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Hereby Halt the Proposed No. __-___ In the Supreme Court of the United States ____________________________________________________ KELI’I AKIN, KEALII MAKEKAU, JOSEPH KENT, YOSHIMASA SEAN MITSUI, PEDRO KANA’E GAPERO, and MELISSA LEINA’ALA MONIZ, Applicants, v. THE STATE OF HAWAII, GOVERNOR DAVID Y. IGE, ROBERT K. LINDSEY JR., Chairperson, Board of Trustees, Office of Hawaiian Affairs, COLETTE Y. MACHADO, PETER APO, HAUNANI APOLIONA, ROWENA M.N. AKANA, JOHN D. WAIHE’E IV, CARMEN HULU LINDSEY, DAN AHUNA, LEINA’ALA AHU ISA, Trustees, Office of Hawaiian Affairs, KAMANA’OPONO CRABBE, Chief Exec. Officer, Office of Hawaiian Affairs, JOHN D. WAIHE’E III, Chairman, Native Hawaiian Roll Commission, NA’ALEHU ANTHONY, LEI KIHOI, ROBIN DANNER, MAHEALANI WENDT, Commissioners, Native Hawaiian Roll Commission, CLYDE W. NAMU’O, Exec. Director, Native Hawaiian Roll Commission, THE AKAMAI FOUNDATION, and THE NA’I AUPUNI FOUNDATION, Respondents. ______________________________________________________________________________ APPENDIX ___________________________________________________________________________ Michael A. Lilly Robert D. Popper, Counsel of Record NING LILLY & JONES JUDICIAL WATCH, INC. 707 Richards Street, Suite 700 425 Third Street, SW Honolulu, Hawaii 96813 Washington, DC 20024 (808) 528-1100 (202) 646-5172 [email protected] [email protected] H. Christopher Coates William S. Consovoy LAW OFFICES OF H. CHRISTOPHER COATES J. Michael Connolly 934 Compass Point CONSOVOY MCCARTHY PARK PLLC Charleston, South Carolina 29412 3033 Wilson Boulevard (843) 609-7080 Arlington, Virginia 22201 [email protected] (703) 243-9423 www.consovoymccarthy.com Dated: November 23, 2015 Attorneys for Applicants Case 1:15-cv-00322-JMS-BMK Document 122 Filed 11/19/15 Page 1 of 2 PageID #: 1667 FILED UNITED STATES COURT OF APPEALS NOV 19 2015 MOLLY CC.. DWYER, CLERK FORFOR THE NINTHNINTH CIRCUIT UU.S..S. COURT OF APPEALS KELl'IKELI'I AKINAKINA; A; et al.aI. , No. 15-1713415-17134 PlaintiffsPlaintiffs - Appellants, D.C.D. C. No. 1:I: 15-cv-00322-JMS­15-cv-00322-JMS­ BMKBMK v. DistrictDistrict of HawaiiHawaii, HonoluluHonolulu STASTATETE OF HAWHAWAII;All; et al.aI. , DefendantsDefendants - Appellees. ORDER Before: W.W. FLETCHERFLETCHER, N.R.N. R. SMITHSMlTH, and OWENS, CircuitCircuit Judges.Judges. This isis a preliminary injunction appeal. Appellants havehave filed an urgent motion to enjoin, pendingpending dispositiondi sposition of thisthis appeal, appellee N'aiN'ai Aupuni from counting votesvotes in an electionelection that concludes on NovemberNovember 30, 2015. 1 1 I The NovemberNovember 5, 2015 ssubmissionubmission byby non-party American CivilCivil RightsRights UnionUnion and thethe NovemberNovember 9, 2015 submissionsubmission byby non-partynon-party the UnitedUnited States are construed as requestsreq uests for leaveleave to file briefsbri efs in supportsupport of or in opposition to thethe urgent motion. So construed, the requestsrequests are granted. The respectiverespective briefsbriefs havehave beenbeen considered for purposespurposes of dispositiondisposi tion of the urgent motion only. The court hashas receivedreceived thethe NovemberNovember 9, 2015 "Notice"Notice of Absent Necessary and IndispensableIndispensabl e Party"Party" (the(the "Notice")"Notice") filedfil ed byby attorney LannyLanny Alan Sinkin on behalfbehalf of a non-partynon-party purporting to bebe thethe KingdomKingdom of HawaiHawai 'i.' i. To thethe extent thethe NoticeNotice seeksseeks relief from thisthi s court, it isis referred to the panel assigned to decide the meritsmerits of thisthis appeal for whatever consideration thethe panelpanel deemsdeems appropriate. SLUMOATISLUMOAIT Case: 15-1713417134,, 11/19/201511 11912015,, IDID:: 97618709761870,, DkDktEtEntry:ntry: 30,, Page 1 of2 1a Case 1:15-cv-00322-JMS-BMK Document 122 Filed 11/19/15 Page 2 of 2 PageID #: 1668 To jujustifystify an immediatimmediatee injunction pending appeal, appellants mustmust establish (I)(1) a likelihood of the successsuccess on the merits of the appeal; (2) that they are likely to be irreparably harmedhanned if the votevote counting iiss not enjoined pending dispositiondi sposition of the appeal; (3) that the balance of the equities tips in their favor;fa vor; and ((4) 4) that it iiss in the public intereinterestst to issuessue an injunction pending dispositiondi sposition of the appeal. See Winter v. NaturalNatural Res.Res. DefDe! Council, Inc.Inc.,, 555 U.S. 77, 20 (2008); Alliance/orAlliance for the Wild RockiesRockies v. Cottrell, 632 F.3dF.3d 1127I 127, 1131I 131 (9th Cir. 2011).20 I I). We conclude thatthat,, at this sstagetage, appellants have not made the required shohowing.wing. AccordinglyAccordingly,, the urgent motion iiss denied. The prepreviouviouslyly established briefing