Appendix — Burns v. Richardson

Supreme Court brief1966

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965

No. 318

JOHN A. BURNS, GOVERNOR OF THE

STATE OF HAWAII, APPELLANT,

vs.

WILLIAM §S. RICHARDSON, ET AL.

No. 323

ELMER F. CRAVALHO, ET AL., APPELLANTS,

vs.

WILLIAM S. RICHARDSON, ET AL.

No. 409

KAZUHISA ABE, ET AL., APPELLANTS,

vs.

WILLIAM 8S. RICHARDSON, ET AL.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF HAWAII

INDEX

Recorp Press, Printers, New York, N. Y., NovEMBER 17, 1965

sn senemern conn

li INDEX

Cet icc Gr len Ded Oe

the District of Hawaii

Complaint 3 1

Exhibit A—Article III, Sections 1 through 5 of

State Constitution 18 13

Exhibit B—Article XVI, Section 1 of State

Constitution 20 16

Exhibit C—Table of information as to popula-

tion and apportionment of Hawaii, dated

July 28, 1964 24 23

Summons 25 24

Motion for preliminary injunction — 26 25

Attachment— Affidavit of Carl J. Guntert —.... 29 26

Memorandum of authorities 32 28

Answer of defendant 52 30

Complaint in intervention of John A. Burns -... 64 37

Application to fix time for hearing and order

thereon 76 42

Motion of Nelson K. Doi, et al. to intervene as

defendants 78 43

Notice of motion to intervene 80 44

Answer and cross-claim of Nelson K. Doi, et al. 82 45

Answer of Elmer F. Cravalho, et al. 92 49

Pre-trial order 330 53

Decision and order 370 62

Notice of motion to alter or amend judgment __ 394 82

Motion to alter or amend judgment — 396 83

Statement of reasons and authorities —_..____. 399 85

Motion to amend motion to alter or amend judg-

ment and order thereon 411 87

Final order on motion to alter or amend judg-

ment 454 88

Memorandum of Governor’s position on Senate

reapportionment under House Bill No. 773,

Senate Draft 1 480 91

Addendum to Governor’s memorandum

—

INDEX lil

Original Prirt

Record from the United States District Court for

the District of Hawaii—Continued

Submission of proposed Constitutional amend-

ments adopted and legislation enacted pursuant

to minute order dated March 9, 1965, as amended 537 103

Exhibit “A”—Conference Committee Report

No. 2 re: H.B. No. 987, S.D.1, to the Presi-

dent of the Senate, dated April 13, 1965 ____ 540 105

Conference Committee Report No. 2 re

H.B. No. 987, 8.D.1, C.D.1, to the

Speaker of the House of Representatives,

dated April 12, 1965 543 109

H.B. No. 987, 8.D.1, C.D.1—reapportion-

ment and redistricting plan for the

Senate 546 113

Exhibit “B”—Conference Committee Report

No. 1 re H.B. No. 773, S.D.1 to the Presi-

dent of the Senate, dated April 13, 1965 553 119

Conference Committee Report No. 1 re

H.B. No. 773, S.D.1, ©.D.1 to the

Speaker of the House of Representatives,

dated April 12, 1965 561 130

H.B. No. 773, §.D.1, C.D.1—proposed Con-

stitutional amendment _._ 569 140

Exhibit “C’—H.B. No. 986—legislation pur-

suant to the provisions of Article XV of the

Gthte Comstitetion 2 577 147

Order staying injunction _._ saa Mate isaco ents 580 150

Decision and order on Hawaii’s Senate Reappor-

tionment Plan of April 14,1965 582 151

Notice of appeal of John A. Burns, Governor of

Hawaii, to the Supreme Court of the United

States m ; 613 165

Motion to suspend injunction and for stay of

order pending appeal _..- = 621 168

Attachment—Affidavit of John A. Burns ___ 622 169

Application to fix time for hearing and order

thereon é 631 177

Notice of motion _ a 632 178

iv INDEX

Record from the United States District Court for

the District of Hawaii—Continued

Notice of appeal of Hawaii State Senators

Kazuhisa Abe, et al. to the Supreme Court of

the United States

Notice of appeal of Elmer F. Cravalho, et al.

to the Supreme Court of the United States —_.

Ruling on motion to suspend injunction and for

stay of order pending appeal

Docket entries

Certificate of Clerk (omitted in printing) —

Excerpts from Transcript of Proceedings—Au-

gust 25 and 26, 1964

Testimony of Robert Schmitt—

direct

eross by Mr. Dodge —-.........

eross by Mr. Padgett

Examination by the Court

eross by Mr. Dodge --._-

eross by Mr. Padgett

eross by Mr. Kanbara _.....

cross by Mr. Padgett —.....

cross by Mr. Kanbara —...

Testimony of Robert Schmitt—

(resumed )

Offers in evidence

direct

voir dire

cross

direct

Offers in evidence

Excerpts from Transcript of Proceedings— Janu-

ary 11, 1965 ‘ ;

Offers in evidence

Testimony of Robert Schmitt—

(recalled )—

ET Se Skee oe aa “ 780 262

eross by Mr. Kanbara —___ 787 266

cross by Mr. Padgett __ 787 266

ner

INDEX v

Original Print

Record from the United States District Court for

the District of Hawaii—Continued

Excerpts from Transcript of Proceedings—Janu-

ary 11, 1965—Continued

Testimony of Robert Schmitt (recalled as a

witness for intervenor-plaintiffs )—

direct 790 269

cross by Mr. Dodge —___. 798 274

cross by Mr. Padgett 799 275

Testimony of Eileen K. Lota—

direct 801 276

Testimony of Robert Schmitt (recalled as a

wicness for plaintiffs )—

direct 818 286

Excerpts from Transcript of Proceedings—April

15 and 16, 1965 824 291

Inquiry by Judge Pence and response by Mr.

Kanbara 824 291

Offers in evidence 827 291

Testimony of Sakae Takahashi—

direct 830 293

cross by Mr. Kanbara ___. 851 307

cross by Mr. Dodge _____ 856 311

cross by Mr. Tonaki _______. 861 314

cross by Mr. Kanbara ____. 862 315

Testimony of Robert Schmitt (recalled as a

witness for intervenor-plaintiffs )—

direct 864 316

cross by Mr. Dodge . & 327

cross by Mr. Kanbara ____ 883 329

Remarks of Deputy Attorney General Kanbara 889 333

Reporters’ certificate (omitted in printing) 897 338

Certificate of clerk (omitted in printing) ____. 898 338

Plaintiffs’ Exhibit 1—Table showing statistics on

population, registered voters and apportion-

ment of Legislature 899 339

Plaintiffs’ Exhibit 6—Map—Proposed Represen-

tative and Senatorial Districts Based on Total

Population, Maui County

Original Print

vi INDEX

Record from the United States District Court for

the District of Hawaii—Continued

Plaintiffs’ Exhibit 7—Map—Proposed Repres~

tative and Senatorial Districts Based on Totas

Population, Hawaii County 901 341

Plaintiffs’ Exhibit 9—Map—Proposed Represen-

tative and Senatorial Districts Based on Total

Population, Kauai County 902 342

Plaintiffs’ Exhibit 11—Standing Committee Re-

port No. 92, Constitutional Convention “f

Hawaii 903 343

Plaintiffs’ Exhibit 14—Excerpt from Statistical

Report 22, Election Statistics of Hawaii, De-

partment of Planning and Economic Develop-

ment, October 15, 1964 925 359

Plaintiffs’ Exhibit 15—Corrections, dated Novem-

ber 6, 1964, to Statistical Report 20, “Military

Personnel and Dependents in Hawaii, July

1964”, dated July 27, 1964, together with the

Statistical Report 941 375

Plaintiffs’ Exhibit 16—Table 1—Population, by

class, for Hawaii, by Legislative District—1960 957 391

Defendant’s Exhibit A—Testimony of Robert C.

Schmitt, Statistician, Department of Planning

and Economic Development before the State

ee Ea ee 958 392

Defendant’s Exhibit B—Map showing and listing

Registration Points on Oahu — 968 402

Defendant’s Exhibit C—Procedure for Voter

Registration—Honolulu and Guide to Regis-

tration of Military Personnel 970 404

Intervenors-Plaintiffs’ Exhibit GO-1—1960 popu-

lation and apportionment statistics —..____ 972 407

Intervenors-Plaintiffs’ Exhibit GO-2—Statement

of Delegate Wirtz, excerpt from Vol. II, Pro-

ceedings of the Constitutional Convention of

Hawaii, p. 760 _ <a 973 408

INDEX

Record from the United States District Court for

the District of Hawaii—Continued

Intervenors-Plaintiffs’ Exhibit GO-4—State of

Hawaii Results of Votes Cast General Election

Tuesday, November 3, 1964—excerpt —______.

Intervenors-Defendants’ Exhibit S-8—Chart—

Proposed Senatorial Districts

Order noting probable jurisdiction —....- ==

Vii

Original Print

974 409

976 411

977 412

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[fol. 3]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

Civil No. 2308

Henrietta Davipson Hout, James Roprnson Hout, Caru J.

GuntTerT, Eimer G. LEEHMAN, JoHN J. MEDEIROS and

Wuu1am P. Lacy, Plaintiffs,

vs.

Wiiuiam S. Ricwarpson, Lieutenant Governor of Hawaii,

Defendant.

Comptaint—Filed August 13, 1964

Henrietta Davidson Holt, James Robinson Holt, Carl J.

Guntert, Elmer G. Leehman, John J. Medeiros and William

P. Lacy, plaintiffs, hereby file their complaint and allege

that:

The jurisdiction of this Court is based on the Civil

Rights Act, 42 USC §§ 1983, 1988. This Court has addi-

tional jurisdiction under 28 USC § 13438. Relief hereunder

is further sought pursuant to the Federal Declaratory

Judgment Act, 28 USC §$§ 2201, 2202.

As appears more fully below, the plaintiffs herein seek

relief consisting of interlocutory or permanent injunctions

restraining the enforcement, operation or execution of cer-

tain provisions of the Constitution and statutes of the

[fol.4] State of Hawaii by the defendant State officer.

Therefore, they are requesting herein the convening of a

three judge District Court to grant such relief, as provided

under 28 USC §$§ 2281 et seq.

Iil

The individual plaintiffs herein are citizens, taxpayers

and electors of the United States and of the State of

Hawaii, and as qualified voters in said State, are entitled

to vote for members of the senate and the house of repre-

sentatives of the Hawaii legislature. Said plaintiffs reside

in the respective senatorial and representative districts

shown below, and are taxpayers and qualified voters

thereof:

Senatorial Representative

Plaintiff District District

Henrietta Davidson Holt 5th 10th

James Robinson Holt 5th 10th

Carl J. Guntert 5th 10th

Elmer G. Leehman 5th 10th

John J. Medeiros 5th 8th

William P. Lacy 4th 15th

The aforementioned plaintiffs jointly and severally bring

this action on their own behalf and on behalf of all other

persons, citizens, taxpayers and voters in the State of

Hawaii who are similarly situated.

The defendant is the duly elected, qualified and acting

lieutenant governor of the State of Hawaii and as such is

responsible for the supervision of elections, pursuant to

§ 14-8 and Chapter 11, R.L.H. 1955, as amended, including

the receipt of filing of nomination papers for state officers

[fol.5] (§ 11-97, R.L.H. 1955, as amended); issuance of

written notices to county clerks, designating the offices to

which candidates are to be nominated at the primary elec-

tion for state and county offices and the time and place at

which the primary is to be held in each precinct (§ 11-93,

R.L.H. 1955, as amended); transmission to county clerks

of certified lists of all persons for whom nomination papers

have been duly filed and who are entitled to be voted for,

and the office for which each is a candidate (§ 11-98, R.L.H.

1955, as amended) and tabulation of election returns and

certification of election (4 11-70, R.L.H. 1955, as amended).

The plaintiffs are denied the right to due process and

the equal protection of the laws as guaranteed by the Four-

teenth Amendment to the Constitution of the United

States. They bring this action on their own behalf and

on behalf of all citizens, taxpayers and qualified voters of

the respective counties of the State of Hawaii, and further

on behalf of all voters of said State who are similarly

situated, for a declaration of their rights and a declaration

of the invalidity of those sections of the Constitution of

said State which apportion the election of senators and

representatives in said State, and for such declaratory and

injunctive relief as may be proper to assure them and all

others similarly situated due process and equal protection

of the laws which are now and have been for many years

denied them by the defendant and his predecessors in office

[fol.6] who have complied with certain provisions of the

Constitution of said State, which are violative of the Con-

stitution of the United States, all of which are more par-

ticularly set forth hereinafter.

Pursuant to the Admission Act (73 Stat. 4, as amended

by 74 Stat. 422) the Constitution of the State of Hawaii

as accepted, ratified and confirmed by the United States

of America, has adopted the Constitution of the United

States as the supreme law of the land, which includes the

Fourteenth Amendment, Section 1 of which provides that

no state shall deprive any person of life, liberty or prop-

erty without due process of law nor deny to any person

within its jurisdiction the equal protection of the laws.

VII

The Constitution of the State of Hawaii provides for a

senate of 25 members, apportioned on the basis of geogra-

phy and not population, and a house of representatives of

51 members, apportioned on the basis of registered voters

and not population. These provisions govern the defendant

in connection with the performance by him of his official

duties relating to the conduct of elections in the State. De-

fendant has indicated that he will comply with said provi-

sions until he is ordered otherwise by a court of competent

jurisdiction.

vill

Sections 1 to 5 inclusive of Article III of the State Con-

stitution provide for the composition and apportionment

of the senate and house of representatives of the State

[fol. 7] legislature. Said sections are set forth in Exhibii

A, attached hereto and by reference made a part hereof.

A schedule of representative districts and the number of

representatives from each is prescribed in Article XVI,

Section 1, which is set forth in Exhibit B, attached hereto

and by reference made a part hereof.

The house of representatives was apportioned in 1959 in

accordance with the provisions of Article III, Section 4,

and the present house is so composed. Said apportionment

is indicated in the table in part XI hereinafter.

With respect to constitutional amendments affecting rep-

resentation from any senatorial district, a proviso in Arti-

cle XV, Section 2, paragraph 6, reads:

“.. provided, that no constitutional amendment alter-

ing this proviso or the representation from any sena-

torial district in the senate shall become effective

unless it shall also be approved by a majority of the

votes tallied upon the question in each of a majority of

the counties.”

The apportionment plan covering both the senate and

the house of representatives of the State legislature is an

integrated apportionment scheme for over-all legislative

representation, and that portion of such plan covering the

house of representatives is not severable from that portion

covering the senate, and therefore the invalidity of the ap-

portionment of the senate invalidates that of the house of

representatives.

[fol. 8] x

The senate is apportioned as provided in Article III,

Section 2 of the State Constitution. The population as of

the dates indicated in each senatorial district is as follows:

Senatorial No. of 1960

District Senators Population

1st 5 44,297

Qnd 2 17,035

3rd 4) 42,855

4th 3) 182,307

5th 5 318,102

6th 3 28,176

Totals 25 632,772

The population figures are based on the 1960 Federal

Census.

On the basis of the 1960 population data:

The lowest per capita representation is found in the

2nd senatorial district, where one senator represents

8,518 persons. The highest per capita representation

is found in the 5th senatorial district, where one sena-

tor represeni= °*3,620 persons. The population vari-

ance ratio (the number of persons represented by a

senator from the 2nd, as compared to the number of

persons represented by a senator from the 5th sena-

torial district) is 1 to 7.44.

The theoretical average number of persons repre-

sented by one senator (the quotient of the total popu-

lation divided by 25) is 25,311.

In the 2nd senatorial district the number of per-

sons represented by one senator is 16,793 below said

average; in the 5th senatorial district the number of

[fol.9] persons represented by one senator is 38,339

above said average.

Districts containing 18% of the population elect a

majority of the senate. The 4th and 5th senatorial

districts, containing 79% of the State’s population,

elect 40% of the total number of senators (10 of the

25 senators). The remaining four senatorial districts,

containing 21% of the State’s population, elect 60%

(15 of 25) of the total number of senators.

The 4th senatorial district, in which plaintiff Wil-

liam P. Lacy resides and is registered to vote, now

has five senators. If the senate were apportioned on

182,307

a population basis (

x 25), said district would

632,772

be entitled to seven senators.

The 5th senatorial district, in which plaintiffs Hen-

rietta Davidson Holt, James Robinson Holt, Carl J.

Guntert, Elmer G. Leehman and John J. Medeiros re-

side and are registered to vote, now has five senators.

If the senate were apportioned on a population basis

318,102

(

632,772

senators.

x 25), said district would be entitled to 13

The house of representatives was reapportioned in 1959

as provided in Article III, Section 4, of the State Con-

stitution on the basis of registered voters in the 1958

general election. The apportionment of the house of rep-

resentatives, the population and the number of registered

voters in each representative district, as of the dates in-

dicated, are as follows:

—

[fol. 10]

Repre- 1960 1962 1960 1958

sentative No, of Popu- Reg. Reg. Reg.

District Rep. lation Voters Voters Voters

1st 1 5,030 2,319 2,257 2,209

2nd 3 31,553 14,706 14,036 13,836

3rd 1 7,714 3,028 2,973 2,986

4th 1 11,369 4,239 4,073 3,862

5th 1 5,666 2,902 2,720 2,641

6th 1 7,138 2,739 2,574 2,560

7th 4 — 35,717 15,586 14,965 14,195

8th 4 68,281 22,450 18,369 13,876

9th 2 42,816 7,973 7,410 5,929

10th 4 95,118 20,861 17,003 12,926

11th 3 57,743 14,401 12,553 10,525

12th 3 25,552 10,889 10,000 8,372

13th 2 28,592 7,260 7,807 7,621

14th 4 43,612 17,305 16,056 14,134

15th 6 61,102 28,685 25,869 21,063

16th + 40,929 17,072 16,176 13,746

17th 4 36,664 17,428 15,880 13,455

18th 3 28,176 11,807 11,338 11,381

Totals dl 632,772 221,650 202,059 175,317

The population figures are based on the 1960 Federal

Census; the registered voter figures were obtained from

the lieutenant governor.

