Communication 07 Supreme Court Opinion

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120 P.3d 217 Page 11 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) ted) (emphasis added). the ideal mean (the former category), thereby result- FN9 County Appel- ing in a total deviation of 10.89%. lees do not concede that there is such a deviation, FN8. The Brown majority noted that the ap- maintaining that “[a]ny deviation is the result of the pellants “limited their challenge to the al- artificial construct of the Appellants in determining leged dilution of their voting power resulting that the numbers they believe should have been used from the one representative given to” the are the only correct numbers, when it was clearly subject county and, therefore, the issue was within the discretion of the [C]ommission to use the “not whether a 16% average deviation and FN10 However, as stated numbers which it did use.” an 89% maximum deviation ... [was] consti- supra, to support their motion for partial summary tutionally permissible.” 462 U.S. at 846, 103 judgment, County Appellees submitted the Rosen- S.Ct. 2690. Hence, the Brown majority be- brock affidavit, which arrives at the same 10.89% lieved it was “not required to decide whether figure as the total deviation when nonresident stu- Wyoming's nondiscriminatory adherence to dents and nonresident military and their dependents county boundaries justifie [d] the population are excluded from the total population. deviations,” id.,which is the second prong of the two-part “ultimate inquiry”-whether FN9. In their opening brief, Appellants list the population disparities among the districts exceed constitutional limits. However, Jus-the nine “Land Districts” as “North Hilo, tice Brennan, authoring the dissenting opin-South Hilo, Puna, Kau, South Kona, North ion in Brown, in which three justices joined, Kona, South Kohala, North Kohala, and agreed that “Wyoming's long-standing pol-Hamakua.” They calculate the differences icy of using counties as the basic units of between total population and total popula- representation [was] a rational one,” but tion less nonresidents as follows: -11 in maintained that the deviations in Wyoming's North Hilo, -810 in South Hilo, -28 in Puna, plan, “even if justified by state policy, [were -6 in Kau, -6 in South Kona, -5 in North not] within the constitutionally tolerable Kona, -5 in South Kohala, and no change in range of size.” Id. at 853, 103 S.Ct. 2690 North Kohala and Hamakua. (Brennan, J., dissenting, joined by White, Marshall, and Blackmun, JJ.). Appellants also contend that “the ‘perma- nent residents' population base for State IX.legislative districts on the island is A.147,806 persons ... and the ‘resident popu- [11] The Commission's plan divides Hawai‘i lations' base for county council districts on *327 **226 County into nine districts. Using the the island is 148,677 ..., a difference of “resident population” base (excluding nonresident 871 persons.” (Emphases in original.) military personnel, their dependents, and university They argue that “871 is a statistically sig- students) of 147,806, propounded by Appellants, the nificant number in this case because most ideal mean is 16,423 (147,806 divided by nine). Ac-of these individuals reside in a single cording to Appellants' briefs and the record, the dif-council district.” ference between the ideal mean and the actual “resi- dent population” of each district represents that dis- In contrast, County Appellees point out trict's “deviation,” which is translated into a deviation the following: percentage. The difference between the district with the resident population that exceeded the ideal mean For [D]istrict 8, the .286% above 5% is by the greatest percentage and the district with the equivalent to about 47 persons. For resident population that fell below the ideal mean by [D]istrict 2, the difference of .607% above the greatest percentage constitutes the redistricting 5% is equivalent to 100 persons. Thus, plan's “total deviation.” According to Appellants' even if Appellants' population base were calculations, the resident population of District 2 was accepted as the only required base, the 6.20% below the ideal mean (the latter category) and presumption of constitutionality could be the resident population of District 8 was 4.69% above achieved by shifting this small number of © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.