Sunday, July 18, 2010
A more workable, more democratic and more equitable voting system for Maui County
by Lance Collins
Imagine living in a place where your community, as a whole, has 2% of the entire county's voting influence. You have a council of nine members. But, instead of having single member districts so that your community can maximize its influence to about 20% of one council district, your community's votes are diluted so that you have 2% influence over nine council seats. Also imagine that political leaders create the system so that one of the nine council members has to be a “resident” of your community but remains to be voted on by the entire county. They even make specific reference to the benefits it bestows on your community in particular.
Now, imagine that your community supports one candidate for the council while the rest of the County supports the other candidate.
This is how the voting system for Maui County Council works. The county council has one county-wide at-large district, the entire County. Each of the nine seats have a “residency area” requirement. These areas are not of equal population size and winning candidates regularly do not win the support of the “residency area” where they “reside.” Once in, incumbents are almost never turned out of office. Elected incumbents from the smallest “residency areas” are never successfully challenged and must either voluntarily retire or max out on their term limits in order for a new person to get elected to office.
It doesn't have to be this way. And, for as long as Maui has had a Charter, this system and its predecessor have been contested. Yet, 20 years ago, a compromise was struck which gave us the unworkable system we currently have. And for the first time in a generation, an open discussion is happening about the possibility of changing the system to something more workable, more democratic and more equitable.
Down the Rabbit Hole
In the 1960s as Maui, Kauai and the Big Island counties were working on their first ever charters, a significant shift in the jurisprudence of the Fourteenth Amendment took place. The seminal case Reynolds v. Sims, 377 U.S. 533 (1964) [http://supreme.justia.com/us/377/533/case.html] held that the Fourteenth Amendment required that all legislative districting follow the requirement of “one person one vote.” In his 8-1 decision, Chief Justice Earl Warren wrote: “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.”
The case was prosecuted by voters in Jefferson County, Alabama who felt that it was unfair that one state senator's district might include 41 times as many people as another senator's district. In other places, it was even worse. In California, the 6 million people of Los Angeles County had one state senator as did the 14,000 people of an obscure rural county somewhere else (that's 428 times as many people).
On Maui, the impact of this decision figured into how to form a legislative branch. During the territorial period, Maui like every other county, had been ruled by “commission” style local government called the Board of Supervisors. In that system, the executive and legislative were merged into one commission. The commission acted as a legislative body and the commissioners acted individually as overseers of various municipal functions. The commissioners were elected by the plurality at-large system with the highest vote getting being the Chairman of the Board of Supervisors.
As part of the changes made with statehood, the three rural counties were charged with drafting and creating a county charter to determine how to handle the various municipal functions delegated to the county governments.
Early on, it was agreed by all that separating the executive and legislative functions was preferred and the council-mayor system was the consensus pick for Maui. Yet, discussion continued on exactly how the council members would be selected. Some favored the plurality at-large method. Some favored single member districts. Some favored the multi-member districts that were used at the time to elect state Senators. The people of Molokai adamantly wanted to have single member districts so that they could have influence over at least one member of the Council. Some people also felt Lanai ought to be represented as well on the Council and that is where the mischief began.
You see, for all the pineapple grown on Lanai, Lanai has never been more than 5% of the entire population of Maui. About 2% of the county's population reside on Lanai. Following the one person one vote rule, the County Council would have to had to have had 21 council members in 1965 to allow Lanai its “own” council member. Today, that number would be about 49 council members. Well, that was off the table. Everyone seemed to agree that more than nine legislators made legislating too inefficient.
Given that Maui in the 1960s was characterized by a largely agricultural economy politically dominated by the tensions between the Democratic Party and the Big Five, it was agreed that the plurality at-large system would continue but that there would be some requirement for at least one council member to be a resident of Lanai and a council member to be a resident of Molokai – this way deliberations of the County Council would also have the perspective of someone from these two islands.
The Unequal Compromise of 1992
Now, fast forward to the late 1980s. The state is in the throws of the economic transition from agriculture to tourism while the population continues to expand rapidly. The duopoly of Democrat versus Big Five politics on Maui has given way to a seemingly fused Democrat-Big Five dominated politics dividing the community into those that question development and those that do not. The plurality at-large system which had favored the extensive networks controlled by the Democrats and by the Big Five, now had the effect of leaving many people feeling totally disenfranchised and disempowered.
The various political movements of the 1980s gave way to a statewide call for single member district voting. This was readily implemented in Honolulu and the Big Island. But, Maui had considered district voting and now, after twenty years of having a “Molokai” council member and “Lanai” council member – I put these in quotes because their district includes all of Maui island as well – it seemed that there must always be Molokai and Lanai council members. After all, the respected, feared and powerful Council Chairman, Goro Hokama, was the Lanai council member.
Some kind of reform was needed because there was no amount of “palaka power” banner waving that could deny the disenfranchisement that many rural Maui voters felt. While the most vocal proponents of district voting tended to be “newcomer” environmentalists, support spanned across political parties, geographical regions and ethnicities. With the expansion of Maui population, Lanai would not be entitled to its own seat on a nine member council. A compromise was struck. It's the current system. There is one at-large council district that includes the entire island of Maui, the island of Molokai and the island of Lanai. Each seat is burdened by an additional “residency” requirement based upon residency areas drawn up in 1992. These residency areas are: Wailuku-Waihe'e-Waikapu , Kahului, Paia-Haiku-Makawao, Upcountry, East Maui, South Maui, West Maui, Lanai and Molokai. These areas are not subject to regular or periodic review.
The 1992 Compromise Lives On
Regardless of residency area, every candidate for Maui County Council must conduct a three island campaign in a same fashion to candidates running for County Mayor because their district includes the entire county – all 1200 square miles of it.
If we look at population counts across Maui County [http://www.hbrl-sbdc.org/mcdb/2009/1General%20Statistics.pdf], we see that the pool of candidates for each seat is not equal:
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 – 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
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 – 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.