The lowest per capita representation is found in the 1st

representative district, where one representative repre-

sents 5,030 persons and 2,319 registered voters (1962).

The highest per capita representation is found in the

10th representative district, where one representative rep-

resents 23,764 persons and 5,215 registered voters (1962).

The population variance ratio (the number of persons rep-

resented by a representative from the 1st representative

district as compared to the number of persons represented

by a representative from the 10th representative district)

is 1 to 4.7.

The 8th representative district, in which plaintiff John

J. Medeiros resides and is registered to vote, now has

four representatives. If the house were apportioned on a

68,281

[fol. 11] population basis ( x 51), said district would

632,772

be entitled to six representatives.

The 10th representative district, in which plaintiffs

Henrietta Davidson Holt, James Robinson Holt, Carl J.

Guntert and Elmer G Leehman reside and are registered

to vote, now has four representatives. If the house were

95,118

apportioned on a population basis ( x 51), said dis-

632,772

trict would be entitled to eight representatives.

XII

The provisions of the Constitution of the State of

Hawaii, Article III, Sections 2, 3 and 4, and Ariicle XVI,

Section 1, violate the Fourteenth Amendment of the Con-

stitution of the United States because the apportionment

formula contained therein results, and must necessarily

result, when applied to the population figures of said State

in a grossly unfair weighting of both houses of the State

legislature in favor of the lesser populated areas of the

State. There is attached hereto, marked Exhibit “C,” a

table of the pertinent information as to population and

apportionment, which is made a part hereof as if set forth

in full.

XIII

The foregoing illustrations of the malapportionment of

the senate and the house of representatives of the State

{fol. 12] of Hawaii exhibit the gross over-representation

of the sparsely populated areas and the gross under-rep-

resentation of the more populous areas, resulting in the

individual plaintiffs’ votes and the votes of all other per-

sons similarly situated suffering a debasement and dilution

_——

by virtue of an unconstitutional apportionment of both

houses of the legislature, to the denial of said individual

plaintiffs and all of those similarly situated of due process

of law and equal protection of the laws.

XIV

The provision in Article XV, Section 2, paragraph 6 of

the State Constitution, which provides “that no constitu- ‘

tional amendment altering this proviso or the representa-

tion from any senatorial district in the senate shall become

effective unless it shall also be approved by a majority of

the votes tallied upon the question in each of a majority

of the counties” is a purposeful, built-in means of per-

petuating inequity in senatorial representation, to the

denial of rights of plaintiffs and others similarly situated

as guaranteed by the Federal Constitution.

The effect of malapportionment of the senate and the

house of representatives of the State of Hawaii is to

limit the representation of the populous areas and to

exaggerate the representation of the sparsely populated

areas, to the denial of the rights of plaintiffs and those

similarly situated as guaranteed by the Federal Constitu-

tion. It is apparent as a result that the plaintiffs and

others similarly situated in the said State are governed

by a legislature which is not a body representative of the

[fol. 13] people of the State and that such control by legis-

lators representing a minority of the people of said State

conflicts with the concept of government by consent of the

governed and is contrary to the prevailing philosophy of

government embodied in the Tenth Amendment of the

Constitution of the United States and recognized by all

Anglo-Saxon jurisdictions whereby the legislature has

power to make laws only because it has the power and the

duty to represent the people.

XVI

The defendant unless prevented by this Court must per-

form the duties as he and his predecessors in office have

performed those duties under the challenged constitu-

tional provisions; and the rights of these plaintiffs and

the other similarly situated citizens, taxpeyers and voters

of said State can only be protected by a decree of this

Court declaring Article III, Sections 2, 3 and 4, Article

XVI, Section 1, and the proviso at the end of the sixth

paragraph in Section 2 of Article XV of said State Con-

stitution to be unconstitutional and by enjoining the de-

fendants from performing any acts or duties in compliance

with these unconstitutional provisions.

XVII

The plaintiffs have no adequate remedy at law or other-

wise. Until such time as the aforesaid provisions of the

Constitution of the State of Hawaii have been declared in-

valid, defendant will be bound thereby and is not free to

exercise any discretion to eliminate the deprivation suf-

fered by plaintiffs.

[fol.14] To amend the Constitution of the State of

Hawaii so as to provide for a constitutionally valid appor-

tionment scheme for the election of the members of the

senate and the house of representatives of the State legis-

lature by a constitutional convention under Article XV,

Section 2 thereof, and under existing law would require

an inordinate amount of time, during which plaintiffs

would continue to be denied their constitutional rights.

The restriction in Article XV, Section 2 of the State Con-

stitution that no amendment altering the representation

from any senatorial district shall become effective unless

approved by a majority of the votes tallied in each of a

majority of the counties, as a practical matter forecloses

relief by constitutional amendment.

The Hawaii legislature was called into special session on

July 23, 1964, by the Honorable John A. Burns, Governor

—

of Hawaii, and to date has not adopted a valid reappor-

tionmment plan. The Constitution of the State of Hawaii,

Article III, Section 11, paragraph 3, provides for special

sessions of 30 days, unless extended. The 30th day of the

current special session will be August 26, 1964.

The legislature, and in particular the senate, is con-

trolled and dominated by persons elected by a minority of

the citizens as hereinabove noted who may be duly expected

to preserve the status quo which perpetuates their domi-

nation.

Wherefore, the plaintiffs respectfully pray that:

1. This Court take jurisdiction of this matter; that a

special three judge court be called to hear and determine

this cause as provided by law in 28 USC § 2281 et seq.,

[fol. 15] and declare the rights of plaintiffs pursuant to

28 USC § 2201 in the premises, to-wit:

(a) That Article III, Sections 2, 3 and 4, Article XVI,

Section 1, and the proviso at the end of the sixth paragraph

in Section 2 of Article XV, of the Constitution of the

State of Hawaii have deprived and continue to deprive

the plaintiffs of liberty and property without due process

of law and deprive plaintiffs of equal protection of the

laws in violation of the Fourteenth Amendment of the

Constitution of the United States, and are invalid; and

(b) That the State legislature, pending the adoption of

an appropriate constitutional amendment, may provide for

apportionment by statute, and that any apportionment law

must provide for apportionment of both the senate and

house of representatives of the State legislature on the

basis of population.

2. Plaintiffs further pray that after hearing this action

the Court grant further relief in accordance with 28 USC

§ 2202 as follows:

(a) (1) To enjoin the defendant from accepting

nomination papers of candidates for State legislative

a —

offices, from ordering printing of ballots for State of-

fices and from performing any other duties relating

to or affecting nomination and election for State of-

fices, unless the State legislature shall have enacted a

statute providing for a valid reapportionment plan to

be applied and used in the 1964 election, which elec-

tion shall be for all seats in the legislature; or

{fol.16] (2) To require that the defendant conduct

the election of 25 senators and 51 representatives for

the primary and general elections scheduled for 1964

on an at-large basis, state-wide, without regard to

the existing apportionment scheme; or

(3) To provide for conduct of the 1964 elections in

accordance with an apportionment plan prepared by

the Court in conformity with the decisions of the Su-

preme Court of the United States ;

Provided that, if the Court determines that the 1964

elections are so imminent that effectuation of any re-

apportionment plan therefor would entail substantial

and unreasonable difficulties, the Court may permit the

1964 elections to be held in accordance with existing

constitutional provisions, notwithstanding any decla-

ration of invalidity thereof.

(b) If the State legislature now in special session does

not enact a valid reapportionment plan and if another spe-

cial session is called prior to the 1964 elections and no valid

reapportionment plan is then enacted, to provide appro-

priate relief as indicated hereinbelow.

review whatever new apportionment system has been en-

acted or adopted to meet the requirements of the Four-

teenth Amendment to the Constitution of the United States,

and for futher hearings herein as to determination of the

validity of any such new apportionment system, and in

that connection, to permit the plaintiffs to amend the com-

plaint and to pray for appropriate relief.

(fol. 17] (d) Upon failure of enactment of a valid appor-

tionment statute or adoption of a valid amendment of the

State Constitution so that the 1966 elections may be con-

ducted in accordance with an apportionment plan that

meets the requirements of the Fourteenth Amendment to

the Constitution of the United States, to order that the

1966 elections be conducted in accordance with an appor-

tionment plan prepared by the Court.

(e) To provide for such other relief as may be just,

equitable and proper.

Dated: Honolulu, Hawaii, this 12th day of August, 1964.

Charles M. Tonaki, Barry J. Rubin, By Charles M.

Tonaki, Counsel for Plaintiffs.

Masaji Marumoto, Associate Counsel for Plaintiffs.

(fol. 18] Exuisit A to CoMPLAINT

ARTICLE II

The Legislature

Section 1. The legislative power of the State shall be

vested in a legislature, which shall consist of two houses,

a senate and a house of representatives. Such power shall

extend to all rightful subjects of legislation not incon-

sistent with this constitution or the Constitution of the

United States.

Section 2. The senate shall be composed of twenty-five

members, who shall be elected by the qualified voters of

the respective senatorial districts. The districts, and the

number of senators to be elected from each, shall be as

follows:

First senatorial district: that portion of the island of

Hawaii known as Puna, Hilo and Hamakua, five;

Second senatorial district: that portion of the island of

Hawaii known as Kau, Kona and Kohala, two;

rt —

Third senatorial district: the islands of Maui, Molokai,

Lanai and Kahoolawe, five;

Fourth senatorial district: that portion of the island of

Oahu lying east and south of Nuuanu Street and Pali

Road and the upper ridge of the Koolau Range from the

Nuuanu Pali to Makapuu Point and all other islands not

specifically enumerated, five ;

Fifth senatorial district: that portion of the island of

Oahu lying west and north of the fourth senatorial district,

five; and

Sixth senatorial district: the islands of Kauai and

Nihau, three.

Section 3. The house of representatives shall be com-

posed of fifty-one members, who shall be elected by the

qualified voters of the respective representative districts.

Until the next reapportionment, the representative dis-

tricts and the number of representatives to be elected from

each shall be as set forth in the Schedule.

Section 4. On or before June 1 of the year 1959, and

of each tenth year thereafter, the governor shall reappor-

tion the members of the house of representatives in the

following manner: The total number of representatives

shall first be reapportioned among four basic areas,

namely, (1) the island of Hawaii, (2) the islands of Maui,

Molokai, Lanai and Kahoolawe, (3) the island of Oahu

[fol. 19] and all other islands not specifically enumerated,

and (4) the islands of Kauai and Niihau, on the basis of

the number of voters registered at the last preceding gen-

eral election in each of such basic areas and computed by

the method known as the method of equal proportions, no

basic area to receive less than one member. Upon the

determination of the total number of representatives to

which each basic area is entitled, such total shall be re-

apportioned among the one or more representative dis-

tricts within each basic area on the basis of the number

of voters registered at the last preceding general election

within each of such representative districts and computed

by the method known as the method of equal proportions,

no representative district to receive less than one member.

Upon any reapportionment, should the total number of

voters registered in any representative district be less

than one-half of the quotient obtained by dividing the total

number of voters registered in the State by the total num-

ber of members to which the house is entitled, then, as

part of such reapportionment, the basic area within which

such representative district lies shall be redistricted by

the governor in such manner that the total number of vot-

ers registered in each new representative district therein

shall be more than one-half of such quotient.

The governor shall thereupon issue a proclamation show-

ing the results of such reapportionment, and such reappor-

tionment shall be effective for the election of members to

such house for the next five succeeding legislatures.

Original jurisdiction is hereby vested in the supreme

court of the State to be exercised on the application of any

registered voter, made within thirty days following the

date specified above, to compel, by mandamus or other-

wise,*the governor to perform the above duty; and made

within thirty days following the date of such proclama-

tion, to compel, by mandamus or otherwise, the correction

of any error made in such reapportionment.

Section 5. The members of the legislature shall be

elected at general elections. The term of office of members

of the house of representatives shall be two years be-

ginning with their election and ending on the day of the

next general election, and the term of office of members

of the senate shall be four years beginning with their elec-

tion and ending on the day of the second general election

after their election.

[fol. 20] Exuisit B to CoMPLAINT

ARTICLE XVI

Schedule

Representative Districts

Section 1. As provided in Section 3 of Article III until

the next reapportionment, the representative districts and

the number of members to be elected from each shall be as

follows:

First representative district: that portion of the island

of Hawaii known as Puna, one representative;

Second representative district: that portion of the island

of Hawaii known as South Hilo, four representatives;

Third representative district: that portion of the island

of Hawaii known as North Hilo and Hamakua, one repre-

sentative;

Fourth representative district: that portion of the is-

land of Hawaii known as Kau and South Kona and that

portion of North Kona, for convenience herein referred to

as Keauhou, more particularly described as follows: from

a point at the seashore between the lands of Holualoa 1

and 2 and Puapuaa 2 running northeasterly along the

boundary of Holualoa 1 and 2 to Puu Laalaau; (2) easterly

in a straight line to a point called “Naohueleelua” being

the common corner of the lands of Puuanahulu, Kaohe and

Keauhou 2nd; (3) southeasterly along the common bound-

ary between Hamakua and North Kona districts to the

summit of Mauna Loa; (4) westerly along the common

boundary between Kau and North Kona districts to the

easterly boundary of South Kona district; (5) northerly

and westerly along the boundary between North and South

Kona districts to the seashore; and (6) northerly along

the seashore to the point of beginning, one representative;

Fifth representative district: that portion of the island

of Hawaii known as Kohala and that portion of North

“H

Kona not included in the fourth representative district,

one representative ;

Sixth representative district: the islands of Molokai and

Lanai, one representative ;

Seventh representative district: the islands of Maui and

Kahoolawe, five representatives ;

Eighth representative district: that portion of the island

of Oahu known as Koolaupoko and Koolauloa, two repre-

sentatives ;

{fol.21] Ninth representative district: that portion of the

island of Oahu known as Waialua and Wahiawa, two repre-

sentatives ;

Tenth representative district: that portion of the island

of Oahu known as Ewa and Waianae, two representatives ;

Eleventh representative district: that portion of the is-

land of Oahu, for convenience herein referred to as Kalihi,

more particularly described as follows: from the intersec-

tion of Kalihi and Auiki Streets running westerly along

Auiki Street to Mokauea Street; (2) southwesterly along

Mokauea Street Extension extended to a point on the outer

edge of the reef; (3) westerly along the outer edge of the

reef to a point on the Moanalua-Halawa boundary; (4)

northerly and northeasterly along the Moanalua-Halawa

boundary to the top of Koolau Range; (5) southeasterly

along the top of Koolau Range to a place called “Puu

Lanihuli”; (6) southwesterly along the top of the ridge

between the lands of Kalihi, Kapalama and Nuuanu to

Kalihi Street; and (7) southwesterly along Kalihi Street

to the point of beginning, three representatives ;

Twelfth representative district: that portion of the is-

land of Oahu, for convenience herein referred to as upper

Nuuanu, more particularly described as follows: from the

intersection of King and Kalihi Streets running north-

easterly along Kalihi Street to the ridge between the lands

of Kalihi, Kapalama and Nuuanu; (2) northeasterly along

the top of said ridge to a point on the Koolau Range called

“Puu Lanihuli”; (3) easterly along the top of said Range

to Pali Road at the Nuuanu Pali; (4) southwesterly along

Pali Road to Nuuanu Avenue and southwesterly along

Nuuanu Avenue to School Street; (5) northwesterly along

School Street to the center line of the Kapalama Drainage

Canal (Waikiki Branch); (6) southwesterly along said

Canal to the center line of the main Kapalama Drainage

Canal; (7) southwesterly along said Canal to King Street;

and (8) northwesterly along King Street to the point of

beginning, three representatives ;

Thirteenth representative district: that portion of the

island of Oahu, for convenience herein referred to as

Kapalama, more particularly described as follows: from

the junction of the Honolulu Harbor Channel and the reef

running westerly along the outer edge of the reef to

Mokauea Street Extension extended, (2) northeasterly

along Mokauea Street Extension extended to Sand Island

Road; (3) northeasterly along Mokauea Street Extension

to Auiki Street; (4) easterly along Auiki Street to Kalihi

Street; (5) northeasterly along Kalihi Street to King

Street; (6) southeasterly along King Street to the center

line of the main Kapalamz Drainage Canal; (7) northerly

along said Canal to the center line of the Kapalama Drain-

age Canal (Waikiki Branch); (8) northeasterly along said

Canal to School Street; (9) southeasterly along School

Street to Nuuanu Avenue; (10) southwesterly along

Nuuanu Avenue to the sea, and (11) southwesterly along

the middle of Honolulu Harbor and Honolulu Harbor

Channel to the point of beginning, three representatives;

[fol. 22] Fourteenth representative district: that portion

of the island of Oahu, for convenience herein referred to

as Pauoa, more particularly described as follows: from

the junction of the Honolulu Harbor Channel and the outer

edge of the reef running northeasterly along the middle

of Honolulu Harbor Channel and Honolulu Harbor to the

—

intersection of Queen Street and Nuuanu Avenue; (2)

northeasterly along Nuuanu Avenue to Pali Road and

northeasterly along Pali Road to the top of the Koolau

Range at the Nuuanu Pali; (3) easterly and southerly

along the top of the Koolau Range to a point called “Puu

Konahuanui”; (4) southwesterly along the top of the ridge

between the lands of Nuuanu, Pauoa and Manoa to a

mountain peak called “Puu Ohia” or “Tantalus”; (5)

southwesterly along the top of the ridge between the lands

of Makiki and Kalawahine to the intersection of Nehoa

Street and Lewalani Drive; (6) southerly along Lewalani

Drive and Piikoi Street to Wilder Avenue; (7) easteriy

along Wilder Avenue to Punahou Street; (8) southerly

along Punahou Street to King Street; (9) westerly along

King Street to Kalakaua Avenue; (10) southerly along

Kalakaua Avenue to the center line of the Ala Wai Canal;

