Voting rights | election law

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Following up on a recent post about a possible legal challenge to Hawaii’s system of “open” primaries: the U.S. Court of Appeals for the Fourth Circuit (Maryland, W. Virginia, Virginia, North and South Carolina) has denied rehearing/en banc review to a panel decision declaring Virginia’s open primary unconstitutional.  Circuit Judge Wilkinson dissents in a detailed 20 page opinion that is worth reading for anyone interested in this area of voting rights and first amendment law.  Miller v. Cunningham, No. 06-2335 (Dec. 20, 2007).  Thanks to Election Law blog for publicizing the case.Continue Reading Fourth Circuit on Open Primaries

In August, by a3-2 vote, the Hawaii Supreme Court determined that the term “county” inarticle VIII, section 3 of the Hawaii Constitution means “countycouncils.”  The majority held that only county councils may establish property tax policies, and that voters of the county have no power to do so directly by amending their county charter. 

The majority first determined that it was perfectly acceptable for government officials to be both the plaintiffs and the defendants, and sue each other in a friendly lawsuit in which the County Attorney represented both sides.  The majority also approved of the county council hiring a private law firm to prosecute the case in which it was a defendant, with $250,000 of public funds.

The dissenting justices accused the majority of “subvertingthe judicial process” by ignoring standing and justiciability requirements by rearranging the parties after oral arguments,and by attributing the arguments of the defendants to the…

Continue Reading 2007 in Review: Hawaii Supreme Court Rewrites the Constitution

Do primary voters choose candidates or do they choose parties?  The Honolulu Advertiser posts an interesting story about a possible federal constitutional challenge to Hawaii’s system of open primary voting, “Hawaii Democrats may sue to close primaries.” 

Under article II, section 4 of the Hawaii Constitution:

no person shall be required to declare a party preference or nonpartisanship as a condition of voting in any primary or special primary election.

Haw. Rev. Stat. § 12-31 provides more details:

Each voter shall be issued the primary or special primary ballot for each party and the nonpartisan primary or special primary ballot.  A voter shall be entitled to vote only for candidates of one party or only for nonpartisan candidates.

Hawaii’s process, under which a voter is provided with several ballots, then chooses one secretly to vote is is known as an “open” primary.  Open primaries allow crossover voting…

Continue Reading A Challenge to Hawaii’s Open Primary System?

A “SLAPP suit” is a “strategic lawsuit against public participation,” and many states have statutes designed to thwart retaliatory lawsuits to protect the public’s willingness to exercise First Amendment rights.  For example, California’s statute defines SLAPP suits as:

lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.

Cal. Code. Civ. Proc. § 425.16 (emphasis added).  Hawaii’s anti-SLAPP statute is codified at Haw. Rev. Stat. ch. 634F, and defines a SLAPP suit somewhat differently than California:

“SLAPP”means a strategic lawsuit against public participation and refers to alawsuit that lacks substantial justification or is interposed for delayor harassment and that is solely based on the party’s public participation before a governmental body.

Haw. Rev. Stat. § 634F-1 (emphasis added).

In City of Riverside v. Stansbury, Nos. E040125 & E040973 (Cal. Ct. App. Oct. 12, 2007), the…

Continue Reading ▪ SLAPP Suits, Ballot Measures, and Curbing Eminent Domain Abuse

Jay Fidell at ThinkTech Hawaii (Hawaii Public Radio KIPO-FM89.3) posts the podcasts of UH Law School dean and professor Avi Soifer’s appearance on the topic of “Pushing the constitutional envelope – how quickly, if at all, can it snap back.”  It’s not about land use and related topics, but worth listening nonetheless for anyone interested in the role of the courts in protecting constitutional rights. 

Sidebar: One of the more interesting law review articles I’ve read lately is Dean Soifer’s Courting Anarchy, 82 Boston U. L. Rev. 699 (2002), which criticized the U.S. Supreme Court’s Bush v. Goredecision, and analyzed the corrosive effect on judicial legitimacy whencourts make nakedly political decisions.  Speaking of that case, The WallStreet Journal’s law blog has this interesting tidbit: Continue Reading ▪ Podcast: UH Law School Dean on “Pushing the Constitutional Envelope” (mp3)

“In a democracy, the people get the government they deserve” states the old dictum.  That pretty much sums up one response to The Wall Street Journal story This Side of Paradise about the “Ohana Kauai” property tax charter amendment case.  A WSJ reader proposes: “It’s Simple: Vote Them Out.”

The need to restrain local taxation in Kauai may be compelling; butthere is another, and undiscussed, option. Vote out the recalcitrantmayor and/or governing council and replace them with officials for whomcontrolling the level of taxation is a high priority. Who knows? Facedwith the broader issues of local government, Ohana Kauai’s voters maybe able to impel all manner of improvements in local policy andadministration.

Full story here. 

He’s got a point, of course.  Removing unresponsive elected officials from their positions, either by voting for the other guy in the next election or by recall (the Kauai Charter provides…

Continue Reading ▪ Getting the Government They Deserve — “Ohana Kauai” Solution Proposed

The Wall Street Journal posts “This Side of Paradise,” about the “Ohana Kauai” property tax Charter Amendment case, County of Kauai ex rel. Nakazawa v. Baptiste, No. 27351 (Aug. 6, 2007). 

Inthat 3-2 decision, the Hawaii Supreme Court over a vociferous dissent,held that friendly government officials have standing to manufacturelawsuits against each other to challenge a charter amendment enacted bya vote of the people, and that the Hawaii Constitution delegatesproperty tax power exclusively to “county councils.”

The Pacific Legal Foundation’s Robert Thomas stepped in, arguing the case before the Hawaii Supreme Court on Feb. 15, 2007, on behalf of four property owners. Honolulu attorney Gary Slovin, for the county, countered that allowing people to vote on taxes would create “chaos.” A few members of the County Council publicly agreed. The Hawaii Government Employees Association, fearing government jobs held by union members might be cut, issued a…

Continue Reading ▪ National Spotlight on the “Ohana Kauai” Property Tax Charter Amendment Case — Wall Street Journal: “This Side of Paradise”

Kauai’s newspaper posts “Ohana amendment decision the result of classic Hawaii politics,” a commentary by Walter Lewis, one of the Kauai homeowners who intervened in the County vs. County lawsuit, an effort by county officials to strike down a voter-enacted property tax relief charter amendment.

The typical lawsuit involves a realcontroversy between the plaintiff and the defendant or defendants withactual or threatened injury to the plaintiff. These fundamentalconditions did not exist in the Ohana measure case. Ever. The plaintiffand all the defendants wanted the same result and, as we all know, hadno dispute among them and prosecuted this lawsuit with over $250,000 oftaxpayer money to get political cover. And the County was unable topoint to anything in the Ohana measure that was or would be injuring it.

Complete commentary here.  [Note: I represent the homeowners.] 

Sunday update:  Charley Foster’s letter to the editor responding to Continue Reading ▪ Article on the Kauai Property Tax Decision

My thanks to Sandy Brodie and Karlos deTreaux for having me on their “Kauai Soapbox” program today on KKCR-FM 92.7, where we discussed the “Ohana Kauai” property tax charter amendment case and recent decision by the Hawaii Supreme Court.

Stream the podcast here (1 hr):

Or download the podcast here (52mb mp3).Continue Reading ▪ Podcast: Radio Interview on Kauai Property Tax Charter Amendment Case (mp3)