Kostick v. Nago (960 F. Supp. 2d 1074, 2013)

OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; APPENDICES “A” & “B”

PER CURIAM:

The Hawaii Constitution specifies the use of permanent residents as the relevant population base in apportioning state legislative seats. In a 2012 decision, the Hawaii Supreme Court laid out the appropriate method for determining permanent residents by extracting non-resident military personnel, their dependents, and nonresident students from the total population count. The Hawaii Reapportionment Commission adopted a new legislative apportionment plan to comply with that directive.

This suit asks us to consider the constitutionality of Hawaii’s 2012 Reapportionment Plan under the Equal Protection Clause of the United States Constitution. Previously, we considered a motion for a preliminary injunction seeking to halt implementation of the 2012 Reapportionment Plan and to enjoin conducting the 2012 elections under that plan. On May 22, 2012, we denied that request, concluding that the citizens’ group seeking the injunction had not established a likelihood of success on the merits of its claim that the permanent resident population basis violates equal protection. Nor did the equities and public interest weigh in favor of an injunction that risked jeopardizing the 2012 primary and general elections. See Kostick v. Nago, 878 F.Supp.2d 1124 (D.Haw.2012).

We now consider the equal protection challenges on cross motions for summary judgment — the citizens’ group asks us to declare that the 2012 Reapportionment Plan violates equal protection, and the government seeks judgment in its favor as to those questions. Following extensive briefing and a January 14, 2013 hearing on the cross motions, we DENY Plaintiffs’ Motion for Summary Judgment and GRANT Defendants’ Motion for Summary Judgment.

For the reasons that follow, we conclude that the 2012 Reapportionment Plan does not violate the United States Constitution. The Commission’s reliance on a permanent resident population base, as ordered by the Hawaii Supreme Court, is permissible under the Equal Protection Clause. Likewise, the disparities in the size of the Commission’s legislative districts pass constitutional muster.

I. INTRODUCTION

In our May 22, 2012 Order Denying Plaintiffs’ Motion for Preliminary Injunction, we extensively reviewed the historical and evidentiary record at that stage. The current record has not changed appreciably, and the cross motions for summary judgment ultimately turn on legal arguments applied to undisputed facts. Accordingly, we draw heavily on the May 22, 2012 Order in explaining the background and context for this apportionment challenge. Where appropriate, we incorporate parts of the May 22, 2012 Order in addressing the cross motions.

Hawaii reapportions its state legislative and federal congressional districts every ten years, after the decennial United States Census (the “Census”), based upon changes in population. See Haw. Const, art. IV, § 1. The Hawaii Constitution as amended in 1992 requires that reapportionment of Hawaii’s state legislative districts be based upon “permanent residents,” id. § 4, as opposed to the Census count of “usual residents.” Any resulting reapportionment is subject to the constitutional principles of “one person, one vote.” Reynolds v. Sims, 377 U.S. 533, 557-58, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (citing Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963)).

In this action, Plaintiffs Joseph Kostick, Kyle Mark Takai, David P. Brostrom, Larry S. Veray, Andrew Walden, Edwin J. Gayagas, Ernest Laster, and Jennifer Laster (collectively, “Kostick” or “Plaintiffs”) challenge aspects of the March 30, 2012 Supplement to the 2011 Reapportionment Commission Final Report and Reapportionment Plan (the “2012 Reapportionment Plan”), which Hawaii implemented in 2012 and utilized in its recent 2012 primary and general elections. The Defendants are the members of the 2011 Reapportionment Commission in their official capacities; the Commission itself; and Scott T. Nago, in his official capacity as secretary to the Commission and Hawaii’s Chief Elections Officer (collectively, “the Commission” or “Defendants”).

The 2012 Reapportionment Plan — fulfilling a mandate from the Hawaii Supreme Court in Solomon v. Abercrombie, 126 Hawaii 283, 270 P.3d 1013 (2012)— “extracted” 108,767 active-duty military personnel, military dependents, and university students from Hawaii’s reapportionment population base. Kostick claims that this extraction by itself, and the 2012 Reapportionment Plan’s subsequent apportionment of the resulting population base, violate the Equal Protection Clause of the Fourteenth Amendment and “one person, one vote” principles.

Kostick asks the court to (1) declare the 2012 Reapportionment Plan unconstitutional; (2) order the 2011 Hawaii Reapportionment Commission (the “Commission”) to formulate and implement a reapportionment plan using the 2010 Census count of “usual residents” of Hawaii as the population base; and (3) order the use of an August 2011 proposed reapportionment plan, which utilized a population base that includes the now-extracted 108,767 people. In addition, Kostick seeks an order requiring an apportionment of state legislative districts that are “substantially equal in population.”

As in our May 22, 2012 Order, we again emphasize that this Opinion addresses only the legal considerations underlying the challenged actions — not whether extracting certain “non-permanent” residents from Hawaii’s reapportionment population base is good public policy and not whether Hawaii could or should use “usual residents” as that base. Hawaii has long debated these important and difficult questions, which involve political judgments and require consideration and balancing of competing legislative interests — tasks for which courts are ill suited. See, e.g., Perry v. Perez, 565 U.S.-, 132 S.Ct. 934, 941, 181 L.Ed.2d 900 (2012) (per curiam) (“[Ejxperience has shown the difficulty of defining neutral legal principles in this area, for redistricting ordinarily involves criteria and standards that have been weighed and evaluated by the elected branches in the exercise of their political judgment.”) (citations omitted).

In short, we express no opinion as to how Hawaii should define its reapportionment base, but instead examine only the challenged aspects of the 2012 Reapportionment Plan itself. We certainly do not pass on what no one here disputes: Hawaii’s military personnel constitute a significant and welcome presence in Hawaii’s population.

II. BACKGROUND

This reapportionment challenge raises issues that are best understood by first examining the historical context. We begin by reviewing the historical and legal factors that the Commission faced in crafting the 2012 Reapportionment Plan. We then set forth the details of Kostick’s challenge to the Plan and recount the procedural history of this case.

A. Historical and Legal Context

1. The Census as Population Baseline

The Census counts the “usual residents” of a state. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 804, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (“ ‘Usual residence’ ... has been used by the Census Bureau ever since [the first enumeration Act in 1790] to allocate persons to their home States.”).

