A more workable, more democratic
What does this mean? "Residency area" requirements narrow who within "the district" is qualified to run for office. The official legal position of the County of Maui has been that there is no constitutional right to have equally proportioned candidate pools! This legal position also underpins how the state Board of Education is elected. Abstractly, that might not really be a practical problem if the districts are determined by some other meaningful criterion like an equal proportion of qualified individuals in each "residency area." But that's not how the "residency areas" are divided. They are divided on how the election precincts were drawn in 1992 while Maui was still transitioning from agriculture to tourism. That was before the 44% population expansion over the last twenty years.
So what has this produced? First, no incumbent council member, who was elected to office, from Lanai or Molokai has ever been defeated at the polls by a challenger. In fact, incumbents rarely get defeated in any of the seats. Currently, Councilmember JoAnne Johnson and Mike Molina are the only sitting council members to have defeated an incumbent when they won their first term. Both are now completing their fifth and final consecutive term. In fact, the incumbent council members from Lanai and Molokai rarely are even challenged. Competitive races only occur when the incumbent decides to run for another office or must retire because of term limits.
Since the current system has been in place, the loose interpretation of residency requirements for Council members has allowed many council members to reside in areas other than their residency area Ð supported in part by the fact that incumbents rarely are successfully challenged. However, this well-known secret of the 1992 Compromise was finally challenged when life-long Lanai resident and current (and previous) Councilmember Sol Kaho'ohalahala's voter registration was challenged by a group of Lanai residents. The Hawai'i Supreme Court subsequently ruled that Kaho'ohalahala was a resident of Lahaina for purposes of voter registration. The group is currently pursuing a lawsuit to have Kaho'ohalahala removed from office alleging that he is not a resident of Lanai. Kaho'ohalahala has filed papers to run for Mayor, declining to run for another term as the Lanai councilmember. The late Lanai Councilmember Goro Hokama's son, Riki Hokama, who served as the Lanai councilmember for five terms, has filed papers to run for the seat again. (See the table below for who has held the Lanai residency area seat on the Council over the last 56 years
|1999-2009||G. Riki Hokama*|
* It should be noted that Riki Hokama did not challenge Sol Kaho'ohalahala in 1998. Rather, state Rep. Mike White retired from the State House and Kaho'ohalahala ran and was elected to that seat and then subsequently was appointed Executive Director of the Kaho'olawe Island Reserve Commission.
The Big Three Proposals: A Change
Over the last year, several proposals have appeared regarding changing the system for electing the Maui County Council. The Kula Community Association proposed three multi-member districts patterned off the current three State Senate districts. The Kihei Community Association endorsed a proposal where there would be six single member districts patterned off the current State House districts and three at-large districts. Finally, the West Maui Charter Working Group proposed nine single member districts. UH Law Professor Jon Van Dyke authored a voter education piece, sent to all County voters, comparing the three proposals. [http://www.northbeachmaui.org/pdf/whatisdistrictvoting.pdf]
The Ramil Proposal
Because of the recent attention on dissatisfaction with the "residency area" system, Attorney Anthony Ramil proposed changing the voting system so that only residents of the "residency area" can vote in the primary election. Then the two top finishers of that primary would be voted on by all Maui County residents in the general election. This proposal was subsequently supported by some individuals on Lanai who are unhappy with the current system but believe Lanai is entitled to one seat on the Council.
Back to the beginning of our story, after Reynolds v. Simms was decided, two divergent paths emerged across the country. One was led by conservatives who believed that the Fourteenth Amendment was in no way a "voting rights" amendment and sought to amend the constitution to overrule the decision. The other path involved small groups challenging the unfair voting systems of municipal elections, water districts and school boards. Although Maui County took the position that Reynolds v. Simms applied to county elections, not everyone did.
Then, in 1968, the U.S. Supreme Court ruled in Avery v. Midland County 390 U.S. 474 (1968) [http://supreme.justia.com/us/390/474/case.html] that the "one person one vote" rule applied to County and municipal governments. (In Midland County, there were four commissioners, 3 elected by districts of about 500 people each and 1 elected by a district of about 16,000.)
In a subsequent case, the U.S. Supreme Court subsequently found a very narrow exception to this rule, which is inapplicable to county council election systems. Certain water districts in the Western U.S. that exist as part of the "prior appropriation" system of water rights/usage may exclude non-landowners from the election of the commissioners/trustees of the water district. (There is an extensive history connected to how water rights are determined in a "prior appropriation" system that would allow this to be an exception, but the point is, it's the only exception to the rule, it's limited and its exclusive among neighbors not among districts or geographical locales.) Even junior college district trustee boards must comply with one person one vote rule. Hadley v. Junior College District 397 U.S. 50 (1970) [http://supreme.justia.com/us/397/50/case.html]
The proposal of using the primary as a way to avoid the principal of "one person one vote" appears to be unconstitutional. From the 1880s until the 1950s, various rural counties in Texas avoided the potential for black voters to influence elections by holding so-called Jaybird primaries which excluded them from voting. Texas argued that because these primaries did not exclude black voters from the official, general election, and competition could still be had, it was constitutional. The Supreme Court struck these primaries down because they "included any election in which public issues are decided or public officials selected." Terry v. Adams 345 U.S. 461 (1953) [http://supreme.justia.com/us/345/461/case.html]
In other words, a primary, even if conducted by private parties, cannot be used to circumvent what is prohibited during a regular election. This is true whether or not the primary is conducted by a political party that is given preferential treatment by the government in a general election (our state and federal primary elections) or by the government itself (Maui county and BOE primary elections).
