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If the election to select delegates for a Native Hawaiian government convention were a football game, the and its allies would be penalized for improper celebration.

The institute won a stay from U.S. Supreme Court Justice Anthony Kennedy on Friday in its effort to prevent the election from being certified or its votes even counted. The group argues that because only Native Hawaiians are allowed to participate in the vote, the election is unconstitutional, violating the 15th��������Ի峾��Գ�.

“We are very grateful for the wisdom of the Court in upholding the Constitution,” said Kelii Akina, the Grassroot Institute president, in a press release. “(The) ruling from Justice Kennedy is not just a victory for us, but a victory for the many Native Hawaiians who have been misrepresented and overridden by government and special interests determined to create a government-recognized tribe.”

Akina gushed that the ruling represented a victory for all Hawaiians, all Americans, for the principal of racial equality — even for “the Aloha Spirit.”

In truth, Kennedy’s one-sentence order doesn’t speak to the merits of Grassroots’ case, but to the fact that significant constitutional issues are being raised and that reasonable time is needed to review them before final action.

U.S. District Court Judge Michael Seabright only ruled late last month that the election is a private matter, not subject to laws governing government elections in the United States. The 9th U.S. Circuit Court of Appeals upheld that decision, rejecting the institute’s emergency appeal just 11 days ago. The organization filed its second emergency appeal last Tuesday, just before Thanksgiving.

So even to imply that the order is anything other than a routine matter of the judicial branch performing a duty of review that ought to be expected of it in our system of governmental checks and balances — much less proclaiming it a victory for all Americans — borders on the comical.  As , “his order may mean only that (Kennedy) wanted to preserve the status quo over a holiday weekend until the full court could consider the matter.”

Nai Aupuni Seems To Have Upper Hand

Predicting how Kennedy on his own as circuit justice for the 9th Circuit or the full court might rule in this case is a matter for legal minds. But a number of indicators point to the Nai Aupuni process as having a distinct upper hand.

First, the fact that the matter has already lost at trial and in a U.S. Court of Appeals shouldn’t be underestimated. Those courts ruled on exactly the same arguments that Grassroot Institute is asking the Supreme Court to consider.

Second and more substantially, the Nai Aupuni process was created, in part, as a response to the deficiencies the Supreme Court found 15 years ago in . In that case, the court ruled 7-2 that the State of Hawaii couldn’t restrict voting in Board of Trustees elections for the Office of Hawaiian Affairs to Native Hawaiians because such a restriction violated the 15th Amendment to the U.S. Constitution.

Created in the period of Reconstruction following the Civil War, the 15th Amendment bans federal and state governments from using race, color or “previous condition of servitude” to deny a citizen the right to vote.

But unlike the OHA elections 15 years ago, the delegate elections aren’t being conducted by the State of Hawaii (or the federal government, for that matter). Instead, they’re being administered by a nonprofit created “solely to help establish a path for Hawaiian self-determination,” as the Nai Aupuni website makes clear.

To prevent the formation of a Native Hawaiian government through efforts of the state or efforts of an independent, nonprofit, using voter criteria drawn from a well-known definition in federal law nearly 100 years old, is to deny Native Hawaiians any reasonable route to self governance. Justice John Paul Stevens spoke eloquently to the injustice of continuing to block the path to self-governance in his dissent in Rice.

“It is a painful irony indeed to conclude that native Hawaiians are not entitled to special benefits designed to restore a measure of native self-governance because they currently lack any vestigial native government — a possibility of which history and the actions of this Nation have deprived them,” he wrote.

It would be surprising, indeed, if Kennedy were to stake out a position that the 15th Amendment protections he recognized years ago for state-run elections now also are operative for private, independent elections to a non-government entity.

Third, though the Supreme Court has changed significantly over the past 15 years, at least two of the players here are familiar: The majority opinion in Rice was written by Kennedy, and the attorney representing the State of Hawaii in Rice was John G. Roberts. Also known today as Chief Justice Roberts.

It would be surprising, indeed, if Kennedy were to stake out a position that the 15th Amendment protections he recognized years ago for state-run elections now also are operative for private, independent elections to a non-government entity. Roberts has a deeper familiarity with the issues at hand than likely any other member of the court, and one might reasonably expect he would be inclined to support the Nai Aupuni process going forward.

Thanks to the federal government, Native Hawaiians have had no government for 122 years, and numerous efforts to allow one to be formed have been thwarted by the U.S. government or have otherwise failed. The delegate voting that ends today represents the most significant and promising effort to date toward making it possible to address that injustice.

Rather than overly celebrating the temporary roadblock placed in that path, Grassroot Institute and its rabidly right wing allies at ought to take a critical look at whether their legal actions are living up to the claim articulated by the institute on – that it is “deeply committed to the advancement of Native Hawaiians.” Opposing the election of delegates to a convention where matters of advancement can be formally discussed makes Grassroot’s commitment seem pretty hollow.

The Supreme Court ought to dispense with that opposition quickly, and preserve the integrity of the delegate selection process that has been underway for nearly a month by simply getting out of the way of a private election. Voting will conclude today, and under the timeline that has been on the table for months now, the results are scheduled to be announced tomorrow.

Count the votes.