Appendix — Ford v. County of Hawaii (No. 05-1325)

A 72

recognize that it is very difficult for the Commissioners and

the reason we got into it is because some of us in south....

I'm sorry, West Hawaii were very concerned about these

particular maps. We didn’t feel that they reflected the

community of common interest. At least certainly not in

West Hawaii and that was our biggest concern, because the

computer doesn’t know those kinds of things. And I'm not *

suggesting that I know it, or Chucky knows, knows more

than anybody else in this room. But we took a shot at it from

the little different perspective as I said. We believe that the

district boundaries of these maps needed to be amended

because the community interests are not being aligned. We

did follow the County Charter for the four mandates that

was already explained to you but we also added some

working assumptions on our project.

The first one was that we had to keep communities of

common interests together and that means a community of

common interest to us meant that the people lived in the

same geographical area, they have a similar economic base.

And I don’t mean money, amounts of money, I’m talking

whether they are agricultural, rural, whether they’re urban

or light industrial, or they’re resort areas, or whether they

are transportation center like an airport.

Um...that they also shouldn't say they share the same town

center for their daily stuff. For instance, where their schools

are, where the churches are, where the shopping is, um...

where their cultural events take place. If that’s are the daily

stuff that we all go through on a daily basis, you know,

where that takes place is...as a common area.

And then we also looked at where the people go when they

need to get to a larger area to do, say major shopping. And

there’s on our Island, of course there are three major areas,

Kailua, Hilo and Waimea. And which of those areas were

these people more aligned with. So we, that’s the attempt

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that we made, ah, those were some of the working

assumptions, we also did the very best we could to keep

subdivisions together and intact. We only one or two

subdivisions that we actually had to split and that’s because

the census tracts were so huge, they had, some of them had

ten thousand people, or 7 thousand people, we had to split

some of the over to Puna section. Sorry, Julie.

Um...the other thing that we did is, we used a different

target number than this Commission did. They used 16

thousand 5 hundred twenty, and that’s because they used

the U.S. Census Data and they did not have the exclusions at

all. And we had some of the exclusions. And | apologize in

advance because I’m sure our map is going upset every

council member, every boundary changes. We...one of the

things that was raised at another meeting was how difficult

it is to print ballots when you don’t have overlapping House

and Senate and County districts. And we took a look at that

and we finally threw up our hands and said, there’s no way.

We're going to have to print multiple ballots if we're going

to align ourselves based on the Charter and based on our

community of common interests. There’s no way that we're

gonna make the boundaries of the maps. I am...] have been

a precinct worker for the last two years and I can tell you for

the...for the issues of who shows up in what precincts to

vote, if you're in the wrong precinct, the precinct leader will

call your correct precinct, have your name removed from

that precinct so you can’t vote twice, and you'll vote right

where you are. We don’t make people run around, so the

issue of people going to the wrong precinct is really a non-

issue. Its hard on the precinct workers, but we get it done.

At least we get it done in West Hawaii.

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The other thing is, there will be multiple ballots because

people are going to have to vote for one Senate and there's

gonna be, possibly in another...in another County district.

So let me tell you how we got started on this. I called the

County Elections Office and asked them for the information,

the Census data and I was refused because this is a licensed

piece of software that we're using, and they can’t let anyone

else use it, they couldn’t download any data to me even

though it was public data. They could not, even if they

wanted to, and so I called the State, I got hold of the State

Reapportionment staff, and I Gwabled [sic - groveled] ..and

I begged, and | got them to download the U.S. Census Data

to me for this Island, and then I got them to download two

of the three exclusion groups. There’s the non-resident

military dependents which we all heard about, we all know

of that disaster. That's still is not available because the State

Commission has not made the decision to exclude it and so

they haven't required their staff to do that job. So we don’t

have that information. However, we did get the active

military, and our Island has only 62 active military

personnel. Only 62. And so the number of dependents that

they're gonna have with this is gonna be a very low number.

It probably won't ev cremake-a decimal point change in any

district. But it should be there but it isn’t. The other thing

that | hadn’t heard about was non-resident students at the

universities. That was part of the exclusion base that was

not included in some of these maps. So the total

number...the total number that we started with was slightly

lower than what the...this Commission worked with. And

we had this information down to the Census block. We’ve

got a huge data base that we’ve created now with a lot of

this information and then we borrowed the maps from Mark

through Curtis, and we put them together on the floor of my

living room and we've been crawling for 5 days on our

hands and knees across

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these maps. And we looked at the way the things. ..the

blocks and the tracts are designed, the blocks are the very

tiniest units, usually that’s a little tiny neighborhood, maybe

bordered by two or three or four streets. And then those

blocks are put together into a tract. Um...and we decided

when we look at the census tracts that there were lines that

were just defied any reason. They were... the doggedly,

they ran helter-skelter all over the place and they...it

looked...it..it not only looked bad, there was no reason for

it. And so when we did our cut, we actually got down the

maps and found the census blocks that were in unusual

places and we straightened out the lines. Okay? So those

were the...that’s how we did this job, we did it manually

and plugged the information into my database.

So I’m gonna ask for some help, I'm going to ask my

husband, Sandra, if you want to help, um...I’ve got a map

here and I’m gonna apologize in advance. We started this

map late this afternoon, we got half of the map drawn, and

I’ve got a little tiny map with the Island on it. So we want to

show you what we've got, and the Commission needs to see

this. Is it possible. ..Chuck, come on up, you can explain.

Chucky’s here, he can explain map to you. I didn’t see him

come in. Come in here, we have to give them our spill.

C. FLAHERTY: (INAUDIBLE-SPEAKING FAR FROM

MIKE FROM AUDIENCE)

Boy, what an influence, yeah?

Okay, um...as Brenda said we um...the first thing that we

started off with was the fac: that District 6 or the southern

district of this Island is going to be huge no matter what you

do. Its gonna be cumbersome for whatever council person

has to deal with it. Um...from what we had heard,

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the map that was being preferred had Kealakekua Bay

aligned with Volcano and down towards Mt. View in the

same district which I and Brenda just didn’t think was

plausible. So, we looked more on the lines, aligning Ka;u

and South Kona, both of which are rural, both of which are

agricultural, and both of which are still relatively pristine

open areas, as well as, have large populations of native

Hawaiian peoples and who are seeking, you know, all of

their practices. Um...the other thing we wanted to do was,

we want to do what...as we're looking at these numbers, we

realize that a Kailua-Kona district would be created.

Ah...and so that’s what we did. We created an urban light

industrial, Kailua-Kona urban area which gives on the

general plan, zones to be an urban area. And so we tried to

include all the areas um... within Kailua that’s scheduled

for urban development within a district. Doing that allowed

us to remove the Volcano Village an areas east from District

6, and moved District 6 up towards Kailua-Kona so that it

includes a good deal of the Kona Coffee Belt. Ah.. we did

try...we did look and tried to include the entire Kona Coffee

Belt, um...in a district because of its importance to Hawaiian

agriculture, but its just because of the distribution of the

population, the way that the Island is, and having 9 council

members, there’s just no way to do it...or at least not at this

_ time around.

So we got as much of the Kona Coffee Belt included in

District 6 as we could, again, in keeping what the rural,

agricultural nature of that. So we have an urban district for

Kailua, then the district, and that would be District 7. The

District 8 would then become what we call a residential

resort community district that contains Kona International

Airport, (inaudible), as well as, Kawaihae Harbor, so some

major transportation hubs for West Hawaii. And this entire

coastline is slated for luxury golf course resort type

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developments, as well as, the ancillary supporting

communities that will be necessary for the workers, such as

Waikoloa Village, which in itself had...we’re really

surprised that one of the census blocks that contain

Wailokoa Village has 7,000 people in it. So it’s a substantial

number of people within that particular areas as well.

CHAIR: Mr. Flaherty, please hold up for a second.

C. FLAHERTY: Sure.

CHAIR: Since it is the Commission that you need...oh, I'm

sorry, that and I'd like to be fair to everyone who signed up

to speak. So the Commission members are pretty familiar

with some of the things that you say. So if you just explain

the map, as to where the boundaries are...

C. FLAHERTY: Okay.

CHAIR: ...and leave the advocacy maybe for our meeting

on October 18...I/m...

C. FLAHERTY: Sure

CHAIR: ....sure you'll appreciate it.

C. FLAHERTY: Well, anyway the challenge was to again

bring communities together, so basically what we have is

the North Hawaii district which is the communities of

Hawi, Kapaau, those two, Waimea, as well as, Honokaa.

Um... which is, of course, will serve the Kohala geographic

area. We have North Hilo district which extends down the

East coast to Kawaihae from Honokaa into actually, down

into Hilo. Again, through Hilo urban...is essential Hilo

which is sort of like central Hilo, and then we have basically

a suburban Hilo area, which is also an urban area. And then

we created two districts for Puna and we tried to draw as

many Hawaiian Homelands as we could get it into the north

Puna district and also south Puna district as you can see has

already been drawn out on this wall. And the

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only subdivision that we had to separate was the very small

portion of Hawaiian Paradise Park. All of the other

subdivision we were able to keep intact.

So basically that is the proposal that we came up with. We

only had a week to do it, obviously we would have liked to

had more time to be able to tweak a little bit more, creating a

little bit more of a buffer zone around Waimea, for instance,

because it is this the way the district is drawn right now.

This comes rather close to that...to that area. But the concept

that we came up with, the reason that we came up with this,

we wanted to keep the urban areas represented by urban

council people and rural agricultural areas represented by

rural council people. And that represents, I mean, that is

more degradable of the demographics of this Island, as well

as, the geography um...of this Island as well. So obviously,

there’s no perfect solution but that is one that we came up

with. Thank you.

CHAIR: Thank you. Um...if the both of you could sit up

here, I have a couple of questions. Um...assuming that the

Commission wants to work further with the map, we would

appreciate if you would give us the information regarding

the census blocks so that we can ask the staff to do more

work with the census blocks that you worked on.

Um...other than that I don’t have any questions.

Does any other member of the Commission?

M. VAN PERNIS: You just said that there are 3 economic

centers on the Island, Hilo, Kona and Waimea. We’ ve heard

quite a bit of testimonies that Puna considers itself to be an

economic center, too. You didn’t consider that to be another

economic center?

B. FORD: (INAUDIBLE - SPEAKING FAR FROM MIKE)

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M. VAN PERNIS: Do you think its appropriate to divide

North Kohala from South Kohala and divide Hamakua in

two districts when we've heard quite a bit of testimony and

evidence of North Kohala basically is entirely West Hawaii

oriented and its economic place both in terms of jobs,

shopping or ...so what you do is basically divide Hamakua,

and divide Kohala for the sake of creating two more Kona

oriented districts. Do you think that’s appropriate to

divided North and South Kohala into two different districts.

B. FORD: Yes, I personally do, the fact remains that we have

to have the right numbers, we all know this. If the fact also

remains that even North Kohala and South Kohala may be

West Hawaii oriented or Waimea oriented, it’s the fact that

we drawn these lines in a particular manner isn’t going to

stop that, we're still going to be involved with this. We

thought it was most important and we have the numbers to

justify it that south...the South Point area, all of that area,

Kailua urban area, the North Kona, South Kohala section

and the North Kohala have representatives inside those

districts representing the West Hawaii perspective. And

most of these other maps basically give us, we

representatives on this side of the Island, because they drag

Ka’u and South Kona all the way over to Puna...

CHAIR: Oh....

B. FORD: ...and we thing that’s totally inappropriate.

M. VAN PERNIS: So basically you devised this to basically

create corner districts where representatives and move the

lines forward and move the rest of the area....

B. FORD: No, we did not let the lines go where they may.

We did the very best job we could to make this reasonable

; A 80

cut. We believe that Puna is with the numbers and entitle

them to two districts, our numbers entitled us to four. Its

not....its not a matter of trying to do somebody out of

something, we have the numbers to justify this.

M. VAN PERNIS: And your District 6, where is this

northern boundary?

B. FORD: Its um...Chucky what's the northern boundary on

6?

C. FLAHERTY: It runs. ..it runs just from the south of

Keauhou Bay, basitally up mauka.

M. VAN PERNIS: So Keauhou Bay does it run Kahaluu for

instance?

C. FLAHERTY: I’m sorry? |

M. VAN PERNIS: Does it run as far as Kahaluu? |

C. FLAHERTY: Ah...no.

M. VAN PERNIS: Is it on the north side of Keauhou Bay?

C. FLAHERTY: No, its on the south side of Keauhou Bay

and it runs through an area which at this point is relatively

undeveloped. It runs through these ...through the south of

Keauhou Bay Estates, south of the golf course, it runs north

of the Hokolei’a Development that’s basically a very open

ranch land type of area at this point. So it is sort of a natural /

demographic break, so... |

M. VAN PERNIS: So, its between Kainaliu and Keauhou |

Estates? /

}

/

basically through the Honalo area.

C. FLAHERTY: Its between ...its between Kainaliu, it se

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M. VAN PERNIS: And would you feel that students ....oh,

that’s all right (referring to B. Ford)...students who reside

here are not entitled to representation?

C. FLAHERTY: Ah...Brenda would like to address that.

B. FORD: (INAUDIBLE-SPEAKING AWAY FROM MIKE)

M. VAN PERNIS: Okay.

C. FLAHERTY: There’s two things I'd like to say. One thing

is, all the other plans divide Kailua Village in half.

CHAIR: Ms. Ford, would you simply answer the question?

B. FORD: The students...no, | do not believe that non-

resident students who have homes on some other Island or

some other continent should be voting in our State and

should not be included in our census data base.

M. VAN PERNIS: Even if they're registered to vote?

B. FORD: If they’re registered to vote and their non-resident

students, they are not telling the truth.

M. VAN PERNIS: Or do you feel that ah...if they’re living

here the majority of the time are they entitled to

representation?

B. FORD: My opinion is, if they are a legal resident

someplace else, then they vote someplace else. If they are

legally a resident here, then they shouldn’t...then they

won't be paying non-resident fees to the university, because

then they are legally a resident. My son spent a year as a

Honolulu resident...

M. VAN PERNIS: Are you that if a person votes here they

are entitled to representation. If they don’t vote here, they

are not entitled to representation.

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B. FORD: Yes.

M. VAN PERNIS: So all of the kids here are too young to

vote and are not entitled....

B. FORD: No.

There...if you are a child of a legal resident here, then you

have...you should have complete representation. That’s

what the census is all about.

M. VAN PERNIS: But if you are a legal resident but are not

registered to vote?

B. FORD: How can you be a legal resident and not be

registered to vote?

We have friends that are registered in other states. We have

snowbirds that come in and...

M. VAN PERNIS: There’s lots of people ...

B. FORD: Okay. Yes, you're...

M. VAN PERNIS: If you’re not registered to vote or...

B. FORD: Then they can’t vote (emphasized). Then

why...why would they be counted?

They’re probably counted in the census population, I don’t

think that the students who are non-residents should be part

of our census space, and they are excluded by the State.

CHAIR: Mr. Pavao?

S. PAVAO: Why...I don’t know what the right word would

be but why is District 4 - 5 and why is District 4 -5?

B. FORD: That's the way the districts are today. And the

numbers are really immaterial, but right now, South Puna

15:,

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S. PAVAO: If you look through the numbers the logical

sequence would go 1 - 2-3 -4-5...and

B. FORD: I numbered them the way it exists today. They can

be renumbered or relettered if that’s...

S. PAVAO: But that’s the way it exists today, and the

number...

B. FORD: Julie, what district are you in?

S. PAVAO: 6.

B. FORD: 6?

S. PAVAO: That District 4 is 5.

B. FORD: Okay. That’s....l can get in a race [sic - eraser] 8

and take care of that.

S. PAVAO: The other two questions I have is, maybe I'm

wrong...you don’t tell me what tax block the school is. As I

count it, | count 10 districts, maybe you have opened up

another ....

B. FORD: No, no, no.

(END OF TAPE 1)

Even worst than that some of the census blocks have

three or four thousand people in them. And so it makes it

real awkward trying to separate them. I...] don’t know if

you can do anything about it, but whatever, its Hawaiian

Paradise Park.

J. FERGUSON: All right, the next question is how many

people were cut and put into another area?

B. FORD: It went...we went district by district. and we took

the census....we tried to...

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J. FERGUSON: Just on the map you substituted, how many

people...?

B. FORD: I have to look at the database. I’m not even going

to guess, ;

J. FERGUSON: And ah...how many students?

B. FORD: Seven hundred thirty eight non-residents

students.

J. FERGUSON: Seven hundred thirty eight?

B. FORD: That's from the State and 62 active military. No

numbers yet on the others.

