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IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
C.A. No. 15-17134
KELII AKINA, et al.,
Plaintiffs/Appellants
v.
STATE OF HAWAII, et al.
Defendants/Appellees.
BRIEF OF AMICI CURIAE
AMERICAN CIVIL RIGHTS UNION AND CATO INSTITUTE
On Appeal from the United States District Court
For the District of Hawaii
No. 15-00332 JMS-BMK
The Honorable J. Michael Seabright,
Judge, U.S. District Court
Noel H. Johnson
Kaylan L. Phillips
Joseph A. Vanderhulst
PUBLIC INTEREST LEGAL FOUNDATION
209 W. Main Street
Plainfield, IN 46168
(317) 203-5599
[email protected]
[email protected]
[email protected]

Ilya Shapiro
CATO INSTITUTE
1000 Massachusetts Ave. NW
Washington, DC 20001
(202) 842-0200
[email protected]

Counsel for Amici Curiae

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CORPORATE DISCLOSURE STATEMENT

American Civil Rights Union, Inc., hereby states that it has no parent
companies, subsidiaries, or affiliates and that it does not issue shares to the public.
The Cato Institute also states that it has no parent companies, subsidiaries, or
affiliates, and that it does not issue shares to the public.

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TABLE OF CONTENTS
Corporate Disclosure Statement .............................................................................. i
Table of Authorities ............................................................................................... iii
Introduction and Interest of Amici Curiae ............................................................. 1
Argument ................................................................................................................ 3
I.

Ancestral and Bloodline Tests for Voting are

Per se Unconstitutional ........................................................................... 3

II.

The Supreme Courts Decision in Rice Obliterates the District Courts

Holding that Hawaiis Racially Discriminatory Voter Registration
Procedure Survives Strict Scrutiny.......................................................... 8
A. Hawaii Has No Special Relationship with the Native
Hawaiians that Can Justify a Deprivation of Voting Rights .............. 8
B. Hawaii Has No Interest in Effectuating the Wishes of a
Chosen Ancestral Class That Can Justify a Deprivation
of Voting Rights ............................................................................... 10
C. Hawaii Has No Interest in Gauging the Collective Opinion
of a Particular Race That Can Justify a Deprivation of
Voting Rights ................................................................................... 11
D. Hawaii Has No Interest in Bettering the Conditions of Its Indigenous
People That Can Justify the Deprivation of Voting Rights ............. 11

Conclusion ............................................................................................................ 13
Statement of Related Cases ................................................................................... 14
Certificate of Compliance ..................................................................................... 15
Certificate of Service ............................................................................................ 16

ii

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TABLE OF AUTHORITIES
Cases
Guinn v. United States, 238 U.S. 347 (1915) ..................................................... 6-7
Lane v. Wilson, 307 U.S. 268 (1939) .................................................................. 6-8
Morse v. Republican Party, 517 U.S. 186 (1996)............................................. 4 n.1
Rice v. Cayetano, 528 U.S. 495 (2000) ................................................. 1, 4-6, 8-12
Rice v. Cayetano, 146 F.3d 1075 (9th Cir. 1998) ................................................... 8
Akina v. Hawaii, 2015 U.S. Dist. LEXIS 146995
(D. Haw. Oct. 29, 2015) ..................................................................................... 9-11
St. Francis College v. Al-Khazraji, 481 U.S. 604 (1987) ...................................... 6
United States v. Dogan, 314 F.32d 767 (5th Cir. 1963) .................................. 4 n.2
Statutes and Rules
U.S. Const. amend. XV, 1 .................................................................................... 4
Haw. Rev. Stat. 10H-3(a)(2)(A) ......................................................................... 3
Federal Rule of Appellate Procedure 29(a) ........................................................... 3
Circuit Advisory Committee Note to Rule 29-3 ..................................................... 3
Other Sources
S. 2899 (July 20, 2000); H.R. 4904 (July 20, 2000) (106th Congress) ............ 9 n.3
S. 81 (January 22, 2001); H.R. 617 (February 14, 2001); S. 746
(April 6, 2001); S. 1783 (December 7, 2001) (107th Congress) ..................... 9 n.3
S. 344 (February 11, 2003); H.R. 665 (February 11, 2003); H.R. 4282
(May 5, 2004) (108th Congress) ...................................................................... 9 n.3
iii

