HONOLULU – A U.S. Supreme Court justice on Friday issued a temporary stay blocking the counting of votes in an election that would be a significant step toward Native Hawaiian self-governance.
Justice Anthony Kennedy's order also stops the certification of any winners pending further direction from him or the entire court.
Native Hawaiians are voting to elect delegates for a convention next year to come up with a self-governance document to be ratified by Native Hawaiians. Voting ends Monday.
A group of Native Hawaiians and non-Hawaiians is challenging the election, arguing Hawaii residents who don't have Native Hawaiian ancestry are being excluded from the vote. It's unconstitutional for the state to be involved in a racially exclusive election, they say.
The ruling is a victory on many fronts, said Kelii Akina, one of the Native Hawaiian plaintiffs and president of public policy think-tank Grassroot Institute of Hawaii.
"First, it's a victory for Native Hawaiians who have been misrepresented by government leaders trying to turn us into a government-recognized tribe," he said in a statement. "Secondly, it is a victory for all people of Hawaii and the United States as it affirms racial equality."
Nai Aupuni, the nonprofit organization guiding the election process, is encouraging voters to continue casting votes, said Bill Meheula, an attorney representing the group.
"Reorganizing a government is not easy and it takes the courage and will of the candidates to take the first step to unify Hawaiians," he said in a statement. "Help them by voting now."
Attorneys representing the state have argued that the state isn't involved in the election.
"The state has consistently supported Native Hawaiian self-governance," state Attorney General Doug Chin said in a statement. "This is an independent election that may help chart the path toward a Native Hawaiian government. Today's order does not prevent people from voting in this election. It only places a hold on counting those votes until the Supreme Court determines how to proceed."
Former U.S. Sen. Daniel Akaka spent about a dozen years trying to get a bill passed that would give Native Hawaiians the same rights already extended to many Native Americans and Alaska Natives.
When it became clear that wouldn't happen, the state passed a law recognizing Hawaiians as the first people of Hawaii and laid the foundation for Native Hawaiians to establish their own government. The governor appointed a commission to produce a roll of qualified Native Hawaiians interested in participating in their own government.
Some of the plaintiffs in the lawsuit say their names appear on the roll without their consent. The non-Hawaiians in the lawsuit say they're being denied participation in an election that will have a big impact on the state.
The lawsuit points to nearly $2.6 million from the Office of Hawaiian Affairs, a public agency tasked with improving the wellbeing of Native Hawaiians, as evidence of the state's involvement.
Nai Aupuni is a private, nonprofit corporation whose grant agreement specifies the Office of Hawaiian Affairs won't have any control, Meheula said.
U.S. District Judge J. Michael Seabright in Honolulu ruled last month the purpose of the private election is to establish self-determination for the indigenous people of Hawaii. Those elected won't be able to alter state or local laws, he said.
The challengers appealed and also filed an emergency motion to block the votes from being counted. Last week, the 9th U.S. Circuit Court of Appeals denied the emergency motion, prompting the challengers to appeal to the high court.
The election is a divisive issue among Native Hawaiians. University of Hawaii law professor Williamson Chang is one of about 200 candidates vying for 40 delegate positions representing Native Hawaiians across the state and those living on the mainland. Chang doesn't agree with the process, but said he's running because it's an opportunity to fight federal recognition.
Those who support the election say it's an opportunity to create their own government for the first time since 1893, when American businessmen — backed by U.S. Marines — overthrew the Hawaiian Kingdom.