Friday, May 20, 2016


Defending the indefensible: Supreme Court hears the Office of Elections try to justify its handling of 2012 election ballot errors

What does it take to affect people? We had people whose votes weren't
counted. And according to you, that doesn't affect people's right to
.—Justice Richard Pollack

So the remedy is make people sue and not to create a system that avoids
Justice Richard Pollack

This is the constitutional, fundamental right to vote that is being
denied. This is not the right to paper clips.—
Justice Sabrina McKenna

Does the record reflect how much money the state saved by denying these
people the right to vote?—
Justice Sabrina McKenna

by Larry Geller

Attorney Lance Collins has been a great champion of the Hawaii Administrative Procedure Act and in particular its application to our wayward Office of Elections. See Disappeared News coverage of the case Babson v. Cronin which related to the use of electronic voting machines in an insecure fashion and in the absence of rules regulating their use.

This case, heard yesterday (Thursday 5/19/2016) by the Supreme Court, was brought by the Green Party of Hawaii, and is based on what appears to be a clear violation of the right to vote not only of the plaintiffs but of at least 57 more people mentioned in the oral arguments and others. First there was a shortage of ballots, then voters were provided with incorrect ballots. Many left without the opportunity to vote.

Shouldn’t there have been rules governing the printing of ballots? As you will hear from the recording, there’s a statute. Now, if only there were rules under the HAPA to effectuate that statute.

What makes this hearing especially interesting to me is how the attorney for the Office of Elections appears to squirm to avoid agreeing that citizens were deprived of their right to vote.

For a description of the exact controversy, see the official summary below.

Look, if I were I newspaper reporter, I’d just be documenting the arguments presented by each side. And you would not be reading even this far.

Instead, I urge you to skip ahead in the recording to 31:30 where the Office of Elections gets their turn. Each side was allotted about 30 minutes, but their attorney got grilled for close to an hour.

I hope Lance won’t mind. His arguments appear to me to be cut and dried, very logical, and so there’s not much drama in them. For example, at about the 27 minute point he explains that the purpose of the HAPA is to reign in an agency’s unbridled discretion. This is important, of course, because it was the exercise of the Office of Elections’ discretion that resulted in the shortage of ballots. You can rewind later to the beginning of the recording if you like. Lance gives clear arguments in his rebuttal at the end, which is good listening.

Instead, make yourself some popcorn or open a beer and skip ahead to that 31:30 point.

I’ve learned long ago that I can’t divine the thought processes of judges by listening to their questions in the oral arguments. If you skip ahead as I suggest, you might think this case is a slam dunk. But we’ll have to wait for the final decision.

I’m hoping, of course, that voters’ rights will be better protected in the upcoming elections this year. It seems we can’t count on the Office of Elections’ discretion to protect those rights.

The audio is below. Many browsers will just play it if you click, or download the file and listen in your favorite player. I found the official recording to be mostly inaudible, so I improved the sound so you won’t feel you’ve wasted that beer. The case summary from the Supreme Court website follows below the line.

Listen to my edit of the oral arguments here.

Listen (if you can hear it) to the Supreme Court official recording here.

No. SCWC-14-0001313 Wednesday, May 18, 2016, 8:45 a.m.

GREEN PARTY OF HAWAII, KAREN M. HOLT, ELIZABETH M. RUZE, MICHAEL KRATZKE, MOANI KEALA AKAKA, KIM DUFFETT, MARY JO DENNISON and MAKA`ALA KA`AUMOANA, Petitioners/Plaintiffs-Appellants, vs. SCOTT NAGO, Chief Elections Office, State of Hawai`i, and STATE OF HAWAI`I, Respondents/Defendants-Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioners:

Lance D. Collins

Attorney for Respondents:

Kimberly Tsumoto Guidry, First Deputy Solicitor General

NOTE: Order accepting Application for Writ of Certiorari, filed 03/10/16.


Brief Description:

This case involves an action by the Green Party of Hawaii and seven registered voters who voted in the 2012 General Election (Petitioners) seeking a declaratory judgment pursuant to HRS § 91-7 (2012) that certain methodologies and procedures used by Scott Nago, Chief Election Officer, and the State of Hawai`i (collectively “Respondents”) in the 2012 election are invalid under the Hawaiʻi Administrative Procedure Act (HAPA). Specifically, Petitioners contend that Respondents violated rule-making requirements for failing to adopt administrative rules pursuant to HAPA regarding the methodology and procedures used to determine the number of ballots to be delivered to the precincts, request additional ballots when a precinct runs out of paper ballots, and address the situation where a voter votes on a ballot that includes some races in which the voter is not entitled to vote.

The Circuit Court of the First Circuit (circuit court) granted summary judgment in favor of Respondents holding that the challenged methodologies and procedures were regulations concerning only the internal management of the agency. On October 24, 2014, the circuit court entered final judgment, which was timely appealed by Petitioners. In a December 18, 2015 published opinion, the Intermediate Court of Appeals (ICA) affirmed the circuit court’s judgment. The ICA concluded that none of the procedures challenged by Petitioners were rules as defined in HAPA.

Petitioners filed an Application for Writ of Certiorari with this court on January 27, 2016, which was granted on March 10, 2016. Petitioners present five questions in the application: (1) whether the ICA gravely erred by applying a standard in an election contest for overturning an election result based upon Petitioners’ claim of deprivation of voting rights and holding that such claims were immaterial because it would not have affected the outcome of the election in regard to ballot shortage procedures; (2) whether the method used for ordering ballots was a one-time occurrence that would not affect future public rights or procedures; (3) whether the improper handling of ballots is a matter of internal management and thus exempt from rulemaking requirements; (4) whether the ICA misinterpreted Hawai`i appellate precedent; and (5) whether the ICA erred in finding that Petitioners failed to cite to the record showing the circuit court determined the obligation of the agency was mitigated or relieved by failure to apply to the agency to engage in rulemaking procedures pursuant to HRS § 91-6. Petitioners maintain that the challenged procedures and methodologies are rules as defined in HAPA and that the rules are invalid as they were not adopted pursuant to HAPA. Respondents assert that the challenged procedures are not rules as defined by HAPA and, accordingly, the ICA did not err in affirming the circuit court’s judgment.


Just listened to the recording......ugh.......

I was denied my right to vote in 2012. I brought it up with local elections officials and the ignored me. I brought it up with state officials and although I submitted a very detailed account of what happened, I never heard back, even after I called repeatedly. I have video of the altercation.

Hmmmm...the Deputy Attorney General is definitely on the losing end of this argument.

sorry...First Deputy Solicitor General is on the losing side of the argument.

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