CHAIR: Thank you very much. Any other member have a

question for Ms. Ford?

Mark?

M. VAN PERNIS: I see you split 7...you split mauka from

makai in your District 7, all right? Is that split along

Mamalahoa Highway?

B. FORD: Part of it. Um...Chucky, I can’t...this map doesn’t

have the streets on.

M. VAN PERNIS: So basically, you decided to put the makai

side of Mamalahoa Highway...

C. FLAHERTY: No.

M. VAN PERNIS: ...In District 7 and the makai side in

District 8?

C. FLAHERTY: UM...Mamalahoa Highway...Okay...

M. VAN PERNIS: I'm sorry, I can’t see it.

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C. FLAHERTY: Where Mamalahoa Highway splits from

Kuakini in Honalo. Okay, we basically included District

8...excuse me, District 6 basically goes all the way to...

M. VAN PERNIS: I’m talking about District 7 only.

C. FLAHERTY: Oh, District 7 only?

M. VAN PERNIS: Your District 7.

C. FLAHERTY: Its basically from Kuakini mauka until you

get into the area of the Department of Water Supply Road,

then it goes up at that point, I believe, and follow...where is

it? So, it basically follows Kuakini, then it goes back up

um...I'm trying to see...

M. VAN PERNIS: That longest stretch from south to north,

is it along Mamalahoa? It appears to be.

C. FLAHERTY: At the very bottom?

M. VAN PERNIS: No, at the top, that longest stretch.

C. FLAHERTY: Yes, that’s Mamalahoa Highway, it comes

down, you see it comes down with an indention, that is the

area below Holualaa which is the coffee growing region

then it comes back up to where there’s a lot of urban

development..

M. VAN PERNIS: Well, Holualoa is not...well, you can call

it coffee but its more urban than anything else, it’s a bigger

community than Kailua-Kona, I live there. But the point I'm

making is that you felt that it was appropriate to divide 7

from 8, at least for a significant portion by Mamalahoa

Highway?

C. FLAHERTY: Um...we did the best we could, certainly

someone elses work ...

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M. VAN PERNIS: | appreciate your effort. I’m just trying to

get information, but I'm wondering whether you split that

because of geography because you felt there was some

cultural or economic difference between the mauka and

makai side. :

C. FLAHERTY: We were looking....we were trying to look

at economic differences, people who...and lifestyle

differences, people who were more, for instance, in town

versus people who prefer a more rural environment,

um...suburban, to me is more people who are utilizing an

urban whereas rural is someone who doesn’t necessarily

have a need to go into town.

_M. VAN PERNIS: Is this on Mamalahoa north or south

Palani Road?

S. PAVAO: North.

C. FLAH TERY: As far as?

M. VAN PERNIS: This division. Is it on Mamalahoa, north

of Palani Road?

C. FLAHERTY: No.

M. VAN PERNIS: Thank you.

C,. FLAHERTY: No. We weren't able to...we weren't able to

because of the numbers unfortunately.

CHAIR: Thank you very much. Thank you both very much.

Page 20

CHAIR: Sandra Scarr?

S. SCARR: Good evening, thank you for coming over to

Kona, and thank you for listening to us, and I guess as you

can see that many people in Kona are very concerned about

how our districts are construed. I'd rather you listen

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(inaudible-speaking away from mike). | am speaking to all

of you. Let me speak first to vou.

Um...thank you for coming and I appreciate your listening

to us, and I think we thought a lot about the guidelines

under which you're working, which is to draw contiguous

districts that are not too favor any...or disfavor any existing

arrangement, or person. All right?

And | think it was very hard for us to say, okay, Iet’s think

ten years ahead. Let's think what our County is going to

look like in ten years. Where is it going to grow, where do

we need to predict what kinds of economic and

demographic interests people will have in common. And I

think that what Brenda and Larry...Brenda and Chucky had

presented and Larry, as well, has such compelling

underlying interests. Let me, | want to say them again.

If you take the area from Ka‘u through South Kona and then

the mauka lands of North Kona where people are farming,

you have a solid agricultural district and you would have a

representative clected from that area representing,

agricultural interests. | also live in Holualoa and I’m a coffee

farmer so I...1 feel that strongly...that, that’s a very

important group not to be deluded by the growing urban

numbers. Now, speaking for the urban Kailua-Kona district

there is no reason that 20 thousand people who could be

construed as being as being in urban Kailua-Kona that’s

certainly a-council district. Why should we be divided? Why

should Kailua-Kona have to have halt its representation in

one district and half in another? Its seems sensible at this

point in time, and maybe it wasn’t sensible ten years ago but

its sensible now and henceforth to say, “Kona deserves a

council district all in itself, Kailua-Kona”. And then we have

the suburban people on the north side of North Kona who

orient some to Kailua-Kona but some to Waikoloa. There are

people...some of them

A 88

who work out in the resorts. Then you have Waikoloa

Village, surely, a lot of those people are working in the

resorts and up north. And then you have many developing

residential areas in North Kohala, north of Kawaihae. |

drove up that area just less than two week ago, and its

astounding how much luxury resorts, luxury subdivisions

are going in up there. So, there’s a lot of coherence between

the resort areas of south Kohala and the resort areas of north

Kohala. But when you get past, you know, before you get to

Hawi, now you still got traditional sugar lands, cane

workers, ex-cane workers, resident...rural agricultural and

ranching people. And that extends all the way back down to

Waimea but on the north side. So I'm saying there’s a lot of

coherence to what Brenda Ford and Chuck Flaherty had

presented to you in those districts. I think we feel less

confident, 1 will speak for myself about speaking to the

people of Hamakua or speaking to the people of Puna, And

I think you’ ve heard from them as to what they want. But I

think talking about West Hawaii, we do have some

knowledge and we do really think that this presents at least

the beginnings of a very good plan, and we'd like you to

take it seriously.

Thank you.

CHAIR: Thank you. Do any of the members OF THE

Commission have questions of Ms. Scarr?

Page 17

David Holzman?

D. HOLZMAN: My name is David Holzman. I live in Kailua

and I'll read along with you here so the audience can hear it.

First for all, aloha and thank you for giving us this

opportunity. | know your guiding principle has to be one

person-one vote and you're not bound to please anyone, its

just not possible and I commend you for taking

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on a difficult responsibility. In the hope of not making your

job more difficult, | wish to make a suggestion on how you

can enhance and make more perfect the principle of one

person-one vote. Sections 37- 317 of the County Charter,

Item 4, states the Reapportionment Commission shall

determine equal population districts as required by a

applicable State Constitutional provisions. Now our Charter

does not spell out what those applicable State Constitutional

provisions are. So T went and lookedthem up. The Hawaii

State Constitution, Article 4, Section 6, ask you to be guided

when practical, | guess you know these, by the criteria of not

favoring political parties, districts should be contiguous,

compact and easily recognizable geographic features, and

don’t mix different socialeconomic areas. That’s what | think

has been overlooked so far. Don’t mix different

socialeconomic areas. However, on the criteria of different

social-economic areas, the Constitution ask the Caveat that

submerging one area in another district with a substantially

different socialeconomic interest shall not be...shall be

avoided. Now that’s the only one of those provisions that

Constitution then says, shall be avoided. ‘This Caveat is very

applicable to our County and I will present reasons why it

should adhered to.

First | want to call your attention to the Constitutional

Convention of 1968, Section 5, which reads as follows:

Whenever possible, the division of areas with substantial

community interest (socialeconomics) is to be avoided. That

homogenous group should participate in the political

process as a unit, rather than be split up arbitrarily into

small fractions of two or more groups. The homogenous

groups, your committee needs to decide, the numbers of

which are alike in the social-economics status to the extent

possible, your committee believes that areas with substantial

community interests shall not be divided.

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Now this criterion of not dividing social-economic groups

has been challenged and upheld in State and Federal courts.

First, your Supreme Court with Burns v. Richardson 1963

and again Burns vs. Gill 1972, those are Hawaiian challenges

to the Constitution. The Federal courts found that artificially

chopping up canoe districts results in a complete loss of

meaningful representation. Now I believe the Constitution

is exclusive on this point, and the Federal courts agree that

because it gets to the heart of equal representation under the

Law and compliments and makes more perfect the

importance of the one person-one vote. Think of it. If you

put equal numbers of people in each district, you have not

necessarily given equal rights to each person’s vote. Because

of one social-economic group is in the minority, and of a

lower status and has different needs than the majority

higher status group, you've weakened the political power of

the minority group .‘

Now, there are several different methods that identifies

social-economic status. But more social side is generally

agreed that it is comprised of the factors that gives people

and their children similar-like chances to achieve a higher

quality of life. Those factors are primarily family income,

educational level and political power. When you look at the

Hawaii County Data Book of family income, educational

level and unemployment rates, which is related to income,

you will find 3, a defined clusters of social-economic groups.

One is Hilo, urban area has been stated, the other is Kailua-

Kona urban area and the third is Puna. If you look at the

other districts, we are fairly close to the County average of

social-economic status.

As Brenda and Charlie pointed out, it tends to be more

rural. And some were income and some were educational

levels. The census data shows, many of you know

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intuitably, that Puna has a lower family income, a low

educational level than Hilo or Kailua-Kona. The family

income differences can be as much as 2 to 1, between Hilo

and Puna and Kailua and Puna. Educational levels are twice

as high in Hilo, than Kailua-Kona as in Puna.

Unemployment last year 2000 was 50% higher in Puna than

Hilo and over 1 hundred per cent higher than in Kailua-

Kona. So given that low family income and educational

level to citizens of Puna and their children have very little

chance of bettering their lives compared to the 9 political

representation. Political representation is difficult at best,

but almost impossible if elected officials have to represent 2

widely different socialeconomic populations. It becomes a

tough juggling act to submit capital improvements needs,

offer legislative remedies and keeps folks on the needs of

your constituents.

Now because social-economic status is highly correlated

with the types and frequencies of criminal offenses and the

need of social services, consideration should be given to

following the judicial district boundaries in the County as

much as possible. As you know, the police, fire, public

works, parks and recreation, and the courts are all

organized by judicial districts. Therefore, to use judicial

districts as the guiding principle and take care not to split

the three socio-economic defined groups of Hilo, Kailua-

Kona and Puna, you'll go a long way to the needs of the

people with their political representatives and the social

services, and the safety of fire and police protection that

they need. This is very doable because north and south Hilo

judicial districts of the population, 49, 106, the three council

districts, the Puna judicial district has enough population,

31, 335 for two council districts, and the north and south

Kona judicial districts have more than enough, 37,132 for

two council districts. Since north and south Kona have

excess population, it becomes necessary to look for

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equita...equitable ways to figure the south, north and

remainder of the west areas. I leave that up to you and to

your Office of Elections staff. That I don’t want to get into, I

see what happens when you get into that. I urge the

Commission to ask the County Office of Elections to prepare

a new map, a map that gives the highest priority of the

several constitutional criteria to social-economic status, and

above all avoid splitting upper Puna into 2 districts, one of

which is Hilo. Where the maps start as key, therefore, I

order you...in order, excuse me...I order you...I take that

back. Excuse me. In order to keep faith with our State

Constitution I recommend the maps to start at the judicial

district between Hilo and Puna.

One last statement. When the Hawaiians started their

society along naha ahupuaas, they wisely guaranteed that

each group had access to all that is necessary to their quality

of life. Everyone in the Island could access to the forest for

wood, the midlands for agriculture and the ocean for fish.

The alii did this to minimize the conflicts between the

groups. Look ahead ten years from now, and you should be

as wise because we all live on an Island and one segment is

to deny access to the means of improving the quality of their

lives we will never truly enjoy our harmonious Island.

CHAIR: Thank you very much. Any member of the

Commission have a question for Mr. Holzman?

M. VAN PERNIS: Mr. Holzman, | didn’t get it but where do

you live?

D. HOLZMAN: | live in Kailua.

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M. VAN PERNIS: And ah...do I understand you right, you

are advocating the poor folks be in one district and the rich

folks in another district and so on and so forth?

D. HOLZMAN: Ah...that’s where the poor folks live and

that’s where the rich folks live.

LADY FROM THE AUDIENCE: (INAUDIBLE-FAR FROM

MIKE)

M. VAN PERNIS: So you're basically advocating that the

division by economic divisions is more important than

getting the numbers right?

D. HOLZMAN: No, I didn’t say that.

M. VAN PERNIS: But you want the numbers divided so that

the poor won't be all in one district and the average and rich

are all in another districts?

D. HOLZMAN: No, I didn’t say that either.

M. VAN PERNIS: Well, that’s the way I hear you're saying.

D. HOLZMAN: Well, you better listen to what I'm saying, I

said there are two urban areas with higher educational

levels and higher income and that’s Hilo and Kona...Kailua-

Kona basically.

M. VAN PERNIS: So you're basically advocating two... all

poor folks be in two districts, right?

D. HOLZMAN: You're making it sound like I’m kicking the

poor people into Puna, I didn’t didn’t put people in Puna,

but I’m looking at the County Data Book....

M. VAN PERNIS: But you’re advocating that the... that they

not be mixed with the socio-economic...

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D. HOLZMAN: That they can’t get out, that I’m putting a_

bridge and I’m tearing down barriers? _

M. VAN PERNIS: For instance, would you be

satsfied....would you be satisfied if there was a district that

had 3 quarter of the poor people in it and 1 quarter of the’

middle class and upper class in it so the poor people can still

control the district?

D. HOLZMAN: That's highly hypothetical, I'm not going to

respond to it.

M. VAN PERNIS: If its hypothetical, you see it on 3 maps

here.

D. HOLZMAN: Where is that? Show me the socio-economic

status of those maps. You can’t do it! (emphasized)

M. VAN PERNIS: I can’t do it, sir. But the point I’m making

is that you seem to be advocating Ms. Jacobson’s plan, is

that correct?

D. HOLZMAN: No.

M. VAN PERNIS: Okay, the two perfect districts for Puna

and the rest you say, leave it to us to work out?

D. HOLZMAN: I say, follow the Constitution, not split

socio-economic groups. As a sociologist, | have a PHD in

sociology, and I can tell you there are only 3 identifiable,

clearly identifiable, statistically significant socio -economic

groups, one is in Hilo, one is in Kailua, and one is in Puna,

upper and lower Puna.

M. VAN PERNIS: And....

D. HOLZMAN: That is statistically significant socio-

economic groups.

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M. VAN PERNIS: How about the Kohalas? Where do they

fall?

D. HOLZMAN: Close to the average.

M. VAN PERNIS: They do...and you're sure?

D. HOLZMAN: Of course, you’re gonna find pockets here

and there, yeah.

M. VAN PERNIS: Well, there’s some very rich folks in

Kohala and some very poor folks in Kohala, so together they

are average.

D. HOLZMAN: Some of those poor folks aren’t even

residents there.

M. VAN PERNIS: Now, um...you said you'd leave it to us,

you've advocated two districts in Puna and two districts in

Hilo and you'd leave the rest to us...

D. HOLZMAN: 3....3....3.

M. VAN PERNIS: 3 in Hilo and and you’d leave the rest to

us and...

D. HOLZMAN: And 2 in Kailua.

M. VAN PERNIS: 2 in Kailua and you leave...and how

much of the ah...south part of the Island would you put in

the Kailua district?

D. HOLZMAN: I have no idea on that.

M. VAN PERNIS: And how much of the ah... Hamakua

ah...districts would you put in the Kohala.

D. HOLZMAN: You have my presentation, I didn’t make a

single statement about where you put those.

M. VAN PERNIS: So you don’t have any idea how the splits

goes?

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D. HOLZMAN: I gave you a guiding principle,

Constitutional principle...

M. VAN PERNIS: All right.

D. HOLZMAN: And I gave you the 3 sociio-economic

groups, I gave you the judicial districts, | make no other

claim, I have no other knowledge that I wish to present to

you tonight.

M. VAN PERNIS: And if we need to make some other

division of the Kona, Puna and Hilo districts in order to

accommodate these other geographic areas in order to meet

the one man-one vote principle, you are for or against that?

D. HOLZMAN: For what?

M. VAN PERNIS: In order to meet ine one man-one vote

principle we would have .

D. HOLZMAN: That was the first part of the question?

M. VAN PERNIS: If we had to divided up Puna, divided up

Kailua-Kona, divide up West Hawaii, divide up Hilo and

add to parts of Hamakua or the south part of the Island, in

order to meet the mandate of one man-one vote, would you

say that the socio-economic requirements are more

important?

D. HOLZMAN: Is there one answer to that question?

M. VAN PERNIS: I'm asking you, sir.

D. HOLZMAN: Listen to what I’m trying to say. We have

one voteone person, one person-one vote. But if you put

those people in predominantly social...

predominantly....don’t take exception, predominantly,

different, socially-economic groups, the Constitution, the

Supreme Court, and the Federal Court will tell you, you

have violated the Reapportionment rules.

