Honolulu attorney Robert Thomas (InverseCondemnation.com) took a look at the election law issues at play in any attempt to get a court to force a delay in the Puna primary now set for Friday (“Issues To Watch In The Promised Lawsuit Challenging Hurricane Primary“).
As always, his commentary is useful for understanding the issues at play.
First, he explains, it really isn’t clear whether the Supreme Court would have jurisdiction in such a case.
At first blush, this statute (section 11-172) appears to give the Supreme Court jurisdiction over the issue, but on deeper examination, we’re not entirely sure. Yes, the text begins with a seemingly broad grant of jurisdiction (“With respect to any election …”), but the remainder of the statute contemplates cases where a plaintiff is challenging the result of the election, and is not trying to stop it before it is held.
And if the court did take the case, what standards would it apply in order to determine whether the election was proper?
Thomas points to the Hawaii Supreme Court’s 2008 decision in the case of Tataii v. Cronin.
In that case, the court found:
[T]he [plaintiff] must show that he or she has actual information of mistakes or errors sufficient to change the result. ? The [plaintiff] has the burden of demonstrating that the specific acts and conduct of which [he or she] complain[s] would have had the effect of changing the results. ? In the absence of facts showing that irregularities exceed the reported margin between the candidates, the complaint is legally insufficient because, even if its truth were assumed, the result of the election would not be affected.
?
It is not sufficient that the [plaintiff] points to a poorly run and inadequately supervised election process that evinces room for abuse or possibilities of fraud. ? An election contest cannot be based upon mere belief or indefinite information?
Akaka v. Yoshina, 84 Hawai‘i at 387-388, 935 P.2d at 102-103 (internal quotation marks, internal brackets, and citations omitted).
As Thomas concludes, “Stay tuned.”
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Hanabusa’s petition for TRO seems like the right move politically, regardless of the outcome. Presumably, that must be her calculus – send the message that this area still needs time to recover and obtain life’s necessities before deciding the Senate Primary. I think she loses the TRO but wins Puna and the Senate Seat.
Why might that logically happen, given her attitude towards the Big Island as a Congresswoman??
I agree, Hugh. It’s a stretch to think that Hanabusa filing this lawsuit will singlehandedly sway enough voters to win this election. Schatz and his supporters are doing their part their to assist in Puna’s recovery, so it’s not as if voters there will get the impression that Hanabusa’s the only candidate who cares about them.
But then again, Hugh, we are responding to Legal Beagle, not Pollster Pete. 😉
Shouldn’t Schatz come out and say “Yes, we need to focus on recovery. Let’s push the election to the following Saturday, the 23rd. Let’s get electricity flowing, and then let’s complete the election on a weekend, not a weekday during a storm recovery.”
It just feels rushed, for a specific reason – to make the current results stick. I think if Puna folks get that impression (and I don’t know anyone from Puna), they might vote accordingly.
this election has essentially entered America’s infamous legal toiletbowl. in this legal toiletbowl, you can make a convincing argument that the moon is made of purple cheese, not green cheese.
but reality remains the same: Colleen is selfish, finished and full of herself. and some people in Puna are still without power and water. all the drama voting about a correct and perfect voting date is a Red Herring. (in Hawaii, this phrase should be renamed “Red Hanabusa”. no need insult da fish)
This discussion is premature, if not entirely inapt. The cited authority pertains to post-election challenges to the outcome. Obviously, this election is not complete, yet, and the litigation will be resolved by applying injunctive relief criteria to statutory and constitutional claims.
as i said, this election is no longer an election. (for people who take Every Word Literally, you often need to be reprogrammed and updated by Microsoft with a better suit and tie).
in this legal toiletbowl, you can make a convincing argument that the moon is made of purple cheese, not green cheese……. but Colleen Hanabusa is still selling fools’ gold and it is obvious. lawyers make news but they frequently do NOT make sense.
I’m not a lawyer, so I’m not going to try speculating what decision(s) will be handed out by the court and how state election laws will be interpreted for this case.
But it will be interesting to see how the dynamics of this Senate contest changes if this thing gets tangled up in court. Up until now, it’s been Hanabusa vs. Schatz. But with Schatz saying that he will abide by whatever decisions are made by the state elections office and the courts, a protracted legal battle could turn the matchup into a Hanabusa vs. the State of Hawaii conflict instead. Needless to say, that could be a mixed bag as far as how voters perceive Hanabusa. Unlike Legal Beagle, I don’t think Hanbusa’s lawsuit will have Puna voters in the affected precincts all fired up in unison to support her. As HNN reported, there are folks in Puna who support the election going forward on Friday. Certainly, not all of them are in agreement with Hanabusa to delay the election further.
