Aloha, Racism! The Supreme Court Stops The Vote Count In A Hawaii Election That Excludes White People & Foreigners

Is it legal legerdemain for the state to authorize and fully fund a racially discriminatory election while still insisting that the election is a private matter?

The United States Supreme Court recently halted the counting and certification of ballots in a controversial Hawaii election. The case, Akina v. State of Hawaii, shows what serious — and seriously complex — race issues look like off the shores of the American mainland.

The state of Hawaii, with support from the U.S. Department of the Interior, has been moving in recent years toward a system of self-governance for Native Hawaiians, possibly resembling that of mainland Native American tribal nations. Recent legislation in Hawaii authorized the creation of a constitutional convention of sorts, a group of elected delegates who would craft a framework for Native self-rule.

Here’s the rub: Only those Hawaiian citizens with aboriginal Hawaiian ancestry are permitted to vote in the election. No Native blood, no vote.

The challengers in Akina v. Hawaii contend that the election rules are race-based restrictions that violate their rights under the Voting Rights Act and the Fourteenth and Fifteenth Amendments.

On the other hand, Hawaii insists that the election is a private matter, not a state action. Therefore, constitutional protections don’t apply here.

The state’s Office of Hawaiian Affairs describes the process:

A consortium of Native Hawaiian leaders with deep roots in the community will facilitate a nation building process to move Hawaiians a step closer to self determination. The leaders have formed Na‘i Aupuni, a Native Hawaiian organization, that has signed a grant agreement with the Office of Hawaiian Affairs to facilitate nation building. Under the terms of the agreement, Na‘i Aupuni will make its own autonomous decisions while OHA will fund the process.

[ . . . ]

In addition, Na‘i Aupuni will select an independent monitor to oversee the election and ratification.

Sponsored

The plaintiffs are armed with the U.S. Supreme Court’s 2000 decision in Rice v. Cayetano. In Rice, the Court found that Hawaii’s use of an ancestry requirement in certain state elections was unconstitutional. In his opinion for the majority, Justice Anthony Kennedy made clear that ancestry was simply acting as a proxy for race.

Rice divided the Court by a 5-4 vote. John Roberts, not yet Chief Justice, argued on behalf of Hawaii governor Ben Cayetano. Don’t bet on Roberts’s vote to stay on that side if SCOTUS eventually hears Akina on the merits, though.

On November 27, Justice Kennedy, assigned to hear emergency petitions from the Ninth Circuit, temporarily enjoined the vote count at issue in Akina, allowing time for his high-court colleagues to weigh in on the matter. Last week, the Court issued a short order keeping the injunction in place while the Ninth Circuit hears the appeal. Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented from the order.

Trouble In Paradise

Contemporary Hawaii is ethnically diverse and socially complex. Hawaii is, after all, where young Barack Obama, son of a Caucasian mother from Kansas and a Kenyan father, was raised by his white grandparents, living much of the time with his half-Caucasian American, half-Indonesian half-sister . . . Donald Trump’s doubts be damned.

Sponsored

But tensions run high between “Native Hawaiians” — those with aboriginal ancestry — and “haoles” — foreigners, particularly white people from, or with ancestors from, the American mainland.

The Southern Poverty Law Center reports, for example, that a 2008 U.S. Department of Education investigation into harassment alleged by Caucasian Hawaiian schoolchildren and their families revealed “substantial evidence that students experienced racially and sexually derogatory name-calling on a nearly daily basis on school buses, at school bus stops, in school hallways and other areas of the school.” “Haole c*nt,” “haole whore,” and “f*cking haole” were often used in conjunction with admonitions to “go home.”

According to the report, the children most likely to be victimized were younger, smaller, light-skinned and blonde. For example, Tina Mohr’s blonde-haired twin daughters were reportedly harassed and assaulted repeatedly over several years, suffering injuries ranging from cuts and bruises to a dislocated jaw.

Kill A Haole Day: The Holiday Hallmark Forgot

Perhaps most emblematic of the discriminatory attitudes that whites and non-aboriginal Hawaiians face is “Kill a Haole Day.”

According to some local lore, it refers to the final day of each school year, when Native Hawaiian students gang up on their haole classmates. Others say that it targets foreign service members instead of kids. Some folks contend that the tradition is no more than myth.

Whether Kill a Haole Day is a fanciful exaggeration or not, those who deny the more extreme versions of the tradition don’t tend to deny that there is persistent and pervasive hostility toward non-natives by segments of the Native Hawaiian community.

Aloha spirit, indeed.

We Don’t Call Them The Sandwich Islands Anymore, But Still . . . .

Of course, Hawaii’s history of race-based antagonism isn’t all nasty names and beating up blonde girls. Colonialism can be a hell of thing to sweep under the rug.

Hawaii became a U.S. state in 1959, after six decades as a U.S. territory, and a short while as an independent republic. The republic had been formed in the wake of the 1893 U.S.-led overthrow of the Kingdom of Hawaii and its leader Queen Lili’uokalani.

Fill in the gaps with fissured treaties, economic exploitation, and perhaps a smidgen or more of cultural genocide.

In 1993, President Clinton signed the Apology Resolution to Native Hawaiians, but just ask Galileo or Alan Turing how satisfying late-arriving apologies usually are.

Today, activists within the movement for greater Hawaiian self-determination disagree about exactly what the aims are.  

Some want Native Hawaiians to be recognized as a state-within-a-state like mainland tribal nations, which would grant them greater self-determination and legal protection, though not complete independence.  

Casino gaming, cheap cigarettes, and Sherman Alexie are great and all, but I’m not sure I’d want to cast my lot with the Bureau of Indian Affairs. Many Native Hawaiians agree.

University of Hawaii law professor Williamson Chang argues that Hawaii never properly ceded its national sovereignty to the U.S. in the first place.  You can see an interview with Prof. Chang here, where he offers the legal basis. For Chang and others who share this view, there’s no reason for an unlawfully occupied sovereign nation of Hawaii to accept tribal status within the United States.

Not every sovereignty advocate even believes the state of Hawaii’s argument in Akina that Na’i Apuni is a private matter, not a state action.In fact, if it were private, that could be worrisome for Native Hawaiians participating in the process. What legal recourse would be available if a purely private election process becomes tainted by fraud or corruption?

There are multiple pretenders to the throne of the Hawaiian Kingdom, including some weird ones. Others want a constitutional republic.

Lots of people want reparations.

Just as on the mainland, racial politics in Hawaii come with history. Given enough history, no group comes to the table with entirely clean hands. Even in paradise.

Of course, the righteousness of Hawaiian sovereignty is not what’s before the courts in Akina. The question is whether it’s legal legerdemain for the state to authorize and fully fund the racially discriminatory Na’i Apuni election, while still insisting that the election is a private matter. If it is, then advocates of self-rule will be forced to find another way.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.