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M. VAN PERNIS: You have defined as I understand it, 3

districts?

D. HOLZMAN: Correct.

M. VAN PERNIS: Is that correct?

D. HOLZMAN.: I...no, no. | have defined 3 socio-economic

groups.

M. VAN PERNIS: All right.

- D. HOLZMAN: Well, I used to call it

M. VAN PERNIS: You're advocating based on your logic, 2

districts in Puna, correct?

D.HOLZMAN: They have the numbers.

M. VAN PERNIS: And you're advocating 2 districts in West

Hawaii?

D. HOLZMAN: No, I didn’t say anything about West

Hawaii.

M. VAN PERNIS: Well, 2 districts in Kona..

D. HOLZMAN: Ah....Kona, yes.

M. VAN PERNIS: All right. Is there any difference between

that and West Hawaii, I'll accept that. And how many

districts in Hilo?

D. HOLZMAN: I said that already, 3.

M. VAN PERNIS: All right, that’s 7 districts, right?

D. HOLZMAN: Oh, God. Oh, man. What did you do?

M. VAN PERNIS: Isn’t that 7 districts?

D. HOLZMAN: What....what? No, listen. I'm not going to

answer those silly questions like that.

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M. VAN PERNIS: Well...

D. HOLZMAN: Its so hypothetical, 1 mean....

M. VAN PERNIS: Well...

D. HOLZMAN: I gave you my presentation, I told you what

I had to offer, and you got me playing a numbers game....

M. VAN PERNIS: Well...

D. HOLZMAN: And now you tricked me in a numbers

game.

Ooh...good for you.

M. VAN PERNIS: You’ ve advocated 7 districts....

D. HOLZMAN: I have not advocated 7 districts!

(emphasized)

M. VAN PERNIS: ...and I want to know...

D. HOLZMAN: I have not advocated 7 districts and in

answer to your silly questions, I still say, I don’t know!

M. VAN PERNIS: All right, that’s what I wanted to hear.

D. HOLZMAN: Thank you.

CHAIR: Do any other member of the Commission have a

question for Mr. Holzman?

Mr. Holzman, thank you very much.

This concludes our public hearing.

HEARING ENDED AT 9:40 P.M.

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TRANSCRIPT OF REAPPORTIONMENT COMMISSION

MEETING

Of

October 18, 2001 at 9:00 a.m.

Hawaii County Councilroom

25 Aupuni Street

Hilo, Hawaii 96720

Session 4

(Partial Transcription)

Page 5:

CHAIR: Let me move on then, simply call the people in

order of the notices that I have here.

I would like to get and I would like to impose some

reasonable limits on..in terms of their statements to the

Commission and I would ask that each of you providing

statements attempt to keep your comments to no more than

5 minutes. I believe looking at what we have here, that the

members of the Commission have heard from each of you at

least once. So having said that, the first note I have here is

from Charles Flaherty and Brenda Ford.

Mr. Flaherty, Ms. Ford?

B. FORD: I'm Brenda Ford of Captain Cook, and I'd like to

start off by um..clearing up some possible misconception.

Last time I spoke before this Commission about ten days

ago, | made a comment about the Elections Office and my

inability to get the information I needed from the Election

Office. And Iam afraid that it might have been perceived as

the Elections Office not being supportive. And that is not the

intent that | had specifically talking about the database

A 100

that | work with. The Elections Office personnel workers

were gracious, they were informative and they were helpful

at all times. | could not have started this without that

assistance. And more importantly, they gave me the phone

number of the State person. So | want to make sure that the

Elections Office did a wonderful job for me.

We've handed out a revised map, you know, the last time

we came here we did not have it colored out where we

wanted it colored out, and had to make some few

refinements. Chucky will talk about those, and we've given

you comments, and Chucky will be making a little chart that

explains things like the number of people in each district,

the deviations and target populations, and the urban

districts. And I'll let Chucky take over from here.

C. FLAHERTY: Good morning.

As this is provided as written testimony, | won't read this

entire submission to you to save time. Basically. what we've

done with this map is to recognize the urban areas of the

Island of Hawaii as deserving of districts. And that central

Hilo, and southeast Hilo, as well as, Kailua-Kona, Keauhou-

Kailua-Kona areas, are..have sufficient population. Actually,

Kailua-Kona has more that sufficient population for an

viban district, and we're forced to divide the ahupua’‘a of

Kealakehe in order to create this urban district so that the

mountain portion of Kealakehe is actually in District 8

which extends up to the northern part of this district to the

South Kohala-North Kohala boundary.

The map does bring together the sort of resort, residential

retirement area of West Hawaii into District 8. District 9 is a

north Hawaii district which is ranchland and rural

agricultural area. Then district-wise you have toward the

A 101

east side of the Island is a basically rural area with most of

the population being sort of a suburban north Hilo

area, as well.

I covered the central and southeast Hilo districts which

central Hilo contains the downtown area and mauka urban,

commercial and industrial areas of Hilo, while the south

and east of Hilo contains the international airport, the

harbor, Keaukaha and wraps around containing the

portions of suburban, urban Hilo.

Puna, north Puna is basically the northern part of Puna,

with some area of Ka’u situated with Volcano Village and

the National Park.

And then south Puna, we put as a separate region because

of its accessibility. It’s only one way to get to that area. And

we did include the entire area of Hawaiian Paradise Park

and Ainaloa in South Puna, as well.

As you can see the variations, the deviations on our

numbers are within the parameters of less that 5% which

was our goal and basically the map that we presented has its

basis, the social economic demographics of the different

areas of the Island, as well as, economic activities that we

see occurring over the next ten years.

If you have any questions, I will be happy to answer them.

CHAIR: Any members of the Commission?

Hearing none, thank you very much. Next is Al Konishi.

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REAPPORTIONMENT COMMISSION

25 Arfpuni Street, #100

Hilo, Hawaii 96720

Phone: 961 8277

Fax: 961 8673

TRANSCRIPT MEETING OF

HAWATI COUNTY REAPPORTION COMMISSION

November 21, 2001

10:00 a.m.

Waimea Community Center

Kamuela, Hawaii

(Partial Transcript)

Page 15:

SANDRA SCARR: The commonality of interest between

Ka’u and South Kona is pretty clear. Someone pointed out

just a moment ago, that in fact a lot ...this is really a large

agricultural area. So | would argue with you that this map

and it isn’t you know...it may be some some tweaking

around the edges but in fact this map comes in with ..within

the plus or minus 5% that you require, and I think you

should require for any map, would population, and it does a

better job than you're doing with putting the minuses into

the areas of rapid growth. Unfortunately, in your map the

areas that are currently plus over in population are the most

rapidly growing areas. The ones are under population are

those that will not be growing very much in the coming

years, as far as we can project. That means that two years

from now, or three years from now, you will have exceeded

your 5% deviation and you will know that. You already

know that, that’s what's going to happen. So would argue

with you, this isn’t a very acceptable map.

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Page 45-57:

CHAIR: Any other member of the Commission have a

question?

Hearing none, thank you very much, Mr. Martin.

Ms. Ford? Brenda Ford?

B. FORD: I’ve come to the meeting here in Waimea to

explain some of the points of the process and the result of

the plan that surges accordingly. But I had some input, too.

First thing Id like to talk about is just basic raw data. When

we started, when we were first requested to do an analysis

of the raw census data, that is without any exclusions

whatsoever, to determine if any of the 9 maps this

Commission had been working on at that time, met, what

we felt the constitutional guideline ;. The first thing that

popped out of the U.S. Data on a census tract basis, census

tracts being the larger geographical areas filled in by the

small census blocks, you're familiar with this. The first thing

that popped out of that data was that there was a

justification for two urban Hilo districts, which Ms. Scarr

has already discussed, and one North Hilo, Hamakua

district, and let me clarify the misinformation what has been

presented by some individuals, the North Hilo district in

our plan consists. ..is that suburban area of North Hilo, plus

a 21 % of the Hamakua population. We had to do a split. As

we all know, because I have done the same process that

you've gone through, lines have to be drawn somewhere.

And you still have to meet constitutional guidelines of plus

or minus the 5%. We all know that, we've all done the same

process. So the question becomes what is the raw data

telling you? So the raw data says, two urban Hilo districts, a

North Hilo district, two full Puna districts, one full Kailua

urban district, a southern district, whatever you want to call

it. If you want to call it South Kona- Ka‘u or some other

name, southwestern Hawaii, but

A 104

the name is or the district number is immaterial. ‘The fact is,

if the justification in that portion of the Island in the south,

southwest are full council seats. And then you get the

Kohala and with all due respect to the people of Kohala,

they have exactly the same feelings as the same people of

Puna, they don’t want to see their district fractured. But

while Puna can justify two full council seats, Kohala is in a

precarious position. Because Kohala has 120% of a districts.

That means they can justify one full legal district and 20% of

Kohala has got to go legally someplace else. Whether it goes

south to the Kona, or it goes east to the Hamakua-Hilo area,

doesn’t matter. Or even if it is split between those two

things. 20% of Kohala legally must go someplace else. So the

question when you look at the raw data and you look at the

census tracts, and these numbers come jumping off the page

at you, the question is, once you accept the basic premise of

two urban Hilo districts, a North Hilo district, two Puna

districts, a southern districts, a Kailua district, urban district,

a northwest area which is in our plancs called District 8, and

a north district, North Hawaii which is, then the question is,

how do you divide these districts up to meet constitutional

parameters. And that’s why the...what we call the Hawaii

county constitutional redistrict plan which you're not

calling the CERG plan which has been called all kinds of

things, but its this one (pointing to map), that’s the reason

we chose to do this.

Now when we did this plan, we did it without regard to any

incumbents and where they lived, in fact, most of the

incumbents we don’t know e\where they live and we don’t

care where they live. We did it without regard to political

parties, I had to explain to someone before this meeting, that

I personally am independent. I’m not a Republican, I’m not

a Democrat, I'm not Green, I'm not purple. I’m just an

independent. I vote for the person that I think is best for the

position. And when we did this map, we did not care about

A 105

a political party, and in fact in our County Elections in the

future they’re not partisan. So it makes no differenct. What

some of these political persuasion is.

Excepting the basic premise that the County had to be

divided up as I have described it, and that Kohala has 20 %

too many people to keep inside of one district, we haven't

decided where in Kohala to draw a line. And what we chose

to do in this plan is to draw the line between North and

South Kohala. We...we felt because of the people we knew

in the Waikoloa area, Waikoloa being an upscale suburban

area was appropriately placed into the North Kona district,

northwest, if you want to call it something else , this district

here (pointing to map), because of the demographics of that

area. We had heard through some of the public testimony

that was very important to people in Waimea that Waimea

stay together. And so when we drew our line we made sure

that we kept all of the town of Waimea together. Unlike the

County Commission’s plan which divides the town of

Waimea which we think is an inappropriate division. Not

only inappropriate but unnecessary. You know you can get

to ...the difference between illegal and you can do

inappropriate and you can do if not necessary. That's a

continuum and you want to get to a point of that

continumum...continuum is the most reasonable choice.

And we felt that to make the most reasonable choice we

should keep Waimea as intact as we possible could. And

that’s why we chose to make the line the way we did. We

consider the sociodemographics of the North Kohala area as

being close to Hamakua.

Now I need to correct another piece of misinformation you

were given this morning. The 79 or 80% depending on

which fraction you use, if you round off or round down, this

is North Kohala’s (pointing of map) district as it stands

today, plus 79% of the population of Hamakua which is

located on this side of the North and South dividing line,

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we kept it with, in this area because its physically closer to

Waimea. I’m not saying that people don’t work in Hilo, I

live in South Kona and I work in South Kohala, that doesn’t

mean that I should have a representative from South Kohala

representing my interests. Where I live should be

represented by a person who lives in a same community as I

do, not where my paycheck is coming from..

(end of tape)

... There’s the Volcanoes and the craters, and the military

bases, you know, there’s no people. Swapping land around

in this area to make it more reasonable doesn’t matter,

because its emply. It doesn’t matter. So what we did when

we went to this plan is the first area that we felt really

needed major, major help was Puna. If there’s a community

that has ripped to shreds in the last ten years, its Puna. Just

look at the map that you propose, you're doing exactly the

same, not exactly, almost the same thing, by taking portions

of Puna and putting it in other districts. Those districts

today, if you're doing a snapshot, those districts today are

dominated by Hilo which is not right. There’s no reason to

have more Puna dominated by anyone, they are legally

entitled to their own council representative. You can’t have

it both ways, you can’t say we’ re gonna disregard the future

growth in different areas, and because in sometime in the

future, they're gonna dominate these three districts. You

can’t use that argument and then say its okay to fracture

them and let them be dominated by Hilo. It is no more

correct for Hilo to dominate Puna than it is for Puna to

dominate Hilo. ‘

On multiple occasions, I’ve explained to one of your

Commissioners, Mr. Van Pernis, that it is no more correct

for South Kona to dominate Puna than it is for Puna to

dominate South Kona, or Ka’u. First of all, Puna and South

Kona are not contiguous and despite the fact this map has

A 107

been drawn in this manner, this is completely unnecessary

way to cut this map up.

In the map that we have drawn, you will notice that Puna

stops and only the Volcano portion, Volcano Village area is

attached to Puna. It is only 15 miles from Puna, their

centered interest is Puna, but when you get down to Ka’u,

those people have a community interest that is more aligned

with South Puna as they have said many times in many

meetings, not just in Puna meeting-, but other meetings. It’s

time to put these communities together, its time to make

sure that these communities are not dragged across the

Island. | heard one person say in a private meeting, that

well, if you want to continue doing this, why not just

drawing lines radiating out from Hilo, and have all the

Council people living within a few miles from each other

from Hilo and dominating these other sections, That’s not

appropriate it was a very facetious remark, but its not

appropriate. For any areas dominating another area because

we draw lines, so they can be dominated. We need to draw

the lines so communities of interests stay together.

When we did our preliminary report, we were chastised

because we had divided one of the subdivisions inside of

Puna. We went back to the drawing board. There is no

subdivision in Puna that has any divisions in it at all. All

subdivisions are intact. That was one of the goals that we

went back and corrected. We followed all the constitutional,

State Law, County Charters, and federal case law to do this

map the best way we could. We feel this map is better than

the County map, and I'll give you a reason, you have a

spread currently on this map you're proposing of 9%, You

go from a plus 5 to a minus 4%.

The map that we submitted on October 8, has a spread of

5%. 5%, there’s a 4% improvement with just this map in the

deviation. Right there, there’s an improvement. It means

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you don’t have to cut up, pardon me, you don't have to cut

up all these different districts in all of these strange ways,

and you can still improve the deviation factor. And we think

that that’s something that you should be looking at. Why

does your deviation factor have to be a spread of 9% when

you were given a ...given a map, not a perfect map, but a

good map that had a 5% spread six weeks ago. That map is

thrown out. There's also been some misinformation

presented to you about one of your original maps, that on

the west side shows something similar to this. As I said in

multiple meetings and to Mr. Van Pernis before this

meeting, you cannot consider just one area of the Island.

You have to consider the entire Island because one side of

the maps may look similar to somebody’s map, this side

(pointing to map), it doesn’t make any difference if you

screw the other side of the Island, or you screwed the some

other district, you have to be willing to do some

compromising, and you have to be willing to consider the

best interest of all the different areas. We believe that we've

done that. We’ve never said that this is the one and only

perfect map, we’ve never said that. There is no such thing,

and you know it, more than anyone else. You guys have

been going through this really horrendous process.

But in our process we did something a little different and

that is we got the maps that we did not have the benefit of a

computer program. We had to sit down and tape maps all

across my living room floor and literally crawl around in

these maps and pulled the census blocks off one at a time.

And because we did that and I don’t recommend it, its very

bad on the health of the back, not to say one’s disposition,

but once you get down to the census block areas, census

block levels and you start moving these things around, you

can see where there are serious problems in a particular

community, as far as the census. For instance, there are

blocks in more than one side of the Island, more than one

A 109

place on the Island where the census blocks even though

they meet the parameters of between 503 thousand. It makes

no difference. ‘The blocks are huge geographically, they may

have way too many people in them, or too few people in

them, and you can’t divide a census block without this

Commission going and saying to the U.S. government we

want to buy this census block, I believe you have that right.

You can’t do it so you wind up taking a census block that

maybe has one or two thousand people in it and having to

move it in mass to something else. And we ran into that

problem in Hilo, and we ran into that problem in urban

Kailua. It’s a very big problem. But we did the best we could

but the fact that we are in a spread of 5%, compared to 9%,

tells us we did something pretty good because or deviation

isn’t as bad.

