Voting rights | election law

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So let’s say you want to hold fundraisers for political bigshots in your home. When the crowd you are hobnobbing with includes Bill Clinton, you might expect the Secret Service to come along, and you might expect that your local constabulary is asked to pitch in to help the T-Men with security, and traffic and crowd control.

You might also expect that despite residing in what is considered an “affluent village” where the median family income is reported to be $200,000, the local taxpayers might not appreciate shouldering the expense of the extra security that your soirees require. Thus, you should not be surprised when the village fathers and mothers adopt an ordinance requiring that people whose closed-to-the-public events spur the need for these extra services to bear the cost instead of the taxpayers. 

But even after the ordinance is adopted you never get sent a bill, despite…

Continue Reading 7th Circuit: Political Chutzpah Lawsuit Not Ripe

Today’s Honolulu Star-Advertiser runs the editorial Perk of incumbency: Unequal time, about Hawaii’s “resign to run” requirement (article II, section 7 of the Hawaii Constitution), particularly the interplay with equal time in broadcast media:

The cynic might say that elected officials are candidates every day of their working lives. Attorney Robert Thomas, who admits to a little cynicism, observes this frequently these days when the bus he’s riding to work rumbles past the mayor’s campaign headquarters.

“When we pass the ‘Mufi for Governor’ signs, I think, ‘It must be nice having your campaign office there and not be a candidate yet,'” he said. “I can see why people are confused.”

Despite recent complaints about unofficial candidates maintaining a high profile, especially through their regular radio spots, this confusion is unlikely to lift anytime soon.

….

To say [former Congressman Neil] Abercrombie [also a candidate for Governor] is unhappy, particularly…

Continue Reading Perpetual Campaigns And Hawaii’s “Resign To Run” Requirement


What we’re looking at and listening to today. Some video, some podcasts.

  • A clip about the owner of what might be “the most condemned property in America.” It features a Virginia rancher whose property has been subject to condemnation 10 times, and who now is alleging an inverse condemnation claim because the VA DOT this time didn’t bother to exercise eminent domain before it interfered with his property rights. Joe Waldo, my Owners’ Counsel colleague, is also featured.
  • From the Federalist Society, a podcast or a video of a recent discussion about “Civil Pleadings Standards After Iqbal” for all of us federal civil procedure nerds.
  • A podcast of a debate on post-Kelo eminent domain reforms between George Mason lawprof Ilya Somin and U.Chicago lawprof Saul Levmore.

Continue Reading Multimedia Round-Up

This just in: in a unanimous opinion authored by Justice Acoba, the Hawaii Supreme Court held that a Maui council member immediately forfeits office should the council member violate the continuous residency requirements of Maui Charter § 3-3.  DeJetley v. Kahoohalahala, No. 29919 (Feb. 10, 2010). The court held that section 3-3 could be enforced by declaratory judgment, and reversed a judgment by the Second Circuit court that the only remedies were impeachment or recall. The case now goes back to the Second Circuit for further proceedings.

Disclosure: we represent the Lanai voters who are the plaintiffs.

Here are all the briefs in the case:

This case is related to Dupree v. Hiraga, No. 29646 (Oct. 20, 2009), in which the Hawaii Supreme Court held that inorder to register to vote as a resident of a district, a person musthave a fixed…

Continue Reading HAWSCT: County Council Member Subject To Declaratory Judgment Claim He Is Not A Resident Of His District

Today, we filed the Reply Brief in DeJetley v. Kahoohalahala, No. 29929, the appeal now pending in the Hawaii Supreme Court regarding the Lanai member of the Maui Council who is alleged to not be a resident of Lanai as required by the county charter.

Section 3-3 of the Charterprovides that “If a council member … ceases to be a resident of thecouncil member’s residency area during the council member’s term ofoffice, or if a council member is adjudicated guilty of a felony, thecouncil member shall immediately forfeit office and the seat shallthereupon become vacant.”

Several Lanai residents sought a declaratory judgment in circuit court that the council member had forfeited office, and that the seat was vacant because he is not a Lanai resident. The Circuit Court dismissed the complaint, holding that declaratory relief was not available, and the remedy was impeachment or recall. The Lanai voters appealed…

Continue Reading Final Brief In Maui Councilmember Residency Appeal: What Is “Immediate Forfeiture And Vacancy?”

