Saturday, September 04, 2010
by Larry Geller
The newspapers may not be willing to explore the state’s defense of this case, but we will here.
Although the plaintiff in this case is A-1 A-Lectrician Inc., described as a local electrical and construction firm (Star-Advertiser, Firm fights campaign laws, 8/28/2010), it’s one of a set of similar cases filed around the country. Attorney James Bopp Jr. drove the Citizens United case up to the Supreme Court and has been involved in state-level actions.
Once the Supreme Court ruled in Citizens United that corporations enjoy free speech rights similar to (or perhaps greater than!) actual people, the floodgates were opened for lawsuits that challenge state laws imposing limitations on contributions or requiring disclosure. This case attacks both those aspects in Hawaii’s law.
The case is being fast-tracked because it seeks an injunction against the law. This means that the court will quickly consider whether an injunction should be issued, and try the case on its merits later.
I’m not an attorney, but my understanding is that the court will apply a four-prong test that goes something like this: (1) Plaintiffs have to show that they will likely succeed on the merits, (2) that they will suffer irreparable harm, (3) something about equity, and (4) that the public interest would not be adversely affected by an injunction.
Oral arguments are scheduled for October 1. The timetable is very fast. Plaintiffs will have submitted their motion yesterday, and defendants (represented by the Attorney General) must answer by September 13, which is just around the corner.
Advocacy groups have come out against this lawsuit.
Speaking only for myself (I’m on the local board of Common Cause Hawaii), I have some concern about what resources will be devoted to defending this suit by a Republican administration that may be sympathetic to its arguments. Worse, should it be appealed to the 9th Circuit and the state lose there, all the states in that circuit would be bound by the outcome.
The good news is that the disclosure provisions in other states have survived this attack, I’ve learned. The holidays have interrupted research, so more on this later on.
Democratic candidates for the state Senate whose names were left off some absentee ballots in District 25 said they were concerned the error might hurt their chances for winning.
"It's a very, very serious matter. I've never heard before that they've had some kind of misprinted ballot," said Chuck Prentiss, one of three Democratic candidates whose names were omitted from some of the ballots for District 25 (Kailua-Waimanalo-Hawaii Kai). [Star-Advertiser, Ballot error distresses candidates, 9/2/2010]
Well, yeah, that’s distressing. For any candidate, raising or investing money in a campaign, sign waving, knocking on doors, etc., and then being left off the ballot is a disaster.
I’ve been critical of the Office of Elections in the past, but not this time. Please remember, as has been reiterated here, that their budget was cut 94% by the Governor. 94%. It took a while to get started again. So stuff happens. I think that is just playing out here.
Given the situation, the OoE should be judged by how it remedies the situation, even though no remedy can be perfect.
[Minor bitch: The Star-Advertiser included a handy side-bar with the above-linked story listing up walk-in absentee voting sites and noting that “Most sites are open from 8 a.m. to 4 p.m. How cool it would have been if they had mentioned which were open those hours and which were not. Or where to call to find out. Oh, well.]
Bunda’s resignation letter
Senator Robert Bunda’s “intent to resign” letter was posted here from copies obtained from the Senate Clerk’s office and from the Office of Elections. Neither was able to provide a letter stating (as, for example, Sen. Hooser’s letter does) “I resign.”
Bunda’s resignation would have been directed to the Senate President. If she had one, great, case closed. On August 4 I faxed a request for the letter to Colleen Hanabusa, Senate President. By law, HAR § 2-71-13, Hanabusa was required to respond to a written request for access to a government record within a reasonable time, not to exceed ten business days. Hanabusa did not respond, given more time than that.
So I asked the Office of Information Practices to remind Hanabusa of her responsibilities under the law. It’s something they do when a state agency fails to answer a request.
OIP’s letter said, in part:
Under OIP’s administrative rules, an agency must respond to a written UIPA request for access to government records within a reasonable time, not to exceed ten business days. HAR § 2-71-13. Given the length of time since Mr. Geller’s request, please provide the requested records to Mr. Geller within five business days from the date of this letter or, if you intend to deny all or part of Mr. Geller’s request, please provide the required response to Mr. Geller within that same timeframe. Id.; HAR § 2-71-14, 2-71-15. Specifically, if denying access, you should (1) specify the record, or parts, that will not be disclosed; and (2) cite the agency’s specific legal authorities under which access is denied under HRS § 92F-13,’ and other laws. HAR § 2-71-14. Please also provide OIP with notice of the action taken by the agency.
Five business days is Tuesday, I think.
The law has no teeth. Hanabusa will not end up in jail should she ignore it. On the other hand, she’s running for Congress. I hope she’ll decide that it would not be good to just break the law because she can.
If she has no letter of resignation, she should have said that within the ten days.
Challenge to Maui County Council chair Danny Mateo
This challenge is still alive, I believe, but doesn’t get much attention here on Oahu. It’s somewhat kindred to the Bunda situation in that there are rules, and what happens when questions are raised about whether the rules have been followed?
Only by challenging alleged rule violations can the rules have meaning.
Attorney Lance Collins has been an articulate defender of election rules, which are, after all, close to the heart of our democracy. He wrote this summary (snippet):
Lahaina voter Nellie Laird-Woods filed a petition in Second Circuit Court today seeking to disqualify the nomination papers of Maui County Council Chairman Danny Mateo.
Under the Maui County Charter, Council members may not serve more than five full consecutive terms in office. Ms. Laird-Woods points out that if elected to another term, Mateo will have served more than five full consecutive terms in office.
Read more here as it comes in.
This happened on the Big Island, too. Jimmy Arakaki was allowed to serve an extra term by his buddies, it went to court ($$$) and two years later, he was found in violation but nothing ever happened.