Voting rights | election law

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Here’s a recent piece from Richard Borecca, the Honolulu Star-Advertiser’s political reporter, about the Texas reapportionment case recently set for full briefing and argument by the U.S. Supreme Court.

“In Hawaii, eligible voters count more than people” is behind a partial paywall, but here’s the key points in the event you are not a subscriber:

  • Hawaii has never counted the entire census-counted resident population for purposes of apportioning its state legislature. It has always relied on a method that somehow excludes active duty military and their families who reside in Hawaii from the reapportionment count. 
  • Hawaii is one of two states which does not base reapportionment on total census-counted population (Kansas being the other). 
  • When voter registration and participation was high in the years following statehoood in 1959, Hawaii counted registered voters, which due to the high percentage of Hawaii residents who registered to vote, was an accurate

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Continue Reading Star-Advertiser: Hawaii “Is Exception To Constitutional Law” In State Reapportionment

As we recognized earlier this week when the U.S. Supreme Court noted probable jurisdiction in a redistricting case out of Texas, Hawaii’s current approach to state legislative reapportionment — under which the Hawaii Reapportionment Commission does not count active duty military, their spouses and children, and university students who pay non-resident tuition (108,000, or nearly 8% of the census-counted population were expressly excluded from representation in the Hawaii Legislature) — seems like it is back in play, even if a three-judge U.S. District Court ruled in 2013 that the scheme was constitutional, a decision that was summarily affirmed by the U.S. Supreme Court.

The Wall St. Jounal Law Blog today posts “Hawaii Military Carve Out May Play Role in Voting District Case,” noting:

Hawaii may figure prominently when the Supreme Court this fall considers a case where plaintiffs are seeking to have legislative districts drawn based on…

Continue Reading WSJ Law Blog: “Hawaii Military Carve Out May Play Role in Voting District Case”

Followers of the blog recognize that in addition to our regular menu of regulatory takings, eminent domain, inverse condemnation, and land use related items, our practice also includes voting rights and election law issues. So every now and then we post up interesting cases and decisions, especially where the issues involved are related to cases which we’ve done in the past.

Thus, it was with great interest that we saw the Supreme Court today noting probable jurisdiction in a case we’ve been following, ordering full briefing and argument on an issue that is near and dear to us: the question of who exactly gets counted under the Fourteenth Amendment’s Equal Protection Clause requirement that state legislative districts be of roughly equal size. See Evenwel v. Abott, No. 14-940. The question the Court has never squarely answered is equal size of who? Does the Equal Protection Clause require states…

Continue Reading SCOTUS To Revisit One-Person-One-Vote: Representational Equality Or Voting Equality?

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Spurred by yesterday’s battle-of-the-titans Supreme Court oral arguments (Clement vs. Waxman) in a case we’ve been following, we’re taking a short diversion from our usual fare of takings, eminent domain, and land use law today to cover another topic that long-time followers know is also within our area of practice: voting and election law.

The case is Arizona State Legislature v. Arizona Independent Redistricting Commission, No. 13-1314, an actual appeal to the Supreme Court from a three-judge district court, one of the few places left in the law where that can still happen. The Question Presented boils down to the meaning of “legislature” as used in the Elections Clause: does the requirement that “the Legislature” determine the time, place, and manner of congressional elections mean that those states which redistrict and reapportion by way of Commission or other non-legislative means are using an unconstitutional processes? 

In a provision added…

Continue Reading Is The Hawaii Reapportionment Commission About To Go The Way Of The ‘O’o Bird?

The statutory standards for an original jurisiction action in the Hawaii Supreme Court challenging the outcome of an election are pretty rigorous. You’ve got to show acts or omissions that “could cause a difference in the election results.” Haw. Rev. Stat. § 11-172. In other words, you must show that if you are right about the facts, the winner won’t be the winner. Indeed, the bar is set pretty high just to survive a motion to dismiss, much less win, since the complaint itself must demonstrate “error, mistakes or irregularities that would change the outcome of the election” to avoid dismissal for failure to state a claim.