The Census defines “usual residence” as “the place where a person lives and sleeps most of the time” and “is not necessarily the same as the person’s voting residence or legal residence.” Doc. No. 26, Parties’ Stipulated Facts re: the Motion for Preliminary Injunction in Response to Court Order (“Stip. Facts”) 111; Doc. No. 68, Pis.’ Separate and Concise Statement of Facts (“CSF”) No. 2. The definition thus excludes tourists and business travelers. Stip. Facts ¶ 5; Doc. No. 28-16, Pis.’ Ex. H (“Ex. H”) at 3. The 2010 Census counted people at their usual residence as of April 1, 2010. Stip. Facts ¶ 2; Pis.’ CSF No. 1. Active duty military personnel who were usual residents of Hawaii on April 1, 2010 were or should have been counted by the 2010 Census as part of its count for Hawaii. Stip. Facts ¶ 3; Pis.’ Ex. H at 8-9. Similarly, students attending college away from their parental homes are counted where they attend school (i.e., where they “live and sleep most of the time”). Pis.’ Ex. H at 5. Students enrolled at a Hawaii university or college who were usual residents of Hawaii on April 1, 2010 were or should have been counted by the 2010 Census as part of the 2010 Census count for Hawaii. Stip. Facts ¶ 4. According to the 2010 Census, Hawaii has a population of 1,360,301 usual residents. Doc. No. 32, First Am. Compl. (“FAC”) ¶30; Stip. Facts ¶ 32.

After each Census, Hawaii establishes a Reapportionment Commission to implement a reapportionment. See Haw. Const, art. IV, § 2; Haw.Rev.Stat. (“HRS”) § 25-1 (2012). The Commission uses the Census’s “usual residents” figure as Hawaii’s total population for purposes of apportioning Hawaii’s federal congressional districts. See Haw. Const, art. IV, § 9; HRS § 25-2(b) (2012) (requiring use of “persons in the total population counted in the last preceding United States census” as the relevant population base). But the Commission does not use the Census figure as the population base for state legislative districts. Instead, Hawaii uses a “permanent residents” count as the relevant population base.

2. Hawaii’s Reapportionment Population Base Dilemma

Defining the reapportionment population base for Hawaii’s legislative districts has long presented a dilemma, primarily because Hawaii’s population has historically contained a large percentage of military personnel — many of whom claim residency in other states and do not vote in Hawaii elections. See, e.g., Burns v. Richardson, 384 U.S. 73, 94, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966) (referring to “Hawaii’s special population problems” stemming from “the continuing presence in Hawaii of large numbers of the military”). The Supreme Court in Bums noted that “at one point during World War II, the military population of Oahu constituted about one-half the population of the Territory.” Id. at 94 n. 24, 86 S.Ct. 1286. More recently, well after statehood, the 1991 Reapportionment Commission found that non-resident military personnel constituted “about 14% of the population of Hawaii” with “[a]bout 114,000 nonresident military and their families residing] in this state, primarily on the Island of Oahu.” Doc. No. 65-9, Defs.’ Ex. G at 6, State of Hawaii 1991 Reapportionment Comm’n, Final Report and Reapportionment Plan at 23; Solomon, 270 P.3d at 1015.

The vast majority of military and their families live on Oahu because of its many military installations, including Joint Base Pearl Harbor-Hiekam, Schofield Barracks, and Kaneohe Marine Corps Air Station. Regardless of whether these individuals claim residency in Hawaii, Hawaii’s elected officials still represent them — it is a fundamental constitutional principle that elected officials represent all the people in their districts, including those who do not or cannot vote. See, e.g., Garza v. Cnty. of L.A., 918 F.2d 763, 774 (9th Cir.1990).

A dilemma thus arises because imbalances of potential constitutional magnitude are created whether or not Hawaii’s non-resident military and family members are factored into the apportionment base.

If the group is included in the population base but votes elsewhere, Oahu voters potentially have greater “voting power” than residents of other counties. See, e.g., Reynolds, 377 U.S. at 568, 84 S.Ct. 1362 (“[A]n individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.”). That is, the vote of an Oahu voter could count more than that of a non-Oahu voter. See, e.g., Bd. of Estimate v. Morris, 489 U.S. 688, 698, 109 S.Ct. 1433, 103 L.Ed.2d 717 (1989) (“[A] citizen is ... shortchanged if he may vote for ... one representative and the voters in another district half the size also elect one representative.”); Chen v. City of Houston, 206 F.3d 502, 525 (5th Cir.2000) (“If total population figures are used in an area in which potentially eligible voters are unevenly distributed, the result will necessarily devalue the votes of individuals in the area with a higher percentage of potentially eligible voters.”).

But if this group is excluded, then Oahu residents (particularly residents in an Oahu district with large concentrations of non-resident military) may have diluted representation. See, e.g., Garza, 918 F.2d at 774 (“Residents of the more populous districts ... have less access to their elected representative. Those adversely affected are those who live in the districts with a greater percentage of non-voting populations. ..Chen, 206 F.3d at 525 (“[T]he area with the smaller number of voters will find itself relatively disadvantaged. Despite the fact that it has a larger population — and thus perhaps a greater need for government services than the other community — it will find that its political power does not adequately reflect its size.”).

3. The Population Base’s Impact on Basic Island Unit Autonomy

The Commission was also driven by a geographic constraint — grounded in Hawaii’s history and its Constitution as explained below — to apportion among “basic island units,” which correspond to Hawaii’s counties. See Appendix B (Hawaii map from National Atlas of the United States, March 5, 2003, http://nationalatlas.gov). And Hawaii’s choice of a reapportionment population base has the potential to affect the distribution of political power among these basic island units. Excluding large numbers of non-residents, most of whom live on Oahu, from the population base can — as it did in this instance — result in a gain or loss of legislators (here, Hawaii County gained a State Senate seat that the City and County of Honolulu lost). Stip. Facts ¶40. Thus, including or excluding nonpermanent residents could contribute to a subtle shift in power among the counties.

Historically, residents of each basic island unit “have developed their own and, in some instances, severable communities of interests” resulting in “an almost personalized identification of the residents of each county — with and as an integral part of that county.” Burns v. Gill, 316 F.Supp. 1285, 1291 (D.Haw.1970) (three judge court). County residents “take great interest in the problems of their own county because of that very insularity brought about by the surrounding and separating ocean.” Id. And forty-three years after Gill, many individuals still identify themselves in relation to their island. See, e.g., Doc. No. 66-3, Defs.’ Ex. Y, Solomon Deck ¶ 9 (noting “socio-economic and cultural differences ... that predated statehood” between parts of Maui and the Big Island (as Hawaii Island is often called)).

