This column by Lyle Denniston was published November 24, 2015 on Scotus Blog.

UPDATE 3:52 p.m. Justice Kennedy has called for a response to this filing; it is due tomorrow, Wednesday, by 5 p.m. The American Civil Rights Union is asking permission to file an amicus brief to support this application.

A group of Hawaiians, some of whom won’t be able to vote in a special election that ends on November 30 that is a prelude to recognizing a new Indian-like tribe including many residents, asked the Supreme Court to temporarily stop the completion of that election until their challenge can be decided. In an application filed Thursday night, the challengers argued that the election is based along strict racial lines, and is thus unconstitutional under the Fifteenth Amendment.

UPDATE: The appendix, a large file, is here.

The election — favored by the state and endorsed by the federal Department of the Interior — will be limited to a voter roll made up of people who can qualify as “native Hawaiians.” The election will choose delegates to a convention to write a constitution for what would be a new government entity, similar to a traditional Indian tribe. The aim is to give those who qualify a right of “self-determination.”

The challengers did not ask the Justices to stop the actual balloting, which actually began on November 1 and concludes a week from Monday, but did request that the Court temporarily bar counting and formal certification of the result. So far, their plea for temporary relief has been denied by a federal trial judge and by the U.S. Court of Appeals for the Ninth Circuit. The Interior Department entered the case in the Ninth Circuit to oppose any interruption of the election process. It intends, the department said in court filings, to start a process that would recognize a “native Hawaiian” community in Hawaii as a self-governing, sovereign entity, like an Indian tribe.

Although state officials have argued, and lower courts so far have agreed, that the election is purely a private affair among those on the “native Hawaiian” roll, the challengers contended that “there is almost nothing ‘private” about this election.”

They noted that it was set up by a state law passed in 2011, and that a state agency compiled the roll of who would qualify to vote. They also contended that, although the state created a separate entity, named Na’i Aupuni, to conduct the election, that organization is pledged to using the state-compiled voter roll, and that it got $2.6 million of government funds to pay for the election. “The election concerns hugely important questions of public policy,” it added.

“This election is permeated with state action,” the application contended, and that makes it subject to the Fifteenth Amendment flat ban on denying the right to vote on the basis of race.

The application was filed by, among others, two residents — Joseph William Kent and Yoshimasa Sean Mitsui — who say they cannot qualify under the definition the state set up for “native Hawaiian.” The application argued that Hawaiians who will be excluded from voting number “several hundred thousand” residents of the islands.

It has been estimated that about 100,000 have registered to vote, out of the islands’ total population of 1.3 million. A total of 290,000 Hawaii residents would qualify to vote if registered. Only about one-third of those who registered specifically for tis election did so specifically, nearly two-thirds were simply transferred from other lists that the state had kept.

In the view of the Interior Department, as voiced in court filings, the election is nothing more than a typical opportunity for native peoples to begin the process of achieving self-government.

The challengers rely heavily upon a ruling in 2000 by the Supreme Court, in Rice v. Cayetano, striking down under the Fifteenth Amendment a clause in the Hawaii state constitution that limited the right to vote for board members of a state government agency — the Office of Hawaiian Affairs. The definition of “native Hawaiians” at issue in that case, the application said, “is almost the identical way” that such native peoples were defined in the 2011 state law leading to the November 30 election.

The application (docketed as 15A551) was filed with Justice Anthony M. Kennedy, who handles emergency legal requests from the geographic region of the Ninth Circuit, which includes Hawaii. Kennedy has the option of acting on the request on his own or sharing it with his colleagues. He also can act with or without seeking a reply from the state.
READ THE AMICUS BRIEF HERE.