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Special Report
The Problem With Hawaii
Why give it a free pass for its violations of the Voting Rights Act while continuing to punish select states that abide by it better than most?
Hawaii is a very pretty place. I know because I’ve been there. But, pretty as it is, it belongs in the penalty box.
The penalty box I’m talking about is Section 5 of the Voting Rights Act. In 1965, Congress put nearly all of the Southern States under the thumb of Section 5 of the Voting Rights Act because they were good at discriminating against their African-American citizens when they tried to vote. Congress devised a formula that captured only those States that it wanted to penalize, states like Mississippi, Alabama, and Georgia. That formula has two parts (a) whether the jurisdiction used a “test or device,” like a literacy test administered in a biased manner, as a way of discriminating against minorities who wanted to register to vote or vote on November 1, 1964; and (b) whether less than 50 percent of the voting age population was registered to vote on November 1, 1964 or voted in the elections in 1964, 1968, and 1972.
Covered jurisdictions cannot change their voting laws and practices without permission. That permission can be obtained either judicially from the U.S. District Court for the District of Columbia or administratively from the U.S. Department of Justice. But if permission is not obtained, the covered jurisdiction is stuck, even if it wants to do something that noncovered jurisdictions are already doing.
Things have changed for the better in the almost 40 years since 1972. When Congress was thinking about extending the life of Section 5 in 2006, two scholars, Keith Gaddie of Oklahoma and Charles Bullock of the University of Georgia, used the 2000 voter registration data to show that the average registration and turnout rates for minority voters for the six covered Southern states were not just better than 50 percent, those average rates were better than the national average. In Georgia and South Carolina, the black registration and turnout rates were higher than the white registration and turnout rates, and the registration rate was higher for black voters in Mississippi. In short, none of the six covered Southern states meets the second part of the Section 5 formula today.
They don’t meet the first part of the Section 5 formula any more either. In fact, nobody has for some time, given that Congress prohibited the use of tests or devices temporarily in 1965 and permanently throughout the country several years later.
So, an apples-to-apples comparison of states would look at voter registration and participation data. That’s where Hawaii comes in. If we looked at only the last three presidential elections before 2006 instead of looking at 40-year old elections, Hawaii would be the only state covered.
Congress brushed aside the suggestion that the coverage formula be updated when it extended Section 5 for another 25 years. Some said it was inappropriate to compare Hawaii with the covered jurisdictions, thinking that Hawaii doesn’t have a history of voting discrimination.
But, that’s not entirely true. In 2000, the Supreme Court held that Hawaii violated the 15th Amendment by allowing only those that it defined as being of Hawaiian “ancestry” to vote for the trustees of the Office of Hawaiian Affairs. In Rice v. Cayetano, the Supreme Court concluded that Hawaii was improperly using “ancestry as a racial definition and for a racial purpose.”
That’s not all. For the past several years, Congress has been considering the proposed Native Hawaiian Government Reorganization Act, also known as the “Akaka Bill,” whose co-sponsors include Senators Akaka and Inouye of Hawaii. That bill would end-run Rice v. Cayetano and treat native Hawaiians like Indian tribes. As National Review pointed out, an effect of the bill would be to “partly disenfranchise a portion of the state’s residents ….” “[P]artly disenfranchis[ing]” some of a state’s residents in violation of the 15th Amendment got the covered jurisdictions into trouble in 1965. Somehow, trying to do that isn’t enough to put Hawaii into the penalty box.
Moreover, with the proposed Akaka Bill stalled in Congress, Senator Inouye is apparently working on a fix. A paragraph in the Senate Appropriations Committee’s draft bill for Interior, Environment and Related Agencies Appropriations would pave the way for making Native Hawaiians an Indian tribe, even though Hawaiians belonged to a kingdom, not an Indian tribe. Senator Inouye’s current move comes after he called allegations that he was trying to sneak the Akaka Bill into a 2009 Defense Appropriation bill “nonsensical” and claimed that the process for enacting the Akaka Bill was “fully transparent.”