The integrity of the basic island units reaches back centuries. A three judge court explained in 1965:

Hawaii is unique in many respects. It is the only state that has been successively an absolute monarchy, a constitutional monarchy, a republic, and then a territory of the United States before its admission as a state. Because each was insulated from the other by wide channels and high seas and historically ruled first by chiefs and then royal governors, after annexation the seven major, inhabited islands of the State were divided up into the four counties of Kauai, Maui, Hawaii and the City and County of Honolulu.

Holt v. Richardson, 238 F.Supp. 468, 470-71 (D.Haw.1965) (internal citation omitted), vacated by Burns, 384 U.S. 73, 86 S.Ct. 1286. Likewise, at the 1968 Hawaii Constitutional Convention when implementing apportionment provisions in the Hawaii Constitution, committee members incorporated the concept that:

(1) Islands or groups of islands in Hawaii have been separate and distinct fundamental units since their first settlement by human beings in antiquity.... The first constitution of the nation of Hawaii granted by King Kamehameha III in 1840, provided that there would be four governors “over these Hawaiian Islands — one for Hawaii — one for Maui and the islands adjacent — one for Oahu, and one for Kauai and the adjacent islands.” ... Thereafter in every constitution of the nation, the territory and the state, the island units have been recognized as separate political entities. (2) ... Each of the islands has had its unique geographic, topographic and climatic conditions which have produced strikingly different patterns of economic progress and occupational pursuits. Thus each unit of government has its own peculiar needs and priorities which in some instances may be quite different from any other county.

Doc. No. 65-13, Defs.’ Ex. K at 26-27, Standing Comm. Rpt. at 261-62. See also Doc. No. 66-14, Defs.’ Ex. KK, McGregor Decl. ¶¶ 5-11 (explaining that each basic island unit’s history indicates each was a separate society or community with unique identities and indicating that by the year 1700 each unit was a separate kingdom).

Besides considering the long history of the basic island units in addressing apportionment, Hawaii’s 1968 Constitutional Convention also considered the effect of Hawaii’s centralized state government, which performs many functions that other states have delegated to local government units. The Convention’s apportionment committee explained:

In every other state in the union there are numerous minor governmental units — towns, cities, school districts, sewer districts and the like — which exercise power and in which the people may obtain local representation for local matters. Hawaii has none of these. Although Hawaii has major political units called counties, these units have substantially less power and authority over local affairs than in most other states. The result is that Hawaii’s legislature deals exclusively with, or at least effectively controls, many matters which are normally considered typically local government services.

Doc. No. 65-13, Defs.’ Ex. K at 27, Standing Comm. Rpt. at 262. The committee gave examples of centralized services such as (1) public education; (2) highways, harbors, and airports; (3) administration and collection of taxes; (4) health and welfare activities; (5) the judicial system; (6) land use districts; (7) fishing, forestry, minerals, agriculture, and land; and (8) labor and industrial relations. Id. These examples of state-wide control largely still exist today.

The committee’s conclusion was “obvious and inescapable: if a voter of the State of Hawaii is to have meaningful representation in any kind of government, he must have effective representation from his own island unit in the state legislature.” Id. at 28, Standing Comm. Rpt. at 263.

4. The Hawaii Constitution

Crafted to protect basic island unit autonomy, the present-day Hawaii Constitution requires that the population be apportioned on the basis of permanent residents. It also requires that “[n]o district shall extend beyond the boundaries of any basic island unit.” Haw. Const, art. IV, § 6. This second requirement is often described as a policy of avoiding “canoe districts,” a term that describes legislative districts spanning two basic island units (Counties) separated by ocean. See Doc. No. 65-24, Defs.’ Ex. V, Masumoto Deck ¶ 3.

Specifically, the Hawaii Constitution provides:

The commission shall allocate the total number of members of each house of the state legislature being reapportioned among the four basic island units, namely: (1) the island of Hawaii, (2) the islands of Maui, Lanai, Molokai and Kahoolawe, (3) the island of Oahu and all other islands not specifically enumerated, and (4) the islands of Kauai and Niihau, using the total number of permanent residents in each of the basic island units....

Haw. Const, art. IV, § 4 (emphasis added). After such allocation, the Commission is then required to apportion members of the Hawaii Legislature within those basic island units as follows:

Upon the determination of the total number of members of each house of the state legislature to which each basic island unit is entitled, the commission shall apportion the members among the districts therein and shall redraw district lines where necessary in such manner that for each house the average number of permanent residents per member in each district is as nearly equal to the average for the basic island unit as practicable.

In effecting such redistricting, the commission shall be guided by the following criteria:

1. No district shall extend beyond the boundaries of any basic island unit.

2. No district shall be so drawn as to unduly favor a person or political faction.

3. Except in the case of districts encompassing more than one island, districts shall be contiguous.

4. Insofar as practicable, districts shall be compact.

5. Where possible, district lines shall follow permanent and easily recognized features, such as streets, streams and clear geographical features, and, when practicable, shall coincide with census tract boundaries.

6. Where practicable, representative districts shall be wholly included within senatorial districts.

7. Not more than four members shall be elected from any district.

8. Where practicable, submergence of an area in a larger district wherein substantially different socioeconomic interests predominate shall be avoided.

Haw. Const, art. IV, § 6 (emphasis added).

The basic island units correspond to Hawaii’s Counties: Hawaii County Hawaii Island); Kauai County (the islands of Kauai and Niihau); Maui County (the islands of Maui, Molokai, Kahoolawe, and Lanai); and the City and County of Honolulu (the island of Oahu). See Appendix B. Hawaii’s Constitution provides for a bicameral Legislature consisting of 25 senators and 51 representatives. Haw. Const, art. Ill, §§ 1-3.

The Hawaii Constitution’s apportionment provisions have stood since 1992, when Hawaii voters approved a constitutional amendment substituting as the relevant apportionment population base for Hawaii’s legislative districts the phrase “the total number of permanent residents” in place of “on the basis of the number of voters registered in the last preceding general election” in Article IV, § 4. See 1992 Haw. Sess. L. 1030-31 (H.B. No. 2327); Solomon, 270 P.3d at 1014-15.

