Tuesday, December 11, 2012
Hawaii Office of Elections faces second lawsuit over failure to follow Adminstrative Procedures Act
by Larry Geller
The Green Party of Hawaii has filed a lawsuit on Friday to enforce Hawaii’s Administrative Procedures Act (HRS 91) against the Office of Elections. This is the second lawsuit that public interest attorney Lance Collins has fought against the same office for violations of the same Hawaii law. This lawsuit related to the ballot shortage that tainted the 2012 elections across the state.
The press has reported on the failure of the Office of Elections to provide adequate numbers of ballots at various precincts across the state, resulting in the disenfranchisement of an unknown number of voters. Many potential voters chose to leave the long lines that formed on election day when ballots ran out. Others were given incorrect ballots that belonged to another precinct.
(See: Green Party Sues Hawaii Elections Chief Over Ballot Shortages, Civil Beat, 12/10/2012)
Some voters reported that candidates they wished to vote for were not even on the ballots they were given (see, for example, the audio file in this article, at 1:22:30 into the recording—just move the slider along).
The move to unseat long-time Speaker of the House Calvin Say was a bold move on the part of Green Party candidate Keiko Bonk, and came at a time when so-called dissidents in Say’s own party were organizing a faction to replace him as Speaker. Because of the election irregularities in Say’s precinct it is not known how close Bonk came to achieving her goal of representing the district.
A copy of the complaint is posted below. It is written in plain English and is an easy read.
2008 lawsuit resulted in injunction
Attorney Lance Collins filed a successful lawsuit against the Office of Elections in 2008 that resulted in an injunction against the 2010 election by a state judge. The complaint was similar: a violation of the Administrative Procedure Act.
The earlier suit (Babson v. Cronin, Civ No. 2cc08-1-000378 ) was brought on behalf of five citizens of Maui against Hawaii’s Chief Elections Officer at the time (see background on Disappeared News in these articles). The suit challenged three aspects of the voting process, according to attorney Collins:
1. The use of electronic voting machines was not adopted through lawful rulemaking in accordance with the Hawaii Administrative Procedure Act (HAPA).
2. The use of the Internet and/or telephone lines to transmit vote counts was not adopted through lawful rulemaking (HAPA).
3. The use of the Internet and/or telephone lines to transmit vote counts was not allowed under current state law.
The fear was that the system put together by the Office of Elections could be subject to so-called “man in the middle” attacks that could change the vote count without anyone being aware of the tampering.
As a result of the suit, the Office of Elections was forced to deal with the creation of new Administrative Rules, a process which includes public notice and public hearings.
Alleged irregularity in 2010 election
Disappeared News raised questions prior to the 2010 elections as to whether the current Chief Elections Officer allowed then State Senator Robert Bunda to run for office without having resigned from his Senate position (see these articles).
Disappeared News first noted that Senator Bunda may not have resigned from his Senate seat prior to taking out papers to run for Lt. Governor in an article posted on August 9, 2010. Subsequently, a Maui resident filed a complaint with the Office of Elections challenging Bunda’s candidacy on the grounds that he hadn’t resigned his Senate seat. However, the Chief Elections Officer declined to forward the matter to circuit court for a determination.
The Elections Commission also declined to investigate, even after a curious letter of resignation dated July 16 and addressed to the Chief Elections Officer turned up at the Senate President’s office in August (it seemed clear that a resignation should be filed with the Senate, but the Senate had earlier confirmed that it did not have a resignation letter on file).
Copy of current complaint
(This is an OCR copy and may contain errors. Do not rely upon it.)