Now, there was another piece of information presented by

one of the Commissioners here about the south Keauhou

area dominating, what we are calling District 6, and the

district numbers are immaterial. They can call it “A to F”

“A to J” or whatever you want to call it, it makes no

difference, but the blue area on this map. Commissioner

Van Pernis specifically say...said that the Keauhou area was

going to dominate this entire district because they had more

numbers. That’s not true. The truth is, those people in that

area, that slight bit of that area south of Keauhou have less

than 3,000 people. Well, the district itself has over 16, 400 or

500 people, depending who number you want to use, people

in it. Ka’u itself has almost 10,000 people in it. So whose

going to deminate that district, it doesn’t make much

difference, but it isn’t gonna 3,000 people in Keauhou unless

they have a candidate who can convince the other rest of the

district that they can adequately represent the

Or

A 110

rest of the district. That’s what our political process is about,

having people campaign each other for the right to

represent a district. And numbers isn’t the only thing that

gets it, after all Julie Jacobson was in Puna and she got

everybody...enough people to vote for her that she had this

whole district (pointing to map). So its more than just a

number situation. So | ...[ have to tell this Commission that

it really pains me to have to come here and correct

misinformation and untruthful statements and it really

bothers me the community has not really been listened to. I

know people say, oh, we're listening but we're being

disregarded.

More than that, we've been treated very, very rudely. Our

elders have been maligned in public, we're here to give you

our input and tell you why we want something the way we

want it. Well, they we’re right or whether we’re wrong. And

it is the job of this Commission to evaluate our comments

and to use them in the best way possible.

I propose that at this point in time, and I have...ah..this map

that has been supported by the a lot of the members of the

community, both in Puna and West Hawaii, and I hope

Kohala will understand and support this map, as well, that

right now with the deviation of spread only of 5% this map

is a better map and causes less concern for the communities

than the map that is currently proposed by the Commission.

Thank you.

CHAIR: Thank you, Ms. Ford.

Does any member of the Commission have a question for

Ms. Ford?

M. VAN PERNIS: I have one question. Um...

CHAIR: Mr. Van Pernis.

Alll

M. VAN PERNIS: You agree...seeing from your map, as

well as the present council district map that you're in

agreement that the West Hawaii districts should include the

area all the way up to Saddle Road?

B. FORD: Because of the numbers in North and South

Kohala, we had to move 20°% of something into another

district. We chose because of the demographics in the South

Kohala area, to move that area into the...what is currently

the North Kona, we call it District 8, northwest Hawaii.

M. VAN PERNIS: Well, I notice that...that the Council

proposal, the Commission’s map and the proposed map

runs the Kona, um...your pink district um...line up to the

Saddle Road. Am I right?

B. FORD: Yes, we heard from people that they...that they

would like to have that and get the military base into

District 8 and we took that into consideration, no people

there and we did it.

M. VAN PERNIS: Yeah, there’s no people there but the

watershed in the... you felt ...

B. FORD: Yes.

M. VAN PERNIS: ...should be in West Hawaii controlled?

B. FORD: Yes.

M. VAN PERNIS: All right, so at least we agree on that

point.

B. FORD: Yes.

M. VAN PERNIS: Thank you.

CHAIR: I have a couple of questions. Um...your proposed

map divides the Hamakua judicial district, isn’t that right?

B. FORD: Yes.

CHAIR: And um...did you solicit any comment from the

folks in Hamakua?

A 112

B. FORD: All right.

CHAIR: The other thing is that your District 1, the North

Hilo District, reading again the letter of November 6

addressed to me, signed by Peter Martin, actually your

name doesn’t appear on it, but I believe you’re aware of it.

B. FORD: That's right, I believe he sent the letter, but I don’t

feel competent to comment on a letter written by another

person.

CHAIR: Let me quote from the letter, then Ill ask you tc

comment on that. It describes District 1, the North Hilo

District and the primarily agricultural rural district

consisting of 21% of southern Hamakua, all of the current

district of North Hilo, and portions of South Hilo, north of

the Saddle / Kaumana Road.

B. FORD; Right.

CHAIR: Its Saddle, Kaumana, Waianuenue, it all the way to

the ocean, isn’t it? That dividing line.

B. FORD: Yes.

CHAIR: So I'm concerned when its described as a primarily

agricultural rural district when I know that...

B. FORD: There’s a....

CHAIR: North of Waianuenue there’s a huge apar*~-ent

district.

B. FORD; Yes, yes, there’s a huge suburban area.

CHAIR: All right. Thanks, I just wanted to make sure that

we agree on that.

B. FORD: Yes.

CHAIR: I don’t have any other question.

Are there any other...

P. KAHAWAIOLA’‘A: I do, sir.

CHAIR: Mr. Kahawaiola’a.

A 113

P. KAHLAWAIOLA‘A: | only thing, Ms. Ford, that I have is, |

think you and I discussed it in Kona. That the rumbers you

used for your 5% deviation...

B. FORD: Right.

P. KAHAWAIOLA’A: As opposed to the numbers that we

used... (INAUDIBLE)..

B. FORD: Right.

P. KAHIAWAIOLA’A: ...is your numbers still basically....

B. FORD: My numbers are same...and

P. KAHAWAIOLA’A: Can I have that numbers again?

B. FORD: Yes. The gross numbers that we used with the

exclusions of the military and the non-resident students are

147, 877. That’s 800 people that are legally required to be

excluded, and I just need to report to this Commission, I did

give a download of a file from the State that has all three

exclusions. Unfortunately, it is not convertible to a data

spreadsheet, so I’ve had to re-request that file to be sent

down again. When that file comes down, this number of

147, 877 will drop by some number. Now, this map

(pointing to map) all the documentation supporting it,

including all the census block data, in hard copy forum was

submitted to this Commission as part of the official record.

And when we get the new file in a convertible form, so that

we can redo it, we will redo this map, I’m sorry, not redo the

map, we'll redo the database to include all 3 exclusions, and

resubmit it to the County.

CHAIR: Okay.

Mr. Ferguson.

]. FERGUSON: Yes, you stated that we are legally required

to exclude those people? What law do you....

B. FORD: State law.

A114

J. FERGUSON: State law states that we cannot count those

people?

B. FORD: Yes. And in fact, the State Reapportionment

Commission just changed their position on that.

J. FERGUSON: That was military, | believe.

B. FORD: It....3 things, military, non-resident military

dependents and non-resident students.

CHAIR: Ms. Ford, in your opinion, is the...does the

inclusion of those folks change the proportion of the

variations so that in any district it exceeds 5% plus or

minus?

B. FORD: The sure answer is no.

CHAIR: Thank you.

Any other questions?

Page 84-91:

L. BARTON: I have a motion.

CHAIR: Yes?

L. BARTON: I motion that we um...get the numbers that are

on Brenda’s and Chucky’s map because I think there are a

number of issues that are touched on by far too many

people and I myself, sitting on this Commission can no

longer live with myself, listening to how many people are

upset and the overwhelming evidence that ah...although it’s

not easier for us as a Commission or especially for staff, that

I feel we need to have that now.

P. KAHAWAIOLA’A: Um...that’s a motion, Mr. Chairman,

so I'd like to... because ah...I'd like to second it for a matter

of discussion, and I think now would be appropriate for you

to have said what you said, Lisa. Reason being, that’s what I

need to hear, after I heard testimony today.

A115

CHAIR: All right, so there is a second. And the question is

now open for discussion.

Mr. Kahawaiola’a.

P. KAHIAWAIOLA’A: | would ...now would like to ask the

staff, based, just based on this map (pointing to map). If you

was to take this map, look at other lines drawn and

extrapolate the numbers out of your computer, because |

heard Ms. Ford mention that its basically the same software

or some kind of, you know, that can be interfaced, or

not...couldn’t be interfaced, | am now using computer talk,

but can you go and take this to a number also, and I think

that will satisfy Ms. Barton’s motion, so that we can come

back, and at the next meeting be able to prepare to do this,

or that. Something in that matter, | shouldn't say this or that

but at least get some numbers. Right now, we're hearing

...that’s my reason for asking, excuse me, Ms. Ford, about

the numbers that we use. :

CHAIR: Patrick, I believe, Ms. Ford has told us that she

provided the numbers, so the numbers are here.

P. KAHLAWAIOLA’A: No, I'm...I'm not disputing. You

know, I’m just trying to get numbers here...

L.. BARTON: I think this is a land description thing...

P. KAHLAWAIOLA’A: Yeah.

L. BARTON: And its going to be very time consuming

description, um..some of them do follow the same lines and

thereabouts, and they won't have that much of a problem.

Also they are (INAUDIBLE), so I’m....

P. KAHAWAIOLA’A: That's all I would want to ask of the

staff for the purposes of discussion.

A 116

CHAIR: Let me see if | can um...restate the motion, and

with your permission, Ms. Barton, is your motion a request

to the staff to produce a map on their equipment with their

software that follows the...Ms. Ford’s map for lack of a

better title. | keep forgetting what it is today, um...and at

the same time provided a written legal description that

corresponds with that map?

L. BARTON: Yes, Iam. The motion is exactly that.

CHAIR: So that’s your motion?

Is there a second to that motion?

P. KAHAWAIOLA’A: I would second the motion with the

caveat again. I need to go back to the maker of the motion,

as you expressed it to provide the legal description, I...that’s

what is going to be the problem. I would prefer to go and

follow Ms. Ford's lines, and go find out what's in the...

what's inside the blue, green, and red. And the legal

description, | mean, you know, I mean, threats with the

lawsuit is a drop in the bucket. I’m just saying if we don’t

leave the deadline, will then the Court going to come in? I

don’t know.

L. BARTON: Is the Court going to come in and make a

better map anyway?

P. KAHAWAIOLA‘A: No, that’s my point. That’s why I

want to address the Counsel. Excuse me the Corporation

Counsel.

M. VAN PERNIS: Question. Question.

We certainly shouldn't be operating on the basis of the

threats from....

P. KAHAWAIOLA’A: No, no. Mr. Van Pernis, I believe, Mr.

Chairman that I have the floor, so that’s all I wanted to say.

To draw the numbers, bring it back again, and if we

don’t meet the....I’m....that’s what I'm saying, I’m not

worried about any threats of a lawsuit, I'm trying to get to

? A117

the end of the Commission.. If we don’t meet the December

31st deadline does that automatically mean that the Court

will do that? Or does it automatically mean that we can go

and extend it and get these things done. Again...

M. VAN PERNIS: The Courts will draw a map.

P. KAHAWAIOLA‘A: Ah..what?

CHAIR: Excuse me, Mr. Van Pernis. Why don’t we let the

Corporation Counsel answer that question.

D. AKAMA: I don’t know the answer to that.

CHAIR: Okay.

P. KAHAWAIOLA’A: Can you please....[ need to know the

answer by the next meeting.

L. BARTON: Well, I just want to clarify that the request is

not made on the basis of the lawsuit. The question was on

something sitting in my mind for a long time.

CHAIR: I appre...

L. BARTON: The last meeting we had, I made the same

motion basically, without the land description. I’m just

saying, I think we should have done all and we've been

putting it off. And I’m just unhappy with myself not having

done it sooner, or something like that. Because one out of 9

can’t see...that it doesn’t have to have a name on the plan.

That's all, I’m just looking at logical reasons from within all

the people that have voiced their opinion. And actually, it

was more so on the guy that came speaking on behalf of

Kohala, because...

P. KAHAWAIOLA’‘A: That's my...

L. BARTON: ...because I sat at the meeting and listen to

what | thought a majority of people saying Kohala should

be stuck...should stay together, whereas, I live in Hamakua

and feel very attached to Kohala and the background of the

people there, I guess that’s where my thoughts were coming

from. Sorry.

A 118

CHAIR: We’ re in the mode of discussion now, so, I'd like to

ask you a couple questions.

L. BARTON: Yes.

CHAIR: What are the proposals in the map proposed by Ms.

Ford, splits the Hamakua judicial district.

L. BARTON: I realize where it splits and I actually like it.

CHAIR: And why is that.

L. BARTON: Well, if I give you my reason, it won't be in

accordance to our redistricting. It will be very personal and

that is, we have a school district in Laupahoehoe, our

boundary ends on the curved bridged. Does everybody

know where the curved bridge with the flashing light is...

CHAIR: Ookala.

L. BARTON: ...it’s a gulch, called a gulch. Okay. We don’t

necessarily...ah, always have the population to sustain a

school and are threatened quite frequently with ...we’ve

asked the line be moved to incorporate Paauilo, and so bus

kids a little further down the road, then they’ re bussed for

about a mile or two. That’s not going to change it. These

lines won't change that, I don’t believe, but that’s where, I'm

like going. It makes much more sense, that’s all.

CHAIR: Let me ask the staff then with regard to the request.

Is that feasible, is that possible and in order to meet the

deadline, we are going to have one other meeting in which

we will, and at that meeting we intend to adopt our final

plan. The proposal essentially requires, if adopted, would

require the staff to provide us with two alternative plans

and we would then be faced with the proposition of

adopting one or other. I think you've expressed your

opinion with regard to putting together the legal description

and the maps incorporating the changes that we've just

adopted.

A 119

Let me ask you the same question with regard to the plan

that’s been proposed by Ms. Ford and others. Is it feasible to

get those completed before our next mecting and adopt

reapportionment plans within out deadline.

P. NAKAMOTO: With the legal description, you're asking?

CHAIR: Yes, with the legal description.

P. NAKAMOTO: We wouldn't be able to get it.

CHAIR: All right. Are there any other questions with regard

to the motion?

Hearing none, let me call the question. All those in favor of

the motion, signify by saying, aye.

L. BARTON: I wanted to...

P. KAHAWAIOLA’A: | lost tract of the motion.

CHAIR: The motion is...is Ms. Barton’s motion. And I

believe the motion as restated was that we’re instructing the

staff to produce maps and the legal descriptions that follow

the proposals made by Ms. Ford. Um, so that’s the motion

before the Commission at this point.

All those in favor of asking the staff to produce those maps

and the legal descriptions, signify by saying, aye.

ALL: Aye.

J]. FERGUSON: You need hands.

CHAIR: We may.

All those opposed? No?

L. BARTON: Oh, do that one more time.

CHAIR: I think so.

We are going to ask ....

L. BALBERDE: We'll just raise hands then.

A 120

CHAIR: All those in favor of the motion, signify by raising

your hand? One, two, three, four.

THOSE RAISED IN FAVOR: Jeanne Fuller, Lisa Barton, Pat

Kahawaiola‘a, J. Fernandez.

THOSE OPPOSED: Jack Ferguson, Mark Van Pernis, L.

Balberde.

CHAIR: I have not voted. I will, in defeasance of the staff,

vote no. That leaves us tied, Mr. Pavao is not present. Mr.

Akama, what do we do now?

D. AKAMA: That means that there’s no action, so the

motion dies.

A 121

HAWAII COUNTY

REAPPORTIONMENT COMMISSION

25 Aupuni Street, #100

Hilo, Hawaii 96720

Phone: 961 8277

Fax: 961 8673

(Partial Transcript)

LLOYD VAN DE CAR LAWRENCE BALBERDE

Chairman & Presiding Officer STEVEN PAVAO

MARK VAN PERNIS JACK FERGUSON

Vice Chairman JOHN FERNANDEZ

JEANNE FULLER

PATRICK KAHAWAIOLA’A

LISA BARTONTRANSCRIPT OF MEETING

ON

Tuesday, December 18, 2001

10:00 a.m.

at

Hawaii County Office of Liquor Control Conference Room

101 Aupuni Street, Suite #230

Hilo, Hawaii 96720

CALL TO ORDER

The meeting was called to order at 10:06 a.m.by Vice Chair

Mark Van Pernis presiding for Chair Lloyd Van de Car who

presence was excused. In attendance were as follows:

Patricia Nakamoto, Elections

Gina Haina, Elections

Ed Kozohara, Elections

Al Konishi, County Clerk

A 122

Patricia O’ Toole, Deputy Corporation Counsel

BrendaLynn Domondon, Commission Secretary

A roll call was taken of the Commissioners in attendance.

Page 9-14:

B. FORD: I brought in...my name is Brenda Ford and I live

on 81- 6195 Napoopoo Road, Captain Cook, Hawaii. I'm

circulating the final results of the Hawaii County

Reapportionment numbers, which ...] hope we’re all

looking at the same thing. Does everyone have a copy? (A

copy is attached as #1)

S. PAVAO: Not yet.

B. FORD: Okay. I'd like to start at the very bottom of this

page and kinda work up to the top. If you look at the

bottom section, it shows that the U.S. Census gross

numbers. These are numbers that the council, I’m sorry, this

Commission is using for their numbers. Shows that this

Island has 148, 677 people living in the County.

