Category Archives: Legislature

Court points to election administration problems

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When I think of the value of tradition, I think of things like hula. Making a fine ukulele, or a hand-made timepiece. Perhaps small batch whiskey, where the buyer is promised traditional incredients made in the traditional style. Here, it’s fine to say, “we’ve always done it this way,” and the buyer will likely appreciate the difference.

Operating a well run modern election system is not one of those areas where tradition should reign, especially where those past practices are contrary to existing law. That’s the main takeway I can see from yesterday’s unanimous Hawaii Supreme Court ruling invalidating the recent runoff election in the Honolulu City Council’s District 4 race, where Trevor Ozawa held a very narrow 22-vote margin after the votes were counted. A new election will now have to be held within the next few months.

The Supreme Court decision overruled state election officials, who repeatedly hid behind the “but we’ve always done it this way” defense.

Justices keyed repeatedly during oral arguments on the issue of handling last-minute ballots delivered by mail, which were required to be “received” by election officials by the 6 p.m. deadline set by law. Waters, in his legal challenge, argued that a sweep of these ballots at the post office well after that deadline should not have been allowed, and the ballots should not have been counted.

Justices at several points directly questioned attorneys representing election officials about why their “past practice” explanation should be accepted when the late pickup was contrary to the plain language of the election law. They apparently found the answers unpersuasive.

That issue of the handling of that small batch of ballots became the basis for a narrow court ruling. However, in the process of working through the issues in this case, the justices–aided by the questions highlighted by Waters and the voters who joined the election challenge–managed to touch on other areas where election law and practice need to be more carefully reviewed by those who are not insiders in the current system.

For example, absentee ballots accounted for 56% of all ballots cast statewide in the 2018 general election. Election officials presented data showing nearly 5% of all absentee ballots were discarded because of problems validating voter’s signatures. Voters were never notified that their ballots had been invalidated or given an opportunity to confirm their identification and votes. That seems to be an issue waiting to blow up in the next tight election campaign.

It was noted during oral arguments that election officials made use of the Department of Motor Vehicles signature database, while election law and administrative rules say the only valid comparison is to the voter’s absentee ballot affidavit or voter registration. Another apparently conflict between law and practice.

Is it time for a more robust evaluation of election administration practices along with an overall review of the state’s election laws in light of recent experience?

Hanabusa hired by Legislature in “gut & replace” court challenge

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The Legislature has retained attorney Colleen Hanabusa to represent it in a lawsuit brought by the League of Women Voters of Honolulu and Common Cause challenging its use of the so-called “gut & replace” maneuver.

The lawsuit, filed on September 5, names the State of Hawaii as the defendant. The complaint, filed on behalf of the two groups by the Civil Beat Law Center for the Public Interest, alleges that SB 2858 (2018), which became Act 84, violated provisions of the state constitution because the bill did not actually get three readings in the Senate after its contents were totally changed in a “gut and replace” move by the House.

Further, the lawsuit alleges the bill’s title, “Relating to Public Safety,” was “too broad and amorphous” to reasonably let the public, or lawmakers, know what interests would be impacted by its passage. See “Nonprofits Sue Hawaii Over ‘Deceptive’ Gut-And-Replace Legislative Practice,” Civil Beat, September 5, 2018.

Although the Legislature was not named as a defendant, Hanabusa has filed a motion seeking approval to submit legal memorandum as an Amicus Curiae, or friend of the court.

“The interest of the Hawaii State Legislature is in protecting its Constitutional role as one of the co-equal branches of government,” Hanabusa argued in her court filing.

Hanabusa argues that the separation of powers should shield the Legislature’s internal rules from judiciary review.

“The Hawaii Supreme Court has set a very high standard to successfully challenge any law enacted by the Legislature,” Hanabusa’s proposed Amicus argues. “The Court has consistently held that ‘every enactment of the legislature is presumptively constitutional and a party challenging the statute has the burden of showing unconstitutionality beyond a reasonable doubt.'”

Further, Hanabusa argues, the proceedings of the 1968 and 1978 constitutional conventions, including committee reports and transcripts of debates, “clarify that amendments to a bill, including a substitution,” do not trigger a need to begin the three-reading process anew.

This view was bolstered by three legal opinions recently released by Senator Les Ihara. An 8-page opinion approved in April 2011 by then-Attorney General David Louie addressed “the risks of a successful lawsuit challenging the adoption of a bill…that passes three readings in each house, but which had unrelated contents in[to its] DC1” in conference.

The opinion concluded “…a court would have to conclude that there is no basis for the challenge described in your email. The plain language and, more importantly, the underlying constitutional history make clear that the drafters were aware of and opted not to proscribe the situation your email describes, when they adopted and amended the bill passage provisions of article III, section 15 of the State Constitution.”

The opinion goes on to trace the intention of constitutional convention delegates through a series of con cons, quoting several long passages from debates that appear to condone the substantial revision or substitution of language in a bill without triggering a new requirement for three additional hearings.

A subsequent opinion by the Legislative Reference Bureau, also released by Ihara, reached a similar conclusion. This opinion addressed the Hawaii Supreme Court’s 2005 decision in the case of Taomae v. Lingle, which dealt with the constitutionality of a constitutional amendment proposed by the Legislature. The language calling for a constitutional amendment was added to a bill originally proposing a statutory change, and the high court said its title, “A Bill for an Act Relating to Sexual Assault,” failed the constitutional test because it did not identify the measure as proposing a constitutional amendment.