Maybe, the Voting Rights Act is really about politics, not whether Hawaii should be a covered jurisdiction. There is no way that reliable Democrats like Senators Akaka and Inouye, who apparently believe it’s OK to “partly disenfranchise” some of Hawaii’s residents, would make Hawaii submit all changes in its voting standards, practices and procedures to the Department of Justice for approval. The same holds true for any other Democratic Senators from non-covered jurisdictions; they could never vote for a formula that would include their home states. It’s far easier for them to tell other states to do it.
Capturing states that have long since improved and leaving out states that should be included is a serious geographic mismatch that runs afoul of what the Supreme Court has called “the fundamental principle of equal sovereignty.” The States enter the Union on an equal footing and must be treated equally afterwards unless Congress has a good reason not to. Congress had such a reason in 1965, but it’s not 1965 anymore. Even so, Congress still treats Alabama differently from Tennessee and Mississippi differently from Hawaii.
Some suggest that, when Congress decides to treat States differently, it doesn’t have to act with surgical precision. Maybe they’re right, but a surgeon who removed six good toes and left one bad one would be guilty of malpractice.
Right now, at least one challenge to the constitutionality of the coverage formula is working its way through the courts. The district court did not side with the challengers, but perhaps the Court of Appeals or the Supreme Court will tell Congress that it’s no longer 1965.
About the Author
Jack Park is an attorney with the Atlanta law firm Strickland Brockington Lewis LLP.
Letter to the Editor View all comments (27) | Leave a comment
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Richard Baker| 11.8.11 @ 7:22AM
Lived in Hawaii for 8 years and the state is one of the most race oriented jurisdictions in the country. Not surprised at their transgressions. When I left in 1980 a group called Hawaii Ohana was agitating for this kind of nonsense. The "Native Hawaiians" are just another bunch of malcontents who, I guess, think that they are going to return to the time when Queen Liliuokalani sat on the throne. This foolishness is perpetrated by "Natives" who are so intermarried with every other race that they'd have to throw themselves out. Me pau, Brah.
oldfart| 11.8.11 @ 8:10AM
If are not a causcian then it is not racist but racial pride. Only people of European ancestory are racist. Everyone else lives in peace and harmoney with mother Gia and their non-white neighbors.
Year right.
Alan Brooks| 11.8.11 @ 11:02AM
Actually, we are more violent- that's how we got to the top. The race may not always be to the swift, but the cruel win because they use coercion at the very least.
Fast and cruel RULE. And we caucasions are both.
oldfart| 11.8.11 @ 2:04PM
More violent? Have you studied Oriental military history? I doubt that Europeans have a monopoly in that area.
Alan Brooks| 11.8.11 @ 2:31PM
Then how did we beat Asians so many times?:
bigger guns, and bigger guns = crueler.
After all, they aren't cap pistols.
oldfart| 11.8.11 @ 3:13PM
pistol, sword or arrow makes no difference - you at still just as dead. Suggest you do some checking on number killed in asian on asian wars before your next post. Just a thought - it will be an eye opener.
jivebomber| 11.8.11 @ 5:07PM
Brooks: As for caucasians being uniquely cruel, care to explain any of the following:?
10 - 20 million Chinese killed by their fellow Asians in WW2
The slaughter of caucasian prisoners in WW2 by Asians
Tribal warfare in Africa past and present
Tribal warfare in North America
Tribal warfare ANYWHERE
War in the Mideast since time immemorial.
Ghengis Khan
And, you equated "bigger guns" with being terribly cruel. Truth is, bigger guns mean better armed. But if you insist that translates to cruelty, in WW2, the Japanese battleship Yamato had bigger guns than any American ship - talk about cruel!
Alan Brooks| 11.8.11 @ 5:27PM
Then how did we get to the top? Note: I did not say we are more evil, evil is not a historical term- but cruelty is. Example is we were cruel in nuking Hiroshima and Nagasaki, but it did shorten the war; so it was cruel, but expedient.
Or say Pizarro, who was caucasian; that he was cruel is undeniable, but that Pizarro was evil is open to question-- evil when contrasted with who? Cortez? Confederate general Quantrill?
Bernie Madoff? Ed Gein? Jeffrey Dahmer?
