WASHINGTON, D.C.—Supreme Court Justice Anthony Kennedy is temporarily halting a month-long statewide vote in Hawaii that could eventually lead to a separate sovereign nation within America’s fiftieth state.
The court’s emergency action was provoked by arguments that the vote violates the U.S. Constitution.
Hawaii’s state government favors allowing Hawaiians who can show they are descended from original Hawaiian natives to be able to form a sovereign self-governing system similar to a Native American tribe. President Obama’s U.S. Department of the Interior also supports the idea.
A statewide vote is being held in Hawaii throughout the entire month of November. The problem arises from the fact that only people belonging to a single racial group—indigenous Hawaiians—are allowed to vote.
Long ago, America had a dark history of disallowing certain racial groups to vote. As a result, after the Civil War Congress proposed, and in 1870 the states ratified, the Fifteenth Amendment to the Constitution, which provides, “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.”
An election that allows only people of a native Hawaiian racial group to vote could easily violate the Fifteenth Amendment. Such a restriction is also suspect under the Fourteenth Amendment’s requirement that all persons enjoy equal protection of the laws.
Hawaii and the election’s organizers attempt to evade these constitutional requirements by claiming that this is a “private” election, thus that any race-based denial of voter participation cannot be attributed to a “State,” and therefore such an election doesn’t violate the exact wording of the Fifteenth Amendment.
Some Hawaiians disagreed and brought a federal lawsuit. Any statewide measure financially sponsored and publicly supported by the state’s government, and which could forever change the form of government in the state, is a public and official election, not some private poll, the plaintiffs argue.
Chief Judge Michael Seabright of the U.S. District Court for the District of Hawaii ruled against the plaintiffs, and allowed the election to take place. The U.S. Court of Appeals for the Ninth Circuit is taking the matter on appeal, but declined to grant any sort of immediate relief in the meantime, such as ordering the state not to recognize the results once balloting is complete and all the votes have been tabulated.
The plaintiffs applied for emergency relief to the Supreme Court, with such requests going to Kennedy as the circuit justice who supervises the Ninth Circuit. On Nov. 27, Justice Kennedy ordered an immediate halt to the counting of ballots, though he did not order that the casting of ballots had to stop during the month-long process.
Instead, his two-paragraph order reads in part, “It is ordered that the respondents are enjoined from counting the ballots cast in, and certifying the winners of, the election described in the application,” pending further orders from him or from the entire Supreme Court.
This is a temporary measure, one that will allow the judiciary to determine whether or not this election is unconstitutional before it allows a certified result that may seem to carry the appearance of legitimacy. The precise wording of the order suggests that it may be for only a short duration, and that the Court may alter the order after additional consideration.
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.