Prior applications of a “registered voter” population base were the subject of litigation and, as analyzed further in this Opinion, ultimately entail many of the same fundamental questions that arise in this action. See, e.g., Burns, 384 U.S. at 97, 86 S.Ct. 1286 (upholding a Hawaii apportionment plan based on registered voters that approximated a plan based on population); Travis v. King, 552 F.Supp. 554, 572 (D.Haw.1982) (three judge court) (striking down a Hawaii apportionment plan based on registered voters, primarily because of insufficient justifications for wide disparities in allocation). Indeed, the 1991 Reapportionment Commission utilized a population base of “permanent residents” (extracting — similar to the present action — 114,000 non-resident military members and their families), despite the Hawaii Constitution’s (pre-1992 amendment) provision to use “the number of voters registered in the last preceding general election” as the base. This approach was apparently adopted at least in part because of equal protection concerns. See Doc. No. 65-9, Defs.’ Ex. G at 4r-7, State of Hawaii 1991 Reapportionment Comm’n, Final Report and Reapportionment Plan at 21-24; Solomon, 270 P.3d at 1014-15.

Likewise, the 2001 reapportionment, to which we now turn, extracted nonresident military personnel, their dependents, and non-resident college students as “non-permanent” residents. Solomon, 270 P.3d at 1016-20.

B. Steps Leading to the 2012 Reapportionment Plan

1. The August 2011 Plan

The Commission was certified on April 29, 2011, and promptly began the 2011 reapportionment process. The Hawaii Supreme Court in Solomon describes in exacting detail the process the Commission took in formulating initial and revised apportionment plans. Solomon’s description is consistent with the record before this court, and we thus draw extensively from Solomon here:

The Commission, at its initial organizational meetings, adopted “Standards and Criteria” that it would follow for the 2011 reapportionment of the congressional and state legislative districts. The “Standards and Criteria” for the state legislative districts stated:

Standards and criteria that shall be followed:

The population base used shall be the “permanent resident” population of the State of Hawaii. The permanent resident population is the total population of the State of Hawaii as shown in the last U.S. census less the following: non-resident students and non-resident military sponsors.

At meetings on May 11 and 24, 2011, the Commission was briefed on Hawaii’s population growth since the 2001 reapportionment, the history of Hawaii’s reapportionment, and the constitutional and statutory provisions governing reapportionment. It was provided with data from the 2010 Census showing a 12% increase in the state’s total population consisting of increases of 24% in Hawaii County, 21% in Maui County, 15% in Kauai County, and 9% in Oahu County. It was informed of article IV, section 4 and 6’s permanent resident basis for apportioning the state legislature and informed — by counsel to the 2001 Reapportionment Commission — that the 2001 Commission computed the permanent residence base by excluding nonresident military personnel and their dependents, and nonresident college students. It was informed by Commission staff that data on Hawaii’s nonresident military population had been requested from the Defense Manpower Data Center (DMDC) through the U.S. Pacific Command (USPACOM) and that Hawaii’s nonresident student population would.be identified by their local addresses and assigned to specific census blocks. The Commission, at the conclusion of the May meetings, solicited advice from the apportionment advisory councils as to whether nonresident military and nonresident students should be excluded from the permanent resident base.

270 P.3d at 1016 (internal footnote omitted).

The data obtained in May and June 2011 from the military on Hawaii’s nonresident military population were apparently deemed insufficient. “The Commission, at its June 28, 2011, meeting, voted 8-1 to apportion the state legislature by using the 2010 Census count — without exclusion of nonresident military and dependents and nonresident students- — as the permanent resident base.” Id. at 1017.

The Commission staff explained:

The non-permanent resident extraction model used in 1991 and 2001 [reapportionments] relied on receiving location specific (address or Zip Code) residence information for the specific non-permanent residents to be extracted.

In 2011, the data received from DMDC does not provide residence information for military sponsors nor does it provide specific breakdowns of permanent and non-permanent residents by location. This lack of specific data from DMDC does not allow the model used previously to be used at this time.

Id. at 1018 (brackets in original).

Because of the gaps in the DMDC data, the Commission’s August 3, 2011 apportionment plan (“August 3, 2011 Plan”) was based on 2010 Census figures without any extractions. Stip. Facts ¶27. The Chair of the Commission explained that this August 3, 2011 Plan was “preliminarily accepted for the purpose of public hearings and comment,” because of the impending September 26, 2011 statutory deadline for a final plan and the statutory requirement of conducting public hearings. Doc. No. 65-18, Defs.’ Ex. P, Marks Decl. ¶ 7.

2. The September 26, 2011 Plan

Further proceedings followed the Commission’s initial decision to use the 2010 Census figures without extractions. The Commission was provided with additional data from military sources on Hawaii’s “non-permanent military resident population and from Hawaii universities on non-permanent student resident population.” Solomon, 270 P.3d at 1017.

Commission staff thereafter developed its own “model” for the “extraction of non-permanent residents” for the 2011 reapportionment. Commission staff operated on the premise that non-permanent residents — active duty military who declare Hawaii not to be their home state and their dependents, and out-of-state university students — were to be identified according to the specific location of their residences within each of the four counties. Because the 2010 Census data and the university data did not include the residence addresses for all of the non-permanent active duty military residents and their dependents and the out-of-state university students, Commission staff identified three groups of non-permanent residents: Extraction A, Extraction B, and Extraction C. The groups were based on the level of “certainty in determining [the residents’] non-permanency and location.” Extraction A were residents whose specific locations were certain and included out-of-state university students with known addresses and active duty military, with “fairly certain non-permanent status,” living in military barracks. Extraction B included all residents in Extraction A, plus active duty military and their dependents, with “less certain non-permanent status,” living in on-base military housing. Extraction C included all residents in Extraction A and Extraction B, plus out-of-state university students with addresses identified only by zip code.

Id. at 1018 (brackets in original). The Commission staffs “Extraction A” listed 16,458 active duty military, their dependents, and out-of-state university students (mostly on Oahu); its “Extraction B” listed 73,552; and its “Extraction C” listed 79,-821. Id. Additionally, an “August 17, 2011 ‘Staff Summary’ show[ed] a state population of 47,082 non-permanent active duty military residents, 58,949 military dependents, and 15,463 out-of-state university students” totaling 121,494 “nonpermanent” residents. Id. at 1019.

The Commission held a September 13, 2011 public hearing in Hilo, Hawaii. It received testimony from State Senator Malama Solomon (“Solomon”) and three members of the Hawaii County Democratic Committee, advocating extraction of the 121,494 “non-permanent” residents from the apportionment population base. Such an extraction would increase Hawaii County’s Senate seats from three to four. Id. Hawaii Governor Neil Abercrombie also supported that extraction, indicating that based upon the State Attorney General’s preliminary view, “counting nonresidents is not warranted in law.” Id.

On September 19, 2011, after much debate, “[t]he Commission adopted a final reapportionment plan that computed the permanent resident base by excluding 16,-458 active duty military and out-of-state university students from the 2010 census population of 1,330,301.” Id. at 1020; Stip. Facts ¶ 32. That is, it chose “Extraction A,” primarily because of the certainty of that data. The resulting apportionment allocated “as to the senate, 18 seats to Oahu County, 3 seats for Hawaii County, 3 seats for Maui County, and 1 seat for Kauai County.” Solomon, 270 P.3d at 1020. The Commission filed this plan on September 26, 2011 (“the September 26, 2011 Plan”). Id.; Stip. Facts ¶ 32.

3. Challenges to the September 26, 2011 Plan: Solomon v. Abercrombie; and Matsukawa v. State of Hawaii 2011 Reapportionment Commission

On October 10, 2011, Solomon and the three members of the Hawaii County Democratic Committee filed a petition in the Hawaii Supreme Court, challenging the September 26, 2011 Plan. Solomon, 270 P.3d at 1020. The next day, Hawaii County resident Michael Matsukawa filed a similar petition in the Hawaii Supreme Court. Id.; Stip. Facts ¶ 33. Among other claims, these petitions asserted that the Commission violated the Hawaii Constitution’s requirement to base a reapportionment on “permanent residents” by failing to extract all nonresident military, their dependents, and non-resident students. Solomon, 270 P.3d at 1020. Solomon’s petition asserted that the Commission knew that extracting only 16,000 non-residents would not trigger the loss of an Oahu-based Senate seat, and that “the fear of Oahu’s loss of this senate seat was the driving force” for the extraction. Id. They sought an order requiring the Commission to prepare and file a new reapportionment plan for the State legislature that uses a population base limited to “permanent residents” of the State of Hawaii. Stip. Facts ¶ 33.

On January 4, 2012, the Hawaii Su.preme Court issued orders in the Solomon and Matsukawa proceedings that invalidated the September 26, 2011 Plan as having disregarded Article IV, § 4 of the Hawaii Constitution. The Hawaii Supreme Court, among other things, ordered the Commission to prepare and file a new reapportionment plan allocating members of the State legislature among the basic island units using a permanent resident population base. Id. ¶ 34. On January 6, 2012, the Hawaii Supreme Court issued an opinion covering both the Solomon and Matsukawa proceedings. Id. ¶ 35.

As for the requirement in Article TV, §§ 4 and 6, for the Commission to apportion the State legislature by using a “permanent resident” base, the opinion held that the requirement “mandate[s] that only residents having their domiciliary in the State of Hawaii may be counted in the population base for the purpose of reapportioning legislative districts.” Solomon, 270 P.3d at 1022 (quoting Citizens for Equitable & Responsible Gov’t v. Cnty. of Hawaii, 108 Hawaii 318, 120 P.3d 217, 221 (2005)). To determine “the total number of permanent residents in the state and in each county,” the Commission was required “to extract non-permanent military residents and non-permanent university student residents from the state’s and the counties’ 2010 Census population.” Id. It directed that,

[i]n preparing a new plan, the Commission must first — pursuant to article IV, section 4 — determine the total number of permanent residents in the state and in each county and use those numbers to allocate the 25 members of the senate and 51 members of the house of representatives among the four counties. Upon such allocation, the Commission must then — pursuant to article IV, section 6 — apportion the senate and house members among nearly equal numbers of permanent residents within each of the four counties.

Id. at 1024. It appears that the parties did not raise, and the Hawaii Supreme Court did not address, equal protection concerns.

4. The 2012 Reapportionment Plan

Soon after Solomon was issued, the Commission commenced a series of public meetings and obtained additional information regarding military personnel, their family members, and university students. The Commission eventually extracted 42,-332 active duty military personnel, 53,115 military dependents, and 13,320 students from the 2010 Census population of “usual residents.” Stip. Facts ¶¶ 8, 10, 14, 36. This extraction totaled 108,767 persons, resulting in an adjusted reapportionment population base of 1,251,534. Id. ¶ 37.

Active duty military included in the 2010 Census were extracted if they “declared a state other than Hawaii as their home state for income tax purposes.” Doc. No. 28-12, Pis.’ Ex. D at 8. That is, they were extracted “based on military records or data denoting the personnel’s state of legal residence.” Stip. Facts ¶ 8.

The extracted military family members were identified by associating them with their active duty military sponsor. In other words, the Commission extracted military dependents who were associated with or attached to an active duty military person who had declared a state of legal residence other than Hawaii. Id. ¶ 10. The military did not provide the Commission with any data regarding the military dependents’ permanent or non-permanent residency other than their association or attachment to an active duty military sponsor who had declared a state of residence other than Hawaii. Id. ¶ 12.

The students were extracted solely on the basis of (a) payment of nonresident tuition or (b) a home address outside of Hawaii. Id. ¶¶ 14, 18-19. The students were from the University of Hawaii System, Hawaii Pacific University, Chaminade University, and Brigham Young University Hawaii. Id. ¶ 15.

After extraction, the Commission reapportioned the adjusted population base of 1,251,534 “permanent residents” by dividing the base by the constitutionally-defined 25 Senate seats and 51 House seats. Id. ¶ 37. This resulted in an ideal Senate district of 50,061 permanent residents, and an ideal House district of 24,540 permanent residents. Id. The Commission then reapportioned within the four basic island units as set forth in Article IV, § 6 of the Hawaii Constitution, and as guided by the criteria set forth in that provision.