However, the LRB opinion concluded: “Absent a bright line rule such as the one applied by the Court in Taomae to distinguish between bills proposing constitutional amendments and those proposing general laws, it is not clear what other criteria could be used to objectively determine when amendments to a bill cross the line from making the bill quantitatively different to making it qualitatively different, especially if the bill still meets the requirement that it relate to a single subject embraced within the scope of its title.”

A hearing will be held on several pending motions, including the Legislature’s request to submit its Amicus Curiae brief, at 3 p.m. before Judge Gary W.B. Chang in Honolulu’s 1st Circuit Court.

See: AG Opinion dated 4-29-2011, and LRB Opinion dated 3-9-2010.

Hawaii not alone in legislative “tricks”

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Two good government organizations filed suit several months ago challenging a classic example of the Legislature’s so-called “gut and replace” maneuver.

The lawsuit filed on behalf of Common Cause and the League of Women Voters of Honolulu alleges SB 2858, passed during the 2018 legislative session, violates several provisions of the Hawaii State Constitution, including one that requires a bill to get three readings in each chamber, on different days, to provide the public with ample opportunity to provide input on the proposed legislation.

The case is pending in Circuit Court. Whatever the legal technicalities that will determine the lawsuit’s outcome, it’s raises an important point—the tricks that can be used to move a bill through the legislative process while, at the same time, shielding it from all but cursory public review.

Hawaii’s legislature is far from alone in this regard.

An investigation by the Kansas City Star newspaper detailed how the same “gut and replace” technique has become an all too common way for that state’s legislature to push through controversial legislation (“How Kansas lawmakers keep you from finding out what they’re doing — until it’s too late”).

The newspaper also points to bills introduced anonymously, which conceal the special interests behind bills the Legislature will consider.

Hawaii requires each bill to bear the name of the legislator or legislators introducing it, but also allows bills to be marked as “By Request”, with no requirement that the requesting individual or organization be identified. The result is another kind of secret influence.

The Wisconsin Center for Investigative Journalism recently had a story detailing how their legislators stuff all kinds of provisions into the state’s budget bill, often anonymously and at the very last minute (“Last-minute surprises and secretive moves hide Wisconsin lawmakers’ actions from public view”).

An investigation by the Wisconsin Center for Investigative Journalism found the Legislature systematically diminishes the voices of the public by:

— Introducing budget amendments at the end of the approval process with no public notice or debate.

— Approving anonymous, last-minute budget motions containing a grab bag of changes, including major policy items that have nothing to do with state spending.

— Changing the scope and impact of a bill after its public hearing has been held, which excludes regular citizens from having meaningful influence on legislation before it is enacted.

Budget bills in our legislature are often stuffed full of provisos, language inserted anonymously (often in conference committee) that places restrictions or limitations on the use of public funds being appropriated. Such provisos often benefit particular interests, often with minimal public discussion.

In any case, I hope that the lawsuit by Common Cause and the League will spur more public debate over legislative techniques that close the public out of the process of lawmaking. That can be as, or more important, than the legal outcome of the case.

Nonvoting members on rail board have created a legal quandary

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Thanks to Star-Advertiser reporter Gordon Pang for his Oct. 2 story spelling out the present confusion over quorum requirements for the Honolulu Authority for Rapid Transit (HART), the agency charged with controlling development of the city’s vastly over-budget rail project (“Oahu voters asked to solve HART board members dilemma”).

Here’s the problem in a sentence:

For the past year, the board of the Honolulu Authority for Rapid Transportation has had difficulty holding votes or taking any other action during meetings because of an ongoing struggle to maintain what it perceives to be a quorum, the number of board members needed to conduct business.

But the details are tricky.

HART was established by an amendment to the City Charter with 9 regular members. Three members are chosen by the mayor, three by the City Council, plus the state and city transportation directors, and one member chosen by the first eight. The city director of planning and permitting sits as a nonvoting, ex officio member.

Pang reports:

The 2010 Charter amendment language says a majority of the entire panel must agree for the board to take action. Since November, under advice from city attorneys, the board has considered the number of votes needed to take action at eight (a majority of 14) where it was previously six (a majority of 10).

Actually, the 2010 Charter amendment simply refers to provisions governing all city boards and commissions.

There, in the general section 13-178 provides, in part: “A majority of the members shall constitute a quorum.”

And, separately: “The affirmative vote of a majority of the entire membership shall be
necessary to take any action, and such action shall be made at a meeting open to the public.”

And there’s the problem. It appears that when the general provisions were written and adopted, the possibility of non-voting members wasn’t considered.

The “solution” proposed by the city further seems clumsy. It provides that a majority of voting members will be required to establish a quorum, but also requires increasing the board to 15 members, with an additional voting member named by the council. The latter step is “required” in order to rectify what the council sees as a board weighted in favor of the mayor, because the city’s transportation director, who serves ex officio, is essentially appointed by the mayor.

Why not recognize that the problem of nonvoting members might recur, and simply change the general charter provisions to provide that a majority of voting members of any board or commission are required for a quorum or for any official action?

I did go back and examine testimony given during the 2017 special legislative session that passed the funding bill requiring expansion of the HART board from 10 to 14. None of the testimony pointed to problems with the addition of nonvoting members. So these are legal considerations that arose after the fact, and that are exacerbated by the unpopularity of the rail project (stoking fears of potential litigation) and by the conflict between the mayor and the council majority.

One further question: I wonder what the Office of Information Practices has to say about the conflicting provisions of the current law, and the city’s proposed “solution”?