Issues To Watch In The Promised Lawsuit Challenging Hurricane Primary

U.S. Rep. Colleen Hanabusa filed a lawsuit to delay a special election
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U.S. Rep. Colleen Hanabusa plans to filed a lawsuit to delay a special election that impacts her race for U.S. Senate
U.S. Rep. Colleen Hanabusa plans to filed a lawsuit to delay a special election that impacts her race for U.S. Senate (AP Photo)

BY ROBERT THOMAS – It appears that the Chief Election Officer’s decision to postpone the primary election in the storm-hit Puna district on the Big Island and hold it on the Admission Day holiday on Friday, August 15 — instead of waiting for the full 21-day period which state law permits (which we covered here) — won’t go by without legal action if the reports are to be believed. SeeHanabusa May Sue to Block Friday’s Primary Election in Puna,” and “Hanabusa threatens to sue to block Friday’s election.

We obviously haven’t seen any lawsuit, but we have a few questions:

  • What court would have jurisdiction to consider the challenge, and does the Supreme Court have original jurisdiction as suggested by this report (“Hanabusa, who trails Sen. Brian Schatz by 1,600 votes in Hawaii’s U.S. Senate race, said she plans to file a lawsuit with the state Supreme Court no later than Wednesday.”)? At first blush, this statute (section 11-172) appears to give the Supreme Court jurisdiction over the issue, but on deeper examination, we’re not entirely sure. Yes, the text begins with a seemingly broad grant of jurisdiction (“With respect to any election …”), but the remainder of the statute contemplates cases where a plaintiff is challenging the result of the election, and is not trying to stop it before it is held:

The complaint shall set forth any cause or causes, such as but not limited to, provable fraud, overages, or underages, that could cause a difference in the election results. The complaint shall also set forth any reasons for reversing, correcting, or changing the decisions of the precinct officials or the officials at a counting center in an election using the electronic voting system.

  • Does the Supreme Court have the power in an original jurisdiction election contest to order the Chief Election Officer to delay a postponed primary election even longer? This statute sets out what the court can do in an original jurisdiction contest for cause in a primary election:

The judgment shall decide what candidate was nominated or elected, as the case may be, in the manner presented by the petition, and a certified copy of the judgment shall forthwith be served on the chief election officer or the county clerk, as the case may be, who shall place the name of the candidate declared to be nominated on the ballot for the forthcoming general, special general, or runoff election. The judgment shall be conclusive of the right of the candidate so declared to be nominated[.]

  • This seems to contemplate only that the Supreme Court can determine who won the primary election and which candidate is the party’s nominee, and does not have the power under the election contest statute to halt or delay an election or determine the timing of when it can be held. We don’t know the answer, but think that the statutory text is sufficiently unclear when applied to the current situation to make it worth a deeper look.
  • What would be the standard of proof in such a case? The statute quoted above (section 11-172) requires that in order to win a contest for cause in the Supreme Court, a plaintiff must show that the problem complained about “could cause a difference in the outcome of the election.” A pretty tough burden to meet, as the court concluded in Tataii v. Cronin, 119 Haw. 337, 198 P.3d 124 (2008). And how could a challenger show that holding the “hurricane primary” on Friday, as opposed to some time later in the 21-day window, would change the result? Again, this seems to emphasize that the court only has the power to act after the fact.
  • Does this standard of proof mean that as noted above, the Supreme Court would have to let the election go forward on Friday, and possesses jurisdiction only to determine that one candidate or the other was the winner after the Friday election results were in?
  • If the Supreme Court does not have exclusive jurisdiction over a claim that Friday is too soon to hold the postponed primary election and has no power to stop it, then we assume the circuit court — the court of general jurisdiction — would be the place to hear the challenge, followed by an appeal to the Intermediate Court of Appeals or the Supreme Court by the usual routes. That’s how most challenges which raise issues other than the result of an election are brought, in our experience.
  • Regardless of what court could hear the case, are there standards which the reviewing court could apply under the statute governing the postponement of elections due to natural disaster? That statute has a lot of “may” language, which would seem to reflect that the elections officer has a lot of discretion about when precisely in the 21-day window the election is held. Or does the statute suggest that the elections officer should hold the postponed election only after concluding that the affected precincts are no longer “inaccessible,” and that the “ability of voters to exercise their right to vote is [no longer] substantially impaired?”

In the event of a flood, tsunami, earthquake, volcanic eruption, high wind, or other natural disaster, occurring prior to an election, that makes a precinct inaccessible, the chief election officer or county clerk in the case of county elections may consolidate precincts within a representative district.

If the extent of damage caused by any natural disaster is such that the ability of voters, in any precinct, district, or county, to exercise their right to vote is substantially impaired, the chief election officer or county clerk in the case of county elections may require the registered voters of the affected precinct to vote by absentee ballot pursuant to section 15-2.5 and may postpone the conducting of an election in the affected precinct for no more than twenty-one days; provided that any such postponement shall not affect the conduct of the election, tabulation, or distribution of results for those precincts, districts, or counties not designated for postponement.

We are just interested bystanders to all of this, and haven’t undertaken an in-depth analysis of the entirety of Hawaii election law, so take the above for what they are: questions that we are asking ourselves as we review the media reports about the promised challenge. As for the answers, we’ll see soon enough how the challenge is framed, in what court it is brought, and what relief it seeks. Stay tuned.

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.