The state Supreme Court on Thursday dismissed a primary election challenge by the American Civil Liberties Union of Hawaii, which had alleged that six voters on Hawaii island had been deprived of their constitutional right to vote by the state’s actions in the aftermath of Tropical Storm Iselle.
The court found that the ACLU’s lawsuit was not a typical election contest that sought to change the outcome of any specific primary result, a fact that the group had acknowledged.
The court also ruled that it lacked the statutory and constitutional jurisdiction to grant the relief the ACLU had sought, which was to allow Puna voters affected by the storm to cast ballots by Sept. 19 and to invalidate a state law that gives the state’s chief election officer discretion over how to conduct postponed votes after a natural disaster.
In typical election contests after a primary, the court can decide only whether voting problems would have changed the outcome of a party nominee for the November general election.
The state had argued in court filings that the ACLU was trying to avoid having to meet the legal standard for an election contest. The state also said the court did not have jurisdiction to hear the group’s challenge, which could have been brought in Circuit Court.
"Today, the Hawaii Supreme Court reached the right result in all three challenges to Hawaii’s primary election," state Attorney General David Louie said in a statement on the court’s rulings in the ACLU suit and two election contests. "These decisions bring closure and finality to our primary election. The candidates and Hawaii’s voters can now look forward to the general election knowing that the results of the primary election are sound and not subject to any further challenge."
The ACLU had conceded that its legal challenge was novel. The group stepped forward on behalf of six Pahoa voters — and potentially hundreds more — who had said they were unable to get to their polling place during the Aug. 9 primary because of storm debris from Iselle. These voters were then denied the opportunity to vote in a makeup election on Aug. 15 for Puna voters in the two precincts that did not open for the primary because of nearby storm damage.
"Every day, the ACLU works to defend and protect civil rights, including the right to vote. We believe that every person’s vote is important, and every person who wants to vote ought to have the same opportunity to do so," Daniel Gluck, a senior staff attorney for the ACLU of Hawaii, said in a statement. "Many voters in and around Pahoa did not have that opportunity, and we asked the Hawaii Supreme Court to step in. Although the court declined to do so, we are grateful that the court considered this matter so quickly.
"While our clients are disappointed that they will not be able to cast ballots in the primary election, the ACLU will continue its work to ensure that every person has an equal opportunity to vote — even when a natural disaster strikes — and we look forward to working with the Legislature to prevent these kinds of situations in the future."
In a letter Thursday to the state Elections Commission, Gov. Neil Abercrombie said no damage assessments were given to him during the primary that indicated widespread evidence that voters outside of the two precincts that were closed were unable to get to their polling places. Under state law, the governor has the emergency power to adjust voting hours through an election proclamation.
Scott Nago, the state’s chief election officer, has said he received a request during the primary from state Sen. Russell Ruderman (D, Puna) to extend voting hours because of storm damage in other Puna precincts. Nago said he relayed Ruderman’s request to the Attorney General’s Office to inform Abercrombie. Nago told reporters last week that he did not know why the governor did not take any action.
But Nago also acknowledged that the state did not receive objective information from Hawaii County officials to justify extending the polls.
"In the absence of such reports, any action by me as governor to adjust or suspend the hours of voting would have been overreaching the powers vested in me by" state law, Abercrombie wrote.
The Supreme Court has also dismissed an election contest from Hope Cermelj, a Hawaii island activist who had joined several others who complained that Puna voters were denied the right to vote. The court found that Cermelj and the others lacked legal standing — at least 30 voters of an election district are needed to bring an election contest — and that even if they had standing they failed to demonstrate errors, mistakes or irregularities that would change the primary results.
The court also rejected an election contest from Nelson Waikiki Jr., who finished fourth in the Maui mayoral election. Waikiki, who filed his complaint a day after the deadline on Aug. 21, alleged a "possible conspiracy" and "corruption" by election officials involving about 800 absentee ballots on Maui that were uncovered by state election officials in a post-primary audit.
The court found that Waikiki failed to present specific acts or information about mistakes that would change the outcome of the primary.
Rex Quidilla, a spokesman for the Office of Elections, said the office declined to comment on the court’s rulings. After the announcements by the court, the Office of Elections certified the primary results and released a list of candidates for the November general election.