Justices Review Hawaii Voting Restriction

The Supreme Court on Wednesday took up an unusual ballot restriction in Hawaii that limits voting for a state land trust to only the descendants of aboriginal Hawaiians, but the outcome may have wide impact on the rights of Native Americans and Alaskans--as well as on the national debate over affirmative action.

In recent years, the court’s conservative majority has ruled that official “racial classifications” are unconstitutional. The rulings, all 5-4 votes, have struck down minority-contracting programs, black-majority voting districts in the South and college affirmative action policies.

But until now, those decisions were not seen as threatening special government arrangements for Native Americans and native Alaskans.

That may change, though, depending on how the court rules on a white rancher’s challenge to how Hawaii elects the trustees who oversee a $300-million land trust. Under the state Constitution, the only eligible voters are Polynesians who can trace their ancestry to 1778, the year Captain Cook landed on the Hawaiian Islands.

“This is a case of ballot box racial discrimination, pure and simple,” argued Washington attorney Theodore B. Olson, who represents rancher Harold Rice, whose family has lived on the islands since the 1830s.

The 15th Amendment to the U.S. Constitution, added after the Civil War, says that the right to vote cannot be denied “on account of race.” Hawaii “denies the vote on account of race. It discriminates based on your race and blood,” Olson maintained.

State officials and Clinton administration lawyers defend the law on two grounds.

First, they say, the Hawaii land trust is a special preserve set up to benefit the aboriginal people whose kingdom was overthrown by United States forces in 1893. It only makes sense, they argue, that the trustees are elected by those who are to benefit from the trust.

And second, they say, the restriction is not a racial classification in the usual sense of that term. “Congress has broad power to identify indigenous groups falling within its Indian affairs power,” administration lawyers said, and special protections for these native peoples are “not to be viewed as discrimination based on race.”

But both arguments appeared to fall flat.

Chief Justice William H. Rehnquist asked about California and the Southwest, areas that were taken from Mexico after 1848. “What if Congress had set up a special trust for people who were Spanish-speaking. Could Congress do that?” he asked in a skeptical tone.

Justice Sandra Day O’Connor noted that Congress did not tell Hawaii to exclude whites from voting for state trustees. “This is a state scheme. And nowhere does it say you are exempt from the 15th Amendment.”

Agreeing, Justice Antonin Scalia noted that members of “Indian tribes” have been given special preferences under the law but these privileges do not extend to Native Americans who are not part of a tribe.

Only Justice Ruth Bader Ginsburg voiced support for the indigenous Hawaiians. “Hawaii was a sovereign kingdom. The United States bears a large measure of responsibility for destroying that kingdom and for stripping them of their sovereignty,” she said.

But she acknowledged that the tenor of the argument suggests her colleagues would vote to strike down Hawaii’s law as a type of racial discrimination.

“This could put everything up for grabs,” Ginsburg said. “The Native Alaskans are involved too,” she said, because only Alaska natives are entitled to vote for leaders of Alaskan Native corporations.

But Olson, a former Reagan administration lawyer, urged the court to rule narrowly for his client and to avoid the issue of Indian tribal preferences.

The justices will meet behind closed doors Friday to vote on the case (Rice vs. Cayetano, 98-818) and then begin work on an opinion. A ruling can be expected within several months.