(11) westerly along said Canal and along the line of said

Canal extended to the outer edge of the reef; and (12)

westerly along the outer edge of the reef to the point of

beginning, five representatives ;

Fifteenth representative district: that portion of the

island of Oahu, for convenience herein referred to as Manoa

and Waikiki, more particularly described as follows: from

the intersection of Kalakaua Avenue and the center line of

the Ala Wai Canal running northerly along Kalakaua Av-

enue to King Street; (2) easterly along King Street to

Punahou Street; (3) northerly along Punahou Street to

Wilder Avenue; (4) westerly along Wilder Avenue to

Piikoi Street; (5) northerly along Piikoi Street to Lewalani

Drive; (6) northerly along Lewalani Drive to Nehoa Street;

(7) northeasterly along the top of the ridge between the

lands of Makiki and Kalawahine to a mountain peak called

“Puu Ohia” or “Tantalus”; (8) northeasterly along the top

of the ridge between the lands of Pauoa, Manoa and Nuuanu

to a point on the Koolau Range called “Puu Konahuanui”;

(9) southeasterly along the top of said Range to a place

called “Mt. Olympus”; (10) southwesterly along the top of

Waahila Ridge to the top edge of Palolo Valley; (11) south-

westerly along the top edge of said Valley to the forest

reserve boundary; (12) southwesterly along the south-

easterly boundary of St. Louis Heights Tract, Series 2

(File Plan 464) to the southerly boundary of said Tract

100 feet southeasterly from Alencastre Street; (13) south-

westerly parallel to and 100 feet from Alencastre Street

and St. Louis Drive to Waialae Avenue; (14) westerly along

Waialae Avenue to Kapahulu Avenue extended; (15)

southerly across Waialae Avenue and along Kapahulu Av-

enue to Kalakaua Avenue; (16) westerly along Kapahulu

Avenue extended to the outer edge of the reef; (17) north-

westerly along the outer edge of the reef to a point on the

line extended of the center line .f the Ala Wai Canal; and

(18) easterly along said line to the point of beginning, six

representatives ;

[fol. 23] Sixteenth representative district: that portion

of the island of Oahu, for convenience herein referred to

as Kaimuki and Kapahulu, more particularly described as

follows: from a point at the seacoast at a place called

“Black Point” running westerly along the seacoast to Kapa-

hulu Avenue extended to the sea; (2) easterly across Kala-

kaua Avenue and easterly and northerly along Kapahulu

Avenue to Waialae Avenue; (3) easterly along Waialae

Avenue to a point 100 feet easterly of St. Louis Drive;

(4) northeasterly across Waialae Avenue then parallel to

and 100 feet from St. Louis Drive and Alencastre Street

to the southerly boundary of St. Louis Heights Tract, Series

2 (File Plan No. 464); (5) northeasterly along the south-

easterly boundary of said Tract to the forest reserve bound-

ary; (6) northeasterly along the top ridge of Palolo Valley

to the top of Waahila Ridge; (7) northeasterly along the

top of Waahila Ridge to a point on Koolau Range called

“Mt. Olympus”; (8) easterly along the top of the Koolau

Range to the top of the ridge between the lands of Waialae

Nui and Palolo; (9) southwesterly along the top of said

ridge to a place called “Kalepeamoa”; (10) southwesterly

along Mauumae Ridge to Sierra Drive; (11) southwesterly

along Sierra Drive to Waialae Avenue; (12) easterly along

Waialae Avenue to 13th Avenue; (13) southwesterly along

13th Avenue and Ocean View Drive to Kilauea Avenue;

(14) westerly along Kilauea Avenue to Makapuu Avenue;

(15) southwesterly along Makapuu Avenue to Diamond

Head Road; and (16) southeasterly along Diamond Head

Road to the Military Road and along the Military Road

extended to the point of beginning, four representatives;

Seventeenth representative district: that portion of the

island of Oahu not included in any other representative dis-

trict on the island of Oahu, together with all other islands

not included in any other representative district, three rep-

resentatives ;

Kighteenth representative district: the islands of Kauai

and Niihau, four representatives.

Wherever a roadway, or the intersection of one or more

roadways, is designated as a boundary in any of the above

descriptions, the center line of such roadway or intersection

is intended as such boundary. .

[fol. 24]

Exuusit C to CoMPLAINT

(See opposite) &

(fol. 24]

Extirsit C to CompLaint

ea rtionment By Method of

Present Equal Proportions Based on:

1960 m 1960 Reg. 1962 Reg. No. of Population Reg. Voters Reg. Voters

Area and District Population Voters** Voters** Legislators 1960 1960 1962

State of Hawaii $32,772 202,059 221,650 76 76 76 76

THE SENATE

First - Hawaii 44,297 19,266 20,053 5 1 z Zz

Second - Hawaii 17,035 6,793 7,141 2 1 1 1

Third - Maui 42,855 17,539 18,325 5 2 2 2

Fourth - Oahu 182, 307 73,981 80,490 5 7 9 9

Fifth - Oahu 318,102 73,142 83,834 5 13 9 10

Sixth - Kavai 28,176 11,338 11,807 3 . 2 1

iba THE HOUSE

ieee, First - Hawaii 5,030 2,257 2,319 1 1 1 1

Bae Second - Hawaii 31,553 14,036 14,706 3 1 3 2

ey Third - Hawaii 7,714 2,973 3,028 1 1 1 1

thi, Fourth - Hawaii 11,369 4,073 4,239 1 1 1 1

#B Fifth - Hawaii 5,666 2,720 2,902 1 1 1 1

ee _ Sixth - maui 7,138 2,574 2,739 1 1 1 1

¥, _ Seventh - Maui 35,717 14,965 15,586 4 3 3 3

_ Eighth - Oahu 68,281 18,369 22,450 4 6 5 5

ve _ Ninth - Oahu 42,816 7,410 7,973 as 3 2 2

s _ Tenth - Oahu 95,118 17,003 20,861 4 7 4 5

* . Eleventh - Oahu 57,743 12,553 14,401 3 5 3 3

@ Twelfth - Oahu 25,552 10,000 10,889 3 2 3 3

Sh: _ Thirteenth - Oahu 28,592 7,807 7,260 2 2 2 2

pry _ Fourteenth - Oahu 43,612 16,056 17,305 4 4 4 2

a . Fifteenth - Oahu 61,102 25,869 28,685 6 5 6 7

- Bm Sixteenth - Oahu 40,929 16,176 17,072 4 3 4 4

_ HM Seventeenth - Oahu 36, 664 15,880 17,428 4 3 4 4

2 Eighteenth - Kauai 28,176 11,338 11,807 3 2 P 3

wre

Source: Department of Planning and Economic Development, State of Hawaii, July 28, 1964.

*Based on 1960 Federal Census.

**Prom Office.of. the Lieutenant.Governar,,.State of Hawaii. Instances when apportionment based on registered

voters differs from that based on population are indicated by underscoring. i

[fol. 25]

In tHE Unitep States District Court

For THE District or Hawa

Civil No. 2308

[Title omitted]

Summons—Filed August 13, 1964

To the above named Defendant:

You are hereby summoned and required to serve upon

Charles M. Tonaki and Masaji Marumoto, plaintiffs’ attor-

neys, whose addresses are 1201 First National Bank Build-

ing, Honolulu, Hawaii, 96813, and 235 Queen Street,

Honolulu, Hawaii, 96813, respectively, an answer to the

complaint which is herewith served upon you, within 20

days after service of this summons upon you, exclusive of

the day of service. If you fail to do so, judgment by default

will be taken against you for the relief demanded in the

complaint.

Wm. F. Thompson, Jr., Clerk of Court.

K. C. Robinson, Deputy Clerk.

Date: August 13, 1964

[Seal of Court]

(Note: This summons is issued pursuant to Rule 4 of the

Federal Rules of Civil Procedure.)

(fol. 26]

In tHE Untrep States District Court

’ For tue District or Hawai

Civil No. 2308

[Title omitted]

Motion ror Pretiminary INJuNCTION—

Filed August 13, 1964

Upon the complaint and the affidavit of Carl J. Guntert

annexed hereto, plaintiffs move the Court as follows:

1. To issue a preliminary injunction enjoining the de-

fendant from accepting nomination papers of candidates

for State legislative offices, from ordering the printing of

ballots for State offices, and from performing any other

duties affecting nomination and election for State offices at

the 1964 elections.

The grounds of this motion, as more fully set forth in the

complaint and the annexed affidavit of Carl J. Guntert, are

that: f

(a) the existing provisions of the Hawaii State Consti-

tution pertaining to the apportionment of seats in

the Senate and the House of Representatives of the

Hawaii Legislature are invalid and contrary to the

[fol. 27] equal protection clause of the Fourteenth

Amendecni to the United States Constitution;

(b) defendant Lieutenant Governor is the duly elected,

qualified and acting Lieutenant Governor of the

State of Hawaii and as such is responsible for the

conduct of elections in the State, pursuant to Chap-

ter 11, Revised Laws of Hawaii 1955, as amended;

1964, and general election will be held on November

3, 1964. The deadline for filing nomination papers is

September 3, 1964;

(d) unless defendant be immediately enjoined, said de-

fendant will cause said elections to be held in accord-

ance with the existing provisions of the State Con-

stitution. Unless said defendant be enjoined pending

a final disposition of this action, injury to plaintiffs

in the interim will be irreparable even before final

judgment for plaintiffs;

(e) no injury will be sustained by the defendant or by

the public through issuance of a preliminary injunc-

tion.

[foi..5] 2. To convene for the purpose of hearing and

determining this application for a preliminary injunction

and for this cause a statutory court of three judges, at least

one of whom shall be a circuit judge, in accordance with the

provisions of Section 2284, Title 28, United States Code.

Dated: Honolulu, Hawaii, August 12th, 1964.

Charles M. Tonaki, Attorney for Plaintiffs.

[fol. 29]

In tHe Unitrep States District Court

For tue District or Hawai

Civil No. 2308

[Title omitted]

ATTACHMENT TO Motion

ArrFipavit or Cart J. Guntert—Filed August 13, 1964

State of Hawaii,

City and County of Honolulu, ss. :

Carl J. Guntert, being first duly sworn, on his own behalf

and on behalf of the other plaintiffs herein, on oath, deposes

and says:

1. That he is one of the plaintiffs in the above entitled

action, and has read the complaint herein, and is cognizant

of the facts alleged therein, and that to his knowledge, the

facts and matters stated and set forth therein are true and

correct }

2. That defendant William S. Richardson is the duly

elected, qualified and acting Lieutenant Governor of the

State of Hawaii and as such is responsible for the conduct

of elections in the State, pursuant to Chapter 11, Revised

Laws of Hawaii 1955, as amended;

[fol.30] 3. That said defendant William S. Richardson

will accept nomination papers from candidates for State

legislative officers, order printing of ballots for State offices,

and will perform other duties affecting nomination and

election for State offices prior to and for the primary elec-

tion on October 3 and the general election on November 3,

1964;

4. That the conduct of said primary and general elec-

tions will continue the unconstitutional apportionment of

seats in the Legislature of the State of Hawaii, which will

continue to deprive your affiant of his rights under the equal

protection clause of the Fourteenth Amendment to the

United States Constitution ;

5. That at said elections various candidates for the offices

of State senator of the State of Hawaii will be nominated

and elected; that said senators will hold office until 1968;

6. That if said elections are permitted to be conducted,

the invidious discrimination resulting from the illegal ap-

portionment of seats in the Legislature of the State of

Hawaii (as more fully set out in the complaint) will be

continued and perpetuated for at least until 1968;

7. That said perpetuation and continuation of the ille-

gally apportioned Legislature of the State of Hawaii denies

your affiant and others similarly situated of their rights

under the equal protection clause of the Fourteenth Amend-

[fol. 31] ment to the United States Constitution and causes

your affiant irreparable injury.

Further affiant sayeth not.

Carl J. Guntert

Subscribed and sworn to before me this 12th day of Au-

gust, 1964.

(SEAL)

Helen M. Mau, Notary Public, First Circuit, State of

Hawaii.

My Commission Expires: 2/15/65.

[fol. 32]

In THE Unitep States District Court

For tHe District or Hawai

Civil No. 2308

[Title omitted]

MemoranpuM or AvutTHorities—Filed August 13, 1964

This action is brought under the provisions of the Civil

Rights Act, 42 U.S.C. $§ 1983-1988, as well as under 28

U.S.C. § 1343. The authority of this Court to grant an in-

junction is provided specifically in 28 U.S.C. § 2281 which

permits the enjoining of a State officer from the execution

of a State statute on the ground of the unconstitutionality

of such statute. There is a requirement that the matter be

heard and determined by a District Court of three (3)

judges, pursuant to 28 U.S.C. § 2284. Specifie authority to

grant an interlocutory injunction is provided in § 2284.

The fact that plaintiffs request the restraint of a state

officer from acting pursuant to a provision of the Consti-

tution of Hawaii does not exclude it from the provisions of

§2281, which refers only to a State statute. Sincock v.

Duffy, 215 F. Supp. 169, affirmed in Roman et al. v. Sincock,

et al. —— US. , o2 L.W. 4583.

[fol. 33] Enjoining a State election official from conduct-

ing an unconstitutional election is a proper subject matter

for this Court to entertain, pursuf%nt to §§ 2281 and 2284.

The right to enjoin a State election official from conducting

elections pursuant to an unconstitutional apportionment

scheme was established in Reynolds, et al. v. Sims, et al.,

— US. , a2 L.W. 4535.

Section 2284 authorizes this Court to hear, determine and

grant interlocutory injunctions as necessary to prevent

irreparable injury pending a full determination of the mat-

ter. Interlocutory orders were issued in Mann v. Davis,

213 F. Supp. 577 (1962), affirmed in Davis v. Mann, ——

U.S. ——, 32 L.W. 4579, and by the District Court in

Reynolds v. Sims, supra. In both of these cases, the injunc-

tions were issued prior to a final hearing in order to pre-

serve the rights of the plaintiff pending final determination

of the cause. In both cases, the Court issued injunctive

orders relating to the conduct of State elections for legisla-

tive seats.

Dated at Honolulu, Hawdii, August 12, 1964.

Charles M. Tonaki, Attorney for Plaintiffs.

[fol. 51] [File endorsement omitted]

[fol. 521

In tHe Unrrep States District Court

For tHe District or Hawat

Civil No. 2308

Henrietta Davinson Hott, JaMEs Roprnson Hott, Caru J,

GunTerT, Evmer G. Leenman, Joun J. MeEpemros and

Wim P. Lacy, Plaintiffs,

vs.

Wituiam S. Ricwarpson, Lieutenant Governor

of Hawaii, Defendant,

Joun J. Hutten and George M. Oxano, Members of the

Legislature of the State of Hawaii, Applicants for Inter-

vention.

Answer OF Derenpant—Filed August 21, 1964

William S. Richardson, Lieutenant Governor of Hawaii,

defendant above named, for answer to the complaint here-

in, states as follows:

Defendant admits the jurisdiction of this Court as stated

in paragraph I.

Defendant admits that the relief sought by the complaint

requires the convening of a three judge District Court as

provided under 28 U.S.C. § 2281 et seq., as requested by

paragraph II.

Tit

Defendant admits the allegations of paragraph III.

[fol. 53] IV

Defendant admits the allegations of paragraph IV.

Defendant denies that the sections of the Constitution

of the State of Hawaii which apportion the members of the

house of representatives of the legislature of the State of

Hawaii are invalid, as alleged in paragraph V, but admits

that, under recent decisions of the Supreme Court of the

United States, the sections of the Constitution of the State

of Hawaii which apportion the members of the senate of the

legislature of the State of Hawaii may be invalid and leaves

plaintiffs to their proof thereof.

Defendant admits that he and his predecessors in office

have complied with provisions of the Constitution of the

State of Hawaii, alleged in paragraph V to be invalid.

Defendant admits the allegations of paragraph VI.

Vil

Defendant admits the allegations of paragraph VII.

Vill

Defendant admits the allegations of paragraph VIII.

Defendant further states that the number of representa-

tives from each representative district, as set forth in Ex-

[fol. 54] hibit B was as a result of an apportionment based

upon the number of registered voters in each of such dis-

tricts in the general election in Hawaii in 1948.

Defendant further states that the number of representa-

tives from each representative district, as set forth in the

table in paragraph XI of the complaint, was as a result

of an apportionment based upon the number of registered

voters in each of such districts in the general election in

Hawaii in 1958.

Defendant admits that the apportionment plan covering

both the senate and the house of representatives is an

integrated apportionment scheme for over-all legislative

representation, but alleges that the portion of the plan

covering the house of representatives is severable from

that portion of the plan covering the senate and denies that

any invalidity of the apportionment of the senate invali-

dates the apportionment of the house of representatives,

as alleged in paragraph IX.

».¢

Defendant admits the allegations contained in paragraph

X, but denies that an apportionment of the members of the

senate is required by law to be based upon total population.

Defendant admits the allegations contained in paragraph

XI, but denies that an apportionment of the members of

the house of representatives is required by any law to be

based upon total population.

[fol.55] Defendant further states that comparisons made

in said paragraph XI to the number of registered voters

per representative, based upon 1962 registered voters, is

misleading for the reason that the current apportionment of

the house of representatives is based upon the number of

voters registered for the general election in 1958, and is

not required by any law to be revised earlier than in the

year 1969, based upon the number of voters registered for

the generai election in 1968. _ .

Defendant further states that there was a total of 175,317

voters registered in all representative districts for the

general election in 1958. With a house of 51 members, the

theoretical number of voters that each member should

represent was 3,437 (175,317 +51). This fact would in-

dicate a range of from 1719 voters to 5155 voters for each

representative district because a district having one more

than half of the theoretical number of registered voters

would be entitled to one representative and a district would

not be entitled to a second representative until the regis-

tered voter population of the district exceeded the theo-

retical number by one more than the theoretical number

plus one half of such number.