\

When Charles Flaherty and I turned in our first map on

October 18th to this Commission, we had removed the

active military and non-resident students which were the

only two exclusions that we were able to get from the State

which lowered the number to 147,877. We have now

received from the State the exclusions for the active military,

the non-resident students and the non-resident dependents.

So the total...the legally mandated exclusions is 147,806 and

that’s the number our map is based on at this time. Nothing

changed on our map, just the numbers changed. If you go to

the center section, you will notice that there are 738 non

resident students, 62 active military which you know from

previous testimony, those two numbers and the new

number is 71 for the non-resident military dependents.

Again this did not make any changes

A 123

in our map. While most of these numbers come out of the

Hilo area, not all of them do, there’s a few coming out of the

north Puna area, and I mean, very few, less than 10. But

most of these are coming out of the Hilo area and you will

notice that a number of 871 is a couple of percentage points

in the population for a particular district that these would

impact. So | would suggest that the numbers you are using

again are not legal numbers and you have not reduced the

mandetate...mandated exclusions and therefore, your

deviations will be off.

The top section of the final numbers for the County using

the 147, 806 number, you can see that the allotment per

district is-16, 423 and based on that number and the

numbers that we have in each one of the areas, based on the

exclusions being removed, you can see where our deviation

is. We now have a deviation spread of 6% well within the

spread of plus or minus 5, for a total of 10%. We are still

well within that on the map that we have suggested.

If you have any questions on these numbers, I'll be glad to

talk to you about them and answering questions. I am also

here when we finish with this one, I have two presentations

of two other people.

VICE CHAIR: I note that there is ah...Mr. Boyd who has

been signed up (inaudible-speaking away from mike)...is

that correct?

B. FORD: That's correct.

VICE CHAIR: Mr. Boyd has testified before and Mr. Boyd’s

testimony was given in writing as well. So we appreciate

that you can testify for Mr. Boyd and you're just going to

read his statement, and | point out that we have his

statement and it might be part of the record.

A 124

B. FORD: I appreciate that you're going to make it a part of

your record and I still would like to read it in because that’s

the request that Mr. Boyd made of me,to read it out loud to

this Commission and the public.

VICE CHAIR: All right, please proceed then.

B. FORD: I'll read quickly.

In fact I'll start reading while this is circulating. This is the

testimony of Richard Boyd who has requested that I read

this into the record. (See Attachment 2 incorporated herein)

(Ms. Ford proceeded to read testimony)

Thank you. Anyone who does not have a copy, I have

extras.

VICE CHAIR: I also notice that you have been asked to

testify in behalf of Mr. Charles Flaherty.

B. FORD: Yes.

VICE CHAIR: I also want to point out that Mr. Flaherty has

testified on several occasions before us so you will read his

statement.

B. FORD: I am going to read his statement, | don’t have any

copies of it, he asked me to read it into the record today and

1 will leave this copy with this Commission. This statement

is written for CERG, Citizens for Equitable and Responsible

Government dated December 18, 2001, and it’s given to me

by Charles Flaherty, to read.

(Ms. Ford proceeded to read testimony, see Attachment 3

incorporated herein).

It is signed by Peter Martin, Sandra Scarr, Stan Boren, David

Holzman, Charles Flaherty and Betty Meyerson, all on the

Steering Committee of CERG. I guess I

A 125

.. (INAUDIBLE-SPEAKING AWAY FROM MIKE)....give it

to you or....

VICE CHAIR: Thank you, Ms. Ford. Are you finished?

B. FORED: I have one other statement. This is in response to

the comment you made at the beginning about the one map

that was designed by this Commission that had an urban

Kailua district and your persistent comments about how

similar that map is to the one that being supported by

CERG. While it is true that the CERG map is supporting an

urban Kailua-Kona district, the east side of the CERG map

bears no relationship to the illegal drawing of 4 districts

controlled by Hilo that this Commission is supporting. One

more time I'm telling you that you do not have the legal

population to support 4 Hilo controlled districts. What

you're doing is wrong. I urge you to change this map or

adopt the CERG map which shows the legally allowed limit

of 3 Hilo controlled districts. Thank you.

VICE CHAIR; Any questions of Ms. Ford? I have one.

What 4 districts on the map, you are saving are controlled

by Hilo?

B. FORD: The....yvour number |. Your section number I, like

ours is the North Hilo suburban area and the rural areas of

Hamakua, your district 2, 3, and 4 and you will notice if you

compare that to the CERG map that you do not need

districts 2, 3 and 4. You need just 2 districts in that area and

North Puna is entirely deserving and has the population to

justify its own council member. You have ripped apart

North Puna into 1, 2, 3 different districts in order to keep 4

districts controlled by Hilo.

A 126

VICE CHAIR: Are you saying then that the District | that

goes... (inaudible)...to Honokaa to Waipio Valley is

controlled by Hilo?

B. FORD: Yes,-you have a large suburban population there

that is controlling that district.

VICE CHAIR; Thank you.

Page 16- 17:

B. JACOBSON: Good morning, folks. Thanks for having me

again and | won't try to be repetitive, so I'll take that to

heart certainly. Unfortunately, there was some certain

repetition that’s been going on at each of these meetings and

its been said that all plans....well, I mean, all the plans have

merit, [ would just say your plan has very little merit

compared to the CERG plan. Secondly, I'm sort of

concemed, I look at this today and there’s no numbers on

the plan where they just compare the numbers of

population....

VICE CHAIR; Does that mean the percentage from the

ideal?

B. JACOBSON: Yeah, I don’t see that in today’s hand out at

all.

]. FULLER: It’s the last page.

(INAUDIBLE-PEOPLE SPEAK SIMULTANEOUSLY)

S. PAVAO: Maybe they don’t have that page.

B. JACOBSON: Well, they're not available to the public

today evidently.

VICE CHAIR: I'm sure its availavle from the staff.

A 127

B. JACOBSON: Well, before everybody testified, it certainly

wasn't cause I, again I don’t have it here and | got it on time,

so. Ah...one more thing...] just have to give you the opinion

that the CERG plan certainly does not resemble any of your

plans other than what Brenda pointed out that the central

Kailua urban district is on one of the earlier plans but again

the way they handle Puna so separately despite the fact that

we have adequate numbers of people to justify two legal

council members to Puna, that has being denied. So I think

that is unfair and I think you all know how I feel. Thank

you.

VICE CHAIR: Any questions of Mr. Jacobson? Now I call

upon Julie Jacobson.

Page 17-27:

Again, we’ ve heard from Ms. Jacobson several times so |

hope we can avoid repetition.

}. JACOBSON: Aloha, thank you all for being here. I think a

special thank you to, I wasn’t at the last meeting but to those

of you courageous enough to vote to take a good look at the

CERG map at the last meeting. I really thought that was

impressive, that 4 of you actually see that so | think that

shows that there is certainly quite a bit of dissatisfaction

with the map you proposed, so | just start with the fact that I

consider your proposal flawed in so many ways that I think

you need to just throw it out and start over again and I think

the best -!ace to start over again is with the CERG map and

{ think they did a good job at looking at the needs and

analyzing it and seeing the big picture. So that’s my basic

recommendation to....you have the chance right today to do

the right thing. And that would be to reject this map and put

the CERG map before you and develop a map if not

identical but with the basic main features that they have

suggested for that map.

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And the other thing I'd like to start out with is that its just

very disheartening to me, having gone through this whole

process and attended almost all of the mectings, the last one

we had a Council meeting which certainly was my first

priority to attend to my attend to my Council business, but

that each of them, just today for example, the process begins

with Mr. Van Pernis from the chair making an opinion

which is generally not the appropriate way according to the

Roberts Rules of Order to comment from the chair about the

article in the paper about Kohala. That certainly shows the

bias going into it, this is the section where you hear from the

public.

Um... and the second thing is that along... mean the

process, still to this day, you have not had maps that the

public can understand available to us at all. | basically had

to have the kindness of the press to let me look at theirs and

coming into the kindness of the council staff to let me,

excuse me I mean the Elections staff to let me come and look

at their maps but your actions have not provided adequate

information ever throughout this process. And the most

recent example of it, you know I provided you with a very

crudely made map with cross references that could show

the different districts, but your map to this very day that

you pass out, you cannot distinquish the lines between two

and three on your insert map. And just you just learned just

now you did not have the percentages, so the process

continues to be flawed, in terms of basic Sunshine rights to

have information before the meeting and to be able to study

and react and provide input ahead of time. That's never

been able to be done on this and um...ah, and then to the

basic issues here, and again why | am even telling you we

shouldn't be repetitive.

Well, [just want to remind you that it was Mr....it was your

Chairman Mr. Van de Car that specifically told me if my

A 129

plans were to be...if my proposal were to be considered,

well, what [needed to to do was to go to each meeting and

present it. So Twas told to do that by you, and so I consider

it, you know, adversarial for you to start your meeting with

the statement that we should not be repetitive when your

Chairman directed me to do that. And to the idea that you

have considered, you said 11 maps, well, the fact of the

matter is we made request to you to actually have the staff

draw them up and you have consistently refused to do that,

although the 4 of you think vou did ask for that at your last

meeting. But to summarize that you did that is an incorrect

statement. You will with a tie vote-you were able to reject

doing that process. So its not as though you have given

them consideration, you haven't given that map equal

consideration because you haven't done the technical work

to give it the consideration its due.

Ah...and then now I'm going to go into the Puna problem

which started me with this in the first place. As you know,

you are both fracturing and packing districts. And as I said

before the irony is that the district you packed for me

is...increases my likelihood of getting elected in terms of the

results of the last two elections and analyzing the precinct

data. So I suppose I should be saying thank you but to me

justice is more important. By, you know, if I get by a car

today, | want to know if I did the right thing and stood for

justice no matter what it does for my political chances.

Um...and then so you packed it and then in terms of the

political encumbrance. So [ believe you generally have done

that for other districts although I don’t know the specifics of

the precinct voting patterns. But more, even more critical to

me is the fact that you fractured the Puna community and

you have basically put Puna people in one controlled by the

Hilo districts. To debate what is controlled by...the very

process that the State rejected canoe districts based on the

idea that that areas are very

A 130 ~

different, Maui and the Puna areas and Hilo, and they

realize that they had the majority of the population on the

Maui side and I believe that’s on the Maui side I think was

58%, they realize that that was not allowing for proper

representation, that would be too much of the borders

would be in one area and not the other And so that’s what

you're doing with your arrangement with 3 and 6. You are

splitting...and I just want to remid you that the Puna district

border with Hilo is roughly near...its roughly near the 5

mile marker near Macadamia Road on the highway.

So your map draws the 3 and 6 lines way up on the Kulani

Road on the makai side of the highway. And Peck Road,

Peck Road in on the 16th mile marker you have 10 miles of

Puna along the highway in on the mauka side, and there are

many subdivisions in that area. There are many people that

are affected by this. You have fractured the town of Mt.

View. You have Mt. View School in the 6th District on the

makai side of the highway and just a few hundred feet up

the road, you have Mt. View Post Office in the 3rd District

because its still Hilo side of Peck Road. So you have split the

town of Mt. View, having the Post Office a few hundred feet

from the school and in different districts is just wrong, this

town is fractured.

And then I come to the point that I made earlier that I don’t

think you ever addressed, and that is this whole issue of the

fact the way the resources and the way County government

is currently organized is around judicial districts, the State

judicial districts, our fuel taxes are led by that, our figures

on property tax are described in terms of the judicial

districts. Our Parks and Recs are organized by it, and our

Public Works Department. And so this is....so when you

make them drastically different from those, | mean you have

the population range of 17 some hundred people to 47

hundred some people. So each district of course is going to

A 131

be one but to the extent that you can not divide them up, not

throw 3 different districts and not mix them up like this, you

would be able to do a better job of keeping tract of recourses

and insuring the equity of the resource dispersal.

Um...and....I guess these are just my nain points and then,

of course, the same factor that you have never address the

length of the 6th District, and you've also created a kind of

interesting phenomenon that you might not think about that

you can say that it is technically contiguous, all the way

down to Kealakekua Bay, all the way up to the back corner

of Hawaiian Acres on the 9 and G road. But in order to

travel on a paved road, you know, and not take another

extra hour of travel time bouncing around on the back

roads, you have to leave the district in the Hawaiian Acres

end at about the 10 mile marker and drive almost 6

miles...well, around between I1 and 10 and 11, and up the

other one at 15 and 16, but you have to drive 5 miles on...to

drive on pavement you have to drive 5 miles outside of the

district to get back into it again at the one end. So if you flew

by magic carpet, I guess that’s contiguous, but if you travel

by road, you have to go out of the district and back in it

again. And you may have a few spots where you have to do

that for a short distance. But you don’t have anything

glaringly like that, like you do in the 6th District. And so I

just urge you to do the right thing because it is just a

foregoing conclusion, you will face this in court and I think

that as Brenda has pointed out, it is just a terrible waste of

taxpayers money and a terrible distrust you give to the

public when, you know, we all know that the vast majority

of the public had told you this plan doesn’t work, and the

vast majority of us have come together on another plan, and

you know, that’s what 90 some per cent of the public has

told you particularly interestingly the public that comes

here in person to tell you this. The public that goes to every

meeting and tells everybody what they think out front, that

A 132

part of the public is here, and has been here. The public that

you get letters from that you read their written testimony,

you know, maybe some of you have said, well, there’s a

whole bunch of that, and I suppose we can go and look at

your minutes and try to sort out well, just how much of that

is there compared to this. But in terms of your meetings and

the process where we worked ostensibly supposed to

present our testimony, its been clear and decisive. And so

again, I urge you to just do the right thing today, its not too

late and each of you have the intelligence and if you, and I

think if you listened to the real reason behind all of this,

you'd see that that what you're doing is against the public

interest and it’s a very deep and disturbing thing to....to

prevent justice that will affect us for 10 years. And its very

hard to, just as I thought we did it wrong the first time in

1992, and all we’re doing is exasperating that and its very

hard to change tract so if we have to have another ten years

of this wrong what's made worst than what we what we

already have, you know you are really undermining the

public trust, the public confidence in government, and we

certainly don’t need that with the scarce resources and the

difficult problems we have all the way up to the

international level . Its time to...if you want to show

solidarity with the people of your island you know what to

do, and that is to reject this plan and to create a plan, if not

identical to largely similar to the CERG plan the Hawaii

Constitutional plan.

Thank you very much.

VICE CHAIR: Any questions for Ms. Jacobson?

S. PAVAO: Thave.

VICE CHAIR: Mr. Pavao?

S. PAVAO: This is a point of clarification, Ms. Jacobson. I

heard you say something, and I want to make sure that I

A 133

heard the right thing, but are you saying that 7 to 10 people

testified at the public hearing is the vast majority? I heard

you say that we heard from the vast majority of the public

and the vast majority of the residents of this island.

J. JACOBSON: No, I didn’t say that the vast majority

actually came to the meetings, I’m saying in the meetings.

For example I think the most notable one is the Puna

meeting, where 26 people testified...in fact I don’t think we

were looking at the CERG plan but it’s a plan that my

husband and | proposed, and that was...actually what |

remember is that even no one that I've heard from the

public came out and said: we love this plan, let’s do it. The

most that I've heard was, even this, the majority of the

people saying was presently seated council members saying:

we can kinda live with it, we trust you doing a good job, we

support what you're doing. And then some of you of the

public who were not council members said: well, take a

good look and you're looking at this and then some council

members to their public testimony to you did not take a

specific position.

S. PAVAO: Wouldn't you....

J. JACOBSON: And that’s what I call that when you have

um..in terms of the people who came to speak here, I call

that the vast majority...even with the people who came to....

S. PAVAO: Wouldn't you...

J. JACOBSON: ...even with the people who came to....

S. PAVAO: When you say its true that you know, in Puna

mauka and Puna makai you did numbers with 30,000

people and 26 people speaking at a public hearing still is not

indicative of the vast majority of the residents of the district.

A 134

J. JACOBSON: I'm saying that the conclusion you should

draw, the public testimony you got leads you to this being

what the people supported. The only way I would back out

from that is if you....excuse me, what am I...those people

should have come who don’t approve of it, and I don’t

know why you have to cut...why you have to think you

have to wonder about what people ah...people could’ve

come to ali these meetings, people could've read all of this.

S. PAVAO: Well, I don’t think the issue is wondering what

the other people are saying or not, we all live in districts, we

all talk to people in our districts day in and day out and they

have different opinions as opposed to just hearing from

public hearings we have input from other areas as well.

