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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Allen N
You are conflating a position with an action.
Everybody in Puna has an opinion on the rescheduled election, a few have been quoted on their position BUT only one has gone to court. It wasn’t Hanohano and it wasn’t Lozano. They weren’t even ‘amici’ (amicus curiae)
Jim, you’re absolutely right. KITV showed papayas with Hanabusa stickers on each and every one, not to mention volunteers wearing Hanabusa T-shirts. Talk about crass. So desperate that she’ll try anything to win, no matter how shameless it is. In the long run tho, this is one of moves that could come back to haunt her.
For Colleen Hanabusa to win this election, a mere majority in Puna would not have sufficed. She would have had to win the Puna vote overwhelmingly. That was never, ever going to happen.
However, Hanabusa keeps claiming that everybody she meets in Puna tells her that the voters there feel “disenfranchized” because elections were not delayed. There are a couple of problems with this.
First, Hawaii has the lowest voter turnout in the United States, and these rural areas have the lowest voter turnout in Hawaii. It’s hard to believe that overnight these people became political junkies.
Second, Hawaii now has postal voting. Long before the tropical storms hit, we could all mail our votes in. (In fact, some people immediately voted via the mail as soon as news arose of possible hurricanes.)
Not everyone is interested in civic life.
On another note, global warming does not increase the frequency of hurricanes, but it seems to increase their intensity (although storm frequency is expected to increase later in this century). How will that affect elections in the future, as they take place in hurricane season? What can and should we do? Go over to a fully postal voting system?