Defendant alleges that each one of the eighteen rep-

resentative districts falls well within that range.

The representative elected from the first representative

district, the district having the least registered voters in

1958, represented 2,209 registered voters, 490 more than

the minimum theoretically required for one representa-

tive.

[fol.56] The six representatives elected from the fifteenth

representative district, the district having the most regis-

tered voters in 1958, (21,063) each represented 3,510 regis-

tered voters, 73 more than the theoretical number each rep-

resentative should represent.

The three representatives elected from the second rep-

resentative district, the district having the highest ratio

of registered voters to representatives, each represented

4,609 registered voters, 546 less than the maximum theo-

retically required for one representative.

All other representative similarly represent a number

of registered voters within the permissible extremes, as

shown by the following table:

1958 No. of Ratio of

Representative Registered House Members

District Voters Members to Voters

Defendant denies that the provisions of Article III, See-

tions 2, 3 and 4 and Article XVI Section 1 of the Constitu-

tion of the State of Hawaii violate the Fourteenth Amend-

[fol. 57] ment, but leaves plaintiffs to their proof thereof.

Defendant further states that no law requires the ap-

portionment of either house of the legislature to be based

on total population.

XII

Defendant denies the allegations of paragraph XIII.

XIV

Defendant denies the allegations of paragraph XIV.

Defendant denies the allegations of paragraph XV.

XVI

Defendant admits that he must perform his statutory

duties with respect to the constitutional provisions chal-

lenged by the complaint, but denies that plaintiffs require

the protection of this court by the entry of a decree declar-

ing Article III Sections 2, 3 and 4, Article XVI Section 1,

and the proviso at the end of the sixth paragraph of Section

2 of Article XV of the said State Constitution to be un-

constitutional and denies that under equitable principles

he should be enjoined from performing such statutory

duties.

Defendant further states that the election process as

prescribed by law for the 1964 elections of senators and

representatives is now in progress and that to attempt

to change such process at this time by judicial decree would

be contrary to the best interests of the public and under

just and equitable considerations should not be interferred

with at this time.

[fol. 58] XVII

Defendant admits the allegations of the first paragraph

of paragraph XVII.

Defendant admits that the process for amending the

Constitution of the State takes time as alleged in para-

graph XVII but denies that the amount of time is inordi-

nate under equitable principles.

Defendant denies that the restriction in Article XV,

Section 2 of the State Constitution on amending the ap-

portionment of the senate forecloses relief by constitutional

amendment, as alleged in paragraph XVII, for the reason

that said restriction can itself be amended.

Defendant admits the allegations contained in the third

paragraph of paragraph XVII and denies the allegations

contained in the fourth paragraph of paragraph XVII.

XVII

For further answer to the complaint, defendant denies

that this Court has power to determine that the state legis-

lature, pending the adoption of appropriate constitutional

amendments, may provide for apportionment of either

house of the legislature by statute (as prayed for), all

matters involving the apportionment of either house having

been expressly reserved to the people by the State Con-

stitution.

XIX

For further answer to the complaint, defendant alleges

that should this Court interfere with the impending 1964

elections of senators and representatives by directing all

such elections to be on an at-large basis, the result would

deprive virtually all of the voters in areas other than tthe

Island of Oahu of representation in the legislature and

[fol.59] would in fact be more inequitable and violative

of the Fourteenth Amendment of the Constitution of the

United States than may now result from the present ap-

portionment of the legislature.

Wherefore defendant prays that:

1. This Court determine the validity of Article III,

Sections 2, 3 and 4, Article XVI, Section 1, and the pro-

viso at the end of the sixth paragraph of Section 2 of

Article XV of the Constitution of the State of Hawaii.

2. This Court refuse to enjoin the defendant from per-

forming his statutory duties with respect to the 1964

elections of senators and representatives of the legislature

of the State of Hawaii.

3. This Court refuse to interfere with the conduct of said

elections, by requiring such elections to be conducted on an

at-large basis or by interfering therewith in any other way.

4. This Court, in the event the aforesaid provisions of

the Constitution of the State of Hawaii, or any of them,

are determined to be invalid, abstain from directing any

change in said provisions, or in the present apportionment

of the legislature of the State of Hawaii, until the people

of Hawaii have had a reasonable opportunity to amend the

provisions determined to be invalid in the manner estab-

lished by said Constitution.

5. This Court grant such other and further relief as

it may deem meet and proper.

Dated: Honolulu, Hawaii, this 21st day of August, 1964.

R. G. Dodge, 602 Trustco Building, Honolulu, Hawaii,

Attorney for Defendant.

(fol. 60) [File endorsement omitted]

[fol. 64]

In THE Unitep States District Court

For tHe District or Hawau

Civil No. 2308

Henrietta Davinson Hot, James Ropinson Hott, Caru J.

GuntTert, Ermer G. LeenmMan, Joun J. Meperros and

Wii P. Lacy, Plaintiffs,

vs.

Wim S. Ricwarpson, Lieutenant Governor

of Hawaii, Defendant,

Joun A. Burns, Governor of Hawaii,

Applicant for Intervention.

CoMPLAINT IN INTERVENTION oF Joun A. Burns—

Filed August 24, 1964

John A. Burns, intervenor, hereby files his complaint

and alleges that:

The jurisdiction of this Court is based on the Civil Rights

Act, 42 USC §$§ 1983, 1988. This Court has additional juris-

diction under 28 USC §1343. Relief hereunder is further

sought pursuant to the Federal Declaratory Judgment Act,

28 USC §$§ 2201, 2202.

Intervenor is a citizen, taxpayer and elector of the

United States and of the State of Hawaii, a qualified voter

in the 5th senatorial district and the Sth representative dis-

[fol. 65] trict of the State of Hawaii, and is the duly elected,

qualified and acting Governor of the State of Hawaii.

Iil

Intervenor makes the same allegations as plaintiffs with

respect to the unconstitutionality of the provisions of the

Hawaii Constitution governing composition and appor-

tionment of the Hawaii Legislature, and the resultant dilu-

tion and debasement of his vote and denial of his right

to equ’ protection under the 14th Amendment to the

Constitution of the United States. Accordingly, he adopts

paragraph Il and paragraphs IV through XVII of plain-

tiffs’ complaint, and incorporates the same herein by refer-

ence.

The issue of unconstitutional apportionment of the State

Legislature involves a matter publici juris. Intervenor, as

governor, is the chief executive officer of the State, and

as such is representative of all of the people of the State

of Hawaii, and their rights and interests, including their

right to have their State apportioned in accordance with

the provisions of the Constitution of the United States and

to be governed by a legislature which fairly represents

the whole body of the electorate, in accordance with the

Constitution of the United States. By his oath of office,

prescribed in Article XIV, Section 4 of the Hawaii Con-

stitution, he is sworn to support and defend the Constitu-

tion of the United States. Accordingly he claims a right to,

(fol. 66] and seeks (a) an apportionment of the State Legis-

lature that is in conformity with the provisions of the Con-

stitution of the United States, and (b) a declaration with

respect to the valid.ty of the provisions of the Constitution

of the State of Hawaii affecting the composition and ap-

portionment of the State Legislature.

As governor he is responsible, amcag other things, for the

calling of special sessions of the State Legislature (Hawaii

Constitution, Article III, Sec. 11), for extension of any

session of the Legislature (Jbid.), for reapportionment of

the State House of Representatives (Jd., Article III, See. 4),

for approval or veto of legislation (Id., Article III, See. 17)

and for proclamation of general elections at least 40 days

before such election (Section 11-1, Revised Laws of Hawaii

1955, as amended). With relation to the proper perform-

ance of such duties, he will be directly affected by and thus

has a direct interest in the judgment in this action.

Wherefore, the intervenor respectfully prays that:

1. This Court take jurisdiction of this matter; that a

special three judge court be called to hear and determine

this cause as provided by law in 28 USC § 2281 et seq., and

declare the rights of intervenor pursuant to 28 USC § 2201

in the premises, to-wit:

(a) That Article III, Sections 2, 3 and 4, Article XVI,

Section 1, and the proviso at the end of the sixth para-

graph in Section 2 of Article XV, of the Constitution of

the State of Hawaii have deprived and continue to deprive

[fol.67] the intervenor of equal protection of the laws

in violation of the 14th Amendment of the Constitution of

the United States, and are invalid; and

(b) That the State Legislature, pending the adoption

of an appropriate constitutional amendment, may provide

for apportionment by statute, and that any epportionment

law must provide for apportionment of both the senate

and house of representatives of the State Legislature on

the basis of population.

2. Intervenor further prays that after hearing this

action the Court grant further relief in accordance with

28 USC § 2202 as follows:

(a) If the State Legislature now in special session

does not enact a valid reapportionment plan that is ap-

plicable to the 1964 elections and/or if another special ses-

sion is called prior to the 1964 elections and no such re-

apportionment plan is then enacted:

(1) To enjoin the defendant from accepting nomina-

tion papers of candidates for State legislative offices,

from ordering printing of ballots for State offices and

from performing any other duties relating to or affect-

ing nomination and election for State offices in accord-

ance with those provisions of the State Constitution

affecting composition and apportionment of the Legis-

lature, and

a. To require that the defendant conduct the elec-

tion of 25 senators and 51 representatives for the

primary and general elections scheduled for 1964 on

[fol. 68] an at-large basis, state-wide, without re-

gard to the existing apportionment scheme; or

b. To provide for conduct of the 1964 elections in

accordance with an apportionment plan prepared

by the Court in conformity with the decisions of the

Supreme Court of the United States;

Provided that, if the Court determines that the

1964 elections are so imminent that effectuation of

any reapportionment plan therefor would entail sub-

stantial and unreasonable difficulties, the Court may

permit the 1964 elections to be held in accordance

with existing constitutional provisions, notwithstand-

ing any declaration of invalidity thereof.

(b) In any event, to retain jurisdiction of the cause

to review whatever new apportionment system has been

enacted or adopted to meet the requirements of the 14th

Amendment to the Constitution of the United States, and

for further hearings herein as to determination of the

validity of any such new apportionment system, and in that

connection, to permit the intervenor to amend his com-

plaint and to pray for appropriate relief.

statute or adoption of a valid amendment of the State

Constitution so that the 1966 elections may be conducted

in accordance with an apportionmer.t plan that meets the

requirements of the 14th Amendment to the Constitution

of the United States, to order that the 1966 elections be

[fol. 69] conducted in accordance with an apportionment

plan prepared by the Court.

(d) To provide for such other relief us may be just,

equitable and proper.

Dated: Honolulu, Hawaii, this 22nd day of August, 1964.

Bert T. Kobayashi, Attorney General, State of

Hawaii, Bertram T. Kanbara, Nobuki Kamida,

Peter A. Donahoe, Deputy Attorneys General, By

Bertram T. Kanbara, Counsel for Applicant for

Intervention.

[fol. 75] [File endorsement omitted]

[fol. 76]

In THE Unitep States District Court

For tue District or Hawatr

Civil No. 2308

Henrietta Davipson Hout, JAMEs Rosrnson Hott, Caru J.

GuNTERT, EtMer G. LEEHMAN, JOHN J. MEDEIROS and

Wiiuiam P. Lacy, Plaintiffs,

vs.

Wiis S. Ricuarpson, Lieutenant Governor

of Hawaii, Defendant,

Joun J. Hutten and Grorce M. Oxano, Members of the

Legislature of the State of Hawaii, Applicants for In-

tervention as Plaintiffs,

Netson K. Dot, Kazunisa Ase, Tosur Ansal, Francis M. F.

Cuno, Witu1aM H. Hm, Bernarp G. Kinney, Bengamin

Menor, Nosoru Miyake, Tuomas S. Ocata, Curnton I.

SurraisH1, Davin K. Trasx, Jr, Jonn T. Usnisma,

Juuian R. Yates, Sr., Applicants for Intervention as

Defendants.

APPLICATION TO Fix Time ror HEARING AND ORDER T'HEREON

—Filed August 24, 1964

The above applicants to intervene as defendants request

the Court fix 2:00 p.m., Monday, August 24, 1964, as the

time for hearing their application upon the ground that

another such application is to be then heard and that if their

application is granted, their interests require their repre-

(fol. 77] sentation at the hearing on the preliminary injunc-

tion.

Dated: Honolulu, Hawaii, August 21, 1964.

Frank D. Padgett, 312 Castle & Cooke Building,

Honolulu, Hawaii, Attorney for said Applicants.

Robertson, Castle & Anthony, Of Counsel.

It Is So Ordered:

Martin Pence, District Judge.

[fol. 78]

In THE UNITED States District Court

For THE District or Hawa

[Title omitted]

Motion or Netson K. Dot, et au. TO INTERVENE aS

Derenpants—Filed August 24, 1964

The above-named applicants for intervention as defen-

dants move, pursuant to Rule 24(a) of the Federal Rules

of Civil Procedure, for leave to intervene as defendants

in this action in order to answer the complaint, a copy of

(fol. 79] which answer is attached, on the ground that the

representation of the defendant, the Lieutenant Governor

of Hawaii, is or may not be adequate and that the applicants

are or may be bound by the judgment in this action.

Dated: Honolulu, Hawaii, August 21, 1964.

Frank D. Padgett, 312 Castle & Cooke Building,

Honolulu, Hawaii, Attorney for said Applicants.

Robertson, Castle & Anthony, Of Counsel.

[fol. 80]

In tHE Unirep States District Court

For tue District or Hawau

Civil No. 2308

Notice or Motion to IntErvenE—Filed August 24, 1964

To:

Charles M. Tonaki, Esq., Barry J. Rubin, Exq., 1201 First

National Bank Building, Honolulu, Hawaii, Counsel for

Plaintiffs.

Masaji Marumoto, Esq., 235 Queen Street, Honolulu,

Hawaii, Associate Counsel for Plaintiffs.

William S. Richardson, Lieutenant Governor, State of

Hawaii, Iolani Palace, Honolulu, Hawaii, Defendant.

Bert T. Kobayashi, Attorney General, State of Hawaii.

Please Take Notice that the undersigned will bring the

foregoing motion to intervene on for hearing before the

presiding judge of this Court, the Honorahbie' Martin Pence,

on the 24th day of August, 1964, at 2:00 p.m., or as soon

thereafter as counsel can be heard.

Dated: Honolulu, Hawaii, August 21, 1964.

Frank D. Padgett, Attorney for said Applicants.

(fol. 81] [File endorsement omitted]

(fol. 82]

In THE Unttep States District Court

For tue District or Hawaltl

Civil No. 2308

Henrietta Davipson Hout, JAMEs Rosrnson Hout, Cary J.

GuntTerT, Exmer G. Leenman, Jonn J. MeEperros and

Wit P. Lacy, Plaintiffs,

vs.

Wun S. Ricuarpson, Lieutenant Governor «

of Hawaii, Defendant,

Joun J. Hutten and Grorcz M. Oxano, Members of the

Legislature of the State of Hawaii, Intervenors Plaintiffs,

Netson K. Dor, Kazunisa Ase, Tosur Ansat, Francis M. F.

Cuine, Witu1aM H. Hix, Bernarp G. Kinney, BensamMin

Menor, Nosoru Mryaxke, THomas S. Ocata, Cuinton I.

SuiraisH1, Davin K. Trask, Jrz., Jonn T. Usnisimma,

Juuian R. Yates, Sr., Intervenors Defendants.

ANSWER AND Cross-Ciaim or Netson K. Dot, eT Au.

—Filed August 24, 1964

Come now the above-named intervenors defendants and

allege that they are taxpayers and registered voters of the

State of Hawaii and duly elected members of the Senate

of the State of Hawaii and that their names and the Senate

and Representative Districts where they reside are as

follows :

[fol. 83]

Senate Representative

Senator District District

Nelson K. Doi

Kazuhisa Abe

Toshi Ansai

Francis M. F. Ching

William H. Hill

Bernard G. Kinney

Benjamin Menor

Noboru Miyake

Thomas S. Ogata

Clinton I. Shiraishi

David K. Trask, Jr.

John T. Ushijima

Julian R. Yates, Sr.

PDN DAN ON OD OAD DS

OF WAHAWOHRrFNF DWH

—_

[fol. 84] ANSWER

1. They admit that plaintiffs claim to base their action

upon the statutory Section cited in paragraph I of the

complaint. They deny that there is any real case or con-

troversy between plaintiffs and defendant.

2. They admit the allegations of paragraph II.

3. They lack sufficient information to admit the allega-

tions of paragraph III, and they, therefore, deny them.

4. They admit the allegations of paragraph IV.

5. They deny the allegations of paragraph V.

6. They admit the allegations of paragraphs VI, VII

and VIII.

7. They deny the allegations of paragraph IX.

8. They admit the allegations of the first sentence of

paragraph X, and for lack of sufficient information, deny

the remainder.

9, They admit the allegations of the first sentence of

paragraph XI, and for lack of sufficient information, deny

the remaining allegations of said paragraph.

10. They deny the allegations of paragraphs XII, XIII,

XIV, XV, XVI and XVII, save and except the allegations

of the second paragraph thereof on page 12, which same

are admitted.

(fol. 85] 11. The Senate of the State of Hawaii by the

passage of numerous legislative measures has evidenced

good faith in attempting to achieve a legislative apportion-

ment beyond constitutional criticism and will continue to do

so, and there is neither need nor occasion for judicial in-

terference with the legislative and constitutional processes

of the State of Hawaii.

12. That there has not been an adequate opportunity

for the legislature and the people of Hawaii to consider

the problems of reapportionment and to act thereon, and

that should the present legislative session adjourn without

agreement thereon, the new legislature would be elected in

1964 should be given an opportunity to take appropriate

action.

Wherefore, said intervenors pray that the complaint

herein be dismissed.

Cross-CLamm

As an alternative to the dismissal of this action as above

prayed, the intervenors allege that should the provisions

of Hawaiian constitutional and statutory laws be held in-

valid by this Court, that:

1. There is no reason to believe that the legislature to

be elected in 1964 will not with reasonable dispatch take

the necessary action to provide valid apportionment consti-

(fol. 86] tutional and statutory provisions.

