There has been a dramatic development in the Naʻi Aupuni elections. The last we heard was that the election and certification had been put on hold by Justice Kennedy and a majority of the United States Supreme Court. Naʻi Aupuni, through its attorneys, now states that the rules have once again changed:
“NAʻI AUPUNI Update
Given that the counting of the votes may be delayed by the legal process for up to a few years, Naʻi Aupuni has decided to terminate the election as of today and to offer all 196 candidates the opportunity to serve as ʻAha delegates from February 1 to 26, at a meeting facility in Kailua, Oahu.
One of the main reasons behind this decision to seat all candidates is that they represent a broad-based spectrum of the Native Hawaiian community and Naʻi Aupuni wants to seize this rare opportunity to organize Native Hawaiians and to propose a path to self-governance.
A Q&A that addresses many issues concerning this change of events as well as the terms that Naʻi Aupuni is offering the candidates to serve as delegates are set forth on the Naʻi Aupuni website, naiaupuni.org
Mahalo nui for supporting the Naʻi Aupuni process and we encourage you to support the upcoming ʻAha!
Sullivan Meheula Lee
A Limited Liability Law Partnership
In other words:
1) There will be no tabulation of the votes;
2) All 196 candidates will be assembled as the constitutional convention;
3) Although not explicitly stated, those 196 can create a Native Hawaiian governing body; and
4) The Grassroot Institute of Hawaii lawsuit is alleged to now be “moot” or meaningless, as the suit was to stop an election.
While not stated, out of those 196 candidates, the “independence” delegates will be in the minority, thus giving Naʻi Aupuni its way in creating a government that meets the Federal conditions for a Federally Recognized tribe. The clear message of this action by Naʻi Aupuni is to establish Federal Recognition at any cost, even if it requires violating previously settled terms and conditions of the process, “stacking” the convention with their own representatives and completely ignoring the fifteenth amendment, voting rights (which would still be violated) and the procedural due process and substantive due process clause of the fourteenth amendment.
As to the Supreme Court, this is an ultimate, “in-your-face” insult—it defies the power of the Supreme Court under Article III of the U.S. Constitution and amounts to a fraudulent act to avoid the effect of a Supreme Court injunction.
The failure to tabulate the vote is being treated as a “non-election” that, therefore, does not trigger either the 15th amendment or the voting rights act—but that surely cannot be the case. If, in a state election, candidates from one racial group far outnumbered candidates from another racial group, the decision not to tabulate the election and to augment the state legislature to accommodate all who were running—for the purpose that one race could prevail in the state legislature—would have the same depraved effect that the fifteenth amendment and the voting rights act sought to end.
Justice Kennedy’s order included 1) not tabulating the votes and 2) not certifying the winning delegates. To render all delegates winners is to violate the prohibition by Justice Kennedy of “certifying” winners. His prohibition on certification was clearly intended to prevent the formation and gathering of any “winners,” no matter how selected (and even if there are no “losers”), that could comprise a constitutional convention.
Additionally, the Grassroots lawsuit is not necessarily “moot” just because there will be no election. The Grassroots lawsuit was to halt a process in which the election was just one step in a series of steps that would produce a “racially” based federally recognized Indian tribe. Whether the suit is now moot is a question before the Supreme Court of the United States.
The U.S. Supreme Court acted upon its principle in Rice v. Cayetano that the fifteenth amendment and the voting rights act bars race based elections. The decision not to tabulate did not forestall an election, it merely changed the rules of the election such that if any candidate got any vote—even one—they would be elected. Or, in other words, the decision to forego the election retroactively changed the number of delegates to be elected from 40 to 196, transgressing the conditions by which the election was established.
The U.S. Supreme Court has does not relinquish its jurisdiction for any case in which a “fraud” is made in an attempt to avoid a clear ruling of the Court. The U.S. Supreme Court inherently has jurisdiction here, under Article III of the U.S. Constitution, to prevent such a fraud.
These are only some of the issues raised with today’s action by Naʻi Aupuni—an action that severely challenges the notion that the constitutional convention was a neutral convention. It now appears that the convention had but one purpose: the establishment of federal recognition.