Also interesting to think about: the state elections office has already mailed out notices to the registered voters in the 2 affected precincts about where and when to vote in this Friday’s election. Judge Nakamura won’t issue his decision until tomorrow. Obviously, this means that if the judge does the issue the TRO, there won’t be any time to to mail out another letter telling those voters that their election has been postponed YET AGAIN. Imagine those voters who went out to vote for the first time last Saturday (only to be turned away by signs saying their polling site was shut down due to the hurricane) go out to the polls again on Friday and find out they can’t vote again due to the lawsuit. By this time, I can guarantee you that at least some of those folks will get fed up and not try to vote a third time, which would obviously not help Hanabusa’s cause.
excellent article this morning in New York Times:
“Once a haven for hippies (known as Punatics), Puna still draws people who want to escape big-city life. Off the single highway, pavement soon gives way to gravel roads, and cellphone service fades. Dreadlocks and marijuana smoke are easy to find on the street in Pahoa, the district’s commercial center. But Puna is the fastest-growing area of Hawaii, home to a diverse mix of native Hawaiians, papaya farmers, fishermen and people drawn here from other islands by the promise of more affordable land.
There are reasons that real estate prices have stayed low: There is no major hospital in the district. Ambulance companies will not always brave the gravel roads, residents said. And most homes get water from rainwater catchment systems, which stop working when the power goes down, as it did when the tropical storm hit last week. Mail is delivered to big groups of post office boxes on the side of the road.
And with the area’s growth has come a desire for more resources.
“This area continues to suffer from neglect,” said Russell Ruderman, who represents Puna in the State Senate. “I think we saw that in the last few days.””
http://www.nytimes.com/2014/08/14/us/rare-spotlight-on-rural-hawaii-after-storm-leaves-election-cliffhanger.html?_r=0
Whether the two Puna precincts vote tomorrow, next week, or whenever, I expect Hanabusa will say she did her best, including trying to make it possible for as many Puna residents to vote as are able or care to do so, and wish Schatz the best for the last two years of DKI’s term, since his victory in the special election is all but certain.
CH has both an aggressive ground game going, just in case, as well as a more strategic Long Game, looking at 2016.
But there’s a problem with the two correlating if she overplays her hand. She’s never been known for graciousness, more savvy than sweet. Can she tiptoe through the Albizias and put herself in poaition to get back to DC? Only if she loses her court hearing today and makes a statement after tomorrows narrow loss that does not equate to dropping a turd in the punchbowl. I’d guess the odds are poor for her, her innate stubbornness (think Bronster hearings) will most likely play out.
Even among people who are calling for a delay in this Friday’s election in Puna, they are most certainly NOT all Hanabusa supporters as someone here thinks. Far from it. Most prominently among these is Puna/Ka’u state senator Russell Ruderman, who strongly endorses Brian Schatz.
http://damontucker.com/2014/08/14/senator-russell-ruderman-on-fridays-historic-vote-endorses-schatz/
“Brian has been helpful in our crisis. More importantly he has reached out to me long before this election, before Puna become the momentary center of attention.”
Yes, not everyone in the devastated areas will have their votes singlehandedly swayed by what the candidates are doing in the last several days. Not everyone thinks that Hanabusa’s lawsuit alone translates to her being worthy of their vote.
It is very hard to stop/delay an election, as it probably should be. I once tried to halt a union election and got nowhere fast.
As far as tomorrow, seems I’m in the minority. Mine is a pretty uninformed opinion; mostly my own sentiments if I still had no power and had a vote to cast tomorrow. Enjoy your feedback, particularly as to the long term. Interesting stuff.
Reports from Puna say that Brian is refusing all media interviews and has instructed his people to distribute no campaign material … to focus on providing help w/o political strings. Colleen’s people are all wearing her campaign Tshirts and slapping political stickers on every item handed out.
And there you have it in a nutshell!
Hanabusa’s (failed) legal argument to delay her election until a more convenient time:
“what’s the rush? what’s the rush? what’s the rush? what’s the rush?”
huh. for some reason, that failed argument sounds *extremely* familiar in Hawaii these days. in fact, it sounds quite “gay”.