Votes cast in an ongoing election for Native Hawaiians can be counted as planned, the 9th U.S. Circuit Court of Appeals ruled Thursday.
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. They are the last remaining indigenous group in the United States that hasn't been allowed to establish its own government.
A group of Native Hawaiians and non-Hawaiians are challenging the election. One of their arguments is that it's unconstitutional for the state to be involved in a race-based election.
A federal judge in Honolulu ruled last month that the election may proceed. The challengers appealed and also filed an emergency motion to block the votes from being counted.
The court denied the urgent motion, saying that the challengers couldn't justify that allowing the count to happen pending the appeal would be harmful, unfair or a matter of public interest.
They will appeal the decision to the U.S. Supreme Court, according to documents filed Thursday afternoon.
The ruling allows Nai Aupuni, the organization guiding the election process, to announce the 40 delegates on Dec. 1 as planned. About 89,000 certified Native Hawaiians have until Nov. 30 to vote. About 200 candidates are vying to be delegates representing the Hawaiian islands and Native Hawaiians living on the mainland. The delegates will attend an eight-week convention that starts in February.
"We believe the 9th Circuit correctly rejected the motion," said Nai Aupuni attorney Bill Meheula. "There's no guarantee, but it's a positive indication of how the 9th Circuit might ultimately rule."
The plaintiffs who filed a lawsuit in August challenging the election include two non-Hawaiians who aren't eligible to participate. There are also two Native Hawaiians who say they didn't give consent for their names appear on a roll of Native Hawaiians interested in participating in their own government and two Native Hawaiians who don't agree with a declaration to "affirm the un-relinquished sovereignty of the Native Hawaiian people, and my intent to participate in the process of self-determination."
They argued that the state has been improperly involved and that the outcome will have a significant impact on the state.
U.S. District Judge J. Michael Seabright, in an oral ruling from the bench last month, said the poll is a private election for the purpose of establishing self-determination for the indigenous people of Hawaii. Those elected won't be able to alter state or local laws, he said.
He also noted that the vote will not lead to the election of any federal, state or county officeholders.
"We remain confident that we are legally correct, that the state is conducting a race-based election through proxy, and that ultimately, we will prevail," said one of the Native Hawaiian plaintiffs, Kelii Akina, who is also president of public policy think-tank Grassroot Institute of Hawaii.
The Associated Press