2. If such action is not taken, then in granting relief,

this Court should decree the calling of a Constitutional

Convention in the manner provided in the Constitution of

the State of Hawaii and in legislation already passed by

the Senate of Hawaii.

3. Should this Court decree a judicial reapportionment,

it should not reapportion the House of Representatives of

the State of Hawaii, and any reapportionment of the Senate

of the State of Hawaii should be on the basis set forth in

House Bill 3, Senate Draft 1, that is, on the basis of one

senator allocated to each county and the remaining senators

allocated on the basis of the number of registered voters,

Wherefore, intervenors alternatively pray for action in

the manner set forth in this cross-claim.

Dated: Honolulu, Hawaii, August 21, 1964.

Frank D. Padgett, 312 Castle & Cooke Building,

Honolulu, Hawaii, Attorney for Intervenors, De-

fendants.

Robertson, Castle & Anthony, Of Counsel.

(fol. 87] [File endorsement omitted]

[fol. 92]

In tHe Unitep States District Court

For THE District or Hawalr

Civil No. 2308

Henrietta Davipson Hout, James Ropryson Hott, Caru J.

GuntTerRT, ExMer G. Leenman, JoHw J. MeEperros and

WituiaM P. Lacy, Plaintiffs,

vs.

Wu §S. Ricuarpson, Lieutenant Governor

of Hawaii, Defendant,

Eimer F. CravaLHo, WiiuiaM M. Furtapo, and Howarp Y.

Miyake for themselves and all other members of the

House of Representatives, Second Legislature, State

of Hawaii, Intervenors.

ANSWER OF ELMER F’, CRAVALHO, ET AL.—

Filed August 24, 1964

Elmer F. Cravalho, William M. Furtado, and Howard

Y. Miyake for themselves and all other members of the

House of Representatives, Second Legislature, State of

Hawaii. hereinafter referred to as intervenors, answering

plaintiffs’ complaint, state as follows:

They admit the allegations of paragraph I.

They admit that plaintiffs’ request for a three Judge Dis-

trict Court pursuant to 28 U.S.C., Sees. 2281 et seq. is ap-

propriate. They deny the remaining allegations of para-

graph II.

They are without knowledge or information sufficient to

form a belief as to the truths of the averments of para.

graph III.

[fol. 93] IV

They admit the allegations of paragraph IV.

They deny that the sections of the constitution of the

State of Hawaii which apportion members of the House of

Representatives are invalid. They are without knowledge

or information sufficient to form a belief as to the truth of

the other averments of paragraph V.

They admit the allegations of paragraph VI.

Vil

They admit the allegations of paragraph VII.

Vill

They admit the allegations of paragraph VILI.

They admit that the apportionment plan covering the

Senate and House of Representatives is an integrated ap-

portionment scheme for over-all legislative representation

but deny that any invalidity of the apportionment of the

Senate invalidates the apportionment of the House of Rep-

resentatives, as alleged in paragraph IX.

They are without knowledge or information sufficient to

form a belief as to the truth of the averments of paragraph

They admit that the House of Representatives was re-

apportioned in 1959 on the basis of reigstered voters in the

1958 general election. They deny that such reapportion-

ment was or is now invalid. They admit that 1960 popula-

tion figures stated are from the Federal Census but deny

(fol. 94] that they may be used to show invalidity of the

reapportionment of the House of Representatives. They

deny the remaining allegations of paragraph XI.

XII

As for paragraph XII they deny that Article III, Sec-

tions 3 and 4 and Article XVI, Section 1 violate the Four-

teenth Amendment of the Constitution of the United States,

are without knowledge or information sufficient to form a

belief as to the truth of the matters as to population and

apportionment set forth in Exhibit “C” of the Complaint

and deny that such Exhibit “C” shows or tends to show

that said Article III, Sections 3 and 4 and Article XVI,

Section 1 are invalid.

XII

They deny the averments of paragraph XIII alleging

debasement of plaintiffs’ votes as resulting from uncon-

stitutional apportionment of the House of Representatives

and deny that such apportionment denied plaintiffs due

process or equal protection of the laws.

XIV

They neither admit nor deny the truth of the averments

of paragraph XIV. -

They deny the allegations of paragraph XV.

XVI

They deny that plaintiffs’ interests can only be protected

by a decree declaring Article III, Sections 2, 3, and 4 and

Article XVI, Section 1, and the proviso at the end of the

sixth paragraph in Section 2 of Article XV of the state

constitution to be unconstitutional or by enjoining defen-

dant from performing acts and duties under said provisions

as alleged in paragraph XVI.

[fol. 95] XVII

They deny the allegations of paragraph XVII.

XVIil

For further answer, they state that this Court should

not enjoin the 1964 election of members of the Senate and

House of Representatives as said election is so imminent

as to preclude any reasonable alternative apportionment

plans.

Wherefore intervenors pray that:

1. This Court determine that Article IIL, Sections 3 and

4 and Article XVI, Section 1 of the constitution of the

State of Hawaii are valid and constitutional.

2. This Court refuse to enjoin the defendant from per-

forming his statutory duties with respect to the 1964 elec-

tions of senators and representatives of the legislature of

the State of Hawaii.

3. This Court refuse to interfere with the conduct of

said elections, by requiring such elections to be conducted

on an at-large basis or by interfering therewith in any other

way.

4. This Court, in the event the aforesaid provisions of

the constitution of the State of Hawaii, or any of them,

are determined to be invalid, abstain from directing any

change in said provisions, or in the present apportionment

of the legislature of the State of Hawaii, until the people

of Hawaii have had a reasonable opportunity to amend the

provisions determined to be invalid in the manner estab-

lished by said Constitution.

5. This Court grant such other and further relief as it

may deem meet and proper.

(fol. 96] Dated: Honolulu, Hawaii, this 24th day of Au-

gust, 1964.

James T. Funaki, Attorney, House of Representa-

tives, State of Hawaii, Iolani Palace, Honolulu,

Hawaii, Counsel for Applicants for Intervention.

(fol. 330]

In THE Unitep States District Court

For THE District or Hawa

Civil No. 2308

Henrietta Davinson Hott, et al., Plaintiffs,

vs.

Wuuiam §. Ricuarpson, Lieutenant Governor

of Hawaii, Defendant.

Pre-TriaL Orper—Filed January 11, 1965

(fol. 331] I.

Jurisdiction

Jurisdiction is vested in this Court, by virtue of the al-

legations in the Complaint of the plaintiffs that the state

legislature is arbitrarily and capriciously apportioned and

the plaintiffs and all others similarly situated, have had

their votes debased and are therefore deprived of equal

protection under the law, as guaranteed by the 14th Amend-

ment to the United States Constitution; jurisdiction is fur-

ther vested in this Court by the Civil Rights Act, 42 U.S.C,

§§ 1983, 1988 and under 28 U.S.C. $§ 2201 and 2281 et seq,

Admitted Facts

The following facts are admitted by the parties:

1. That each of the plaintiffs is a citizen, resident and

qualified voter in the respective senatorial and representa-

tive districts as alleged in paragraph III of the Complaint,

2. That defendant Richardson is the duly elected, quali-

fied and acting Lieutenant Governor of the State of Hawaii

and as such is responsible for the supervision of elections,

fol. 332] pursuant to Section 14-8 and Chapter 11, Revised

Laws of Hawaii 1955, as amended, and such other statutory

duties related thereto, as wees in paragraph IV of the

Complaint.

3. That the House of Representatives was reapportioned

by the Governor in 1959 on the basis of 1958 registered

voters, pursuant to Article ITI, Section 4 of the Constitu-

tion of the State of Hawaii.

4. That the Second Legislature of the State of Hawaii

was convened in a special session on July 28, 1964, and

adjourned on August 26, 1964, without enacting any statute

initiating any procedure for reapportioning the legislature.

5. That according to the 1960 federal census, the total

population of the State of Hawaii was 632,772; there were

175,317 registered voters in 1958, 202,059 in 1960, 221,650

in 1962, and 239,285 in 1964.

6. That a tabulation of the 1960 population, the regis-

tered voters for the years 1958, 1960, 1962 and 1964 in each

of the senatorial and representative districts and the num-

ber of legislators representing each of said districts shows

the following:

1958 1960 1962 1964

1960 Reg. Reg. Reg. Reg. Legis-

The Senate Population Voters Voters Voters Voters _iators

First—Hawaii 44,297 19,031 19,266 20,053 20,739 5

Second—Hawaii 17,035 6,503 6,793 7,141 7,359 2

Third—Maui 42,855 16,755 17,539 18,325 18,752 5

Fourth—Oahu 182,307 62,398 73,981 80,490 87,209 5

Fifth—Oahu 318,102 59,249 73,142 83,834 92,960 5

Sixth—Kauai 28,176 11,381 11,338 11,807 12,266 3

(fol. 333]

1958 1960 1962 1964

1960 Reg. Reg. Reg. Reg. Legis-

The House Population Voters Voters Voters Voters lators

First—Hawaii 5,030 2,209 2,257 2,319 2,399

Second—-Hawaii 31,553 13,836 14,036 14,706 15,274

Third—Hawaii 7714 2986 2,973 3,028 3,066

Fourth—Hawali 11,369 3,862 4,073 4,239 4,329

Fifth—Hawaii 5.666 2,641 2,720 2,902 3,030

Sixth—Maui 7,138 2,560 2,574 2,739 2,897

Seventh—Maui 35,717 14,195 14,965 15,586 15,855

Eighth—Oahu 68,281 13,876 18,369 22,450 27,073

Ninth—Oahu 42,816 5,929 7,410 7,973 8,934

Tenth—Oahu 95,118 12,926 17,003 20,861 23,859

Eleventh—Oahu 57,7438 10,525 12,553 14,401 15,148

Twelfth—Oahu 25,552 8,372 10,000 10,889 11,500

Thirteenth—Oahu 28,592 7,621 7,807 7,260 6,446

Fourteenth—Oahu 42,476 14,134 16,056 17,305 18,571

Fifteenth—Oahu 60,125 21,063 25,869 28,685 31,302

Sixteenth—Oahu 42,750 13,746 16,176 17,072 18,201

Seventeenth—Oahu 36,956 13,455 15,880 17,428 19,135

Eighteenth—Kauai 28,176 11,381 11,338 11,807 12,266

DOP ROPRNWWRDN RR HH RR OF

The first, second, third and sixth senatorial districts con-

tain 21% of the 1960 population of the State. They elect

15 of the 25 senators (60%). The fourth and fifth senatorial

districts contain 79% of the 1960 population of the State.

They elect 10 of the 25 senators (40%).

7. That if each of the 25 senators represented exactly

the same number of persons or registered voters, then each

senator would represent 25,311 persons according to the

1960 federal census, or 7,012 registered voters according

to 1958 voter registration, or 8,082 registered voters in

1960, or 8,866 registered voters in 1962, or 9,571 registered

voters in 1964. Deviations from these averages (lowest and

highest) in terms of per capita representation may be illus-

trated as follows:

[fol. 334]

Average

(25 Senators)

2nd—Hawaii

(2 Senators)

4th—Oahu

(5 Senators)

5th—Oahu

(5 Senators)

Each Senator Represents

1958 1960 1962 1964

1960 Reg. Reg. Reg.

Population Voters Voters Voters Voters

25,311 7,012 8,082 8,866 9,571

8,518 3,251 3,396 3,571 3,678

(lowest) (lowest) (lowest) (lowest) (lowest)

36,461 12,479 14,796 16,098 17,442

(highest) (highest)

62,620 11,850 14,628 16,767 18,592

(highest) (highest) (highest)

8. That if each of the 51 representatives represented ex-

actly the same number of persons or registered voters, then

each representative would represent 12,407 persons accord-

ing to the 1960 federal census, or 3,437 registered voters

according to 1958 voter registration, or 3,962 registered

voters in 1960, or 4,346 registered voters in 1962, or 4,691

registered voters in 1964. Deviations from these averages

(lowest and highest) in terms of per capita representation

may be illustrated as follows:

Average

(51 Repre-

sentatives)

1lst—Hawaii

(1 Repre-

sentative )

8th—Oahu

(4 Repre-

sentatives)

10th—Oahu

(4 Repre-

sentatives)

Each Representative Represents

1958 1960 1962 1964

1960 Reg. Reg. Reg. Reg.

Population Voters Voters Voters Voters

12,407 3,437 3,962 4,346 4,691

5,030 2,209 2,257 2,319 2,399

(lowest) (lowest) (lowest) (lowest) (lowest)

17,070 3,469 | 4,592 5,610 6,768

(highest) (highest) (highest) (highest)

23,779 3,231 4,251 5,215 5,965

(highest)

(fol. 335] 9. The State of Hawaii has but four political

subdivisions, each one a county. Hach county is physically

separated from every other county.

Ii.

Witnesses and Exhibits

Each party reserves the right to introduce further evi-

dence by additional witnesses or exhibits.

IV.

Issues of Fact

1. The distribution of the population throughout the

State of Hawaii in terms of eligibie voters.

2. The historical development of the senatorial and rep-

resentative districts.

3. The policy of the State of Hawaii regarding voter

eligibility.

Issues of Law

The following are the issues to be determined by the

Court:

1. Is the existing apportionment of the legislature of the

State of Hawaii unconstitutional, in whole or in part?

2. May the State of Hawaii choose either (a) gross

population, (b) eligible voters, or (c) registered voters as

a basis for apportionment of its legislature?

3. Does the invalidity of the apportionment in the Sen-

ate of the Hawaii legislature necessarily invalidate the

apportionment of the House of Representatives?

(fol. 336] 4. Is the proviso in the sixth paragraph of Sec-

tion 2 in Article XV of the Hawaii Constitution relating to

constitutional amendments valid?

5. Are the provisions in Article III, Sections 2 and 3 of

the Hawaii Constitution which determine the number of

senators and representatives respectively, severable from

the remainder of the provisions of the Constitution relating

to apportionment of the Senate and the House of Repre.

sentatives, assuming the latter are valid?

6. Does the legislature have the powei to reapportion

by statute, at least pending adoption of a valid constitu.

tional amendment?

7. May a reapportionment plan cut off the term of a

hold-over senator when the same is necessary to effectuate

such plan?

8. Is an apportionment scheme which provides for a mix-

ture of single-member and multi-member districts or multi-

member districts with varying numbers of legislators from

each in one house valid?

9. Is a plan which apportions one senator to each county

regardless of population, then apportions the remaining

senators among the senatorial districts on the basis of

population or registered voters valid?

10. What relief may be properly granted in this case?

VL.

Action by the Court

1. A three-Judge District Court was convened on Au-

gust 25, 1964, to hear plaintiffs’ motion for a preliminary

injunction, in accordance with the provisions of 28 U.S.C.

2281 and 2284.

2. In the hearing before the three-Judge Court on Au-

gust 25, 26 and 27, 1964, the Court granted the several

Motions to Intervene by the following parties:

[fol. 337] (a) As Intervenors-Plaintiff: John A. Burns,

Governor, State of Hawaii, John J. Hulten, George

M. Okano, George R. Ariyoshi, O. Vincent Esposito,

Mitsuyuki Kido, Patsy T. Mink, Sakae Takahashi,

and Vincent H. Yano, members of the Legislature of

the State of Hawaii.

(b) As Intervenors-Defendant: Nelson K. Doi, Kazuhisa

Abe, Toshi Ansai, Francis M. F. Ching, William H.

Hill, Bernard C. Kinney, Benjamin Menor, Noboru

Miyake, Thomas S. Ogata, Clinton I. Shiraishi, David

K. Trask, Jr., John T. Ushijima, and Julian R. Yates,

Sr.

liam M. Furtado and Howard Y. Miyake, for them-

selves and other members of the House of Repre-

sentatives, Second Legislature, State of Hawaii.

3. The Court ellowed the following exhibits into evi-

dence:

(a) By the Plaintiffs:

1—Tabulation of Population and Registered Voters

2—House Conferees’ Report No. 1 Re: H.B. 3, H.D. 1,

8.D.1

2A—H.B. 3, H.D.1

3—Letter to Lieutenant Governor dated July 10, 1964

4—Reply from Lieutenant Governor dated July 13, 1964

5—Map—City of Honolulu (Enumeration Districts and

Census Tracts)

6—Map—County of Maui

6A—Map—lIsland of Maui

6B—Map— Wailuku and Kahului Complex

6C—Map—lIslands of Molokai and Lanai

[fol. 338] 7—Map—Island of Hawaii (Proposed Dis-

tricts)

8—Map—lIsland of Oahu, Single Member Districts (51

House—25 Senate)

9—Map—Island of Kauai (Proposed Districts)

10—Explanation of Method Equal Proportions, Con-

stitutional Convention Proceedings Volume 2, Page

115

11—Standing Committee Report No. 92, Constitutional

Convention 1950

(b) By the Intervenors-Plaintiff :

1—Tabulation of Population and Averages on Repre-

sentation

2—Statement of Wirtz on Apportionment, Constitu-

tional Convention

A—Testimony of Robert Schmitt to Senate dated July

24, 1964 and Tables

(d) By the Intervenors-Defendant (Neighbor Island

Senators) :

Si—Committee of the Whole Report No. 1 Re: S.B. 3

S2—Committee of the Whole Report No. 2 Re: S.B.

12,8.D.1

S3—Committee of the Whole Report No. 3 (with Ap-

pendix A and B) Re: H.B. 3, H.D. 1, S.D. 1

S4—Committee of the Whole Report No. 4 Re: S.B. 10

All House Bills (H.B.), Senate Bills (S.B.) and Commit-

tee Reports mentioned in the above list of exhibits in evi-

dence refer to those measures which were before the Second

Legislature of the State of Hawaii in its 1964 Special Ses-

sion.

(fol. 339] It is therefore agreed by the parties in the above

styled cause that the above shall be binding upon all parties

unless hereafter modified by order of the Court.

Dated: Honolulu, Hawaii, this 10th day of December,

1964.