Stan Redmond| 11.8.11 @ 6:58PM
You don't know much about the polynesians (Hawaiians) do you.
Gary Fuller| 11.8.11 @ 7:35PM
Actually, the technology WE (yes, you too, Alan) used was better. Copper lost to bronze lost to iron lost to steel. Better technology and better military strategy are history's arrow. Technology isn't cruel.
JR| 11.8.11 @ 8:55AM
I am for literacy tests when it comes to voting. With the public school system in place I think it's only common sense to expect the voter to be able to read the ballot he/she casts his/her vote with.
loulou| 11.8.11 @ 10:32AM
Voters should be taxpayers. If not, no vote.
LarryK| 11.8.11 @ 2:04PM
YES!
Alan Brooks| 11.8.11 @ 11:06AM
"And we caucasions are both."
Or "us caucasions", if you want-- doesn't change that the race is almost always to the crueler. You want to be a Christian, but not a mush-headed one.
JohnM| 11.8.11 @ 12:32PM
I would like to get rid of all tribal or indian nations. I believe the courts have it wrong saying US treaties are the final word. Treaties are changed or discarded by an act of Congress. I think that statehood is the act of Congress which nullifies all treaties within the new states borders.
Ron| 11.8.11 @ 2:45PM
The bill is really called "Akaka?" Maybe "A Kaka" would be more appropriate, as it is a pile...
Occam's Tool| 11.8.11 @ 4:44PM
Hawaii is a Democratic state.
Occam's Tool| 11.8.11 @ 4:45PM
By that, I mean controlled by the Democrats.
That should explain all.
JAC| 11.8.11 @ 5:59PM
You know the irony is that when Hawaii was proposed for statehood Southern congressmen objected not only because of the majority Asian population but they feared it would be a Republican-controlled state (of course nearly all Southern politicians were Democrats then). I think Hawaii's first governor after statehood was a Republican but Democrats held the office afterward until 2003.
ncatty| 11.8.11 @ 6:54PM
I am not sure using the word "race" or "racial" makes for clarity. There is very little difference in the makeup of the so-called races. There are, however, differences in cultures.
Rich Rostrom| 11.8.11 @ 7:54PM
JAC: the first governor of Hawaii was Republican William Quinn. Republican Hiram Fong was one of Hawaii's first two Senators, serving until 1976. Only two Hawaii Republicans have ever been elected to the House: Pat Saiki (1986-1990) and Charles Djou (2010 by special election).
Akaka's effort to get "tribal" status for Hawaiians is a bad idea. "Tribal" status is a legal anomaly in the U.S. and should be phased out as quickly as possible.
PCP Smoker| 11.8.11 @ 8:54PM
These things have a way of fixing themselves. Create a "Hawaiian Kingdom" and soon after the Samoans, Chinese, Japanese, and Fijians will want their own mini-kingdoms.
Basically, if it leads to one less (welfare) state in the Union, and perhaps, a retreat from the notion that the US is "indivisible", then I'm all for it.
POST American| 11.9.11 @ 12:43AM
----Of course, beyond all this, the 'problem'
with Hawaii of the moment is that its been
identified as a FUKISHIMA hot spot.
-----------HUAC meets NUREMBERG 2o12----------
Minuteman78| 11.9.11 @ 2:57PM
Aw heck, just give the place to the Chi-Comms as a down payment of the US Debt. Then, when the prinicpal on the $15 Trillion comes due, give 'em California. That's what, 59 Electoral Votes that always go "D" anyway?
Andrew Walden | 11.9.11 @ 3:08PM
The Akaka Bill is not Hawaii's only Voting Rights problem. The local newspaper has pushed back against voter registration drives in churches and a State Senator is suing to block counting military personnel in reapportionment:
Disenfranchisement is a tradition: Star-Bulletin comes out against voter registration drive
http://hawaiifreepress.com/mai.....drive.aspx
Military to be Disenfranchised so Meth dealer’s friend can keep Senate Seat?
http://hawaiifreepress.com/mai.....onnel.aspx
primestyle | 11.13.11 @ 4:48AM
thanks!