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S. 147 (January 25, 2005); H.R. 309 (January 25, 2005); S. 3064
(May 25, 2006) (109th Congress) .................................................................... 9 n.3
S. 310 (January 17, 2007); H.R. 505 (January 17, 2007)
(110th Congress) .............................................................................................. 9 n.3

iv

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INTRODUCTION AND INTEREST OF AMICI CURIAE

For a second time, Hawaii has conducted a racially discriminatory voter
registration procedure to facilitate a racially exclusionary election. The first time
this occurred, the U.S. Supreme Court held that Hawaiis racially discriminatory
policies violated the U.S. Constitution. Rice v. Cayetano, 528 U.S. 495, 499
(2000). Things are no different this time. Hawaiis voter registration scheme again
makes eligibility contingent upon ancestry and bloodlines, which are nothing more
than proxies for race. Such a discriminatory scheme is per se unconstitutional
under the Fifteenth Amendment.
Amicus curiae American Civil Rights Union (ACRU) is a non-partisan
501(c)(3) tax-exempt organization dedicated to protecting the civil rights of all
Americans by publicly advancing a Constitutional understanding of our essential
rights and freedoms. It was founded in 1998 by long-time policy advisor to
President Reagan, and the architect of modern welfare reform, Robert B. Carleson.
Carleson served as President Reagans chief domestic policy advisor on
federalism, and originated the concept of ending the federal entitlement to welfare
by giving the responsibility for those programs to the states through finite block
grants. Since its founding, the ACRU has filed amicus curiae briefs on
constitutional law issues and election matters in cases nationwide.

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The members of the ACRUs Policy Board are former U.S. Attorney
General Edwin Meese III; former Assistant Attorney General for Civil Rights
William Bradford Reynolds; former Assistant Attorney General for the Office of
Legal Counsel Charles J. Cooper; John M. Olin Distinguished Professor of
Economics at George Mason University Walter E. Williams; former Ambassador
to Costa Rica Curtin Winsor, Jr.; former Ohio Secretary of State J. Kenneth
Blackwell; former Voting Rights Section attorney, U.S. Department of Justice, J.
Christian Adams; former Counsel to the Assistant Attorney General for Civil
Rights and former member of the Federal Election Commission Hans von
Spakovsky; and former head of the U.S. Department of Justice Voting Rights
Section Christopher Coates.
Amicus curiae Cato Institute was established in 1977 as a nonpartisan public
policy research foundation dedicated to advancing the principles of individual
liberty, free markets, and limited government. Catos Center for Constitutional
Studies was established in 1989 to help restore the principles of limited
constitutional government that are the foundation of liberty. Toward those ends,
Cato publishes books and studies, conducts conferences and forums, publishes the
annual Cato Supreme Court Review, and files amicus briefs.

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This case interests amici because it implicates their strong belief that all
citizens should be treated equally before the law, not least in the context of
preserving the integrity of American elections.
No party counsel authored any portion of this brief. No party, party counsel,
or person other than amici or their counsel paid for this briefs preparation or
submission. Appellants have consented to the filing of this brief. The State
Appellees take no position on the filing of this brief. Counsel for the remaining
Appellees did not respond to requests for their position on the filing of this brief.
With respect to a similar motion filed with this Court, however, all Appellees did
not object to the motion. Fed. R. App. P. 29(a); Circuit Advisory Committee Note
to Rule 29-3.
ARGUMENT
I.

Ancestral and Bloodline Qualifications for Voting are Per se

Unconstitutional.
As a threshold matter, this Court should reverse the district court because the

Fifteenth Amendment prohibits all voting qualifications based on ancestry or race.

This is a per se prohibition that applies here because of the very definition of
qualified Native Hawaiian.
A qualified Native Hawaiian is defined as one who is a descendant of the
aboriginal peoples who, prior to 1778, occupied and exercised sovereignty in the
Hawaiian islands, the area that now constitutes the State of Hawaii, Haw. Rev.
3

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Stat. 10H-3(a)(2)(A). There can be no dispute that this definition uses ancestry
and bloodline to vest eligibility to participate in a government-run election.
The Fifteenth Amendment strictly forbids a government from administering
a voter registration procedure that brazenly discriminates on the basis of race.
When Hawaii denies the right to register to vote and participate in an election
where a public issue is decided, the Fifteenth Amendment is squarely implicated.1
The right of citizens of the United States to vote shall not be denied or abridged
by the United States or by any State on account of race, color, or previous
condition of servitude. U.S. Const. amend. XV, 1.2 The Constitution plainly
speaks of a right . . . to vote without qualification.
The purpose and command of the Fifteenth Amendment are set forth
in language both explicit and comprehensive. . . . The design of the
Amendment is to reaffirm the equality of races at the most basic level
of the democratic process, the exercise of the voting franchise. A
resolve so absolute required language as simple in command as it was
comprehensive in reach.
Rice, 528 U.S. at 511-12.
The Supreme Court has foreclosed the argument that Fifteenth Amendment
protections cannot reach elections regarding public issues conducted by a private
entity. See Morse v. Republican Party, 517 U.S. 186 (1996) (Section 5 of Voting
Rights Act required preclearance of election changes pertaining to fees to attend
and vote in privately-run republican nominating convention).