schedule remains in effect for thisthis appeal. To the extent that any non-partynon-party seeksseeks to file an amicus brief with respect to the merits of the preliminary injunction appeal, it shall comply wwithith Federal Rule of Appellate Procedure 29. SLLUMOAITUMOATI 2 15-17134 Case: 15-17134,5- 17134, 11/19/2011 / 19/2015,15, ID:lD: 9761870,9761870, DktEntry:DktEntry: 30, Page 2 of2of2 2a Case 1:15-cv-00322-JMS-BMK Document 114 Filed 10/29/15 Page 1 of 64 PageID #: 1514 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII KELII AKINA, et al., ) CIVIL NO. 15-00322 JMS-BMK ) Plaintiffs, ) ORDER DENYING PLAINTIFFS’ ) MOTION FOR PRELIMINARY vs. ) INJUNCTION, DOC. NO. 47 ) THE STATE OF HAWAII, et al., ) ) Defendants. ) _____________________________ ) ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION, DOC. NO. 47 I. INTRODUCTION Defendant Nai Aupuni1 is conducting an election of Native Hawaiian delegates to a proposed convention of Native Hawaiians to discuss, and perhaps to organize, a “Native Hawaiian governing entity.” Delegate candidates have been announced, and voting is to run from November 1, 2015 to November 30, 2015. 1 Nai Aupuni is “a Hawaii non-profit corporation that supports efforts to achieve Native Hawaiian self-determination.” Doc. No. 79-1, James Asam Decl. ¶ 6. Some names and Hawaiian language words use the diacritical markings “<okina” and “kahako” to indicate proper pronunciation or meaning. “The <okina is a glottal stop, similar to the sound between the syllables of ‘oh-oh.’. The kahako is a macron, which lengthens and adds stress to the marked vowel.” See https://www.hawaii.edu/site/info/diacritics.php (last accessed Oct. 27, 2015). But because different pleadings and sources use the markings inconsistently or improperly, this Order omits these diacritical marks for uniformity and to avoid compatibility issues between properly-used marks and electronic/internet publication. 3a Case 1:15-cv-00322-JMS-BMK Document 114 Filed 10/29/15 Page 2 of 64 PageID #: 1515 Plaintiffs2 have filed a Motion for Preliminary Injunction seeking, among other relief, to halt this election. The voters and delegates in this election are based on a “Roll” of “qualified Native Hawaiians” as set forth in Act 195, 2011 Haw. Sess. Laws, as amended (the “Native Hawaiian Roll” or “Roll”). A “qualified Native Hawaiian” is defined as an individual, age eighteen or older, who certifies that they (1) are “a descendant of the aboriginal peoples who, prior to 1778, occupied and exercised sovereignty in the Hawaiian islands, the area that now constitutes the State of Hawaii,” Haw. Rev. Stat. (“HRS”) § 10H-3(a)(2)(A), and (2) have “maintained a significant cultural, social, or civic connection to the Native Hawaiian community and wishes to participate in the organization of the Native Hawaiian governing entity.” HRS § 10H-3(a)(2)(B). Through a registration process, the Native Hawaiian Roll Commission (the “commission”) asked or required prospective registrants to the Roll to make the following three declarations: • Declaration One. I affirm the unrelinquished sovereignty of the Native Hawaiian people, and my intent to participate in the process of self-governance. 2 The Plaintiffs are Kelii Akina, Kealii Makekau, Joseph Kent, Yoshimasa Sean Mitsui, Pedro Kanae Gapero, and Melissa Leinaala Moniz. Their backgrounds, as relevant to this suit, are discussed later in this Order. 2 4a Case 1:15-cv-00322-JMS-BMK Document 114 Filed 10/29/15 Page 3 of 64 PageID #: 1516 • Declaration Two. I have a significant cultural, social or civic connection to the Native Hawaiian community. • Declaration Three. I am a Native Hawaiian: a lineal descendant of the people who lived and exercised sovereignty in the Hawaiian islands prior to 1778, or a person who is eligible for the programs of the Hawaiian Homes Commission Act, 1920, or a direct lineal descendant of that person. Doc. No. 1, Compl. ¶ 42; Doc. No. 47-9, Pls.’ Ex. A. Separately, the Roll also includes as qualified Native Hawaiians “all individuals already registered with the State as verified Hawaiians or Native Hawaiians through the office of Hawaiian affairs [(“OHA”)] as demonstrated by the production of relevant [OHA] records[.]” HRS § 10H-3(a)(4). Those on the Roll through an OHA registry do not have to affirm Declarations One or Two. Plaintiffs filed suit on August 13, 2015, alleging that these “restrictions on registering for the Roll” violate the U.S. Constitution and the Voting Rights Act of 1965, 52 U.S.C. § 10301. Doc. No. 1, Compl. ¶ 1. As to the constitutional claims, they allege violations of (1) the Fifteenth Amendment; (2) the Equal Protection and Due Process clauses of the Fourteenth Amendment; and (3) the First Amendment. They further allege that Nai Aupuni is acting
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