J. JACOBSON: Ah yes, and I would assume that they should

be on the record and...

M. VAN PERNIS: I think we covered the subject.

J. JACOBSON: And I'd like to say this, but there’s literally

hundreds of people...

M. VAN PERNIS: Excuse me, we have a question pending.

Ms. Jacobson.

J. JACOBSON: ...who have told me that they don’t like the

plan....

M. VAN PERNIS: Ms. Jacobson, please. We have a question

pending.

Any more questions from the Council...excuse me, the

Commission?

L. BARTON: I have.

M. VAN PERNIS: A statement or question?

A 135

.. BARTON: A statement to what she’s saying.

Clearly, I just want to say that this morning when you said,

“a lot of people have come out”, | do agree. A lot of people

have come out in support of our plans, and they also have to

say that its been my experience, and | think you may be

aware of this that on this Island is, when you have the

mectings those that don’t come are basically saying, they’ re

not...there’s not enough interest, they’re not opposed,

because when they’ re opposed, that’s when they come.

That's all | wanted to say, and so as far as support for the

plans, it’s the lack of support we are hearing of the plan

right now. The majority of not supporting is staying at home

and saying and saying: whatever that’s fine.

]. JACOBSON: But I want to comment that you cannot make

the leap that the majority are staying home, has studied the

issues, knows about it, has an opinion about it.

M. VAN PERNIS: As I understand it, you are now in favor

of the CERG plan and are basically not advocating the plan

that you and your husband submitted earlier in the

proceedings?

J. JACOBSON: I’m supporting the CERG plan. There may be

details where one plan has some benefits and another plan

has some benefits, to summarize that I think particularly for

the Kona area, I did not consider that | have the expertise,

and I’m sure theirs is vastly improved in terms of their

intimate knowledge of that area.

M. VAN PERNIS: So we should take your testimony in

supporting the CERG plan...

}. JACOBSON: Yeah.

M. VAN PERNIS: ...and basically the drawing that you

are...the earlier plan that you and your husband submitted.

A 136

J. JACOBSON: Well, that’s not the issue to me to withdraw. I

gave you the proposals. Now my point is that their plan is a

desirable plan, a very good plan, and I support it.

M. VAN PERNIS: Thank you.

Any more questions of Ms. Jacobson? Hearing none, I'll next

call Mr. Mikahala Roy, please.

Page 37-41:

A. KONISHI: Good morning, Mr. Chairman, good morning.

Commissioners. For the record, my name is Al Konishi, and

I have spoken to you before. For those in the audience, |

would say this again.

Just for...to disclose where | am coming from, I am a

political appointee appointed by the Council members.

Having said that, yeah, I also want to say that according to

the Charter, my role is to provide you with logistical

support and as you know, as a political appointee, one of

the things that I have done is, I have gotten out of the way

and made sure that myself and the other political appointee

of the department, Mr. Ikeda, we have had nothing to do

with the drawings of the line. In fact we kind of banned

ourselves from the room where Mrs. Nakamoto and Mr.

Kozohara are doing the lines. I just want to say that just to

clarify that for the record. Having said that, you know, I

hate to be the bearer of bad news, okay. But this morning |

had a chance to check with Mayor Kim outside his office,

and we were just shooting the breeze, and we talked about

the concept of telling it like it is even though it is not

popular. So I’m sorry to disappoint a lot of people in the

room but as a person providing you with logistical support I-

gotta give you some bad news.

First of all, the deadline that’s imposed on you is December

31st, that’s 13 days\away. That's is not a deadline that I

A 137

made, its not a deadline that staff made, its not a deadline

the HIGEA made, the Council or the Mayor. This is a

deadline that the people of this Island voted for on...in

November of 1990. This deadline has been known, therefore

for 11 years, from November 1990 to now. This December

31st deadline is known.

Second thing. This deadline is not a matter of convenience

for the staff or for myself or the candidates. State Law which

no one in the County has the authority to supercede. It says

that Mrs. Nakamoto and her staff have to have maps,

descriptions, nomination papers available for candidates in

February. Okay?

Here’s the bad news. If you make any major changes to this

map that is behind you, they are not'going to make the

deadline. Now I'm not here to ask for your sympathy, but

we have our workers working an average of 14 hours a day.

They simply cannot put more hours in the day and make

this deadline. They simply can’t. In fact, Mrs. Nakamoto

quite does not want me to reveal this. But we are ina

situation now where we can't finish it without her, she’s

facing a situation where she’s going to lose accumulated

vacation time because we just don’t have enough time to do

anything else. So today is, | know I heard a very, very nice

presentation by the previous speaker about delaying...I'm

sorry, | gotta break the bad news to you. We can't do it. If

you re going to make the deadline of December 31st, you

gotta go today. And you know, again, I just want to also

state something for the record, because | heard Mrs. Ford

mention this and I read it in the article.

Just for the record, folks, you know, a lot has been said

about what is Constitutional and what is not. And Mr.

Ferguson, Mr. Van Pernis are legally trained. Burns vs. Gill

is not the controlling authority in this Reapportionment

A 138

situation. Burns vs. Gill was decided in 1970. | am only

saying this because, you know, I want to reassure you

Commissioners. Burns vs. Gill was decided in 1970, the

issues it had were whether or not State legislative districts

would cross over the water. Also, they talked about the

issue of multi-member districts. In Burns vs. Gill , the

Hawaii Court...oh, I'm sorry./..the U.S. District Court I

believe talked about the history of Reapportionment in

Hawaii. In the recitation of the history, they taiked about

how a committee of the Constitutional Convention went

ahead and did their reapportionment plan. And in that

recitation they mentioned the factors that, that particular

committee used. Now, Mr. Van Pernis and Mr. Ferguson

know that a holding by the Court, in other words, its

something that is put right to the Court, the question is, you

know, can they do this or can’t they. That is the ruling in the

court, in the case Burns vs. Gill does not stand for the

proposition which I've heard them alluded to. I think, in my

opinion, the controlling authority is the case of Kawamoto

vs Okata which took place in 1994 in which residents in

Waipahu were upset because they said their district was cut

into three different pieces. Now, that’s not what’s quite on

point, but I think that would have more authority than

Burns vs. Gill. In fact, there are two excellent articles on

reapportionment in Hawaii. One being called The History of

ReApportionment in Hawaii, the other one is How to

Challenge a Plan or How to make a Plan. One appears in the

Hawaii Bar Journal and one appears in the University of

Hawaii log. Burns vs. Gill is hardly cited. Okay.

I just wanted to mentioned that in case some of you

wondered whether or not there are constitutional questions

about the particular plans that you worked on. Again, you

know, as a political appointee, | don’t want to get into the

specific plans as to whether or not, I think they are

~

A 139

constitutional. I just wanted to make that clarification that

and you could, you know, if you want to consult with your

attorney, you can do that, too. But in my opinion, Burns vs.

Guill is not controlling, its Kawamoto vs. Okata. Anyway, |

am sure, you know, again in keeping my effort to keep this

apolitical, I'm gonna leave the room after having stating

this. We have excellent staff people, on the question of

integrity etc, they can fill you in more about some other

columns they would have if you made any major changes to

this map here. Again, | want to make it clear. Its not because

lam supporting this map, whatever map you have behind

you today, what I'm telling you is, if you make major

changes, whether it may be the CERG map, Mrs. Jacobson’s

map, maps 1-9, you make major changes today, you're

gonna have a very difficult time making a December 31st

deadline. And again, that’s not a matter of convenience for

us. Its State Law and it’s the County Charter.

S. PAVAO: May I ask Mr. Konishi a question?

VICE CHAIR: Any other questions Commissioners have for

Mr. Konishi?

S. PAVAO: Can you briefly tell us what are the Court's

fiindings in Kawamoto vs. Okata?

KONISHI: Okay, in Kawamoto vs. Okata, Calvin Kawamoto

who was then the head of the Neighborhood Board, now he

is a State Senator, said that Waipahu had been split up and

it was discriminatory, violated the people's equal protection

rights, etc, etc. Now what the Court did there, the Hawaii

Supreme Court, is what most Courts do, in

gerrymandering...alleged gerrymandering cases. Most

times, unless a Commission had done

A 140

something so outrageous, they would not get involved,

because Courts don’t like to draw lines. Okay. So they have

looked ai the first issue. They said are there huge population

deviations? Okay, and the answer was no. So therefore...

then the Courts said, okay, if you’ re basically saying that the

people of Waipahu formed this group that is somehow

getting their rights discriminated against, so they broke it

down a couple of ways.

The first point was is there an identifiable group? And the

feeling of the Court was, Waipahu is so diverse in ethnicity,

in socio-economics, in occupations, that it is so nebulous,

that what group are you discriminating against? And the

Court noted that most times on the mainland, where people

allege discrimination, is basically racial discrimination, and

those things are readily identifiable. Okay. But in the case of

Waipahu, Calvin Kawamoto was just saying, well, we don’t

like the fact where they split up three different ways. Also,

the Court then said, what is Waipahu? You know. Where

does Waipahu begin and end. What about just about got this

case memorized. What about Village Park? What about

SeaView? What about the community of Waipio? Okay, so

the Court say, gee, Cal you can’t even show us on the map

where Waipahu is. Okay.

And I...I1 can’t remember the last point but so what the

Court did was found that the City and County

Reapportionment Plan was valid, it was not...it did not

constitute gerrymandering, and it did not discriminate

against any so-call unidentifiable socioeconomic group.

Again, you know, Mr. Pavao, if you're kinda interested,

there are some excellent law review articles on the subject,

they are kinda understandable, even though they are

drafted by lawyers. Usually I don’t recommend yhings....or

lawyer's right but just basically just what they decide in

Kawamoto.

A 141

S. PAVAO: Thank you.

VICE CHAIR; Any more questions of Mr....?

P. KAHIAWAIOLA’A: I do. And my only question to Mr.

Konishi, is what's the bad news? So what's the bad news,

you came in with some news. What's the bad news? I guess,

you're giving me the idea that we knew the deadline was ....

A. KONISHI: No. I know....

P. KAHAWAIOLA‘ A: ...the 31ST of December, so 1 mean, I

just hope that...and I only speak for myself, I just hope that

ah...I knew the deadline was there, I know the crunch time,

and the knew the staff had...I'm not going to put....be

prepared to put the staff under that kind of situation. If

someone's going to lose big time, and they’re working 14

hours, and don’t get so see, you know, their families during

the holidays, by the same token, that’s why I’m saying, that

in my opinion, there’s no bad news. We're prepared, you

know, we gotta do what we gotta do, we took it on and

ah...or I took on this job...ah assignment to do this till

~December and make sure that ah..we can come and

constitutionally say, you know, the threat was there, and the

threat is still there. I heard it twice tonight...today, that it

may be resolved in the Courtroom. So be it. If that’s the way

its going to be done, this is supposedly, this is America, and

that’s the Constitution that they prepared to, to, to use, and I

heard the 14 Amendments and I put a record, and I'll make

it clear for the record, as a native Hawaiian living on

Hfawaiian Home Lands, the 14th Amendment does not

apply to the Hawaiian Homes Commission Act. | can make

that categoric and clear. !t does not apply to the native

Hawaiians that live... that are living under, that are

qualified under the Hawaiian Homes Commission

- A 142

Act. That's a sad case to mention, but its...its clear in this

County, so | don’t want to start that...go into that tangent,

however, | am prepared just to do what is fair for the rest of

them because not all of my ohana, my family, qualifies as

native Hawaiians, and therefore, they live in separate parts

of this Island. So I just needed to make it clear, I just thought

it as a matter of ah...to break this seriousness that you have.

I didn’t hear any bad news, I just heard that we just have to

keep it going.

A. KONISHI: Well, you know, I want to thank you, thank

you, Patrick. I just want to review another conflict I have,

Patrick and Mr. Balberde. No, I don’t have a prejudice

towards Keaukaha so I'll reveal that for everyone now. I say

that because I know a lot of, you know, people are not

happy in the room, and a lot of statements have been made

but the reason I said bad news is because at that other

meeting, | want to point out that yourself, from East Hawaii,

from Keaukaha, the great community of Keaukaha, Mr.

Balberde from _Waiakea, Ms. Barton from the eastern side.

You guys were the ones who voted to take a look at the

CERG map. So when I say bad news, I know you guys did

your best to try to get their concerns out, you guys didn't

have the votes. And when I tell you because of that track

record of being open like that, I just wanted to tell you that

even if you wanted to look at it at this point, I'm sorry, its

just too late. So again, because you guys had voted for that

CERG thing the last time, I just wanted to throw that out for

you,

Page 90:

J. FERGUSON: ... I feel that what we have done here is

nothing unconstitutional, as | said, people may differ. They

feel differently about what we have done, and they have

their options and I encourage them to use them. Not just for

the sake of saying, gee, we lost, lets go to court, but because

A 143

you truly believe in what you're doing. I don’t think that

there’s anyone, anyone who is proposing these different

plans in what we have talked about here on the

Commission, has any particular political agenda in mind, |

think most of these people believe that their idea is better

than ours. And they’re certainly entitled to that opinion. I

would like to state for the record, that I personally did

consider all the maps that we presented including the CERG

map and Ms. Jacobson’s map, and I know that the other

Commissioners did, too. They were discussed here at the

meetings and we did hear all of your arguments, you were

not shut out, we listened to whatever you had to say, we

just don't agree.

Page 86

VICE CHAIR: So then the motion will be so amended. Is

there any further discussion? ...

VICE CHAIR: All right, | would then ask that all those in

favor of the proposed...excuse me... All those in favor of the

2001 Council District Plan as presented in Mr. Pavao’s

motion, please raise their hand.

ALL HANDS RAISED.

I note the unanimous 8 votes. Mr. Van de Car, of course,

being absent.

Thus the plan and the motion passes, and the plan is in

effect.

x — A144

United States Election Project

Dr. Michael McDonald

Department of Public and International Affairs

George Mason University

4400 University Drive - 3F4

Fairfax, VA 22030-4444

Office: 703-993-4191

Fax: 703-993-1399

Email: mmcdon@gmu.edu

Enhancing Competitiveness in Redistricting

(Partial Text)

One of the fundamental characteristics of democratic

government is that voters have a meaningful choice among,

candidates on the ballot. The 2002 congressional election

sorely tested the degree of democracy in the United States.

Pundits widely reported the 2002 congressional elections as

the least competitive in modern history. Only 40 - plus or

minus a few - out of 435 House races were considered close

enough going into election night that the outcome was not

known with a high degree of certainty.

How can the country regarded as leader of the free world

host legislative elections whose competitiveness is nearly on

par with one-political party dictatorships such as Cuba, old

Iraq, Libya, and the old Soviet Union? The answer lies in

how the districts are drawn. Districts are redrawn every ten

years in a process known as redistricting. Only in the

United States do the politicians have so much say in how

their districts will look. Democracy is turned on its head

during redistricting - instead of the voters choosing the

representatives, the representatives choose the voters.

Naturally, they choose voters that will further their political

goals, not enhance democracy.

A 145 .

How to create competitive districts? To answer this

question, the goals of those drawing the districts are

examined here so that their motivations may be understood,

and why they prefer to create non-competitive districts. The

genius of the federal system of the United States has

produced multiple redistricting criteria and processes across

the fifty states, and thereby provides examples of what does

and does not work to enhance competitiveness in

redistricting. These are broadly defined into: redistricting

criteria, redistricting procedures, and electoral procedures.

Each item within these categories is briefly described below,

including a discussion of its effect on competitiveness and

prospects for reform.

Overall Recommendations for a Commission System

A proposed redistricting process that will produce

competitive elections is a commission system. These

recommendations are based on the Arizona commission

model, with lessons drawn from elsewhere...

3. The selection procedure should insulate members

from political influence, while at the same time

providing for partisan representation on the

commission.. Members should not be allowed to run for

election in the districts they create...

8. The commission should have a competitiveness

requirement in drawing districts, as so much as that

requirement does not conflict with other legitimate goals

of redistricting, such as population equality, adhering to

the Voting Rights Act, ete...

9. The commission should not be allowed to know the

location of incumbent homes when drawing districts.

Information regarding partisan voting is necessary,

however, in order to gauge the competitiveness of

districts. ..

What is Gerrymandering ?

| A 146

A special word has been devised to describe manipulating

district boundaries to affect a political outcome -

gerrymandering - in dubious honor of a state legislative

district proposed by Massachusetts Gov. Elbridge Gerry in

1812 that bore a striking resemblance to a salamander.

Redistricting affects the careers of politicians and the

representation of political parties and racial groups.

