The dispute over former state Rep. Calvin Say’s residency qualifications for office has roiled the political and judicial systems for long enough, and it’s time for the House leadership to get off the dime and solve it.
Say, formerly the long-time House speaker, has been the focus of multiple legal challenges mounted by residents of his district, including those supporting competing candidates for his seat.
In September, state Circuit Court Judge Karen Nakasone ruled, in the latest lawsuit, that the power to determine the legislator’s eligibility rests with the state House, not the courts. That’s the legal argument made by the House, too.
On Monday, six Palolo residents, through attorney Lance Collins, wrote a letter to House Speaker Joseph Souki renewing a request first made in February 2013 "that the House investigate the qualifications of Say to possess the title to office of representative for the 20th district." At issue are complaints that Say really lives in his in-laws’ Pacific Heights home instead of the family home in Palolo, within his district.
Souki would not comment this week beyond saying that, despite the fact that the House supported Nakasone’s dismissal of the case, it would not exercise its power over the qualification issue. The House would wait until the appeal of the case plays out and the legal appeals process is exhausted, Souki said.
And ironically, the plaintiffs won’t exert much pressure for quick action, despite the letter to Souki. What they really want on appeal, Collins said this week, is a trial in which Say would be compelled to provide evidence that he is qualified to hold his office.
Nobody is advocating for what would really serve the public: a speedy end to this drama and a clear path for resolving voter challenges of this kind.
It’s easy to see why, politically, Souki would rather not touch this issue. Star-Advertiser political writer Derrick DePledge reported this week that Souki has the votes to remain speaker but added that an investigation could complicate things. A coalition uniting dissidents from his own party as well as Republicans unseated Say as speaker last year, replacing him with Souki. Some of Say’s faction could use any threat to Say as an organizational tool, sources said.
The potential here is for endless delay on resolving this issue. The legal challenge concerns Say’s qualifications for his current term, Collins said; once that ends with the Nov. 4 election, the current case would be moot and, theoretically, the plaintiffs be compelled to start over. Who knows when the legal appeals process might be exhausted?
Like other states, Hawaii relies on constitutional language to establish qualifications for office. The Hawaii State Constitution sets out that a House member must be an adult before filing nomination papers, be a Hawaii resident for at least three years and be "a qualified voter of the representative district from which the person seeks to be elected," with some flexibility allowed during reapportionment years, when district lines are redrawn.
The problem is that "qualified voter" has been found in case law to be distinct from "registered voter," Collins said; judging whether a House member is qualified would be the point of a review process by that legislative body.
Unlike other states, Hawaii lacks such a process, either in statute or administrative rules of either chamber. And it needs one.
Regardless of the legal wrangling and the political awkwardness of the situation, the lack of a means to settle qualification disputes, one that gives both sides a venue to present their cases, must be addressed as soon as possible. Postponing the matter indefinitely, and leaving a cloud over elected representation that’s the basis of democracy, is not fair to the voters.