This provision applies not only to the physical act of voting but to the entire
voting process, including the matter of registration where registering is required
in advance of voting. United States v. Dogan, 314 F.32d 767, 771 (5th Cir.
1963).
2

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The Supreme Court has repeatedly considered cases in which ancestry and
bloodline were used as a proxy for race, and the Court has repeatedly and
consistently concluded that, supposedly neutral language notwithstanding, such
transparently race-motivated eligibility criteria are unconstitutional. The Supreme
Court has already considered the issue of a Native Hawaiian designation and,
[r]ejecting the States arguments that the classification in question is not racial,
found a violation of the Fifteenth Amendment. Rice, 528 U.S. at 499. In no
uncertain terms, the Court found that [a]ncestry can be a proxy for race. It is that
proxy here. Even if the residents of Hawaii in 1778 had been of more diverse
ethnic backgrounds and cultures, it is far from clear that a voting test favoring their
descendants would not be a race-based qualification. Rice, 528 U.S. at 514; see
also, id. at 516 (noting comments from the drafters that although the word
peoples has been substituted for races in the definition of Hawaiianthis
substitution is merely technical, and [] peoples does mean races.).
According to the Court, racial discrimination is that which singles out
identifiable classes of persons solely because of their ancestry or ethnic
characteristics. Rice, 528 U.S. at 515 (citation and alteration omitted). The
ancestral inquiry mandated by the State, the Court reasoned, implicates the same
grave concerns as a classification specifying a particular race by name, i.e., it
demeans the dignity and worth of a person to be judged by ancestry instead of by
5

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his or her own merit and essential qualities. Id. at 517; see also St. Francis
College v. Al-Khazraji, 481 U.S. 604, 613 (1987) (concluding that race
discrimination means that identifiable classes of persons . . . are subjected to
intentional discrimination solely because of their ancestry or ethnic
characteristics).
The Court concluded:
The ancestral inquiry mandated by the State is forbidden by the
Fifteenth Amendment [because] the use of racial classifications is
corruptive of the whole legal order democratic elections seek to
preserve. . . . Distinctions between citizens solely because of their
ancestry are by their very nature odious to a free people whose
institutions are founded upon the doctrine of equality. . . . The States
electoral restriction enacts a race-based voting qualification.
Rice, 528 U.S. at 495. This bright line prohibition on ancestral tests applies equally
to the present case before this Court.
And Rice is not an outlier. The Court has consistently found the use of
bloodline as a proxy for race is per se unconstitutional. In both Guinn v. United
States, 238 U.S. 347 (1915), and Lane v. Wilson, 307 U.S. 268 (1939), the
Supreme Court invalidated facially race-neutral laws imposing various registration
requirements, reasoning that the Fifteenth Amendment secures freedom from
discrimination on account of race in matters affecting the franchise and protects
against onerous procedural requirements which effectively handicap exercise of
the franchise. Lane, 307 U.S. at 274-75 (invalidating voter qualification intended

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to make it more difficult for one racial group to register to vote); Guinn, 238 U.S.
at 365 (Oklahoma statute that imposed a literacy requirement on voting registration
but contained a grandfather clause applicable to certain individuals and their
descendants was void from the beginning).
In Guinn, the Court held that an ancestral and bloodline voting qualification
was per se unconstitutional. Much like Hawaiis test for qualified Native
Hawaiian, the ancestral test in Guinn set eligibility to register to participate in the
political process based on bloodline or ancestry. In particular, the Oklahoma law
prohibited anyone from being registered to vote who could not read and write any
section of the Oklahoma Constitution on request, but granted an exception to those
who were eligible to vote on or before January 1, 1866 and their descendants.
Guinn, 238 U.S. at 357. Even without express words of an exclusion from the
standard which it establishes of any person on account of race, color, or previous
condition of servitude, id. at 364, the Court reasoned that the qualification was
stricken with nullity in its inception by the self-operative force of the [Fifteenth]
Amendment, id.at 358 (emphasis added) and cannot stand.
Oklahoma responded by enacting a registration test that allowed anyone to
register who voted in 1914, or who registered during a 12-day window ending on
May 11, 1916. Both blacks and whites could freely register during the 12 days,
and thereafter registration was terminated for everyone forever. In Lane, the Court