Single Member District Voting
The West Maui Charter Working Group commissioned Honolulu research firm, Qmark Research, to conduct a scientific poll of Maui County residents and voters on the topic of election council members. Overwhelmingly, across gender, race, age, educational level or income level, the people of Maui County support a change to single member district voting. The result of the poll: 65% of county voters support the proposal, 17% of county voters oppose the proposal, while 18% are undecided or do not have enough information to form an opinion. While support is mildly lower on Lanai, 60% support, 9% oppose, support in East Maui is at 69% and Molokai at 75%. [http://www.westmauicharter.org/pdf/charter_group_poll_100507.pdf]
On behalf of the West Maui Charter Working Group, Council member JoAnne Johnson submitted the group's proposal to the Maui County Council's Committee of the Whole for consideration. [http://www.westmauicharter.org/pdf/Charter_Amendment_JAJ_Election_Districts.pdf] It was widely believed that the proposal would not be heard at all and certainly not in time to be placed on the November, 2010 ballot. Since the 1992 Compromise, no proposal for district voting has been seriously considered by the council or its committees. Despite that, the Committee of the Whole listed the matter for hearing at its July 15, 2010 meeting. It happened to be the same day that most council members were leaving for the National Association of Counties annual meeting in Reno, Nevada. Because of that, only a bare quorum was actually present for the meeting.
Criticism of Single Member District Voting
Most of the public testimony was in support of the measure. Former Lanai Councilmember Riki Hokama spoke against the measure saying that Maui's "forefathers" had resolved the issue in favor of the current system. He also claimed that the system worked well and needn't be fixed.
Wailuku Main Street Association Executive Director Jocelyn Perreira testified against the proposal claiming that it was being proposed by people who are not originally from Maui and who do not understand Maui values. Riki Hokama sits on the organization's Board of Directors. She also claimed that district voting would destroy Maui's fragile small towns. She also argued that district voting would lead to a destructive downward spiral in Maui politics. According to her, the only thing keeping Maui politicians from destroying their communities is the current voting system. Two other individuals also testified against it indicating they preferred voting for every council seat. Two other individuals did not express a position on the proposal and simply requested the committee pass the measure onto the Council with no recommendation.
Molokai councilmember and Council Chair Danny Mateo questioned the reliability or veracity of the Qmark Research poll. He was insistent that people on Molokai could not understand the types of questions the polling firm asked them and that the pervasive ignorance of the people of his "residency area" was so extensive as to call into question the veracity and reliability of the scientific poll results.
There is no comparative or empirical evidence to support the contention that making Maui's voting system more equitable would cause widespread economic destruction to so-called "small towns" across Maui. In fact, the Big Island, which has used single member district voting for twenty years, was able to successfully transition "small towns" with the end of the sugar economy. It could be argued that without greater diversity of view points on the council and measureable accountability between elected officials and constituents, Maui's small towns have had more difficulty in thriving with the demise of sugar and pineapple.
The conclusion that single member district voting would cause a runaway competitive situation where somehow Maui's small towns would be completely disenfranchised is also unsupported. As it currently exists, "small towns" currently have a fractional amount of influence in relation to the entire County. Under a single member district, a town's influence would be more concentrated (Lanai's influence would go from about 2% to 20%, for example). It would also change how voters determine their choice for candidates. Right now, every voter picks the candidates who will do the best for the County because the district is county-wide. However, with single member districts, voters would pick candidates in the same manner they do for the state House and state Senate Ð looking for candidates who can best balance the needs of their particular district within the framework of a complementary "big picture" view.
Since the first charter commission in the 1960s, the people of Molokai have requested single member district voting. They have also proposed a variety of other ways to increase their influence over county decisions that affect their community—including township governance, neighborhood boards, and other proposals. It is difficult to square this long history of community activism regarding greater local control over community decision making with the assertion that the people of Molokai are too ignorant to understand a professional research firms questions designed to accurately determine their community's opinions on important public policy matters.
The Committee's Decision
Public testimony was closed and the various council member spoke. Council member Wayne Nishiki proposed that the matter be referred to the upcoming decennial Charter Review Commission. Committee Chair Mike Molina recommended the committee defer the matter and, at the end of the term, have the committee refer the matter to the Charter Review Commission. Council member JoAnne Johnson then proposed passing the proposal to the full Council with the recommendation that they formally send it the next Charter Review Commission. With no discussion, the motion passed 5-0.
The Next Step
The full Council is set to hear the proposal on August 6 at 9 am. The Council has the option of agreeing with the Committee's recommendation to refer it to the next Charter Commission. The Council also has the option of going through the two required readings to place the matter on the November ballot. The Council can also take other action.
This is the first time in a generation that the Maui County Council will be considering fundamental changes to the way Maui elects its County Council.