Incumbents, political parties, and racial groups all have a

role in the redistricting process, so understanding the

motivations of these players and how their motivations

interact with one another is important to understanding

how the redistricting process operates in practice and

shapes outcomes.

The three types of gerrymanders are:

e Partisan gerrymandering: The goal of a partisan

gerrymander is to gain partisan advantage through

redistricting. Partisan gerrymanders occur when one

political party controls the entire redistricting

process. For a state legislature, the goal of a partisan

gerrymander may be to secure majority control,

while for congressional districts, it may be to

maximize the number of seats a party will win ina

state. These two goals are subtly different, but have

generally the same effect on redistricting.

The strategy behind the ideal partisan gerrymander is to

“pack” and “crack” supporters of the opposing political

party. Opposition supporters are “packed” into extremely

safe districts in order to waste their votes in pre-determined

elections. The gerrymandering party efficiently distributes

their supporters across the remaining districts, placing just

enough in each district to comfortably win, but without

stacking itself. Opposition party supporters are “cracked”

across these districts, wasting their votes in elections that

their party's candidate cannot win.

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Districts created in a partisan gerrymander tend to be non-

competitive. The opposition party’s districts will tend to be

extremely safe while ironically the gerrymandering party's

districts are a little less so, so that their supporters may be

more efficiently distributed throughout a jurisdiction.

Sometimes the practicalities of the political geography of a

state will limit the partisan gerrymander, enabling the

creation of a few competitive districts currently represented

by the opposition party that the gerrymandering party

hopes to pick up in the following elections.

e Incumbent protection gerrymandering: The goal of

an incumbent protection gerrymander is to secure

reelection for incumbents. Often this form of

gerrymander represents a compromise between the

two political parties, a situation which is forced

when one party does not exclusively control the

redistricting process.

Redistricting is one of the few political processes that lends

itself to bipartisan compromise. Two representatives from

different parties, whose districts adjoin, are willing to make

mutually beneficial trades. A Democrat representative is

willing to swap with a Republican representative,

Republican voters for Democratic voters. Both

representatives gain electoral security through this trade.

Incumbent protection gerrymanders tend to produce the

least competitive elections.

Racial gerrymandering: The goal of racial gerrymandering

is to secure the election of candidates of choice of a

particular race...

None of these three types of gerrymanders results in

competitive districts. Incumbents prefer a certain and

decisive win, not only to retain their job, but also to frighten

off future challengers. Political parties prefer certain

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victory to the possibility that the other party will win

elections. Racial groups prefer their candidates win with

certainty, rather than the chance that they will lose. As

these interests often have control over redistricting at some

point in the process, the deck is stacked against the creation

of competitive districts...

Enhancing Competitiveness in Redistricting...

Redistricting Criteria...

2. Compactness

Description: Compactness is another generally accepted

criteria for redistricting that is often encoded into state

constitutions. Together with contiguity, compactness

reflects the notion that districts should be composed of a

tightly defined area so that representatives may be able to

more efficiently communicate with their constituents.

“Bizarrely” (in the words of Justice O'Conner) shaped

districts are an indicator of political intent in redistricting, as

political concerns are most visible in districts that

incorporate within their boundaries certain areas over

others. The reverse is not necessarily true, as a compact

district may still be cleverly drawn to affect a political

end...

The U.S. Supreme Court (see Bush v Vera) and state

Supreme Courts have considered compactness measures in

deliberating the shape of districts, but have not officially

adopted a measure, relying instead on “eye-balling” of

districts to identify non-compact districts.

Competitiveness Effect: The effect of a compactness

standard is dependent on the political geography of a

jurisdiction. If voters in a jurisdiction are neatly distributed

into communities from which compact districts may be

drawn around, a compactness standard may decrease

competitiveness. If the political landscape is a

heterogeneous patchwork of disparate political

: A 149

communities, then forcing the combination of communities

would likely lead to more competitive elections. It is .

possible that non-compact districts could achieve the

desired mixing of political interests, too. Furthermore,

compactness is not a panacea, since cleverly drawn compact

districts may still be non-competitive.

Prospects for Reform: ‘the devil is in the details.

Compactness has multiple definitions, so one would have to

be chosen, and it has detrimental effects on other

redistricting criteria (e.g., respecting communities of interest

and the Voting Rights Act.). Even so, many states explicitly

require districts to be compact without specifying a

standard.

3. Respect for Communities of Interest/Existing Political

and Geographical Boundaries

Description: The requirement that district boundaries

follow existing political or geographical lines, or respect

identified communities of interest, is sometimes found in

state constitutions. These requirements address the heart of

the concept that contiguity and compactness together hope

to accomplish: basing districts on communities with a

shared interest. These are typically separated into two

separate criteria, one regarding respect for existing

boundaries, and another respecting communities of

interest. The former are easy to identify on a map, the latter

require states to hold citizen meetings in locations across a

jurisdiction in order to determine where communities of

interest exist. Sometimes communities of interest

correspond to existing boundaries, but this is not always the

case as communities of interest may sometimes be bounded

by something as mundane as a road.

Competitiveness Effect: Communities of interest are by

definition, communities with a shared common interest, and

as such tend to be politically homogenous.

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Competitiveness requires a mixture of interests to spark

debate and exchange of ideas during political campaigns.

District boundaries that separate communities based on

their shared interest tend to reduce competitiveness.

Prospects for Reform: In Miller v Johnson, the U.S.

Supreme Court identified respect for communities of

interest as a legitimate goal of redistricting. The criterion is

also codified into some state constitutions...

5. Equal Population ~

Description: The United States Supreme Court ruled in

Reynolds v Sims and Wesberry v Sanders that state

legislative and congressional districts must be of equal

population size.

In subsequence rulings, (such as Karcher v Daggett) the

Supreme Court has ruled that congressional districts must

have perfect equality of population; though small deviations

have been allowed in some states if there is a compelling

state interest, for example in 1991 Texas had a 0.82%

deviation in its 1991 map that was upheld by the courts

while a Kansas plan with 0.92% was rejected.

For state legislative districts, the United States Supreme

Court has generally allowed larger deviations, upwards to

10%, from the smallest to the largest district; larger

deviations are permissible if a jurisdiction can again prove a

compelling state interest to do so. Some state constitutions

have specific equal population clauses in their constitutions,

and State Supreme Courts may interpret the state

constitution to require less than a 10% deviation. For

example, the Illinois Supreme Court has interpreted that

state’s constitution to require a 1% population deviation for

state legislative districts.

Competitiveness Effect: Initially, the equal population

mandate perhaps did more to increase competitiveness than

any change in electoral laws in the history of the :

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United States. Prior to equal population requirements, some

states had not redistricted for 60 years or more, creating a_

“creeping” gerrymander that favored interests representing

politically homogenous rural districts.

An unintended consequence of the equal population

mandate is that redistricting now must occur at the

beginning of each decade with the release of a new census of

population. As redistricting tools have become increasingly

sophisticated, those in control of redistricting have been able

to manipulate the process to produce uncompetitive

districts.

Prospects for Reform: None at the Federal level. The

Supreme Court has interpreted the Equal Protection Clause

of the Fourteenth Amendment as providing the guarantee of

equal population districts.

we

State constitutions could be changed to increase equal

population with regards to state and local redistricting, but

it is not clear what the effect would be on competitiveness.

Population equality constrains gerrymandering, since there

are fewer maps that can be created with equal population.

However, there may exist maps with sizable population

deviation that are more competitive than any map with zero

population deviation. Given the uncertain impact on

competitiveness, a strict equal population clause should be

omitted from a state constitution in order to allow small

flexibility in enhancing competitiveness in districts and

other redistricting goals (e.g., incorporating an entire city

within a district that otherwise would require a split of that

city - a split that would likely be made along political

considerations).

7. Incumbent and Partisan Blind Redistricting

Description: Incumbent and partisan blind redistricting

criteria seek to remove political considerations from

redistricting. In the case of incumbent-blind redistricting,

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those drawing the maps cannot know the location of

incumbent's homes. There are two sorts of methods to

require partisan-blind redistricting, either through limiting

the use of election information in the course of redistricting,

or through language that states that redistricting should not

be used to favor one party over another.

Competitiveness Effect: Incumbent and partisan blind

redistricting criteria improve competitiveness by limiting

these two powerful interests - incumbent and partisan -

both of which prefer safe districts.

Limiting the use of election data during redistricting,

however, may have a negative effect on competitiveness,

since these election data are necessary to determine the

competitiveness of a district, and how to improve that

competitiveness.

Prospects for Reform: The U.S. Supreme Court has

implicitly acknowledged that incumbency and partisanship

are legitimate goals of the redistricting process, though the

court has ruled in Davis v Bandermere that there is a limit to

partisan gerrymandering (though the court has only once

overturned a plan based on partisan gerrymandering, and

that plan regarded at-large districts versus a districting

system in North Carolina). There is much speculation

regarding Victh, the most recent partisan gerrymandering

case yet to be decided by the Supreme Court. However, the

Court has never ruled that limiting these interests in the

course of redistricting is unconstitutional, and indeed, some

states have adopted such redistricting criteria.

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REDISTRICTING CRITERIA FOR HAWAI'I COUNTY

By Charles Flaherty and Brenda Ford

: 1. No district shall be drawn to unduly favor or

penalize a person, political faction, or incumbent.

NM

istricts shall be drawn that are as compact as

Districts shall be drawn that are as compact as

practicable using current computer technology.

3. All parts of the district shall be contiguous to the

district. A resident shall not be forced to leave the

district in order to reach another part of the same

district.

4. District lines shall, where possible, follow permanent

and easily recognizable features.

5. Nonresident military, nonresident military

dependents, and nonresident students shall be

excluded from the permanent population base used

for calculating “ideal” district numbers and

deviations.

6. Districts shall have approximately equal, permanent,

resident populations, as required by applicable

constitutional provisions.

7. The total deviation for the entire redistricting plan

shall be less than 10%.

$8. The maximum deviation within a district shall not

exceed plus or minus 4.99% of the ideal district

population. An ideal district population shall be the

total number of permanent residents divided by the

number of Council Districts.

9. The “one person, one vote” principle shall be used.

10. “Standards of fairness” principles shall be part of the

plan.

11.

12.

13.

14.

5S

16.

17.

18.

19.

20.

21.

22.

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There shall be no gerrymandering for any reason.

There shall be no packing (also known as stacking) of

racial minorities or political parties in districts.

There shall be no partisanship in drawing district

boundaries.

Communities of interest shall be kept together, if

practicable.

There shall be no fracturing (also known as cracking)

of racial minorities or political parties.

There shall be no fracturing of communities of

interest, if practicable.

Drawing bizarre district shapes shall be avoided.

District boundaries shall be drawn without regard to

incumbent's residence, incumbent's ability to run for

re-election in their current district, OT whether the

incumbent faces another incumbent for re-election.

Socio-economic factors shall be identified,

documented, and included in the redistricting plan.

If any factors are not used, the reasoning for such

non-use shall be voted upon and documented as to

the reason(s) why.

Keep socio-economic groups together, if practicable.

Documented, high-growth districts shall be drawn to

receive the most negative percentages of an ideal

district population so as that district continues to

grow between census years, the deviations will be

equalized with other districts.

All deviations shall be justified publicly before the

final meeting of the redistricting agency and be

N

Ww

24.

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included in writing with the submission of the final

plan.

. To determine the number of Council Districts an area

justifies, add the census tracks for each area together

and divide by an “ideal” district’s population.

Round fractional portions of such districts to the

nearest integer to determine the number of Council

Districts required for that community.

Ifa population of residents must be moved toa

different district to equalize deviations, move the

entire subdivision as a unit, if practicable.

. Submission of alternate plans to the

Reapportionment Commission that are legal, meet

the above criteria , and have lower total deviations,

shall be selected for the final plan unless the

redistricting agency can alter its plan to achieve

lower deviations than the alternate plan offered.

Documentation for the reason the alternate plan is

selected or rejected shall be in writing.

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How to Draw Redistricting Plans

That Will Stand Up in Court

Peter S. Wattson

Senate Counsel

Minnesota

Contents

I. Introduction

A. Reapportionment and Redistricting

B. Gerrymandering,

1. Packing

2. Fracturing

C. The Facts of Life

|. Creating a Gerrymander

2. The Need for Limits

Il. Draw Districts of Equal Population

A. Use Official Census Bureau Population

Counts

1. Alternative Population Counts

Nm

3. Exclusion of Undocumented Aliens

4. Inclusion of Overseas Military Personnel

B. Measuring Population Equality

C. Congressional Plans

1. "As Nearly Equal in Population As

Practicable"

2. Unless Necessary to Achieve "Some

. Use of Sampling to Eliminate Undercount

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Legitimate State Objective"

D. Legislative Plans

1. An Overall Range of Less than

Ten Percent

2. Unless Necessary to Achieve Some

"Rational State Policy”

Ill. Don't Discriminate Against Racial or

Language Minorities

A. Section 2 of the Voting Rights Act

1. No Discriminatory Effect

2. The Three Gingles Preconditions

3. "The Totality of the Circumstances"

4. Draw Districts the Minority Has a Fair

Chance to Win

B. Section 5 of the Voting Rights Act

1. In "Covered Jurisdictions,” Plans Must be

Precleared

2. Do Not Regress

3. You Need Not Maximize the Number of

Minority Districts

C. Equal Protection Clause of the 14th

Amendment

1. You May Consider Race in Drawing

Districts

2. Avoid Drawing a Racial Gerrymander

a. Beware of Bizarre Shapes

b. Draw Districts that are Reasonably

NS

8

10

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Compact

c. Beware of Making Race Your

Dominant Motive

d. Beware of Using Race as a Proxy for

Political Affiliation

e. Follow Traditional Districting

Principles

3. Strict Scrutiny is Almost Always Fatal

a. A Compelling Governmental Interest

b. Narrowly Tailored to Achieve that

Interest

(1) Remedying Past Discrimination

(2) Avoiding Retrogression Under

SectorS

(3) Avoiding a Violation of Section 2

IV. Don't Go Overboard with Partisan

Gerrymandering

A. Partisan Gerrymandering is a Justiciable

Issue

B. Can It Be-Proved?

V. Prepare to Defend Your Plan in Both State

and Federal Courts

A. Federal Court Must Defer to State Court

B. Federal Court May Not Directly Review

State Court Decision

C. Plan Approved by State Court Subject to

Collateral Attack in Federal Court

19

23

34

D. Federal Court Must Defer To State Remedies 34

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I. Attorney General May Represent State in

Federal Court 35

Table of Authorities 37

I. Introduction

The purpose of this paper is to acquaint you with the major

federal cases that will govern the way you draw your

legislative and congressional redistricting plans following

the 2000 census so that you may learn how to draw

redistricting plans that will stand up in court.

But, before I get into the cases, | think it is important to

clarify some terms I will be using and to explain how the

redistricting process works.

A. Reapportionment and Redistricting

“Reapportionment” is the process of reassigning a given

number of seats in a legislative body to established districts,

usually in accordance with an established plan or formula.

The number and boundaries of the districts do not change,

but the number of members per district does.

“Redistricting” is the process of changing the district

boundaries, The number of members per district does not

change, but the districts’ boundaries do.

The relationship between reapportionment and redistricting

can most easily be seen by examining the U.S. House of

Representatives. Every ten years the 435 seats in the House

of Representatives are reapportioned among the 50 states in

accordance with the latest federal census. As the population

of some states grows faster than that of others, congressional

seats move from the slow-growing states to the fast-growing

ones. Then, withirt each of the states that is

A 160

entitled to more than one representative, the boundaries of

the congressional districts are redrawn to make their

populations equal. The state is redistricted to accommodate

its reapportionment of congressmen.

Reapportionment, in the narrow sense in which | will be

using it here, is not a partisan political process. It is a

mathematical one. The decennial reapportionment of the

U.S. House of Representatives is carried out in accordance

with a statutory formula, called the “method of equal

proportions,” established in 1941. 2 U.S.C. Sections 2a and

2b. It is not subject to partisan manipulation, except in

determining who gets counted in the census. The decision of

Congress to use this particular formula, rather than another,

has been upheld by the Supreme Court. Dept. of Commerce

v. Montana, 503 U.S. 442 (1992).

Redistricting, on the other hand, is highly partisan. This is

because, in redrawing district boundaries, the drafter has

such wide discretion in deciding where the boundaries will

run. Creative drafting can give one party a significant

advantage in elections, as I shall explain in a moment.

B. Gerrymandering

The process of drawing districts with odd shapes to create

an unfair advantage is called “gerrymandering.”

Like "reapportionment," the term "gerrymandering" has

become so popular that it has lost its original precision and

is often used to describe any technique by which a political

party attempts to give itself an unfair advantage.

