Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
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Law Review 1241


April 2012

Redistricting Litigation in Hawaii Threatens to Disenfranchise Military Voters

By Captain Samuel F. Wright, JAGC, USN (Ret.)

7.0—Military Voting Rights

The actual Enumeration [of the population of the United States] shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they [the Congress] shall by Law direct.[1]

In accordance with this constitutional directive, our nation conducted a decennial census in 2010, and now the state legislatures are redrawing congressional district lines and their own district lines.  But first the 435 districts for the United States House of Representatives were reapportioned among the 50 states, under a mathematical process established by a federal law enacted early in the 20th Century.  States that had grown faster than the overall rate of population growth gained House seats, and Texas gained four.  States that had grown slowly or lost population (Michigan) lost seats in the House, to keep the overall number at 435. 

It should be emphasized that the Census counts human beings, regardless of their eligibility to vote.  Children, legal and illegal aliens, and other persons who are not eligible to vote are counted in the Census.  Human beings are counted based on their actual location in April of the decennial year.  Thus, the 45,000 active duty service members who were stationed in Hawaii in April of 2010 counted in determining Hawaii’s population for congressional reapportionment purposes, but the state seeks to exclude them for congressional and state legislative redistricting purposes.  This makes no sense.

Half a century ago, the Supreme Court established the “one man one vote” principle when it decided Baker v. Carr, 369 U.S. 186 (1962).  The Supreme Court held that the congressional districts within a particular state must be very close to equal in population, based on the decennial census.[2]  Two years later, the Supreme Court extended this principle to state legislative districts as well.  Reynolds v. Sims, 377 U.S. 533 (1964).

As Director of the Service Members Law Center, my concern is that delays in the redistricting process may disenfranchise the brave men and women who are away from home and prepared to lay down their lives in defense of our country.  The 2012 general election is barely six months away, and in Hawaii and several other states disputes about redistricting have not been resolved.  Until those disputes are resolved, the states cannot conduct primaries, and until the primaries are conducted local election officials cannot print and mail absentee ballots for the general election.  Under the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), as amended in 2009, the states are required to mail out absentee ballots at least 45 days before the primary or general election for federal offices, but lingering disputes about redistricting could prevent some states from meeting this deadline.

Since the Supreme Court decided Baker v. Carr half a century ago, it has always been population that must be equal among the districts in a state—not registered voters, not voting-age eligible population, etc.  But this year the Hawaii State Reapportionment Commission excluded 108,000 “non-permanent residents” from the base that was used to draw legislative lines.  Among those excluded were active duty service members, military family members, and college students from other states attending Hawaii universities.  The lawfulness of this exclusion has been challenged, and I am concerned that this dispute will drag on and result in disenfranchisement of the 5,580 active duty service members who are eligible to vote in Hawaii.[3]

According to the Department of Defense (DOD), there are approximately 45,000 active duty service members stationed in Hawaii, but almost none of them are Hawaiians.  Of the 5,580 Hawaiians serving on active duty, almost none of them are currently serving in Hawaii.  The vast majority of the 45,000 members serving in Hawaii are from the other 49 states.  These service members could choose to become Hawaiians while serving there, but doing that would mean that they would have to pay Hawaii state income tax, which is among the highest in the nation.  Please see my Law Review 1142 for a discussion of the legal principles determining the domicile of the service member or military family member for voting and tax purposes.

Excluding active duty service members from the base used for redistricting purposes while counting them for reapportionment purposes is nonsensical.  Excluding military family members makes even less sense, since many of them have established Hawaii domiciles and have quite properly voted in Hawaii.  According to DOD, there are 29,653 voting-age military family members who are eligible to vote in Hawaii, mostly in person on Election Day.[4]  Most politicians do not understand that the domicile of the service member does not determine the domicile of his or her spouse, and it is very common for a married couple to live together in the same house or apartment but be domiciled in different states, if one or both of them are on active duty in the armed forces.

Let us take the hypothetical but realistic Staff Sergeant Joe Smith, an active duty U.S. Army Soldier stationed at Schofield Barracks in Hawaii.  He was born and raised in Florida, and in 2000 he graduated from high school there and joined the Army.  He has been on active duty continuously for 12 years and expects to remain for at least eight more, to qualify for military retirement.  He has maintained and plans to continue maintaining his Florida domicile.  Florida has no state income tax, and the SCRA forbids Hawaii (or any state where he is stationed) from taxing his military income, unless he is domiciled in that state.

While stationed in California in 2005, Joe met Mary Jones, and they married in California in 2006.  Mary had spent her whole life, up to that point, in California.  She did not become a Floridian by marrying a Floridian.  While Joe was stationed in California, the two of them shared an apartment near the Army base, but Joe was domiciled in Florida while Mary was domiciled in California.  Mary stayed behind in that apartment when Joe deployed to Afghanistan.  In January 2010, Joe was transferred to Schofield Barracks, and Mary moved to Hawaii to be with her husband.  Both of them were in Hawaii in April 2010 and were counted by the Census and included in the number for Hawaii.

Mary found a job in town, and she pays Hawaii state income tax on her salary.  The SCRA does not protect her income from state income taxation by Hawaii.  She must pay Hawaii state income tax regardless of whether she votes in Hawaii, votes somewhere else, or does not vote at all.  Mary registered to vote in Hawaii and voted in person in 2010 and 2011.  She plans to vote in person in Hawaii in the 2012 primary and general election.  She is one of the 29,653 voting-age military family members who are eligible to vote in Hawaii, according to DOD.

On May 9 or 10, the United States Court of Appeals for the Ninth Circuit[5] will hear arguments on a case challenging the way that Hawaii has conducted redistricting.  We will keep the readers informed of developments in this important case.

[1] United States Constitution, Article I, Section 2. 

[2] The state legislatures are not required to redraw lines based on estimates of population change between decennial censuses.  Within a decade, part of a state may gain population rapidly while another part may gain population slowly or even lose population.

[3] Please see Law Review 1142 for official DOD figures on the number of military personnel and voting-age military family members who are eligible to vote in each state.  I invite the reader’s attention to  You will find 741 articles about the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), the Servicemembers Civil Relief Act (SCRA), and other laws that are particularly pertinent to those who serve our country in uniform.  You will also find a detailed Subject Index and a search function, to facilitate finding articles about very specific topics.  I initiated this column in 1997, and we add new articles each week.

[4] Please see Law Review 1142 for a chart showing the number of military personnel and military family members who are eligible to vote in each state.

[5] The 9th Circuit is the federal appellate court that sits in San Francisco and hears appeals from district courts in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington.