Arakaki

Opinion by Judge TASHIMA; Concurrence by Judge WALLACE.

OPINION

Defendants-Appellants, State of Hawaii, Benjamin J. Cayetano, in his official capacity as Governor of the State of Hawaii, and Dwayne D. Yoshina, in his official capacity as Chief Elections Officer of the State of Hawaii (collectively “Hawaii” or the “State”), appeal the district court’s grant of summary judgment to Plaintiffs-Appel-lees, Earl F. Arakaki and twelve other individuals (collectively “Arakaki”), holding that the State’s constitutional and statutory requirements that the trustees of the Office of Hawaiian Affairs (“OHA”) be “Hawaiian” are invalid under the Equal Protection Clause of the Fourteenth Amendment, the Fifteenth Amendment, and the Voting Rights Act. 1 We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm in part and vacate in part.

I. BACKGROUND

At the time of its admission as the 50th State of the Union, in 1959, Congress granted Hawaii “title to all the public lands and other public property within the boundaries of the State of Hawaii” that had been held by the United States, including the “available lands” set out in the Hawaiian Homes Commission Act (“HHCA”). 2 See Hawaii…

concurring:

Though a constitutional violation is sufficient to show a Voting Rights Act violation, a statute can violate the Act without violating the Constitution. Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 482 , 117 S.Ct. 1491 , 137 L.Ed.2d 730 (1997) (“Because the Constitution requires a showing of intent that § 2 does not, a violation of § 2 is no longer a fortiori a violation of the Constitution.”); Chisom v. Roemer, 501 U.S. 380, 390-91 , 111 S.Ct. 2354 , 115 L.Ed.2d 348 (1991) (recounting the history of section 2). By ruling on the Fifteenth Amendment issue, the majority goes farther than it needs to resolve the dispute before us. I therefore cannot join the majority’s otherwise sound opinion.

Admittedly, Rice v. Cayetano, 528 U.S. 495 , 120 S.Ct. 1044 , 145 L.Ed.2d 1007 (2000), aids the Court’s statutory analysis by holding that OHA is an arm of the state, id. at 520 , 120 S.Ct. 1044 , trustee elections are elections of the state, id. at 521-22 , 120 S.Ct. 1044 , and the Hawaiian ancestry requirement is race-based. Id. at 520-21 , 120 S.Ct. 1044 . However, these holdings of Rice do not depend on the ultimate Fifteenth Amendment analysis, but instead on the Court’s…