As for the Senate districts, under the 2012 Reapportionment Plan: (a) the largest Senate district (Senate district 8, Kauai basic island unit) contains 66,805 permanent residents, which is 16,744 (or 33.44 percent) higher than the ideal Senate district of 50,061 permanent residents; and (b) the smallest Senate district (Senate district 1, Hawaii basic island unit) contains 44,666 permanent residents, which is 5,395 fewer (or 10.78 percent less) than the ideal. Id. ¶ 38. Thus, the maximum deviation for the Senate districts is 44.22 percent. The 2012 Reapportionment Plan resulted in one Senate seat moving from the Oahu basic island unit to the Hawaii basic island unit. Id. ¶ 40.

As for House districts: (a) the largest House district (House district 5, Hawaii basic island unit) contains 27,129 permanent residents, which is 2,589 (or 10.55 percent) higher than the ideal House district of 24,540 permanent residents; (b) the smallest House district (House district 15, Kauai basic island unit) contains 21,835 permanent residents, which is 2,705 fewer (or 11.02 percent less) than the ideal. Id. ¶ 39. The maximum deviation for the House districts is 21.57 percent.

As explained more fully when we address Kostick’s malapportionment claim, the extent of the deviations is driven primarily by the Commission’s decision to continue to avoid canoe districts. See Doc. No. 65-22, Defs.’ Ex. T at 32, 2012 Reapportionment Plan at 21. Canoe districts were eliminated in the 2001 reapportionment, after being imposed in 1982 when a three judge court found a 1981 reapportionment plan to be unconstitutional and ordered use of an interim plan that utilized canoe districts. See Doc. No. 65-4, Defs.’ Ex. C — 1 (April 27, 1982 Final Report and Recommendations of Special Masters in Travis v. King). The 2001 Reapportionment Commission eliminated canoe districts, concluding after experience and public input that such districts were ineffective. See, e.g., Doc. No. 65-15, Defs.’ Ex. M at 11, 2001 Reapportionment Plan at 25; id. at 14, 2001 Reapportionment Plan at A-209.

The 2012 Reapportionment Plan was adopted and filed on March 8, 2012, with notice published on March 22, 2012. Stip. Facts ¶ 36.

C. Procedural History

This action was filed on April 6, 2012. The Complaint requested a three-judge district court pursuant to 28 U.S.C. § 2284. On April 10, 2012, Judge J. Michael Seabright granted the request for a three-judge district court, determining that the constitutional claims were “not insubstantial,” as necessary to convene such a court. See, e.g., Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973). On April 17, 2012, the Chief Judge of the Ninth Circuit Court of Appeals appointed the present panel, Ninth Circuit Judge M. Margaret McKeown, and District Judges J. Michael Seabright and Leslie E. Kobayashi.

Kostick filed a Motion for Preliminary Injunction on April 23, 2012, which we heard on May 18, 2012, and denied on May 22, 2012. See Doc. No. 52 (Kostick, 878 F.Supp.2d 1124). The cross motions for summary judgment were filed on October 1, 2012. Doc. Nos. 64, 67. Oppositions were filed on October 29, 2012, Doc. Nos. 72, 74, and corresponding Replies were filed on November 19, 2012, Doc. Nos. 76, 77. The court heard oral argument from the parties on January 14, 2013.

III. STANDARD OF REVIEW

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a). Rule 56(a) mandates summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir.1999).

As noted earlier, the relevant historical facts are undisputed: “Where a case turns on a mixed question of law and fact and, as here, the only disputes relate to the legal significance of undisputed facts, ‘the controversy collapses into a question of law suitable to disposition on summary judgment.’ ” Blue Lake Rancheria v. United States, 653 F.3d 1112, 1115 (9th Cir.2011) (quoting Thrifty Oil Co. v. Bank of Am. Nat’l Trust & Sav. Ass’n, 322 F.3d 1039, 1046 (9th Cir.2003)).

IV. DISCUSSION

Kostick makes a bifurcated equal protection challenge to Hawaii’s reapportionment plan. He first protests the extraction of non-resident military personnel, their dependents, and non-resident students. He argues that using a population base that does not include the extracted individuals violates equal protection. Next, even if such an extraction is allowed, Kostick claims that deviations in the 2012 Reapportionment Plan exceed constitutional limits.

Before turning to these claims, we address the threshold issue of standing. The Commission argues that Plaintiffs lack standing to assert either claim because they have suffered no injury. It is enough, for justiciability purposes, that at least one party with standing is present. See Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 330, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999).

With regard to Count One, the result of the challenged extraction of military and other residents was the loss of an Oahu Senate seat. Stip. Facts ¶ 40. All Plaintiffs were “usual residents” of Oahu with a military connection (aside from Walden). FAC ¶¶ 1-8; Doc. No. 38-4, Gayagas Decl. ¶ 5. Some of those with military connections, such as Jennifer Laster, were or may have been “extracted” from the reapportionment base despite being permanent residents of Hawaii. Because these individuals have suffered the injury of losing a representative, Plaintiffs have standing to bring Count One.

With regard to Count Two, the Commission argues that Plaintiffs lack standing to challenge the apportionment deviations because no Plaintiff resides on Kauai, the island that is most under-represented in the State Senate. See Doc. No. 72 at 19, Defs.’ Opp’n at 12. Id. What the Commission overlooks is that three of the Plaintiffs—Kostick, Walden, and Veray— do live in underrepresented districts, albeit not on Kauai. They have standing to challenge the Commission’s apportionment plan, which disadvantages them compared to residents of over-represented districts. Although the decisions cited by the Commission support the proposition that residents of overrepresented districts cannot challenge reapportionment plans, the same logic does not support the Commission’s argument that residents of an underrepresented district cannot challenge a reapportionment plan as a whole. See Fairley v. Patterson, 493 F.2d 598, 603-04 (5th Cir.1974) (holding that an intervenor from an underrepresented district “had standing to attack the original malapportioned districts,” including two others in which he did not reside) (emphasis added).

A. Count One (Equal Protection Challenge: Population Basis)

Count One centers on Hawaii’s apportionment of its population on a permanent resident basis, extracting non-resident military, their dependents, and non-resident students. At the preliminary injunction stage, we found that Kostick was unlikely to succeed on the merits of this issue. Kostick proffers very little new evidence in support of his position on summary judgment, and the facts are not in dispute.