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took up this new qualification statute, and once again found it unconstitutional. It
held that the Fifteenth Amendment nullifies sophisticated as well as simple
minded-modes of discrimination, 307 U.S. at 274, and that the reach of the
Fifteenth Amendment against contrivances by a state to thwart equality in the
enjoyment of the right to vote by citizens of the United States regardless of race or
color, has been amply expounded by prior decisions, id. at 275.
But unlike Oklahoma, Hawaii is not back before the court with a more
sophisticated test to consider. Hawaii is using a racially discriminatory
registration and voting scheme of the sort based on ancestry that the Supreme
Court has already determined is per se unconstitutional and has repeatedly struck
down. The district courts decision should be accordingly reversed.
II.

The Supreme Courts Decision in Rice Precludes the District Courts

Holding that Hawaiis Racially Discriminatory Voter Registration
Procedure Survives Strict Scrutiny.
A.

Hawaii Has No Special Relationship with the Native

Hawaiians that Can Justify a Deprivation of Voting Rights.

In Rice, the district court upheld Hawaiis exclusion of non-natives from

registering and voting in an election for the trustees of the Office of Hawaiian
Affairs because Congress and the State of Hawaii have recognized a guardianward relationship with the native Hawaiians, which the court found analogous to
the relationship between the United States and the Indian tribes. Rice, 528 U.S. at
511. This Court affirmed on the same basis. Rice, 146 F.3d at 1081 (exclusion of
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non-natives justified by special trust relationship between Hawaii and descendants

of aboriginal peoples.).
The Supreme Court, however, forestalled any reliance on a special
relationship allowing racially discriminatory elections. Even were we to take the
substantial step of finding authority in Congress, delegated to the State, to treat
Hawaiians or native Hawaiians as tribes, explained the Supreme Court, Congress
may not authorize a State to create a voting scheme of this sort. Rice, 528 U.S. at
519 (emphasis added). In fact, Congress has repeated rejected legislation aimed at
placing Hawaii Natives on equal ground with Native Tribes.3
Notwithstanding the Supreme Courts clear mandate, the district court here
adopted the very same rationale to uphold Hawaiis discriminatory registration and
voting scheme under the Fourteenth Amendment: the alleged special political and
legal relationship the State enjoys with the Native Hawaiian people. Akina v.
Hawaii, 2015 U.S. Dist. LEXIS 146995, *57-58 (D. Haw. Oct. 29, 2015). That
rationale plainly did not survive Rice and it cannot now serve as a justification for
Hawaii to again exclude non-natives from its elections on the basis of race.
3

106th Congress: S. 2899 (July 20, 2000); H.R. 4904 (July 20, 2000); 107th
Congress: S. 81 (January 22, 2001); H.R. 617 (February 14, 2001); S. 746 (April 6,
2001); S. 1783 (December 7, 2001) 108th Congress: S. 344 (February 11, 2003);
H.R. 665 (February 11, 2003); H.R. 4282 (May 5, 2004); 109th Congress: S. 147
(January 25, 2005); H.R. 309 (January 25, 2005); S. 3064 (May 25, 2006); 110th
Congress: S. 310 (January 17, 2007); H.R. 505 (January 17, 2007).

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B.

Hawaii Has No Interest in Effectuating the Wishes of a

Chosen Ancestral Class that Can Justify A Deprivation of
Voting Rights.

The district court further reasoned that the State has a compelling interest in
facilitating the organizing of the indigenous Native Hawaiian community so it can
decide for itself, independently, whether to seek self-governance or selfdetermination. Akina, 2015 U.S. Dist. LEXIS 146995 at *61. In other words, the
district court believed that Hawaii may lawfully exclude non-natives because the
election concerns the self-governance of the Native Hawaiian community. But the
Supreme Court has already rejected the notion that citizens of a particular race are
more qualified than others to vote on matters of public importance.
Hawaiis argument fails on more essential grounds. The States
position rests, in the end, on the demeaning premise that citizens of a
particular race are somehow more qualified than others to vote on
certain matters. That reasoning attacks the central meaning of the
Fifteenth Amendment. The Amendment applies to any election in
which public issues are decided or public officials selected. Terry,
345 U.S. at 468. There is no room under the Amendment for the
concept that the right to vote in a particular election can be allocated
based on race.
Rice, 528 U.S. at 523 (emphasis added).

