of ethnic groups in Hawaii follows extremely complicated patterns, as compared to the patterns found on the Mainland, it was necessary to provide a historical context for the ethnic election district analysis. This context was the 1980 and 1982 election plans. The 1980 plan was drafted in 1973, using registered voters as an apportionment base. The 1982 plan was, of course, the court-ordered Masters' plan. Although an ethnic analysis had never been done on either of these plans, extensive research was unable to find a single complaint which could be cons us a saily hi analys, i was concluded that the plan of the Reapertionment Com- nission in 1983 not only did not have any adverse impact on any racial or ethnic group in Ha ali. but actually enhanced the probable election participation of some ethnic groups." H. Commission Final Plan Consideration and Decision
After examination of the transcripts and recordings of the public hearings and the analysis of ethnic data concerning the draft districting plan, the Commission made certain minor changes " "The 1984 Reapportionment Plan for the State of Hawaii: Analysis of its Impact on Ethnic/Racial Groups," Jeffrey M. Smith (January, 1984)
7ª Id. at 28.
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1. Presentation of Plan to Lieutenant Governor
As required by statute, the final plan of reapportionment, with an accompanying report of the Commission, was presented to the Lieutenant Governor, in his capacity as the Chief Election Officer, on January 9, 1984.7° After 10 days, the Lieutenant Governor would normally declare his acceptance of the plan and begin implementation of it in preparation for the 1984 elections. pre-clearance under the Voting Rights Act, two additional steps were necessary before the com- plete implementation of this plan.
J. Transmittal of the Plan to the Department of Justice The plan was transmitted to the Department of Justice on February 27, 1984. Expedited processing of this plan was requested for two reasons:
1. The federal district court had scheduled a February, 1984 hearing on its jurisdiction in Travis v. King. Although the rolé of the Department of Justice vis-a-vis the federal district court could not be predicted, it was probable that the court would defer judgment until the final pre- clearance decision.
2, As stated above, the process of implementing an election in Hawaii begins with the tremely important date, since decisions regarding residence in a particular district, its composi- tion, and the incumbent representative will have very great personal consequences. The experi- ence of 1982, where the election district lines shifted several times (during a time when state statues assumed stability, caused great disruption in several state races.
The Department of Justice approved the Reapportionment Plan on April 6, 1984, thus ef- fectively "pre-clearing" it under the Voting Rights Act provisions.
The submission had detailed the racial neutrality of the election districts and the effective equality of representation afforded to Hawaii's citizens. The approval of the Department of Jus- tice was conditioned on having no challenges to the election process for five years, based on any "test or device" used to impede voting.
K. Conclusion of Federal District Court Litigation
The reapportionment plan was submitted to federal district court on January 17, 1984. The Reapportionment Commission, the State of Hawaii, and the Lieutenant Governor requested that deviations meant that it met the constitutional standard of "one-person, one-vote", and because jurisdiction in the case to April 9, 1986.
Except for minor corrections to some districts for technical adjustments, the 1984 elections were successfully implemented under this plan. The court refused to grant intervention into the case by some residents of Kauai, who alleged dilution of their representation because of the "cause" districts which combined areas of Kauai and Oahu (Waianae). In spite of affidavits fron the representatives from these districts, the court did not grant the intervention sought.
L. Voting Rights Act "Bailout"
The City and County of Honolulu was the last remaining Hawaii jurisdiction required to 70 Report and Final Reapportionment Plan Adopted by the 1981 Reapportionment Commission, January 9, 1984. 190 HAWAII BAR JOURNAL VOL. XXII NO. 2
VI. CONCLUSIONS AND RECOMMENDATIONS
The experiences of reapportionment in Hawaii during the period between 1981 and 1984 demonstrate the need for changes to both the technical and legal processes that have been hereto- is apparent that the following aspects of the process must be altered:
A. Reapportionment Year
Although it was the intent of the 1978 Constitutional Convention to set reapportionment at a time when the decennial census data would be available to the Commission, the 1981 Commis- sion only had "total population" available and the estimation process for other population compo- nents, such as non-resident military, caused errors in the creation of districts, This data did not become available until 1983 and only then by special request of the Lieutenant Governor to the Bureau of the Census. Similarly, ethnic data was not available to the Commission on a routine basis. Even though the Census Bureau plans to alter some of the techniques of census taking in 1990, Hawaii must make specific plans to identify and acquire certain data from the 1990 census for the next reapportionment. This responsibility should be assigned to a particular state agency, most appropriately either the Department of Planning and Economic Development or the Office of the Lieutenant Governor.