Charles M. Tonaki, attorney for Henrietta David-

son Holt et al., Plaintiffs.

Robert G. Dodge, attorney for William S. Richard-

son, Defendant.

Bert T. Kobayashi, Attorney General, for John J.

Hulten et al., Intervenors-Plaintiffs.

Frank D. Padgett, attorney for Nelson K. Doi, et al,

Intervenors-Defendants.

James T. Funaki, attorney for Elmer F. Cravalho,

et al., Intervenors-Defendants.

It Is So Ordered:

Martin Pence, Judge of the above-entitled Court.

[File endorsement omitted]

[fol. 370]

In tHe Unirep States Districr Court

For tHe District or Hawaii

Civil No. 2308

Henrietta Davipson Hott, et al., Plaintiffs,

vs.

Wu §S. Ricuarpson, Lieutenant Governor

of Hawaii, Defendant,

Joun J. Hutren, et al., Members of the Legislature of

the State of Hawaii, and Jonn A. Burns, Governor of

Hawaii, Intervenors-Plaintiffs,

Netson K. Dot, et al., Members of the Senate, Second

Legislature, State of Hawaii, Intervenors-Defendants,

Emer F’, Cravatno, et al., Members of the House of Rep-

resentatives, Second Legislature, State of Hawaii, In-

tervenors-Defendants.

Decision AND Orper—February 17, 1965

On August 13, 1964, the plaintiffs, citizens and residents

of the State of Hawaii and qualified voters in their respec-

tive senatorial and representative districts, on their own

behalf and as a class action on behalf of all other citizens,

residents and voters in the State of Hawaii similarly situ-

ated, filed this complaint against William S. Richardson,

Lieutenant Governor of Hawaii (he being responsible for

the supervision of elections), seeking to enjoin Richardson

from performing any duties relating to the nomination and

election of candidates for State legislative offices unless the

fol. 371] State legislature enacted a valid reapportionment

plan for use in the 1964 elections, praying that this court

should in any event make certain that the 1966 election

would be conducted under an apportionment plan that would

meet the requirements of the Fourteenth Amendment to the

Constitution of the United States.

Plaintiffs alleged that the Constitution of the State

of Hawaii apportioned the senate on the basis of geography

and not population, and the house of representatives on the

basis of registered voters and not population, and thus the

State’s scheme of apportionment was unconstitutional under

the Fourteenth Amendment, in the light of Reynolds v. Sims,

377 U.S. 533 (1964), and its companion cases of the same

date: Maryland Committee v. Tawes, Lucas v. Colorado

General Assembly, Davis v. Mann, WMCA v. Lomenzo and

Roman v. Sincock.

The Governor of the State, as well as all state legisla-

tors, both senators and representatives, filed their appear-

ance as either intervening plaintiffs or defendants. (After

the 1964 elections, all but one of the newly elected legisla-

tors likewise filed their appearance.)

A three-judge district court thereafter convened, found

that it had jurisdiction under 28 U.S.C. Sees. 2201 and 2281

et seq., as well as under the Civil Rights Act, 42 U.S.C.

Sees. 1983, 1988, and the court, after full hearing, on August

26, 1964, because of the imminence of the 1964 elections

and the disruptive effects which an injunction would have

had thereon, and because the State legislature at that date

was convened in special session for the specific purpose of

considering the problems of reapportionment, denied the

motion for a preliminary injunction and set a hearing on the

merits for January 11, 1965. (Cf. Roman v. Sincock, supra.)

The legislature failed to agree on any reapportionment plan,

(fol. 372] and this decision follows the January hearing.

The Constitution of the State of Hawaii, after being ham-

mered out at a Constitutional Convention composed of non-

partisan delegates elected from all parts of the Territory,

was adopted July 22, 1950, to become effective immediately

upon the admission of Hawaii into the Union as a state.

Hawaii was so admitted on August 21, 1959. The Constitu-

tion prescribes a senate of 25 members, obviously and ad-

mittedly apportioned basically upon the geographical and

political divisions of the State, and 51 representatives ap-

portioned as hereinafter described.

Hawaii is unique in many respects. It is the only state

that has been successively an absolute monarchy, a con-

stitutional monarchy, a republic, and then a territory of the

United States before its admission as a state. Because each

was insulated from the other by wide channels and high seas

(C.A.B. v. Island Airlines, —— F.Supp. —— (October 8,

1964) ) and historically ruled first by chiefs and then royal

governors, after annexation the seven major, inhabited

islands of the State were divided up into the four counties

of Kauai, Maui, Hawaii and the City and County of Hono-

lulu.’ All this resulted in a strongly centralized form of

government.

By 1950, Honolulu, the State capital, had by far the

largest population of any county, an essentially urban

population, and had become an industrial, manufacturing,

military and tourist center. The other three counties re-

mained essentially rural and primarily concerned with agri-

[fol. 373] culture and ranching. With the State having com-

plete control over the judiciary, taxation, education, public

health and welfare, etc., it was normal therefore that the

three more rural counties of Kauai, Maui and Hawaii would

not wish to leave such centralized power, particularly con-

trol over the State’s purse strings, with urban Honolulu.

Patterning itself after the makeup of the United States

Congress, Article III, Section 2 of the State Constitution

apportioned the 25-member senate on a basis which enabled

the senators of the three counties outside of Honolulu to

have numerical control over that body. This was deliber-

* The artificial and isolated County of Kalawao has always been

strictly a Hansen’s disease treatment area, operated and controlled

by the Board of Health of the Territory and State. It votes with

Maui County for State Legislators.

ately done in order to preserve the then nationally approved

concept of checks and balances between rural and urban

populations.

By Article III, Section 4, the house of representatives

was apportioned under “the method of equal proportions,”

ie., the same method as used in apportioning the members

of the House of Representatives of the United States Con-

gress,’ giving the representatives from the County of

Honoiulu, with its larger population, potential control of

the house. Both single and multi-member representative

districts were set up throughout the State.

Under this same Section 4, using the method of equal

proportions, the State legislators were apportioned among

the four “basic areas”, viz., the four counties, on the basis

of the number of voters registered at the last preceding

general election, and within the counties each representa-

tive district had its representation determined by the same

(fol. 374] method.

Under this same Section 4, the governor was mandated to

reapportion the members of the house of representatives on

or before June 1 of the year 1959, and at successive 10-year

intervals thereafter. On May 1, 1959 (pursuant to Pub-

lie Law 895, 84th Congress, 2nd Session), the Governor of

Hawaii did reapportion the State in the above manner, and

such reapportionment transferred increasing control to

Honolulu.*

All parties before this court conceded (as was also

determined by the Supreme Court of Hawaii in Guntert v.

Richardson, 47 Hawaii (July 27, 1964)) that Article

III, Section 2, relating to the composition and apportion-

ment of the State senate is indisputably invalid under

Reynolds v. Sims, supra.

*Proceedings of the Constitutional Convention of Hawaii,

Volume II (Proceedings), pp. 112-123. See also, Reynolds v.

Sims, supra, note 19.

* After the Constitutional Convention, Congress put into perma-

nent effect the reapportionment provisions of the proposed State

Constitution. (Davis v. Quinn, 43 Hawaii 261, 269.)

From the inception therefore, it was obvious that Hawaii’s

Constitution must be amended, at least to provide for a

valid apportionment of its senate. In connection with any

constitutional reapportionment of the senate, it must be

noted that Article XV (Revision and Amendment), Section

2, para. 6, contains the following proviso:

‘

*... provided, that no constitutional amendment alter.

ing this proviso or the representation from any sena-

torial district in the senate shall become effective unless

it shall also be approved by a majority of the votes

tallied upon the question in each of a majority of the

counties,”

As appears in the Proceedings, pp. 761-64, this proviso

was specifically inserted in order to freeze representation

in the senate, and it gave to the rural counties what

amounted to the right of veto over any attempt to change

the representative makeup of the senate. This proviso is so

(fol. 375] closely tied in with the admittedly invalid scheme

of senatorial apportionment that it, too, is likewise consti-

tutionally invalid and falls along with Article III, Section 2.

Plaintiffs urge that Article III, Sections 3 and 4, relat-

ing to apportionment of the house, are likewise invalid

because they are a part of the total scheme of legislative

apportionment, inferring that the house would not have

been apportioned as it was but for the senate being ap-

portioned as a built-in check in setting up the “checks

and balance” scheme of the United States Congress.

This Court finds that this is not necessarily true. Apart

from one problem discussed immediately below, nothing has

been called to our attention and we find no evidence—

not even in the Proceedings—that the Constitutional Con-

vention would have apportioned the house in any other way

than it did.*

*In connection with both the senate and the house of representa-

tives, plaintiffs have claimed that the number of legislators in each

house, viz., 25 and 51, are part of some invidious scheme. Exhibit

Plaintiffs urge that in any event, the house of repre-

sentatives is unconstitutionally apportioned because ap-

rtionment thereof is based upon the number of voters

registered at the last preceding general election (Art. ITI,

Sec. 4), and not upon a gross, ie., total population basis.

Article IL, Sections 1 and 2, covering suffrage and elec-

tions, provides, in substance, that every literate United

States Citizen who is compos mentis and not an unpardoned

felon, 20 years old or more, residing in the State not less

(fol. 376] than one year next preceding the election, and a

registered voter, shall be qualified to vote. This Court

finds nothing in Article II which is constitutionally in-

vidious as discriminating against any one on the basis of

race, color, creed, employment or geographical location,

and as indicated in Article III, Sections 2 and 3, defining

who may elect senators and representatives, it appears that

the term “qualified voters” is used practically synony-

mously with registered voters under Article III, Section 4.

This court is not prepared at this time to accept plaintiff's

premise that total population is the only basis upon which

apportionment of state legislatures can constitutionally be

based. The Court in WMCA v. Lomenzo, supra, notes that

“New York uses citizen population instead of total popula-

tion, excluding aliens ..., for purposes of legislative ap-

portionment” and apparently found nothing invidious in

that fact. In Maryland Committee v. Tawes, supra, the

Court said:

“Rather, the proper, and indeed indispensable, subject

for judicial focus in a legislative apportionment contro-

versy is the overall representation accorded to the

14, Table 14 clearly illustrates that there is no built-in magic or

invidiousness in the use of such numbers. The matter of the size

of each legislative body and the adoption of a 15-member senate and

31-member house, or a 21-member senate and 41-member house, as

well as the ultimately approved 25-member senate and 51-member

house were thoroughly explored by the Convention (Proceedings,

pp. 89-101, 112-132).

State’s voters, in both houses of a bicameral state legis.

lature.” (Emphasis added.)

The Court thus re-expressed what it said in Gray v. Sand-

ers, 372 U. S. 368, 379:

“Once the geographical unit for which a representative

is to be chosen is designated, all who participate im the

election are to have an equal vote—whatever their race,

... their income, and wherever their home may be in

the geographical unit.” (Emphasis added.)

The Court has said time after time throughout Reynolds y.

Sims, swpra, and the companion cases only that “both houses

must be apportioned substantially on a population basis.”

(Emphasis added.)

Plaintiffs urge and have presented figures showing that

{fol. 377] on the basis of the 1960, 1962 and 1964, popula-

tion, the house of representatives is malapportioned. To be-

gin with, paraphrasing Guntert v. Richardson, supra, 1950

and 1958 registered voters, and 1960, 1962 and 1964 popula.

tion, are not comparable figures. The Court does not de.

mand that legislatures be reapportioned annually. Reynolds

v. Sims, supra, Subject VIII. This Court, at this time, can

only determine if the basis of apportionment, when adopted

in 1950 and when used for reapportionment in 1959, did in

fact at those times result in apportionment “substantially

on a population basis.”

The Convention tried “to write into this Constitution a

proposal that would not deny a single individual in this

territory the right to suffrage.” (Proceedings, p. 49) The

basis of apportionment by population vs. registered voters

was thoroughly discussed.

“The idea among other things was to make the dis-

tricts as nearly equal population-wise as possible ...”

(Proceedings, p. 107)

“One of the reasons why the reapportionment directed

by the Organic Act* was not carried out was because

that act required reapportionment on the basis of citizen

population. A breakdown of the population according to

this standard has not been locally available. Total

population figures for the territory are shown by

census tracts which do not necessarily coincide with

locally defined areas. As a practical matter, the number

of registered voters was found to bear a reliable and

fairly uniform relationship to total population, although

it favors slightly the neighbor islands where the per-

centage of persons who have registered to vote is

from one to two per cent higher than for Oahu. It was

in recognition cf the potential difficulty in obtaining

figures which would show citizen population, or figures

which would show total population by desirable dis-

tricts, that the basis for reapportionment of the mem-

bers of the House was chosen as the number of regis-

tered voters.” (Proceedings, p. 107)

[fol. 378] “The problem as stated in the report and as

stated by the committee chairman this morning of using

population in these districts is that it is next to

impossible to obtain accurate population figures for

the districts that we want to use or even for the old

precincts or for any districts, unless you should take

your representative districts to be the same districts

that are used by the Census Bureau. Now it is quite

possible that by the next census we could convince

the Census Bureau that they should break their areas

up into the areas that we may decide upon for repre-

sentatives.

“ ..[1])n checking this over in the committee we found

that there was actually percentage wise or using the

method of equal proportions or anything else, very little

difference whether we used registered voters, votes cast

or population.” (Proceedings, p. 124)

* Organic Act, Sees. 60, 62.

The testimony of Robert Schmitt® (see Transcript of

Proceedings of August 1964 hearings (TR) beginning p. 80)

illustrated with certainty that the term “population” as de-

termined by the Census Bureau was far from an accurate

or reliable method of determining the true number of

residents of a given area—at least in Hawaii.

“The 1960 Census definition of population used in its

compilation, . . . included all armed forces stationed

ashore in Hawaii, regardless of their legal or voting

residence. It included all men aboard ships in Hawaii

ports on the census date... April ist, 1960; that is

[if] a ship tied up in Kapalama Basin or in Pearl

Harbor, Ford Island, the entire crew of that ship was

assigned to that geographic area.

[fol. 379]

“This was also true in the case of civilian ships. For

example, the Ala Wai Yacht Harbor included a nun-

ber of house boats and yachts which were enumerated

in Hawaii.” (TR 80)

“ ,... If the person on the night preceding the census

had been there .. . each hotel or transient accommoda-

tion was enumerated...

“(T]hey enumerated every person in Hawaii at that

time, but they then reallocated them to their home

states...” (TR 81)

* Robert Schmitt: employed by the Department of Planning and

Economic Development of the State of Hawaii; a member of the

American Statistical Association; member of the Population Asso-

ciation of America and author of some 60 articles in professional

journals; Research Development Analyst in charge of the Research

Division of the Honolulu Redevelopment Agency for four years;

in charge of research for the Seattle City Planning Commission;

author and editor of the Statistical Abstracts of Hawaii; census

tract key person for Honlulu of the U. S. Bureau of Census for

many years; holds a Master’s Degree from the University of Cin-

cinnati, with additional graduate work from the University of

Hawaii, University of Michigan and the University of Washington

(TR 69-70).

“ |... We don’t know how many were here at that time.

But we made an estimate... The Census Bureau did

not report how many such persons were reallocated.”

(Emphasis added.) (TR 82)

“ .. There is no certainty how many were reallocated.

We assume that all of them were.” (TR 83)

“There were two ships [picked up in the 1960 census],

one the Kiwishiwi . . . and the other the Black Hawk

... [T]he total personnel of perhaps four hundred

... Were assigned to [an area of Waikiki along the Ala

Wai “'anal] . .. [H]Jere we had approximately four

hundred of the ship’s crews . . . classified as military

... who were assigned to this [Waikiki] enumeration

distriet ...

“[T]n 1920 . . . they inadvertently threw 3,000 Pearl

Harbor people into the . . . Honolulu judicial district.”

(TR 106-07)

“In 1960, the number of members of the Armed Forces

... was either 54,000 or 47,000... [or 42,122 if we sub-

tract the 1960 civilian population of 590,650 froim 632,-

772—See Ex. 14, p. 12], the census cont was 47,000,

and the Department of Defense counted 54,000.” (TR

116)

Since the total civilian population of Hawaii (excluding

the military) in 1960 was but 585,505 (Ex. 14, Table 12),

it is seen that the military did account for about 10% of

the total population. (1960 Census estimate, Ex. 15, Table

9.) Hawaii has become the United States’ military bastion

for the entire Pacific and the military population in the

State fluctuates violently as the Asiatic spots of trouble

arise and disappear. If total population were to be the

only acceptable criteria upon which legislative representa-

tion could be based, in Hawaii, grossly absurd and disas-

trous results would flow from a blind adherence to “the

elusive ‘one-person-one-vote’ aphorism.” (Mr. Justice Har-

[fol. 380] lan in Fortson v. Toombs, U.S. (Janu.

ary 18, 1965).)

For example, if Hawaii’s reapportionment year had been

1944, when the civilian population was 464,250 and the

military population was 407,000, then areas which normally

might have a total population entitling them to but a smal]

percentage of the total number of legislators would sud-

denly find themselves controlling over 90% of the legis.

Jature—for the following ten years!

In contrast to the above, in 1950, with a civilian popula-

tion of 472,780, there were but 21,000 military in Hawaii—

less than 5%. In two years, this had jumped to 55,000. In

1958 there were 55,000 military, with a civilian population

of 555,222. Two years later, there were 79,000 military

in Hawaii. (Ex. 15, Table 11) As the plaintiffs have ad-

mitted, if the State were reapportioned at the present time

on a straight total population basis, the Fifth senatorial

district, containing within its bounds most of the military

and naval installations of the State, would be entitled to 13

senators—a majority of the Senate!