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C.

Hawaii Has No Interest in Creating a Collective Voice

of a Particular Race That Can Justify a Deprivation
of Voting Rights.

The district also suggested that Hawaii could be said to have a

compelling interest in facilitating a forum that might result in a unified and
collective voice amongst Native Hawaiians. Akina, 2015 U.S. Dist. LEXIS
146995 at *62. Rice leaves no room for this argument that Hawaii may
discriminate on the basis of race simply because the outcome of an election
will seemingly affect some races more than others.
Race cannot qualify some and disqualify others from full participation
in our democracy. All citizens, regardless of race, have an interest in
selecting officials who make policies on their behalf, even if those
policies will affect some groups more than others.
Rice, 528 U.S. at 523 (emphasis added).
D.

Hawaii Has No Interest in Bettering the Conditions of Its

Indigenous People that Can Justify the Deprivation of
Voting Rights.

Rice likewise rejects any notion that the betterment of the Native Hawaiians
can justify the deprivation of voting rights. The district court found that Hawaii
and Congress have demonstrated a history of passing legislation for the benefit of
the Native Hawaiian people. Akina, 2015 U.S. Dist. LEXIS 146995 at *58-60.
From that history, according to the district court, [i]t follows that the State has a
compelling interest in bettering the conditions of its indigenous people and, in

11

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doing so, providing dignity in simply allowing a starting point for a process of selfdetermination.
Such findings were equally present in Rice and yet made no difference. The
Supreme Court noted that the Hawaiian Homes Commission Act of 1920 was
passed by Congress, in part, for the betterment of the conditions of native
Hawaiians. Rice, 528 U.S. at 508. Likewise, the Court noted that the State of
Hawaii amended its Constitution to establish the Office of Hawaiian Affairs . . .
which has as its mission the betterment of conditions of native Hawaiians . . . [and]
Hawaiians. Id. (internal citations and quotations omitted). Notwithstanding these
findings, the Court held that Hawaiis challenged statutes were unconstitutional.
The Supreme Courts language in Rice is sweeping in its scope and
unforgiving toward the defenses Hawaii offered in that case, and again offers now.
A fair reading of Rice makes it clear that the Court obliterated any excuse that
justifies a racially discriminatory voter registration scheme run by the state.

12

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CONCLUSION
Hawaiis racially discriminatory voter registration scheme presents a per se
violation of the Fifteenth Amendment. The Supreme Court has left absolutely no
room for any contrary argument. The district courts decision should be reversed.
Respectfully submitted,
/s/ Joseph A. Vanderhulst
Noel H. Johnson
Kaylan L. Phillips
Joseph A. Vanderhulst
PUBLIC INTEREST LEGAL FOUNDATION
209 W. Main Street
Plainfield, IN 46168
(317) 203-5599
[email protected]
[email protected]
[email protected]

Ilya Shapiro
CATO INSTITUTE
1000 Massachusetts Ave. NW
Washington, DC 20001
(202) 842-0200
[email protected]

Dated: December 23, 2015

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STATEMENT OF RELATED CASES

Amici are unaware of any related cases presently before this Court.

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

Certificate of Compliance With Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements
1.

This brief complies with the type-volume limitation of Fed. R. App. P. 29(d)
and 32(a)(7)(B) because this brief contains 2,801 words, excluding the parts
of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2.

This brief complies with the typeface requirements of Fed. R. Civ. P

32(a)(5) and the type style requirements of Fed. R. Civ. P. 32(a)(6) because
this brief has been prepared in a proportionally spaced typeface using
Microsoft Word 2010 in 14 point Times New Roman.

Dated: December 23, 2015

/s/ Joseph A. Vanderhulst

Joseph A. Vanderhulst (Ind. 28106-02)
PUBLIC INTEREST LEGAL FOUNDATION
209 W. Main Street
Plainfield, IN 46168
(317) 203-5599
[email protected]
Counsel for Amici Curiae

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CERTIFICATE OF SERVICE
I hereby certify that on December 23, 2015, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals for
the Ninth Circuit by using the appellate CM/ECF system. I further certify that all
participants in the case are registered CM/ECF users and will be served by the
appellate CM/ECF system.
/s/ Joseph A. Vanderhulst
Joseph A. Vanderhulst

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