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The Hawaiian people are in a real pickle. Nai Aupuni cancelled its delegate elections for a Native Hawaiian governance convention, but then allowed all candidates to become delegates.

I heard Nai Aupuni Board President Kuhio Asam on television Wednesday morning, and though he chose his words carefully, he implied that the 196 newly anointed delegates could draft documents of governance that meet the requirements of the U.S. Department of the Interior’s conditions for a government-to-government relationship in the form of a federally recognized tribe.

This obviously raises a great many issues, the most important and immediate of which I’ll attempt to address here.

1. Nai Aupuni is contempt of a Supreme Court order.

This double action of Nai Aupuni, I believe, is contrary to the order of the Supreme Court of the United States that 1) the election not take place now (before the issues are fully litigated) and 2) that no one be certified as a delegate. In short, the 15th Amendment of the U.S. Constitution was not meant to prevent race-based elections but to prevent the logical consequence of such race-based elections — that is, race-based electoral bodies, like a legislature or a water district.

You cannot sidestep the 15th Amendment by creating a process which permits a race-based election, then when declared illegal, allows the governor or some other entity like Nai Aupuni to appoint only persons of one race to the positions that were up for election. That would completely defeat the purpose of the 15^th Amendment.

2. Nai Aupuni has no authority — by statute, charter, bylaw or the consent of the people.

Nai Aupuni has no legal authority to do what it has done. It has no charter, no bylaws, no power delegated by the Legislature or by the Office of Hawaiian Affairs, and no consent from the Native Hawaiian people to establish a constitutional convention. What gave Nai Aupuni the power to combine lists of Native Hawaiians, or the power to extend the deadline to register as a delegate, or the power to extend the voting deadline, or as was done Tuesday, the power to set a new deadline by which so-called candidate-delegates must confirm their interest or lose their right to attend the aha, or governance convention?

Nai Aupuni has no clear mandate to convene an aha. The Native Hawaiian people let Nai Aupuni have these powers in much the same way a party gathers at someone’s house for a poker game to played by the rules each player, in turn, makes up.

In that sense, Nai Aupuni was a “party” where a “host,” Nai Aupuni, set the rules, and Native Hawaiian electors and candidates simply complied with rules — rules that no one had the power to enforce. As a candidate, what if I do not register by Dec. 22? Can Nai Aupuni really prevent me from going to its convention in Kailua? Does it have its own police?

3. Convention or Party? Which is it?

What prevents any person, Hawaiian or non-Hawaiian, from attending the Kailua meeting? If we treat, the convention as a “private party” then Nai Aupuni is a “host” —  perhaps it can ask you to leave, but what power does it have to enforce one’s exclusion?

Nai Aupuni cannot claim that its rules are binding based on any claim of implicit consent that arises from Hawaiians registering on the roll. Nai Aupuni could only exclude one from the Kailua convention on the grounds that one is trespassing on private property, not because one fails to qualify as some kind of delegate.

Here are my thoughts on some possible problems.

4. Na’i Aupuni is in contempt of the Supreme Court order.

The Supreme Court order denies Nai Aupuni the right to “certify” the election, which must be taken to mean that the Supreme Court is denying Nai Aupuni the right to determine, in any possible fashion, who is going to be a delegate.

5. A right to race-neutral political bodies.

Any attempt of the people at this “party” or “convention” to draft governing documents would be also be in violation of the Supreme Court injunction. The Supreme Court stopped the election because the race-based election was part of a process that would arise from a group that was sufficiently quasi-political, and state sponsored, which would be acting in a political manner and was race-based.

Suppose a Southern state, after the Civil War, held elections allowing only one race to vote for the state legislature. Suppose the Supreme Court applying the 15th Amendment intervened and declared the election unconstitutional. The candidates for the state legislature could not simply skip the election, meet in the state house, as legislators consisting of only one race and start to pass laws as a legislature Such actions would defeat the purpose of the 15th Amendment.

The purpose of the 15th Amendment is not simply to stop race-based elections but to stop race-based or race-biased governmental bodies from being established. The amendment not only protects your right to vote, but protects your right to have race-neutral political bodies, such as legislatures, boards, water districts and other political organizations.

6. Are delegates who go to the February convention technically in violation of the Supreme Court order?

Another important legal and moral question is whether or not candidates who sign up for the convention by Dec. 22, based on Nai Aupuni’s fiat, violate the 15th Amendment rights of other individuals by aiding and abetting in an action that is contrary to the spirit of an order of the Supreme Court.

7. What should candidate-delegates do?

The action that should be taken is to address the question to the attorney general of the United States, asking if delegates who participate in the February convention are acting contrary to a court order and violating in spirit the Voting Rights Act and the 15th Amendment.

The same would be true of the mediators hired to guide the convention. They are not being retained for the purpose of leading all the delegates in dancing the hokey-pokey. The mediators are being hired to guide the delegates through a political process which had the original intent of creating a government under the conditions imposed by the Department of the Interior. The Supreme Court order has put a hold on the process of creating a government entity.

8. Can “wanna-be” candidate-delegates participate in the convention?

Nai Aupuni’s actions of calling off the election and empowering 196 persons to attend a political convention undermines the premises of the election and convention process. Certain persons such as Brandon Makaawaawa were turned away and not allowed to run because they were “too late.”

Now it appears that nothing is ever too late. Moreover, it is now apparent that those who did not run for fear of not garnering enough votes but thought of running would be allowed to participate. Had those persons known that all candidates would be deemed delegates, they would clearly have put in their applications to be candidates. This raises the question as to whether the convention, or “party,” should be open to anyone who attempted to be a candidate or even swears that they would have run.

9. Does U.S. District Court Judge Michael Seabright’s ruling of “no state action” stand?

Although the Supreme Court did not specifically strike down the ruling of Judge Seabright, my position is that the Supreme Court implicitly rejected his views when they enjoined the election and certification of delegates. For the Supreme Court to reach the question posed by the 15th Amendment, it was necessary that the Court find sufficient “state action.”

10. The liability of the U.S. Department of the Interior.

Interior established criteria which demanded a race-based convention, arising from a race-based election. If Nai Aupuni is held to violate the 15th Amendment, then is Interior in some sense secondarily liable for establishing the conditions which require a race based election and convention?

11. The role of the U.S. Department of Justice.

Thus, the United States is split — between its Department of the Interior and the Civil Rights Division of the Department of Justice. The Justice Department cannot represent both its own Civil Rights Division, which enforces the Voting Rights Act, and the Department of the Interior, which here is contributing to a violation of that act. The Justice Department must hire outside counsel for one of those roles, or create a “Chinese Wall” between the deputy attorney generals who represent the DOI and those in the Civil Rights Division.

12. The liability of the State of Hawaii and OHA.

OHA provided funds that derived from crown and government lands, under a state statute to fund Nai Aupuni in creating both the election and the convention. In a crude sense, OHA simply “laundered” such money by passing it through an entity that supposedly cleansed the money of its state action “taint.”

In view of the heightened scrutiny being applied by the Supreme Court, the act of providing the funding raises questions of whether OHA and the state knowingly and intentionally violated the Voting Rights Act. This may create a private cause of action for those harmed under section 1983, which provides damages relief for constitutional torts. However, my opinion on this matter is still in the research phase.