By: Andrew Lowy

A Hawaii election has put the Fifteenth Amendment in an interesting spotlight. Hawaii’s Act 195, passed in 2011, authorized the Native Hawaiian Roll Commission to compile a list of Native Hawaiians who would later be able to organize themselves as a new nation of Native Hawaiians. This new Hawaiian nation would be similar to already existing Native American nations. Now, Justice Kennedy has issued an order temporarily blocking the counting of ballots in an election proposing to start the process of creating the Native Hawaiian nation.

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The Fifteenth Amendment forbids any state, or the federal government, from denying or abridging a citizen’s right to vote “on account of race, color, or previous condition of servitude.” The Amendment was originally intended to enfranchise newly freed slaves at the end of the Civil War. Since its ratification, the Fifteenth Amendment is usually referenced in the context of protecting minority votes. However, in this case, Hawaiian residents who do not qualify as Native Hawaiians argue that their Fifteenth Amendment rights have been violated. For the purposes of the ballot, Native Hawaiians were defined as those who could trace lineage to “the people who lived and exercised sovereignty in the Hawaiian islands prior to 1778.” By restricting the ballot to these “Native Hawaiians,” the election is allegedly race-based and unconstitutional.

The organization Judicial Watch originally filed suit in district court on behalf of the non-natives back in August. A federal judge ruled that the issue was a private matter and thus did not violate the Fifteenth Amendment. Judicial Watch appealed the case to the Ninth Circuit. However, the election took place anyway throughout the entire month of November when the Ninth Circuit denied requests to block ballot counting. Judicial Watch then sought emergency injunctive relief from Justice Kennedy, Circuit Justice for the Ninth Circuit, who issued an order temporarily blocking ballot counting. At this point, the fate of the Hawaii election is in limbo pending possible Supreme Court review.

In 2000, there was a similar case that also involved a Hawaii election limited to native voters. In fact, the case, Rice v. Cayetano, also raised a Fifteenth Amendment claim. In that case, the Hawaiian Constitution limited the right to vote for officers of the state Office of Hawaiian Affairs to Native Hawaiians. Writing for the Court, Justice Kennedy stated that the “design of the [Fifteenth] Amendment is to reaffirm the equality of races at the most basic level of the democratic process, the exercise of the voting franchise.” He further explained that Hawaii’s ancestral requirements is nothing more than a proxy for racial voting criteria. Thus, the Court struck down Hawaii’s voting law.

Fast-forward fifteen years and we have essentially the same scenario. Defenders of the Hawaii-challenged voter law attempt to distinguish the present case from Rice with claims that this election is private. To them, voting to establish a Native Hawaiian nation does not compare to the public election of state officials. Yet it remains to be seen what Justice Kennedy will say, if anything at all. Even though Kennedy issued the order blocking vote-counting, the Supreme Court has yet to grant certiorari. Until then, the fate of the Hawaii election will be unknown.

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