The American Civil Liberties Union of Hawaii on Thursday filed a legal challenge to the primary election on behalf of six voters in Puna on Hawaii island who said they were unable to vote because of the damage left by Tropical Storm Iselle.
The challenge, filed with the state Supreme Court, alleges that the state failed to take the steps necessary to ensure Puna voters could exercise their constitutional right to vote. The ACLU asked the court to give any voter affected by Iselle the opportunity to vote by Sept. 20, the deadline under the state Constitution for tabulating primary results.
The lawsuit also urges the court to invalidate a state law that gives Scott Nago, the state’s chief election officer, discretion over how to conduct a postponed vote after a natural disaster. The ACLU argues that under the state Constitution, the Legislature should prescribe how such makeup elections are conducted.
"The right to vote is fundamental, and it’s protected by the Constitution," said Daniel Gluck, a senior staff attorney for the ACLU Hawaii. "We believe that every single person’s vote is important and every single person’s vote is worth protecting."
The ACLU’s suit challenges the election process used by the state in Iselle’s aftermath, but is not a typical "election contest" that seeks to overturn any specific primary result.
Under state law, a candidate, political party or any 30 voters of an election district can contest the primary within six days after the vote. Any complaint must show that voting problems changed the outcome of the primary, a difficult legal standard to prove.
Hope Cermelj, a Hawaii island political activist, filed a handwritten election contest just before Thursday’s deadline on behalf of Puna voters. Cermelj, like the ACLU, alleges that Puna voters were denied the right to vote.
The ACLU does not have to prove that the state’s actions changed the outcome of the primary, but does have to show that Puna voters were deprived of their voting rights. The suit names Gov. Neil Abercrombie, state Attorney General David Louie, Nago, and Hawaii County Clerk Stewart Maeda as defendants.
Nago chose to open two precincts in state House District 4 — Pahoa Community Center and Pahoa High and Intermediate School — for the Aug. 9 primary after consulting with Civil Defense and election officials and learning that main roads nearby were cleared of storm debris.
Nago did not open the two other precincts in the district — Hawaiian Paradise Community Center and Keonepoko Elementary School — because of storm damage. The state allowed voters in those two precincts to vote Aug. 15 in a makeup election at Keonepoko Elementary School.
Dozens of voters from the Pahoa precincts showed up for the makeup vote, claiming they were unable to get to their polling places on Aug. 9 because of storm damage, but they were turned away by election officials.
One of the plaintiffs in the ACLU’s suit, Frances Lathers, who lives in Pahoa, told the ACLU she intended to vote on Aug. 9 but was prevented by about 20 downed trees that blocked her driveway. She said she was unable to get to a road through a neighbor’s property because her neighbor’s gate was locked, according to the suit.
Even had she made it to a road, the suit claims, several roads leading to her polling place were also blocked by fallen trees.
Lathers, a member of the ACLU, said she later tried to vote at Keonepoko Elementary during the makeup election but was turned away.
The ACLU cited lower in-person voter turnout in the Pahoa precincts when compared to the 2012 primary as potential evidence that a significant number of voters were unable to cast ballots because of Iselle.
U.S. Rep. Colleen Hanabusa, who lost to U.S. Sen. Brian Schatz in the Democratic primary for Senate, had sought a temporary restraining order to postpone the makeup vote. The congresswoman warned that Puna voters would be disenfranchised and their constitutional rights would be violated if the state went ahead with the election as planned.
But a state circuit judge ruled that the courts are unable to interfere with an ongoing election process even if it is unconstitutional.
State Democratic and Republican leaders were also critical of the election process, along with state Sen. Russell Ruderman (D, Puna) and state Rep. Faye Hanohano (D, Hawaiian Acres-Pahoa-Kalapana), who represent the storm-damaged region at the Legislature.
Ruderman had asked the Office of Elections on Aug. 9 to extend polling hours after hearing of Puna voters who were trapped by storm debris and unable to travel to the polling places that were open. On Election Day, only Abercrombie had the authority to extend polling hours.
Nago said in a court filing in the Hanabusa case that he consulted with the Hawaii County corporation counsel, who informed him that the county had no objective evidence that would have justified the governor extending the polls.
"There were people by the hundreds, and possibly by the thousands, who were physically blocked by the previous night’s storm from accessing their polling booths," said Ruderman, who contends these voters were denied their constitutional right to vote.
The ACLU maintains the state has until Sept. 20 to complete the primary under the state Constitution, or 45 days before the Nov. 4 general election.
But the Office of Elections, in a court filing in the Hanabusa case, has already warned that any delay to the primary can complicate preparations for the general election. The state, for example, must comply with a federal law that requires that absentee ballots be mailed to overseas and military voters 45 days before the general election.
Rex Quidilla, a spokes man for the Office of Elections, declined to comment on the litigation.
Nago is expected to appear on Friday for an initial review of the primary by the state Elections Commission.
