Supreme Court blocks Native Hawaiian election vote count

University of California Irvine election law expert Rick Hasen said it's "very unusual" for the high court to enjoin the counting of votes during an ongoing election.

"I can't think of another instance where the Supreme Court has done that," Hasen said. "The court has stopped ... the recounting of votes, for example most famously in Bush vs. Gore" in the 2000 presidential election.

There have been cases where the court has stopped elections from going forward, Hasen said, "but it's hard to think of a situation where the court says 'keep the voting going, but don't count the votes or announce the results.'"

The court's four liberal justices said they would have allowed votes to be counted while the appeal plays out.

Justice Anthony Kennedy on Friday issued a temporary stay blocking the vote count and stopping certification of any winners pending further direction from him or the entire court.

Voting was scheduled to end Monday, but after Kennedy's ruling Na’i Aupuni, the organization leading the election process, extended voting until Dec. 21. The group said voters may not have cast ballots over concerns and questions about Kennedy's order.

"Today's order only continues the existing hold on counting and certifying votes until the Ninth Circuit appeal is concluded," Hawaii Attorney General Douglas Chin said in a statement. "The State has consistently supported Native Hawaiian self-governance. This is an independent election that may help chart the path toward a Native Hawaiian government."

Wednesday's ruling was issued soon after the group challenging the election alerted the Supreme Court about the extension.

"The U.S. Supreme Court decision to uphold Justice Kennedy's injunction halting a Hawaii state-sponsored, race-based election is a victory for the Constitution and the Aloha Spirit," Kelii Akina, one of the Native Hawaiian plaintiffs, said in a statement.

"Na'i Aupuni stands by its commitment to provide a legal process for Native Hawaiians to elect leaders to convene to reorganize a government. We believe the process aligns with the U.S. Constitution and that the U.S. Ninth Circuit Court of Appeals ultimately will let the election process proceed," Na’i Aupuni leaders said in a statement.

"Native Hawaiian self-governance has been discussed for over 120 years. We encourage voters to cast their ballots before the Dec. 21 deadline. Your vote is the mana to unify us."

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. The group's lawsuit challenging the election argues that the state shouldn't be involved in a race-based election. The state argues it's not involved in the election.

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.

"This is a powerful step in holding the Office of Hawaiian Affairs and Native Hawaiian Roll Commission accountable for their unconstitutional and un-Hawaiian attempts to divide people based on race," Akina's statement said.

U.S. District Judge J. Michael Seabright in Honolulu ruled in October 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. The 9th U.S. Circuit Court of Appeals denied the emergency motion, prompting the challengers to appeal to the high court.

The Associated Press