A theoretical proposed redistricting of the City and

County of Honolulu (Ex. 8) based on total population under

the 1960 census, with the primary consideration being

substantial equality of total population, gave Oahu 20 sena-

tors out of 25, and 41 representatives out of 51. (TR 189—

Schmitt) A result of such proposed redistricting was that

the largest representative district in point of population

would be the one that included Schofield Barracks “in fact,

it is completely Schofield Barracks,” (TR 190) i.e., mili-

tary population. Although it would thus become the larg-

est representative district in the State, “in point of regis-

tered voters [it would be] the smallest district on the

island.” (TR 191) And Schmitt admitted, in testifying con-

[fol. 381] cerning Exhibit 17, that it was possible in a single

representative district so reapportioned on a total popula-

tion basis, for such a district to have almost no voters at

all.

This court does not have before it the problem presented

to the Supreme Court of Hawaii in In Re Robinson, Jr., No.

4465, Memorandum Opinion (October 30, 1964), rehearing

granted January 18, 1965, viz., the question of whether a

serviceman’s residence on a Federal military reservation

precludes him from establishing his residence in Hawaii. If

he so desires to become a resident of Hawaii, this court can

only state that there is nothing in the State Constitution

or the Hawaii statutes which per se excludes members of the

armed forces from establishing their residence in Hawaii

and thereafter becoming eligible to vote. This court finds

no scheme in Hawaii’s Constitution or in the statutes imple-

menting the exercise of franchise which is aimed at disen-

franchising the military or any other group of citizens.

Not only does the fluctuating military population of the

State make representation on the basis of total population

politically suspect, but the large number of tourists’ who

continually flow in and out of the State and who, as above

indicated, for census purposes are initially at least, counted

as part of Hawaii’s census population (10,000 estimated,

1960 census), would likewise result in gross inequity to

citizens of the State eligible to vote, if total population

were held to be the only constitutional basis for reap-

portionment in Hawaii.

(fol. 382] The difficulties undoubtedly faced by the Consti-

tutional Convention in determining the best method to set up

a system giving equality of representation is further illus-

trated by references contained in Exhibit 14 on statistics

based on the year 1960—not the year 1950 when the Con-

stitution was adopted, or 1959 when the house of representa-

tives was reapportioned. Exhibit 14, Table 1 shows that the

total civilian population as of July 1st, 1960 was 590,650,

with 202,059 registered voters or 34.2% registered. Table 3

'The Hawaii Visitors Bureau statistics show that tourists in

Hawaii, for overnight or longer, numbered—in 1950, 46,593; in

1958, 171,588; in 1960, 296,517; in 1962, 362,145; in 1964, 510,000

(preliminary figure).

shows the total population as 632,772, thus indicating but

31.9% of the population as having registered. Table 4, how.

ever, shows that out of the State population of 312,478

United States citizens (thus including the military) of vot-

ing age, the 202,059 registered voters accounts for 64.7% of

all that class. Table 5 indicates that out of the total popula-

tion age 20 or over (thus including non-citizens), of 360,193,

231,914 could qualify as being eligible to register. Thus even

in 1960, the registered voters actually accounted for 87.1%

of all of the possible voting popwlation of the State of

Hawaii.

That, in Hawaii, apportionment on a registered voter

basis is not invidious per se, is further illustrated by Ex.

hibit 14, Table 13, wherein it appears that 19 senators

would be apportioned to Honolulu regardless of whether the

basis was registered voters in the 1962 election or civilian

population. Likewise, there is shown but a difference of two

aes (38-40) for Honolulu in such projected ap-

portionment of the house, a difference which might result

from the application of the method of equal proportions.

Hawaii’s centralized education system has resulted in

an unusually literate citizenry, and interest in politics and

strong drives to bring out the vote have resulted in a

vote of from 88 to 93.6% of all registered voters during

[fol. 383] the elections of 1958, 1959,* 1960 and 1962. (Ex.

14, p. 12)

Representation based upon those eligible to vote, rather

than registered voters, might conceivably have been a bet-

ter solution, but neither in 1950 nor in 1958, as Schmitt

testified (TR 96-98), was there statistical data available

from which the necessary figures could have been gleaned

and applied to the representative districts. As he also said,

any attempt to determine the number of military personnel

or their dependents who are eligible to vote in Hawaii by

representative district “would strain the available statis-

tical sources to the breaking point.” (TR 98)

® First political implementation under Statehood.

This Court does not hold that registered voters as a

basis for representation is the perfect basis. Paraphras-

ing the words of the Court in Fortson v. Dorsey, —— US.

—— this court finds the use of registered voters as a basis

of apportionment did not, in Hawaii, in fact “designedly or

otherwise . . . operate to minimize or cancel out the vot-

ing strength of [any] .. . elements of the voting popula-

tion.” (At p. ——) Nor did it in 1959 bring about that

result.

As the records of the Constitutional Convention show

(Proceedings 103-111), the districting, both for the sen-

ate and the house of representatives, followed along his-

torical, political, geographic and physical lines. There was

no gerrymandering in the invidious sense. As Dr. Schmitt

testified (TR 96), the representative district lines some-

times cross statistical matters reported in the census,

because the census divided up the State into census tracts.

While for some of the cities of the State block statistics are

available, nevertheless it is rather rare when the census

[fol. 384] tract coincides with the precinct in an election

district. “There seems to have been an unfortunate dis-

regard of precinct boundaries and representative district

boundaries in laying out the census tracts and vice versa.”

(TR 96)

Plaintiffs have pointed to the result of the redistricting

in Representative Districts Nos. 1 and 2—Puna and South

Hilo on the Island of Hawaii—as proof positive that the

districting brought about a result condemned in Reynolds

v. Sims, supra, as unconstitutional, in that in 1959, given

a man-average per representative of 3437 voters, Puna

with a 1958 registered voter population of but 2209 was

given one representative and South Hilo with a registered

voter population of 13,836 was given but three (i.e., 4459

voters per representative )—ergo an arbitrary and invidious

dilution of the votes of the South Hilo voters! While the

Court did state:

“It is inconceivable that a state law to the effect that,

in counting votes for legislators, the votes of citizens

in one part of the State would be multiplied by two,

five, or 10, while the votes of person in another area

would be counted only at face value, could be constitu.

tionally sustainable”,

this broad conclusion, however, was modified a few lines

thereafter by the following:

“Weighting the votes of citizens differently, by any

method or means, merely because of where they hap-

pen to reside, hardly seems justifiable.” Reynolds y,

Sims, swpra. (Emphasis added.)

As was also stated by Mr. Justice Black in Colegrove vy.

Green, 328 U.S. 549, 569-71:

“T]he constitutionally guaranteed right to vote and

the right to have one’s vote counted clearly imply the

policy that state election systems, no matter what their

form, should be designed to give approximately equal

weight to each vote cast...” Reynolds v. Sims, supra,

note 40. (Emphasis added.)

The record of the Proceedings (py. 139, 141, 157) show

[fol. 385] that in an endeavor to make all of the representa-

tive districts of the State large enough so that the figures

would approach the 1950 common denominator of 2445,

Puna (lst Representative District), when combined with

Keaukaha (now in the 2nd Representative District) came to

2355. The delegates from South Hilo opposed this because

geographically Keaukaha was separated from the nearest

inhabited portion of Puna by a lava forest over six miles

wide, traversed by but one road. It was an integral part of

the City of Hilo, using that city’s power, water, police,

fire protection, schools and all public services. Its popula-

tion was almost entirely of Hawaiian extraction; almost all

of its inhabitants were employed only in Hilo; and basically,

it had no community, ethnic or industrial bond or interest

with Puna.

The voting population of Puna, on the other hand, was

very predominantly of Jananese extraction, with no urban-

ization whatsoever, and with almost its entire population

employed by one sugar plantation.

Keaukaha had 644 voters. It was recognized that the

{711 voters of Puna ethnically, industrially and socially

were a cohesive unit, and such districting, as a matter of

practical politics, would have left Keaukaha with no real

representation.

“'Keaukaha] was put in Puna in the first place...

[in] ...an effort to get, a larger number of voters in

the district that was going to elect one representative.

It should be the natural thing to put it in South Hilo

as [the delegates from Hawaii County] propose to do

it now and it would not disturb the allocation of voters

between Puna and South Hilo, and North Hilo and

Hamakua.” (Proceedings, p. 157)

2 matter of fact, also, neither in Puna nor in South Hilo

ia the resultant number of voters per representative, then

or in 1959, violate the method of, equal proportions. This

court finds ample justification for and no invidious vote

dilution in the above districting.

[fol. 386] As indicated above, this court cannot say that

Hawaii’s method of districting was part of any invidious

scheme to disenfranchise any person or group, or to dilute

the vote of any person. In hindsight, this court could say, as

did Dr. Schmitt, that for the purpose of determining eli-

gibility to vote in any precinct or district, it would be far

easier to secure some such information if the districting

and precinct lines also coincide with the census county divi-

sions and census tracts. (TR 96)

There is nothing which appears in the Proceedings (pp.

173-74) to indicate that the ordering of reapportionment of

the house in the year preceding that in which the census is

normally taken was part of a scheme to dilute the vote of

any person, rather, that year was used because the 5th

Legislative Session after the Constitutional Convention

would have terminated its work in May 1959. Since re-

apportionment was based upon registered voters, the cen.

sus figures did not appear to the delegates to have any

application.

Obviously, if the rights of the citizens of Hawaii are to

be protected, the Constitution of the State of Hawaii must

be amended—and amended before the 1966 general elec.

tions. The action of the legislature in failing to provide for

reapportionment during its special session called for that

purpose only last summer was disappointing to this court

—and undoubtedly to the Supreme Court of Hawaii. See

Guntert v. Richardson, supra.

As pointed out by the Supreme Court of Hawaii in

Guntert, any change in the representation from any sena-

torial district must be by constitutional amendment. This

court concurs!

Under Article XV, Section 3 of the Hawaii Constitution,

[{fol. 387] while the legislature may propose amendments to

the Constitution, such amendments can only be voted on at

a general election. If the legislature at its special reappor-

tionment session of 1964 had proposed any reapportionment

amendment, it could have been voted on in the 1964 election,

but that legislature did not so act. Having determined that

the senate at least, must be reapportioned before the 1966

general election, this court, in the inception, is now com-

pelled to attempt to achieve that result by following the

constitutional method provided under Article XV, Section 2.

In the event that the constitutional route fails or, if fol-

lowed, produced an invalid scheme of apportionment, only

then would this or any other court be justified in attempt-

ing to assume the Herculean task of devising and enforcing

a temporary reapportionment system.

In the event that a Constitutional Convention is convened,

then in view of the questions and problems which have been

raised before this court in this case, as well as before the

Supreme Court of Hawaii in Guntert » Richardson, supra,

the delegates, in addition to providing for reapportionment

of the senate, may also wish to reconsider the question of:

1. Whether it will continue to use registered voters as

the apportionment basis, or change it to State citizen popu-

lation eligible to vote (i.e., voter population), or citizen

population, or total population.

2. Whether it is better to have one or both houses of the

legislature composed of single member representative dis-

tricts, or to have and justify’ one or both houses composed,

in whole or in part, of multi-member or floterial districts.

3. Whether decennial reapportionment of either or both

[fol. 388] houses should be made on or before June Ist of

the year preceding the Federal census—as is now the case

—or on a date soon after the taking of such census.

4. Whether the representative district lines show! re-

main substantially as they now are or whether ultimately

(ie., after 1970) there should be redistricting in such a

manner that the census tracts and representative districts

ean be coordinated for the statistical purposes necessary to

implement 'the changes (if any) made in the basis of re-

apportionment.

It Is Therefore Ordered, Adjudged and Decreed:

1. Those provisions of Article III, Section 2 of the Con-

stitution of the State of Hawaii fixing the number of

senators per senatorial district are hereby declared uncon-

stitutional and invalid. The remainder of Article III of

said constitution is declared constitutional and valid.

2. The proviso at the end of the sixth paragraph in Sec-

tion 2 of Article XV pertaining to amendments affecting

representation in the Senate is hereby declared unconsti-

tutional and invalid. The remainder of Article XV is de-

clared constitutional and valid.

3. The plaintiffs and intervening plaintiffs have failed

to prove that the apportionment of the House of Repre-

* Butcher v. Bloom, 203 A.2d 556, 572-73.

sentatives of the Legislature of the State of Hawaii causes

any invidious discrimination in the weight of their vote or

that such apportionment is the result of arbitrary or capri-

cious action. Their prayers for relief in this respect are

therefore denied.

4. This court will not interfere with the convening or

conducting of the business of the Third State Legislature

in regular session in 1965, save and except that the parties

[fol. 389] herein are hereby enjoined from taking final ac-

tion upon any legislation, except such actions as are neces-

sary to organize the respective houses at such session and

appropriate funds for the session, until legislation, pur-

suant to the provision of Article XV of said Constitution

providing for the submission to the people of Hawaii, by

special election to be held not later than August 1, 1965,

the question: “Shall there be a convention to propose a

revision of or amendments to the constitution?”, and for

any and all acts required by law to implement such legis-

lation, has been enacted into law. Such legislation shall

also provide that if the vote be in the constitutional affirma-

tive, then a special election shall be held not later than

September 15, 1965 to elect delegates to the convention in

the manner provided in the Constitution. Such legislation

may include legislative action under Article XV, Section 2,

4th paragraph, of the Constitution. Such legislation shall

further provide that the convention convene not later than

October 15, 1965 and that it conclude its deliberation in

time to submit its proposed constitutional amendments to

the electorate of Hawaii at a special election to be held not

later than January 30, 1966, including (but not limiting the

convention thereto) provisions therein for reapportioning

the Senate of Hawaii on a constitutionally valid basis. Such

legislation shall also appropriate and make available funds

for the expenses of such elections and convention.

5. The offices of all senators of the Hawaij State Senate

are hereby declared vacant as of the day of the general

election of 1966. Until such date, the existing offices cf all

senators elected under Article III, Section 2 of the Consti-

tution, shall be valid.

§. This court retains jurisdiction of this action for all

purposes, including but not limited to (a) considering

(fol. 390] such sanctions as may be appropriate if the

orders of this court are not carried out; (b) judiciaily re-

apportioning the Senate in the event that the electors of

Hawaii reject a constitutional convention, or the conven-

tion fails to propose an amendment reapportioning the Sen-

ate, or the electors reject such an amendment, or if any

amendment of the convention does not insure the appor-

tionment of the Hawaii State Legislature in accordance

with the requirements of the Equal Protection Clause of

the 14th Amendment to the Constitution of the United

States. |

7. All other relief prayed for in the Complaint, Com-

plaint in Intervention, and Cross Complaint is hereby

denied.

Dated: Honolulu, Hawaii, this 17th day of February,

1965.

Gilbert H. Jertberg, Circuit Judge.

William T. Beeks, District Judge.

Martin Pence, District Judge.

[File endorsement omitted]

[fol. 393 | [File endorsement omitted]

[fol. 394]

Iy tHe Unirep States District Court

For tHe District or Hawa

Civil No. 2308

Henrietta Davinson Ho t, et al., Plaintiffs,

vs.

WituiaM 8. Ricnarpson, Lieutenant Governor

of Hawaii, Defendant,

JoHN J. Huuten et al., Intervenors-Plaintiffs,

Nexson K. Dor et al. and Eimer F.. Cravauuo et al.,

Intervenors-Defendants.

Notice oF Motion To ALTER OR AMEND JUDGMENT

—Filed March 1, 1965

To: Charles M. Tonaki and Barry J. Rubin, Suite 1021,

First National Bank Bldg., Honolulu, Hawaii.

Masaji Marumoto, 235 Queen Street, Honolulu, Hawaii.

Bert T. Kobayashi, Iolani Palace Grounds, Honolulu,

Hawaii.

Robert G. Dodge, Trusteo Bldg., Honolulu, Hawaii.

Frank D. Padgett, Castle & Cooke Bldg., Honolulu,

Hawaii.

Please take notice that the undersigned will bring the —

above motion to alter or amend the judgment on for hear-

ing before this Court at the Federal Building, Honolulu,

(fol. 395] Hawaii, on the 9th day of March, 1965, at 10:00

A.M. or as soon thereafter as counsel may be heard.

Dated: Honolulu, Hawaii, March 1, 1965.

James T. Funaki, Attorney for Intervenors-Defen-

dants, Elmer F. Cravalho et al., 400 International

Savings Bldg., Honolulu, Hawaii.

Robert Kimura, Attorney for intervenors-Defen-

dants, Nelson K. Doi et al., Office of the Senate

Majority Attorneys, Schuman Bldg., Honolulu,

Hawaii.

[fol. 396]

In tHE Unirep States District Court

For tHe District or Hawa

Civil No. 2308

[Title omitted]

Motion To ALTER OR AMEND JUDGMENT—Filed

March 1, 1965

Intervenors-Defendants move the court to alter or amend

the judgment heretofore entered in this action, by amend-

ing item 4 at the bottom of page 19 and on page 20 of the

Decision and Order, and item 6 on pages 20 and 21 of the

Decision and Order to read as follows:

“4. In consonance with the reapportionment plan for the

Senate, set forth in Senate Concurrent Resolution No. 35,

adopted by the Legislature of the State of Hawaii on March

1, 1965, the Senate shall be apportioned on the basis of the

number of voters registered at the 1964 general election.

Such apportionment and the redistricting plan for the Sen-

ate referred to hereinbelow shall apply to the 1966 elections

and until an appropriate constitutional amendment shall

have been effected.

[fol. 397] “The legislators-parties herein are hereby en-

joined from taking final action upon any legislation, except

such actions as are necessary to organize the respective

houses at such session and appropriate funds for the ses-

sion, until the State legislature in regular session in 1965;

“(a) shall have adopted a redistricting plan for the

Senate on the basis of 1964 registered voters and the

same shall have been approved by the court;

“(b) shall have adopted a proposed constitutional

amendment embodying pertinent provisions of the

foregoing reapportionment and redistricting plans, to

be presented to the electorate for ratification at the

1966 general electicn, and the same shal! have been

approved by the court; and

“(c) shall have enacted legislation, pursuant to the

provisions of Article XV of the State Constitution,

providing for submission to the people of Hawaii at

the general election of 1966 the question: ‘Shall there

be a convention to propose a revision of or amendments

to the constitution?’.