Here’s the Answering Brief filed by a Maui Councilmember in the case in which Lanai residents and voters assert he forfeited the Lanai seat on the Maui County Council under section 3-3 of the Maui Charter since he is not a resident of Lanai.

Section 3-3 of the Charterprovides that “If a council member…ceases to be a resident of thecouncil member’s residency area during the council member’s term ofoffice, or if a council member is adjudicated guilty of a felony, thecouncil member shall immediately forfeit office and the seat shallthereupon become vacant.”

The Maui Circuit Court dismissed the complaint, and the Lanai voters appealed.

Disclosure: we represent the Lanai voters; the Opening Brief we filed earlier is posted here.

More to follow as the appeal progresses. This was earlier transferred from the Intermediate Court of Appeals to the Supreme Court.

Note: on October 20, 2009, the Hawaii Supreme Court…

Continue Reading Answering Brief In Maui Councilmember Residency Appeal: What Is “Immediate Forfeiture And Vacancy?”

Here are a couple of reports about yesterday’s decision by the Hawaii Supreme Court in Dupree v. Hiraga, No. 29646 (Oct. 20, 2009):

The court held that inorder to establish residency as a voter, a person must have a fixed habitation inthe district in which he is attempting to register, as well as a”physical presence” there.  Intent to return is not enough. The case concerned whether the State Board of Registration (County of Maui)correctly concluded that a Maui County councilperson who registered tovote as a Lanai resident is actually a resident of Maui. The unanimous court, in an opinion by Justice Mark Recktenwald, affirmed.More about the opinion here.

[Disclosure: my Damon Key colleagues and I represent the Lanai voterswho prevailed in the appeal.] 
Continue Reading Media Reports On HAWSCT “Residency” Decision

In an opinion issued today, the Hawaii Supreme Court held that in order to register to vote as a resident of a district, a person must have a fixed habitation in the district in which he is attempting to register, as well as a “physical presence” there. Dupree v. Hiraga, No. 29646 (Oct. 20, 2009). Intent to return is not enough.

The case concerned whether the State Board of Registration (County of Maui)correctly concluded that a Maui County councilperson who registered tovote as a Lanai resident is actually a resident of Maui. The unanimous court, in an opinion by Justice Mark Recktenwald, affirmed.

[Disclosure: my Damon Key colleagues and I represent the Lanai voterwho prevailed in the appeal.] 

The court held:

The Board concluded in COL No. 14 that Dupree established that Kaho’ohalahala did not abandon his residence in Lahaina and relocate his permanent residence to Lana’i. The…

Continue Reading HAWSCT: “Residency” Requires Physical Presence Plus Intent

Update: the Hawaii Supreme Court’s unanimous opinion affirming that “immedeately forfeit” means the circuit court has the power to declare that a council seat is vacant, is here.

Yesterday, we filed the Opening Brief on behalf of Lanai residents and voters in their appeal from the Maui circuit court’s dismissal of their complaint that Council member Kahoohalahala, who purportsto occupy the Lanai residency seat on the Maui County Council, does not reside onLanai as required by the Maui Charter.

Section 3-3 of the Charterprovides that “If a council member…ceases to be a resident of thecouncil member’s residency area during the council member’s term ofoffice, or if a council member is adjudicated guilty of a felony, thecouncil member shall immediately forfeit office and the seat shallthereupon become vacant.”

The meaning of “immediately forfeit” and “shall thereupon become vacant” are plain: the circuit court may declare a council member who is…

Continue Reading Brief In Maui Councilmember Residency Appeal: What Is “Immediate Forfeiture And Vacancy?”

The recording of the oral argument in Dupree v. Hiraga, No 29464 has been posted. It is available here (caution, massive 34mb mp3 download). (Oral arguments in Hawaii’s appellate courts are not reduced to a written transcript, and the electronic recordings are the only record of arguments.)

The appeal concerns whether the State Board of Registration (County of Maui)correctly concluded that a Maui County councilperson who registered tovote as a Lanai resident is actually a resident of Maui. More details about the case, including the briefs of the parties, are posted here. Disclosure: my Damon Key colleagues and I represent the Lanai voterwho successfully challenged the residency of the councilperson.  Continue Reading HAWSCT Oral Argument Recording In Voter Registration Residency Appeal