A pair of bills that would change the way Office of Hawaiian Affairs trustees are elected passed the Senate Committee on Hawaiian Affairs Thursday with key questions about their constitutionality yet to be answered.
Currently, the nine-member board is composed of trustees representing Oahu, Maui, Kauai-Niihau, Hawaii Island, and Molokai-Lanai plus four at-large trustees. Each seat is subject to a statewide election.
Bill 52 proposes to eliminate at-large seats and reapportion districts so that each trustee is elected by and according to their respective districts.
Bill 32 would amend the state constitution to reapportion OHA Board of Trustee districts to four districts: Hawaii Island; Maui, Lanai, Molokai and Kahoolawe; Oahu; and Kauai and Niihau. Each district would be represented by at least one trustee on the board.
Previous legislative efforts have been made to address perceived flaws in OHA election processes, most recently in 2018 and 2021.
At Thursday’s hearing, lawmakers emphasized the need to ensure that the will of individual districts is not diluted or usurped by voters outside the district, which is possible when all registered voters are allowed to vote to fill each seat on the OHA ballot.
“I feel it’s unfair,” said committee vice-chair Kurt Fevella. “All of us on Oahu can put our votes in for Molokai or other districts like Maui and we would dominate. All (candidates) have to do is come here and lobby for people on Oahu to vote for them and they’d win.”
Sen. Tim Richards agreed but circled back to the central question.
“How do we do it?” he asked.
Based on written testimony from the state Department of the Attorney General and OHA, the proposed measures may not be the answer, at least not in their current forms.
The AG’s office expressed concern that reapportionment of the board along four island districts “may fall short of the one-person, one-vote standard established by the U.S. Supreme Court in Reynolds v. Sims.”
“While there need not be an identical number of persons in each district, the states must make honest and good faith efforts to construct districts with equal numbers of persons, as practicable,” the office stated in written testimony for both bills. “Due to disparities in population sizes among the basic island units, however, we believe that deviations from population equality in the reapportionment of the OHA Board may be required and, in some instances, be quite significant, potentially resulting in a violation of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.”
Meanwhile, OHA said it was concerned that “the measure’s limitation to the four basic island units provides no definitive representation for Molokaʻi or Lanaʻi residents who presently have a combined, yet dedicated seat on the OHA Board.”
OHA also testified in writing that reapportionment could result in an increase in its operating costs.
Committee chair Maile Shimabukuro raised the possibility of treating the four at-large seats in the same manner as Congressional seats, with an equal number dedicated to urban and rural representation.
That committee ultimately passed Bill 52 with an amendment incorporating Shimabukuro’s suggestion. Bill 32 passed with a recommendation that the Senate Judiciary and Ways and Means committees further investigate legal concerns raised by the measure.
Michael Tsai covers local and state politics for Spectrum News Hawaii. Email him at michael.tsai@charter.com