Tuesday, July 19, 2016


Voters win ballot shortage case against the Hawaii Office of Elections

by Larry Geller

You may recall the news coverage: first there was a shortage of ballots in the 2012 general election, then voters were provided with incorrect ballots. Many left without the opportunity to vote in at least 24 precincts.

Attorney Lance Collins filed suit on behalf of the Green Party of Hawaii and seven individual plaintiffs seeking to prevent another election from being held until the state Office of Elections properly developed rules in accordance with the Hawaii Administrative Procedures Act. The lawsuit stated that 57 voters were denied their right to vote as a result of the shortage of ballots

The state held that the number of ballots printed was a matter of “internal management” and did not require rules under the HAPA.

The Supreme Court disagreed, overruling the district court and the Intermediate Court of Appeals, holding that “internal management” is a very limited exception that cannot be used when the regulations “affect private rights or public procedures.”

The outcome of this case may affect other situations where a state agency relies on an “internal management” argument and ignores that their procedures affect private or public rights. A small snip from the opinion illustrates this:

Even assuming that the procedure only concerned internal management of the agency, the method used by the Office of Elections would have a direct impact on the right to vote, including the private right of voters to have their votes counted.

In his oral argument, Collins explained that the purpose of the HAPA is to reign in an agency’s unbridled discretion. This is a lesson that he has tried to teach the Office of Elections before, as in 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.

There were hints of how the court might rule in their questions during the oral arguments in May:

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 vote.—Justice Richard Pollack


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

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

Attorney Lance Collins said this morning:

This clarification strongly supports the purpose and intent of the Hawai'i Administrative Procedure Act – which is to provide openness and transparency in government.

As a result of this court decision (and thanks to the Green Party, the other plaintiffs and public interest attorney Lance Collins), it is likely that there will be enough ballots this election season that each voter’s rights will be protected.


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