We conclude that Hawaii’s choice of a permanent resident population base is constitutionally permissible. There is no evidence that Hawaii discriminated unreasonably among non-resident groups; rather, the State extracted all nonpermanent populations that exist in sufficient numbers to affect the apportionment of districts and about which it could obtain relevant, reliable data. Neither is there evidence that Hawaii’s method of extraction was irrational. The Commission reasonably relied upon available statistics. Nothing suggests that the methods resulted in the exclusion of permanent residents from the population basis in numbers sufficient to affect legislative apportionment.

1. Standard Governing Choice of Population Basis

The Supreme Court has emphasized that “ ‘the Equal Protection [Clause’s requirement] that the seats in both houses of a bicameral state legislature must be apportioned on a population basis’ ... requires only ‘that a State make an honest and good faith effort to construct districts ... as nearly of equal population as is practicable,’ for ‘it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters’ ” Brown v. Thomson, 462 U.S. 835, 842, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983) (quoting Reynolds v. Sims, 377 U.S. 533, 568, 577, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)) (emphasis added). By recognizing the alternative population bases of “residents, or citizens, or voters,” id., the Court contemplated that a state’s redistricting efforts would entail not only the line-drawing necessary to create districts, but also the choice of how to define the population.

Kostick’s argument that the governing standard is “close constitutional scrutiny,” requiring a “substantial and compelling reason” for extracting segments of the total population, finds no support in precedent. Doc. No. 74 at 9-10, Pis.’ Opp’n at 1-2. He draws this requirement from Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). The Dunn decision, however, is inapposite because it considered a challenge not to state reapportionment, but to a state’s durational residency requirement for the right to vote. Similar voting rights cases upon which Kostick relies are likewise inapt. See, e.g., Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970) (applying close constitutional scrutiny to Maryland’s denial of voting rights to residents of a National Institutes of Health enclave).

The Supreme Court applies this higher standard to cases alleging infringement of the fundamental right to vote, in contrast to equal representation or equal voting power challenges in the context of reapportionment. In practice, the standard for this latter category approximates rational-basis review. See Brown, 462 U.S. at 844, 103 S.Ct. 2690 (upholding a Wyoming reapportionment plan because it resulted from “the consistent and nondiscriminatory application of a legitimate state policy”) (emphasis added). We invoke the Brown standard here.

2. Use of Permanent Resident Population Base

In considering Kostick’s claim, we have the benefit of longstanding Supreme Court precedent, including the 1966 decision stemming from Hawaii’s earlier apportionment plan — Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966). Just two years earlier, in Reynolds v. Sims, the Court decided a seminal case on the “right of a citizen to equal representation.” 377 U.S. at 576, 84 S.Ct. 1362. The Reynolds decision reasoned that under the Equal Protection Clause, “an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.” Id. at 568, 84 S.Ct. 1362. The Court accordingly held that “the seats in both houses of a bicameral state legislature must be apportioned on a population basis,” id., but “carefully left open the question what population was being referred to.” Burns, 384 U.S. at 91, 86 S.Ct. 1286.

This question did not remain unaddressed for long. In Burns, the Court considered whether it was permissible for Hawaii to use registered voters rather than a broader population as the basis for districting. In discussing Reynolds, the Court “start[ed] with the proposition that the Equal Protection Clause does not require the States to use total population figures derived from the federal census as the standard by which ... substantial population equivalency is to be measured.” Id.

The Burns decision explained what constitutes a “permissible population basis.” Id. at 91-93, 86 S.Ct. 1286. One such permissible population basis, discussed in Reynolds, was the total population. Had Bums left the matter there, Kostick might have a different case. However, in Bums the Court went on to acknowledge the power of states to “[ex]clude aliens, transients, short-term or temporary residents” from “the apportionment base,” noting that “[t]he decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.” Id. at 92, 86 S.Ct. 1286.

Although Hawaii earlier chose to use the registered voter base, the Court foreshadowed Hawaii’s later decision to shift to a permanent resident base: “Hawaii’s special population problems might well have led it to conclude that state citizen population rather than total population should be the basis for comparison.” Id. at 94, 86 S.Ct. 1286. The Court went on to quote the district court’s finding that “[i]f total population were to be the only acceptable criterion upon which legislative representation could be based, in Hawaii, grossly absurd and disastrous results would flow.” Id. Such results derived from Hawaii’s “large numbers of the military” as well as “tourists” — both of which “tend to be highly concentrated on Oahu and, indeed, are largely confined to particular regions of that island.” Id. Accordingly, “[t]otal population figures may thus constitute a substantially distorted reflection of the distribution of state citizenry.” Id. The Court concluded that “[i]t is enough if it appears that the distribution of registered voters approximates distribution of state citizens or another permissible population base.” Id. at 95, 86 S.Ct. 1286. In short, the Court specifically sanctioned the use of an “approximate[ ] distribution of state citizens” as a “permissible population base.” Id.

Kostick argues that the 2012 Reapportionment Plan is not sanctioned by Bums because it does not identify the “permissible population base” that the “permanent residents” standard approximates, and, even if “state citizens” is the permissible comparable basis, it is not a substantial duplicate of a plan constructed on that basis. Doc. No. 67 at 38, Pis.’ Mot. at 27. Neither of these arguments is persuasive.

Because Bums recognizes Hawaii’s prerogative to exclude the temporary populations of non-resident servicemembers, their dependents, and non-resident students from the definition of “permanent residents,” Hawaii’s definition of “permanent residents” constitutes “state citizens” by another name. The State need not demonstrate that its plan under the “permanent residents” standard is a duplicate of a plan made on another permissible basis. Bums explicitly benchmarked the registered voter population basis against a “state citizen population,” which was extrapolated by effectively deducting the “military population of Oahu” from the “total population.” Burns, 384 U.S. at 95, 86 S.Ct. 1286. The plan before us does the same thing, but in a manner more finely tuned than the plan considered in Bums— it does not deduct the entire “military population” but only non-resident military personnel and dependents, as well as nonresident students, to approximate the permanent resident base.