B. Reapportionment Techniques
The actual technical process of reapportionment changed significantly from the 1981 ap- proach to the 1983 method. The Office of the Lieutenant Governor's use of microcomputers made a "database" approach feasible, given the constraints of time and cost. This, in turn, allowed the Commission to consider different aspects of "population base" in the decision making process and consider more variations of a districting plan.
However, the microcomputer use was applied to the population data alone and mapping was done by conventional and labor-intensive drafting, which inevitably restricts the number of alternative plans that can be created in a restricted time period. Current microcomputer technol- ogy allows "digital mapping" ", which is the creating or analysis of maps and data from a "map- ping database" of a particular area. Although the creation of this mapping database is initially labor intensive, all uses of this technology thereafter are very fast, accurate, and inexpensive when compared to conventional drafting. This technology is now available. Further, the Bureau of the Census has initiated "Operation Tiger", which is a project to digitize many aspects of the 1990 Census. Although the impact of this national project on Hawaii is difficult to predict, it is clear that he State should aggressively pursue coordination with the Census Bureau and insure so Waihee v. United States, Civil No. 84-1694, U.S. District Court, District of Hawaii.
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compatibility of all state-initiated digital mapping projects with relevant federal specifications to lower state costs and maximize the use of the federal data products. A digitally-mapped popula- tion system additionally has a wide variety of uses, both governmental and commercial.
C. Reapportionment Base
The State Constitution requires that "registered voters" be used as the apportionment base.
The current reapportionment uses "state residents" as the base and therefore violates the Consti- D. Districting Techniques
he Reapportionment Commission's decisions to use only single-member districts and t reate "multi-county" districts continues to be controversial. While both issues involve very dil ferent aspects of reapportionment, they are similar in that the federal courts have allowed the states a wide range of choices in these areas, while focusing on "minimal deviations" among districts overall. Each reapportionment commission has faced a dilemma on these issues, attribu- table primarily to the population distribution among the counties and islands. On one hand, the Commission would like to follow state policy and traditions (to say nothing of following the State Constitution), "keep the counties intact" and "provide election opportunity" through the use of multimember districts. On the other hand, adherence to county integrity causes high district devi- ations and the use of multimember districts further attracts federal judicial scrutiny. While there are no facile answers to this dilemma, again these are issues for the Legislature to thoughtfully consider and, if nothing else, create legislative and committee history over the next few years that will aid future reapportionment commissions in these choices.
The confusion and delays encountered in the recent reapportionment emphasizes that the time available before the next reapportionment must not be wasted. Early attention must be devoted by the Legislature to the lingering problems. Otherwise, the lamentable experience of the 1980's will be repeated in the 1990's.
Meredith, Alyssa
From: Christopher Toth •
Sent: Thursday, July 13, 2023 4:31 PM
To: Mullins, Zizette
Subject: My updated map
Attachments: tempFileForShare_20230713-163002jp9
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I honestly like this one more than David Donahue's. I feel it is less gerrymandered and I didn't purposefully draw districts to add or remove current council members.
Christopher Toth
Sr. Mortgage Advisor / NMLS 256045
*House America
FINANCIAL
La Canada, CA 91011
Corp NMLS 239202 1 @
Christopher Toth
House America Financial
Mortgage Advisor | NMLS 256045
La Canada Flintridge, CA 91011
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Only
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VALLEY Glenoaks Blvd 1,160
885 1,280
873
0 825
915
in St
1,450 835
260 1,035
1,345 830
Councilmember
1,105 1,080 316 Anthony
509
545
725 Councilmembek 828
1,300
'00D Mullins
RTS 876
Councilmember Perez 1,205
CT
800
0 Councilmember
Meredith, Alyssa
From: Gary Bric <
Sent: Tuesday, July 18, 2023 10:49 PM
To: City Council DL
Cc: Hess, Justin; Wilke, Judie; Joe McDougal
Subject: MAP 142
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Thank you for taking my call this evening and know you have tough decisions ahead of you regarding maybe having to redistrict the City. Good to hear your waiting on the outcome of Santa Monica before moving forward. Noticed Map 142 because prior to this coming forward myself, Gordon and Talamantes all lived in this Proposed District with 30 years' experience and if this was implemented then only one of us could have served a 4 year term. That is not right and may have had an impact for us to serve the required 5 years to be vested. Again, thank you for your Service. Gary Bric