“If the measures set forth in paragraphs (a), (b), and

‘(¢c) adove shall not have been adopted by the legislature

on or before the twentieth calendar day following the date

of the order granting the motion to amend the said Deci-

sion and Order, and the same thereafter shall not have

been approved by the court, then item 4 on pages 19 and

20 and item 6 on pages 20 and 21 of the Decision and Order

dated February 17, 1965, shall be reinstated and remain in

full force and effect as if the motion to amend the same

had not been granted.

(fol. 396).°* * *

“6. This court retains jurisdiction of this action for all

purposes including but not limited to:

“(a) considering such actions as may be appropri-

ate if the orders of this court are carried out; and

“(b) judicially prescribing a reapportionment or re-

districting plan for the Senate whenever appropriate.”

This motion is based on the Statement of Reasons and

Authorities, which is attached hereto, and Senate Concur-

rent Resolution No. 35 of the Third Legislature of the State

of Hawaii, General Session of 1965, adopted on March 1,

1965.

Dated: Honolulu, Hawaii, March 1, 1965.

James T. Funaki, Attorney for Intervenors-Defen-

dants, Elmer F. Cravalho et al., 400 International

Savings Bldg., Honolulu, Hawaii.

Robert Kimura, Attorney for Intervenors-Defen-

dants, Nelson K. Doi et al., Office of the Senate

Majority Attorneys, Schuman wldg., Honolulu,

Hawaii. .

[fol. 399]

In tHE Unirep States District Court

For tHe District or Hawau

Civil No. 2308

[Title omitted]

STATEMENT OF REASONS AND AUTHORITIES—F led

March 1, 1965

This motion is brought in accordance with Rule 59(e) of

the Federal Rules of Civil Procedure, which provides:

“Motion to Alter or Amend a Judgment. A motion

to alter or amend the judgment shall be served not

later than 10 days after entry of the judgment.”

On February 17, 1965, this Court “ordered, adjudged and

decreed,” among other things, that the legislature provide

for (1) a special election at which the question: “Shall

there be a convention to propose a revision of or amend-

ments to the constitution?” shall be submitted to the people;

(2) a special election to elect delegates to a constitutional

convention; (3) convening of the constitutional convention;

and (4) a special election for ratification of amendments

proposed by the convention.

The motion to alter or amend is made for the following

reasons:

[fol.400] (1) As indicated at the hearing before this

Court, the three special elections will cost nearly half a

million dollars. It is estimated by the Department of

Budget and Finance, State of Hawaii, that the total cost

of the constitutional convention and of the three special

elections will be in excess of one million dollars.

(2) The holding of three special elections and a conven-

tion in a period of six months will be unduly cumbersome.

(3) The convention will not be limited to consideration

of amendments to senatorial reanvportionment and might

be diverted from its primary task.

(4) Under Article XV, section 2, of the State Constitu-

tion, the Lieutenant Governor is mandated to submit to the

people at the 1970 general election the question of whether

a convention to amend or revise the constitution shall be

held. Such a convention is intended to and would have the

time and facilities to consider the entire constitution and

any amendments or revisions thereof.

As indicated in Senate Concurrent Resolution No. 35, it

is contemplated that the question of whether a constitu-

tional convention is to be held will be submitted to the

people at the 1966 general election.

(5) The end sought to be achieved is a proper apportion-

ment of the Senate on the basis of registered voters. The

cost of a constitutional convention is grossly dispropor-

| fol. 401] tionate to the end sought which can be equitably,

speedily and economically achieved by the amendment

prayed for.

Dated: Honolulu, Hawaii, March 1, 1965.

Respectfully submitted,

James T. Funaki, Attorney for Intervenors-Defen-

dants, Elmer F. Cravalho et al., 400 International

Savings Bldg., Honolulu, Hawaii.

Robert Kimura, Attorney for Intervenors-Defen-

dants, Nelson K. Doi et al., Office of the Senate

Majority Attorneys, Schuman Bldg., Honolulu,

Hawaii.

[fol. 410] [File endorsement omitted]

[fol. 411]

In THE Unitep States District Court

For THE District or Hawau

Civil No. 2308

[Title omitted]

Motion to AMEND Motion To ALTER oR AMEND JUDGMENT

AND Orper THEREON—March 5, 1965

Intervenors-Defendants move the Court to amend their

Motion to Alter or Amend Judgment filed herein on March

1, 1965, by inserting the word “not” between the words “are

carried” on the second line of the quoted subparagraph

6(a) on page 3 of said Motion.

This Motion is to correct an inadvertent typographical

omission.

[fol.412] Dated: Honolulu, Hawaii, March 5, 1965.

James T. Funaki, Attorney for Intervenors-Defen-

dants, Elmer F. Cravalho, et al., 400 International

Savings Bldg., Honolulu, Hawaii.

Robert Kimura, Attorney for Intervenors-Defen-

dants, Nelson K. Doi, et al., Office of the Senate

Majority Attorneys, Schuman Bldg., Honolulu,

Hawaii.

ORDER

The foregoing Motion to Amend Motion to Alter or

Amend Judgment is approved and allowed.

Martin Pence, Judge of the above entitled Court.

[fol. 454]

In THE Unitep States District Court

For THE District or Hawa

Civil No. 2308

[Title omitted]

Firnat Orper on Motion To ALTER oR AMEND

J UDGMENT— March 9, 1965

As stated in this court’s Decision and Order of February

17, 1965, a plan reapportioning the Senate of Hawaii must

be operative for the 1966 general election, and this court

did not in February and does not now wish to assume the

task of devising a reapportionment scheme. Faced with

the legislature’s failure to act during its special reappor-

tionment session of 1964, this court then felt compelled to

channel reapportionment measures into the constitutional

convention route.

Based upon the current actions of the legislators, fol-

lowed by the representations by counsel for all parties to

this suit that all are in accord with the objectives outlined

in the motion to alter or amend judgment, this court is now

convinced that the legislative climate has changed and that

the legislators presently in session are now prepared to

undertake the formulation of a plan for reapportioning the

Senate which can be Constitutionally justified. From the

. seen — — eee!

PENN Ee aes SF ee

representations made, this court is satisfied that the multi-

(fol. 455] ple and accelerated special elections and a con-

stitutional convention would cost well over $1,000,000,

strain the State’s election machinery, and force an as-yet-

unsought-for constitutional convention upon the people of

Hawaii, with attendant loss of time to the delegates.

This court is therefore prepared to grant the motion of

intervenor-defendants Nelson K. Doi et al., and Elmer F.

Cravalho et al., to alter the court’s Decision and Order of

February 17, 1965.

It Is Therefore Ordered, Adjudged and Decreed that this

court’s order of February 17, 1965 be and is hereby altered

in the following particulars. Item 4 beginning at the bot-

tom of page 19, and item 6 beginning at the bottom of page

20, are amended to read as follows:

“4. The Senate shall be apportioned on the basis of the

number of voters registered at the 1964 general election

substantially in the manner outlined by the reapportion-

ment plan for the Senate, set forth in Senate Concurrent

Resolution No. 35, adopted by the Legislature of the State

of Hawaii on March 1, 1965, and attached to the Motion to

Alter or Amend Judgment filed in this court on March 1,

1965. Any such reapportionment plan shall apply to the

1966 elections and thereafter until an appropriate and legal

constitutional amendment shall become effective.

“In furtherance of the above, the legislators and parties

herein are enjoined from taking final action upon any legis-

lation, except such actions as are necessary to organize the

respective houses at such session and appropriate funds

for the session, until the State legislature in regular session

in 1965:

“(a) shall have enacted a reapportionment and re-

districting plan for the Senate on the basis of 1964

registered voters (and applicable to the 1966 elections)

and the same shall have become law;

[fol. 456] ‘(b) shall have adopted a proposed consti-

tutional amendment embodying pertinent provisions of

the foregoing reapportionment and redistricting plan,

to be presented to the electorate for ratification at the

1966 general election, in the manner provided by Article

XV, Section 3, of the State Constitution; and

“(e) shall have enacted legislation, pursuant to the

provisions of Article XV of the State Constitution, pro-

viding for submission to the people of Hawaii at the

general election of 1966 the question: ‘Shall there be

a convention to propose a revision of or amendments

to the Constitution?’.”

“After (a), (b) and (c) shall have been enacted and

adopted, and made operative, the same shall thereupon be

submitted to this court for approval.

“Tf the measures set forth in paragraphs (a), (b) and (ce)

above shall not have been enacted and adopted by the legis-

lature on or before the twentieth calendar day following

the date of the order granting the motion to amend the said

Decision and Order, and made operative, and if the same

after hearing shall not have been approved by the court,

then, as far as then and thereafter applicable, item 4 on

pages 19 and 20 and item 6 on pages 20 and 21 of the Deci-

sion and Order dated February 17, 1965 shall become auto-

matically reinstated and thereafter remain in full force and

effect as if the Motion to Amend the same had not been |

granted.

“6. This court retains jurisdiction of this action for all

purposes, including but not limited to:

“(a) considering such sanctions as may be appro-

priate if the orders of this court are not carried out;

and

“(b) judicially reapportioning and redistricting the

[fol. 457] Senate, in the event that the obligations of

the parties above indicated are not fulfilled, or any re-

apportionment plan so enacted is not approved by the

court, or the electors of Hawaii at the 1966 general

election reject the proposed and court-approved con-

stitutional amendment reapportioning the Senate, or

under any other circumstances which this court shall

deem appropriate.”

In all other respects this court’s Decision and Order of

February 17, 1965 is reaffirmed.

Datea: Honolulu, Hawaii, this 9th day of March, 1965.

Gilbert H. Jertberg, Circuit Judge, William T.

Beeks, District Judge, Martin Pence, District

Judge.

(fol. 479 ] [File endorsement omitted]

(fol. 480]

In tHe Unitep States District Court

For tHe District or Hawa

Civil No. 2308

[Title omitted]

MEMORANDUM OF GOvVERNOR’s PosITION ON SENATE

REAPPORTIONMENT Unprer House Bru No. 773,

Senate Drarr 1—Filed March 24, 1965

1. The division of the neighbor islands into one- or two-

member senatorial districts and of Oahu into a nine-

member district and a ten-member district is arbitrary

and capricious, unfairly weights the voting and repre-

sentation in favor of Oahu voters and so is invidiously

discriminatory and violative of the equal protection

clause in the Fourteenth Amendment.

H.B. 773, S.D. 1, proposes an amendment to the Hawaii

State Constitution that would apportion the State Senate

as follows:

First senatorial district—Puna, Hilo, and Hama-

kua in the County of Hawaii:

Second senatorial district—Kau, Kona, and F ala

in the County of Hawaii:

Third senatorial district—County of Maui:

Fourth senatorial district—part of the City and

County of Honolulu:

Fifth senatorial district—remainder of the City

and County of Honolulu:

Sixth senatorial district—County of Kauai:

[fol. 481] We respectfully submit that such apportionment

violates the equal protection clause of the Fourteenth

Amendment to the United States Constitution.

We are aware that courts have “recognized that legisla-

tive reapportionment is primarily a matter for legislative

concern and determination” (Reynolds v. Sims, 377 USS.

533, 586), and traditionally have observed restraint in

passing judgment thereon. However, where a legislative

apportionment scheme is invidiously discriminatory, the

courts, at least since 1962, have not hesitated to provide

relief. Baker vy. Carr, 369 U.S. 186; Reynolds v. Sims, 377

U.S. 533; WMCA, Inc. v. Lomenzo, 377 U.S. 6383; Maryland

Committee v. Tawes, 377 U.S. 656; Davis v. Mamn, 377 US.

678; Roman v. Sincock, 377 U.S. 695; Lucas v. Colorado

General Assembly, 377 U.S. 713.

As stated in Baker v. Carr, 369 U.S. 186, 226:

“Judicial standards under the Equal Protection

Clause are well developed and familiar, and it has been

open to courts since the enactment of the Fourteenth

Amendment to determine, if on the particular facts

they must, that a discrimination reflects no policy, but

simply arbitrary and capricious action.” (Emphasis in

text.)

On the application of the concept of equal protection to

legislative apportionment and representation, the United

MOREL ALLL IRIEL DELILE LIREE,, ELBE: SLECLLGF IRIE LEIS OES

States Supreme Court in Reynolds v. Sims has stated the

following principles:

“ .. [T]he concept of equal protection has been

traditionally viewed as requiring the uniform treat-

ment of persons standing in the same relation to the

governmental action questioned or challenged. With

respect to the allocation of legislative representation,

all voters, as citizens of a State, stand in the same re-

lation regardless of where they live. Any suggested

criteria for the differentiation of citizens are insuffi-

cient to justify any discrimination, as to the weight

of their votes, unless relevant to the permissible pur-

poses of legislative apportionment. Since the achieving

of fair and effective representation for all citizens is

[fol. 482] concededly the basic aim of legislative ap-

portionment, we conclude that the Equal Protection

Clause guarantees the opportunity for equal partici-

pation by all voters in the election of state legislators.

Diluting the weight of votes because of place of resi-

dence impairs basic constitutional rights under the

Fourteenth Amendment just as much as invidious dis-

criminations based upon factors such as race, Brown

v. Board of Education, 347 U.S. 483, or economic status,

Griffin v. Illinois, 351 U.S. 12, Douglas v. California,

372 U.S. 353....” 377 US. at 565-566.

Specifically, in Reynolds v. Sims, 377 U.S. 533, the court

has indicated some guidelines relating to size of legislative

districts :

“By holding that as a federal constitutional requisite

both houses of a state legislature must be apportioned

on a population basis, we mean that the Equal Protec-

tion Clause requires that a State make an honest and

good faith effort to construct districts, in both houses

of its legislature, as nearly of equal population as is

practicable. We realize that it is a practical impossi-

we Fare ee.

On ean

(Rn “SR orn tas on gC

, .

STEERER TRI AERA GRINS eit ee se rpaee

bility to arrange legislative districts so that each one

has an identical number of residents, or citizens, or

voters. Mathematical exactness or precision is hardly

a workable constitutional requirement.” Jd. at 577.

“ ., Single-member districts may be the rule in one

State, while another State might desire to achieve some

flexibility by creating multimember or floterial dis-

tricts. Whatever the means of accomplishment, the

overriding objective must be substantial equality of

population among the various districts, so that the vote

of any citizen is approximately equal in weight to that

of any other citizen in the State.” Id. at 579. (Empha-

sis added.)

It is true that in Reynolds, the court was concerned pri-

marily with discrimination resulting from apportionment

that was not based on population. However, the principles

enunciated in that case, we submit, are also applicable to

discrimination resulting from arbitrary districting.

The Supreme Court of Pennsylvania in Butcher v. Bloom,

203 A.2d 556, even while holding that a mixture of single-

member districts with two-, three-, or four-member districts

(but with no district that was so overwhelmingly large that

[fol. 483] it dominated a house) was not per se unconstitu-

tional, stated:

“While we do not believe that the creation of multi-

member districts of itself, would violate the Federal

Constitution simply because the voters in a particular

district (where justified by population) would vote for

two or more representatives while those in another dis-

trict would vote for a lesser number, we do believe that

a legislative scheme which creates single-member dis-

tricts and multi-member districts in an arbitrary man-

ner would be objectionable. We would agree with the

district court, however, that in the absence of any rea-

sonable justification (historical or otherwise), such dis-

trieting might be the result of gerrymandering for

partisan advantage and, in that event, would be arbi-

trary and capricious....” Id. at 572-573. (Emphasis

added. )*

Each voter, no matter where he lives, stands as a citizen

and voter in the same relation to any other voter in the

State. Each is entitled to “fair and effective” representa-

tion and has the right to equal participation in the election

of legislators.

There is no rational justification for the difference in

treatment of voters in the counties of Hawaii, Maui and

Kauai vis-a-vis voters on Oahu.

There is no rhyme or reason for districting the neighbor

island counties into one- and two-member senatorial dis-

tricts and the City and County of Honolulu into a nine-

member and a ten-member senatorial district; it goes far

beyond any reasonably acceptable norm. Such districting

is arbitrary and capricious; such overwhelming and dis-

proportionate size of the two Oahu districts unfairly

weights the votes and representation of Oahu voters and

denies fair and effective representation to voters in the

neighbor island senatorial districts.

[fol. 484] Apportionment that is not based on population

is not the only means by which invidious discrimination

may take place. Invidious discrimination can also result

from arbitrary and unreasonable districting, even if the

apportionment is in proportion to population.

Under the proposed plan, the voters in the ten-senator

district would vote for and elect not two, three or four, but

ten senators who would be looking after their interests and

who would constitute 40 percent of the Senate. With only

three additional votes, the delegation from the fifth sena-

torial district could control the Senate. So could the fourth

senatorial district delegation with four additional votes.

1The United States Supreme Court referred to the Butcher case

with apparent approval in Scranton v. Drew, decided on November

16, 1964, 33 LW 3181.

The concentration of voting strength in either of these dis-

tricts would overwhelm the smaller districts.

Contrast the weight of the vote of a voter in such a large

district with that of a voter in a one- or two-senator dis-

trict. The weight of a vote in a one- or two-senator district

in contrast would yield such meager representation and

would be so diluted that a voter in such a district may, not

without reason, decide that it is not worth his while to go

to the polls. By no stretch of the imagination can it be

said that he enjoys “equal participation .. . in the election

of state legislators” (Reynolds v. Sims, id. at 566), with

voters in the fourth and fifth senatorial districts, or “fair

and effective” representation. (Jd. at 565.)

The lopsided districting in H.B. 773 cannot be justified

on any historic, geographic or other basis. The fact that

Hawaii has had a similar type of senatorial districting

under the Organic Act and under the State Constitution

offers no justification. Such districting was based on cir-

cumstances not analogous to those in the present case.

[fol. 485] The senatorial apportionment under the Organic

Act just prior to statehood, as well as under the State Con-

stitution, was based on geographic representation, not

population representation, and the number of senators from

each senatorial district was fairly even.?

Districting based on geographic representation (whi

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