Kostick argues that “state citizen” is defined under the Fourteenth Amendment as ordinary residents of a state, which Kostick contends includes military and excludes aliens — the opposite of the 2012 Reapportionment Plan. Doc. No. 74 at 31-32, Pis.’ Opp’n at 23-24; see U.S. Const, amend. XIV (providing that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction therefore, are citizens of the United States and of the State wherein they reside ”) (emphasis added). Nowhere in Bums, however, did the Court suggest that the “state citizen population” it considered a permissible basis for apportionment was that defined by Kostick’s interpretation of the Fourteenth Amendment. To the contrary, when Bums approved of “state citizenry” as a permissible population base, it understood that the term could exclude the military stationed in Hawaii. Burns, 384 U.S. at 94, 86 S.Ct. 1286.

The Ninth Circuit’s decision in Garza further confirms that a state need not apportion on the basis of total population. Kostick characterizes Garza as “holding that if there is a conflict between voting equality and representational equality, the latter prevails.” Doc. No. 74 at 21, Pis.’ Opp’n at 13. Although the court noted and discussed the tension between these two principles, the decision upholding a judicially-imposed plan for Los Angeles County based on Census population did not mandate use of total population in all circumstances. Notably, the court stated that while Bums permitted states to consider the distribution of the voting population as well as that of total population, “[i]t does not, however, require states to do so.” Garza, 918 F.2d at 774; see also Daly v. Hunt, 93 F.3d 1212, 1225 (4th Cir.1996) (explaining that “[t]he more important lesson that may be gleaned from Bums is that courts should generally defer to the state to choose its own apportionment base, provided that such method yields acceptable results”). In Garza, California law expressly required Los Angeles County to redistrict on the basis of total population. Garza, 918 F.2d at 774 (citing California Elections Code § 35000). By contrast, as discussed above, the Hawaii Constitution, as interpreted by the Hawaii Supreme Court, requires use of a “permanent resident” population basis rather than total population.

3. Discrimination Among Non-Resident Groups

To be sure, if Hawaii’s exclusion was carried out with an eye to invidiously targeting only certain non-resident groups, it would raise serious constitutional concerns. See Carrington v. Rash, 380 U.S. 89, 95, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) (holding that discrimination against the military in provision of the right to vote is unconstitutional); Burns, 384 U.S. at 95 & n. 25, 86 S.Ct. 1286 (suggesting that Carrington required equal treatment of the military for the purpose of reapportionment). Kostick, however, provides no evidence that Hawaii’s exclusion of non-resident servicemembers, their dependents, and non-resident students was carried out with any aim other than to create a population basis that reflects Hawaii’s permanent residents. Notably, the Hawaii Supreme Court’s decision that prompted the current plan faulted the Commission, not for failing to exclude specific groups in the redistricting effort, but for failing to exclude all “non-permanent residents” for which the State had data. Solomon, 270 P.3d at 1021.

The Commission’s reapportionment efforts over the years reflect its general concern with excluding non-permanent residents from the population basis, rather than with invidiously targeting certain groups. For example, in 1991, the Commission initially excluded minors as well as the military and their dependents. Doc. No. 34-20, Defs.’ Ex. 30 at 3, 1991 State of Hawaii Reapportionment Comm’n, Final Report and Reapportionment Plan at 21. The Commission also sought to exclude aliens, but was informed that no data was available to do so. Id. at 22. The Commission noted at that time that “[o]ther groups, such as nonresident students, are statistically insignificant and cannot be easily placed in specific census blocks. The Commission, therefore, decided to eliminate those transients which could be identified to a particular census block and which constituted the vast majority of transients included in the census counts: nonresident military.” Id. at 23.

Since the efforts of the 1991 Commission, the State has diligently considered how and whether other non-permanent resident groups could be removed from the population base. Subsequent commissions have considered excluding aliens, but have been unable to do so because of lack of data. See Doe. No. 34-21, Defs.’ Ex. 30 at 22, 2001 State of Hawaii Reapportionment Comm’n Reapportionment Plan at A-226; Doc. No. 33-5, Rosenbrock Deck ¶ 15 (discussing 2011 Commission). Although data regarding aliens was in short supply, the Commission in 2011 conscientiously renewed contacts with university officials and successfully obtained data to exclude non-resident students. Doc. No. 33-6, Marks Deck ¶¶ 18, 20.

Kostick nonetheless criticizes the fact that the State extracted military personnel, their dependents and students, but not illegal aliens, minors, federal workers, and prisoners, institutionalized persons, and even the unemployed. Doc. No. 74 at 11-12, Pis.’ Opp’n at 3-4. Several of these comparator groups are not relevant: Kostick does not seriously suggest that minors, the unemployed, and prisoners are not generally Hawaii residents who lack the “present intention of establishing [their] permanent dwelling place” in Hawaii. HRS § 11-13(2) (2012). The Commission tried — but was unable — to get information regarding aliens, as discussed above. Doc. No. 65-18, Defs.’ Ex. P, Marks Deck ¶ 4; see also Doc. No. 65-16, Defs.’ Ex. N, Rosenbrock Deck ¶8, 15 (noting the Commission’s understanding that prior efforts had shown that “reliable information that identified the number or census block location of aliens in Hawaii” was lacking). Kostick’s passing argument with reference to federal workers is unavailing: he presents no evidence as to the number of federal workers in Hawaii, nor does he seriously contend that the vast majority of these workers are anything but bona fide State residents. The record provides no indication that these aliens, minors, or incarcerated populations are concentrated in areas of the State in such a way as to affect the apportionment of districts.

To summarize, the 2012 Reapportionment Plan resulted from a careful and comprehensive process free from any taint of arbitrariness or invidious discrimination against minority groups or the military. And the record is likewise clear that the Commission faced a mathematical reality — the inclusion or exclusion of non-permanent military and military dependents causes an equal imbalance in either representational equality or electoral equality.

Over and over, the Supreme Court has explained that reapportionment involves fundamental choices about the nature of representation, where states have discretion (absent discrimination) to exercise political judgment to balance competing interests. See, e.g., Gaffney v. Cummings, 412 U.S. 735, 749, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973); Karcher v. Daggett, 462 U.S. 725, 740, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983); Brown, 462 U.S. at 847-48, 103 S.Ct. 2690; Miller v. Johnson, 515 U.S. 900, 915, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995); Perry, 132 S.Ct. at 941; and Tennant v. Jefferson Cnty. Comm’n, — U.S.-, 133 S.Ct. 3, 5, 183 L.Ed.2d 660 (2012). Given the record presented to us, we simply have “no constitutionally founded reason to interfere.” Burns, 384 U.