Used in its narrow sense, to refer only to the practice of

creating districts that look like monsters, there are basically

just two techniques -- packing and fracturing. How do they

work?

1. Packing

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"Packing" is drawing district boundary lines so that the

members of the minority are concentrated, or “packed,” into

as few districts as possible. They become a supermajority in

the packed districts -- 70, 80, or 90 percent. They can elect

representatives from those districts, but their votes in excess

of a simple majority are “wasted.” They are not avaHable to

help elect representatives in other districts, so they cannot

elect representatives in proportion to their numbers in the

state as a whole.

2. Fracturing

“Fracturing” is drawing district lines so that the minority

population is broken up. Members of the minority are

spread among as many districts as possible, keeping them a

minority in every district, rather than permitting them to

-concentrate their strength enough to elect representatives in

some districts.

C. The Facts of Life

1. Creating a Gerrymander

It is a fact of life in redistricting that the district lines are

always going to be drawn by the majority in power, and

that the majority will always be tempted to draw the lines in

such a way as to enhance their prospects for victory at the

next election.

If the supporters of the minority party were distributed

evenly throughout the state, there would be no need-to

gerrymander. In a state where the minority party had 49

percent of the vote, they would lose every seat.

But I suspect that political minorities are not evenly

distributed in any state, so the persons drawing the

redistricting plan try to determine where they are, and draw

their districts accordingly: first packing as many of them

into as few districts as possible and then, where they

A 162

can't be packed, fracturing them into as many districts as

possible. It is this process of drawing the district lines to first

pack and then fracture the minority that creates the dragon-

like districts called gerrymanders.

2. The Need for Limits

The more freedom the-majority has to determine where the

district boundary lines will go, the greater the temptation to

gerrymander. Equal-population requirements, disfavor of

multimember districts, and minority representation

requirements are all attempts by the courts to restrain the

majority from taking unfair advantage of their majority

position when drawing redistricting plans.

II. Draw Districts of Equal Population

A. Use Official Census Bureau Population Counts

1. Alternative Population Counts

The first requirement for any redistricting plan to stand up

in court is to provide districts of substantially equal

population. But how do you know the population? The

obvious way is to use official Census Bureau population

counts from the 2000 census.

It is true that some legislatures have chosen to use data

other than the Census Bureau's population counts to draw

their districts and have had their plans upheld by federal

courts. For example, back in 1966, Hawaii used the number

of registered voters, rather than the census of population, to

draw its legislative districts, and had its plan upheld by the

U.S. Supreme Court in the case of Burns v. Richardson, 384

U.S. 73. But there the Court found that the results based on

registered voters were not substantially different from the

results based on the total population count.

A state may conduct its own census on which to base its

redistricting plans. For example, a 1979 Kansas legislative

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redistricting plan based on the state's 1978 agricultural

census was upheld by a federal district court in the case of

Bacon v. Carlin, 575 F. Supp. 763 (D. Kan. 1983), aff'd 466

U.S. 966 (1984). And in 1986, a Massachusetts legislative

redistricting plan based on a state census was upheld by a

federal district court in the case of McGovern v. Connolly,

637 F. Supp. 111 (D. Mass 1986).

Late in the decade, a federal court may find that local

government estimates are a more accurate reflection of

current population than old census counts and thus are an

~ acceptable basis for developing redistricting plans before the

next census. Garza v. County of Los Angeles, Findings of

Fact and Conclusions of Law, No. CV 88-5143 KN (Ex) (C.D.

Cal. June 4, 1990).

But generally, the federal courts will not simply accept an

alternative basis used by the states. Rather, they will first

check to see whether the districts are of substantially equal

population based on Census Bureau figures. If they are not,

the courts will strike them down.

So, if you want your plans to stand up in court, the easiest

way is use official Census Bureau population counts.

2. Use of Sampling to Eliminate Undercount

For the year 2000 census, as there was for the 1990 census,

there has been a political fight over how the population

should be counted.

In the 1990s, the main political tight over how to count the

population concerned how to compensate for the historic

undercounting of racial and ethnic minorities. In response to

a suit by the City of New York and other plaintiffs that

sought to compel the Census Bureau to make a statistical

adjustment to the population data to account for people the

Bureau failed to count, the Bureau agreed to make a fresh

determination of whether there should be a statistical

A 164

adjustment for an undercount or overcount in the 1990

census. The Bureau agreed to conduct a post enumeration

survey of at least 150,000 households to use as the basis for

the adjusiment. The Bureau agreed that, by July 15, 1991, it

would either publish adjusted population data or would

publish its reasons for not making the adjustment. Any

population data published before then, such as the state

totals published December 31, 1990, and the block totals

published April 1, 1991, would contain a warning that they

were subject to correction by July 15. The Bureau ultimately

decided not to make a statistical adjustment to correct for

the undercount, and the Supreme Court found that its

decision was reasonable and within the discretion of the

Secretary of Commerce, in whose Department the Census

Bureau is located. Wisconsin v. City of New York, 517 U.S. 1

(1996).

For the 2000 census, the fight has been over whether to use

scientific sampling techniques to conduct the census from

the beginning, rather than adjusting the population counts

after they have been issued. The Census Bureau proposed

that, in order to obtain information on at least 90 percent of

the households in each census tract, it would use statistical

sampling techniques to estimate the characteristics of the

households that did not respond to the first two mailings of

a census questionnaire. In each census tract, the fewer

households that responded initially, the larger would be the

size of the sample enumerators would contact directly as

part of their follow-up. The addresses that would be

included in the sample would be scientifically chosen at

random to insure they were statistically representative of all

nonresponding housing units in that census tract.

Congress attempted to stop the use of sampling by enacting

Pub. L. No. 105-119, § 209 (j), 111 Stat. 2480 (1997), which

required that all data releases for the 2000 census show "the

A 165

number of persons enumerated without using statistical

methods.” It also authorized lawsuits to determine whether

the Bureau's plan to use sampling for apportioning seats in

Congress was constitutional.

In Department of Commerce v. U.S. House of

Representatives, 525 U.S. 316 (1999), the Supreme Court

ruled that the Census Act prohibits the use of sampling for

purposes of apportioning representatives in Congress

among the states. It did not rule on the constitutionality of

using sampling to determine the distribution of population

within each state for purposes of redistricting its

apportionment of congressional seats or the seats in its state

legislature.

Followirg the Supreme Court's decision, the Census Bureau

announced its plan to use statistical sampling methods to

conduct a postenumeration survey called the "Accuracy and

Coverage Evaluation.” As of May 1, 2000, the Bureau was

planning to publish the census counts derived from

sampling along with the head counts mandated by Pub. L.

No. 105-119. In other words, each state would receive two

sets of census counts for each area within the state and

would have to make its own decision which count to use for

each area.

3. Exclusion of Undocumented Aliens

Pennsylvania and other states have sought without success

to require the Census Bureau to exclude undocumented

aliens from the population counts used to apportion the

members of Congress among the states.

4. Inclusion of Overseas Military Personnel

In 1990, the Department of Defense conducted a survey of

its overseas military and civilian employees and their

dependents to determine their “address of record.” These

overseas military personnel were allocated to the states

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according te their address of record for purposes of

apportioning the House of Representatives, but were not

included in the April 1, 1991, block counts given to the states

for use in redistricting.

~~

Allocating overseas military personnel to the states caused

one congressional seat to be shifted from Massachusetts to

Washington State. Massachusetts sued the Secretary of

Commerce, but the Supreme Court upheld the allocation.

Franklin v. Massachusetts, 505 U.S. 788 (1992).

B. Measuring Population Equality

How does a court measure the degree of population

equality in a redistricting plan? Let me give you an example.

Let's say we have a state with a population of one million,

and that it is entitled to elect ten representatives in

Congress. (That is not a realistic number, but it is casicr to

work with.) The “ideal” district population would be

100,000. Let's say the legislature draws a redistricting plan

that has five districts with a population of 90,000 and five

districts with a population of 110,000. The "deviations" of

the districts would be 10,000 minus and 10,000 plus, or

minus ten percent and plus ten percent. The "average

deviation” from the ideal would be 10,000 or ten percent.

And the "overall range” would be 20,000, or 20 percent. Most

courts have used what statisticians call the "overall range” to

measure the population equality of a redistricting plan,

though they have usually referred to it by other names, such

as “maximum deviation,” "total deviation,” or “overall

deviation.”

C. Congressional Plans

1. "As Nearly Equal in Population As Practicable"

Once you know the population, and you know how to

measure the degree of population equality in a plan, how

equal do the districts have to be? First, you must

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understand that the federal courts use two different

standards for judging redistricting plans -- one for

congressional plans and a different one for legislative plans.

The standard for congressional plans is based on Article I,

Section 2, of the U.S. Constitution, which says:

Representatives . .. shall be apportioned among the several

States .. . according to their respective numbers ....

The standard for congressional plans is strict equality. In the

1964 case of Wesberry v. Sanders, 376 U.S. 1, the US.

Supreme Court articulated that standard as "as nearly equal

in population as practicable."

Notice the choice of words. The Court did not say “as nearly

equal as practical.” The American Heritage Dictionary

defines "practicable" as “capable of being ...done...." It

notes that something "practical" is not only capable of being

done, but “also sensible and worthwhile." It illustrates the

difference between the two by pointing out that "It might be

practicable to transport children to school by balloon, but it

would not be practical.”

In 1983, in Karcher v. Daggett, 462 U.S. 725, the U.S.

Supreme Court struck down a congressional redistricting,

plan drawn by the New Jersey Legislature that had an

overall range of less than one percent. To be precise, .6984

percent, or 3,674 people. The plaintiffs showed that at least

one other plan before the Legislature had an overall range

less than the plan enacted by the Legislature, thus carrying

their burden of proving that the population differences

could have been reduced or eliminated by a good-faith

effort to draw districts of equal population.

In the 1980s, three-judge federal courts drawing their own

redistricting plans achieved near mathematical equality. For

example, in Minnesota the court-drawn plan had an

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overall range of 46 people (.0145 percent), LaComb v.

Growe, 541 F. Supp. 145 (D. Minn. 1982) aff'd mem. sub

nom. Orwoll v. LaComb, 456 U.S. 966 (1982) (Appendix A,

unpublished) (In its opinion, the Court tells only the sum of

all the deviations, 76 people, and refers to it as the “total

population deviation"), and in Colorado the court-drawn

plan had an overall range of ten people (.0020 percent),

Carstens v. Lamm, 543 F. Supp. 68, 99 (D. Colo. 1982).

With the improvements in the census and in the computer

technology used to draw redistricting plans after the 1990

census, the degree of population equality that was

“practicable” was even greater than that achieved in the

1980s. Many states drew congressional plans with an overall

range of either zero or one person. That is likely to be the

standard for most plans in the future.

If you can't draw congressional districts are

mathematically equal in population, don't assume that

others can't. Assume that you risk having your plan

challenged in court and replaced by another with a lower

overall range.

2. Unless Necessary to Achieve "Some Legitimate State

Objective"

Even if a challenger is able to draw a congressional plan

with a lower overall range than yours, you may still be able

to save your plan if you can show that each significant

deviation from the ideal was necessary to achieve "some

legitimate state objective.” Karcher v. Daggett, 462 U.S. 725,

740 (1983). As Justice Brennan, writing for the 5-4 majority

in Karcher v. Daggett, said:

Any number of consistently applied legislative policies

might justify some variance, including, for instance, making

districts compact, respecting municipal boundaries,

preserving the cores of prior districts, and avoiding

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contests between incumbent Representatives . ... The State

must, however, show with some spccificity that a particular

objective requirel the specific deviations in its plan, rather

than simply relying on general assertions .... By necessity,

whether deviations are justified requires case-by-case

attention to these factors.

462 U.S. at 740-41.

So, if you intend to rely on these “legitimate state objectives”

to justify any degree of population inequality in a

congressional plan, you would be well advised to articulate

those objectives in advance, follow them consistently, and

be prepared to show that you could not have achieved those

objectives in each district with districts that had a smaller

deviation from the ideal. Arkansas, Turner v. Arkansas, 784

F. Supp. 553 (E.D. Ark. 1991); Maryland, Anne Arundel

County Republican Cent. Committee v. State Administrative

Bd. of Election Laws, 781 F. Supp. 394 (D. Md. 1991); and

West Virginia, Stone v. Hechler, 782 F. Supp. 1116 (W.D.

W.Va. 1992); all were able to meet that burden when

congressional plans drawn by the legislature were

challenged in court in the 1990s.

Near the end of the decade, the Supreme Court upheld a

court-drawn congressional plan in Georgia with an overall

range of 0.35 percent (about 2,000 people). Abrams v.

Johnson, 117 S. Ct. 1925 (1997). But that was the lowest

range of all the plans that met constitutional requirements,

Georgia was able to show it had a consistent historical

practice of not splitting counties outside the Atlanta area,

and likely shifts in population since 1990 had made any

further effort to achieve population equality illusory.

D. Legislative Plans

1. An Overall Range of Less than Ten Percent

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Fortunately for those of you who will be drawing

redistricting plans after the 2000 census, the Supreme Court

has adopted a less exacting standard for legislative plans. It

is not based on the Apportionment Clause of Article 1,

Section 2, which governs congressional plans. Rather, it is

based on the Equal Protection Clause of the I4th

Amendment.

As Chief Justice Earl Warren observed in the 1964 case of

Reynolds v. Sims, 377 U.S. 533, “mathematical nicety is nota

constitutional requisite” when drawing legislative plans. All

that is necessary is that they achieve "substantial equality of

population among the various districts.” Id. at 579.

“Substantial equalityof population” has come to mean that a

legislative plan will not be thrown out for inequality of

population if its overall range is less than ten percent.

The ten-percent standard was first articulated in a

dissenting opinion written by Justice Brennan in the cases of

Gaffney v. Cummings, 412 U.S. 735, and White v. Regester,

412 U.S. 755, in 1973. In later cases, the Court majority has

endorsed and followed the rule Justice Brennan's dissent

accused them of establishing. See, c.g., Chapman v. Meier,

420 U.S. 1 (1975); Connor v. Finch, 431 U.S. 407 (1977);

Brown v. Thomson, 462 U.S. 835, 842-43 (1983); Voinovich v.

Quilter, 507 U.S. 146 (1993).

2. Unless Necessary to Achieve Some "Rational State

Policy"

The Supreme Court in Reynolds v. Sims had anticipated that

some deviations from population equality in legislative

plans might be justified if they were “based on legitimate

considerations incident to the effectuation of a rational state

policy ...." 377 U.S. 533, 579 (1964). So far, the only

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“rational state policy” that has served to justify an overall

range of more than ten percent in a legislative plan has been

respecting the boundaries of political subdivisions. And that

has happened in only three cases: Mahan v. Howell, 410 U.S.

315 (1973); Brown v. Thomson, 462 U.S. 835 (1983); and

Voinovich v. Quilter, 507 U.S. 146 (1993).

In Mahan v. Howell, the Supreme Court upheld a legislative

redistricting plan enacted by the Virginia General Assembly

that had an overall range among House districts of about 16

percent. The Court took note of the General Assembly's

constitutional authority to enact legislation dealing with

particular political subdivisions, and found that this

legislative function was a significant and a substantial

_aspect of the Assembly's powers and practices, and thus

justified an attempt to preserve political subdivision

boundaries in drawing House districts.

Brown v. Thomson, 462 U.S. 835 (1983), upholding a

legislative plan with an overall range of 89 percent, was

decided by the Supreme Court on the same day that it

decided Karcher v. Daggett, 462 U.S. 725 (1983), where it

threw out a congressional plan with an overall range of less

than one percent. Reconciling these two cases is not easy.

Nevertheless, I shall try.

First, as | have noted, the constitutional standard for

legislative plans is different from the standard for

congressional plans.

Second, it is important to understand that in Brown v.

Thomson the Court was faced with a reapportionment plan

rather than with a redistricting plan. The members of the

Wyoming House of Representatives were being

reapportioned among Wyoming's counties, rather than

having new districts created for them. Because the

{ ree’ arn

boundaries of the districts were not being changed, the

opportunities for partisan mischief were far reduced.

Third, Wyoming put forward a "rational state policy” to

justify an overall range of more than ten percent, and the

Court endorsed it. Writing for the Court, Justice Powell

concluded that Wyoming's constitutional policy--followed

since statehood--of using counties as representative districts

and insuring that each county had at least one

representative, was supported by substantial and legitimate

state concerns, and had been applied in a manner free from

any taint of arbitrariness or discrimination. He also found

that the population deviations were no greater than

necessary to preserve counties as representative districts,

and that there was no evidence of a built-in bias tending to

favor

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