The Twombly heightened pleading standards applicable in the federal courts have not been adopted by Hawaii courts, at least in typical civil cases where the pleading bar is set pretty low. But in original jurisdiction election contests, the opposite may be true, and a…

Continue Reading HAWSCT Confirms Election Contests Are Tough!

Today must be election contest day at the Hawaii Supreme Court. We say that because the court today disposed of all three election contests which were filed stemming from the postponed Puna precincts primary and other primary election problems.

Earlier, we posted the court’s order dismissing for lack of subject-matter jurisdiction the original jurisidiction action filed by several voters from Puna and the ACLU Hawaii, which asked the court to allow them to vote because they were prevented by the tropical storm which whacked the Big Island on primary day. Now we have decisions on the merits in the other two election contests which were filed by the deadline.

In Waikiki v. Nago, No. SCEC-14-0001072 (Aug. 28, 2014), the court issued findings of fact and conclusions of law, and held that an election contest which complained about the state’s Chief Election Officer temporarily misplacing 800 Maui County votes…

Continue Reading The Other Two Election Contests To The Postponed Puna Precincts Primary Also Dismissed

Here’s the Order Granting Motion to Dismiss, just filed in Lathers v. Abercrombie, No. SCOT-14-0001069 (Aug. 28, 2014).

That’s the original jurisidiction action filed by several voters from Puna and the ACLU Hawaii, which asked the court to allow them to vote because they were prevented by the tropical storm which whacked the Big Island on primary day. 

The State defendants sought dismissal, and the court agreed that it lacked subject matter jurisdiction:

Plaintiffs concede that their complaint is “not a typical ‘election contest’” within the meaning of HRS §§ 11-172 (2009) or 11-173.5 (2009) and that they do not meet the statutory requirements for an election contest. Further, the court does not have jurisdiction under the statutory and constitutional provisions cited in the Complaint and First Amended Complaint to grant the relief requested. Therefore,

IT IS HEREBY ORDERED that the motions to dismiss are granted. The…

Continue Reading HAWSCT Dismisses Postponed Puna Precincts Primary Challenge

Update: an astute reader notes that “election contests” in the Hawaii Supreme Court actually have their own separate designation in the case numbering system, “EC.” Thus, a election challenge is labeled as “SCEC-xxxxxxx.” Which means that, for whatever reason, the ACLU’s case which we posted on below and earlier was not labeled as an election challenge at all, but as an “Other.” We don’t think that the case designation or numbering has any substantive effect, mind you, but do find it interesting that the complaint calls the action an “election challenge” yet it’s neither labeled as such, nor was the jurisdiction of the court invoked under the election challenge statute. A big mahalo for the input. 

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You can tell what kind of case is before what Hawaii appellate court by the case designation at the top of the fist page flysheet. First two letters are the court, second…

Continue Reading Great SCOT! Actually, No “SCOT” According To State: ACLU Complaint About Postponed Puna Primary Not An “Election Contest”

Yesterday at 4:30 p.m. was the statutory deadline for instituting an “election contest” in the Hawaii Supreme Court to challenge last Friday’s postponed Puna precincts primary (say that quickly five times).

As those of you who have been following along know, the state’s Chief Election Officer determined that voting would remain open in two Big Island precincts due to the impacts of Tropical Storm Iselle on primary day. He could have ordered a delay of up to 21 days and the use of mail-in ballots, but after some waffling, determined that the two-precinct election would be held one week later, with in-person voting. All of this while the reports of the impact of the storm just seemed to get worse each day as the residents of Puna dug themselves out, and the true scope of the damage made its way to the media.

National eyes were watching, because the…

Continue Reading “Not A Typical Election Contest” Filed Over Postponed Puna Primary

To follow up on our earlier post about issues to look for in the legal challenge to the Hawaii Chief Elections Officer’s choice to hold the delayed Democratic Party primary election on Friday, August 15, 2014, rather than keep the 21-day window open, here are the Complaint and Motion for Temporary Restraining Order filed this morning in the circuit (trial) court on the Big Island. As we suspected might be the case, the Hawaii Supreme Court’s original jurisdiction to hear election contests was not invoked, since the relief sought by the complaint is to stop Friday’s planned election, and delay it to some other time.

You can read the documents themselves (thank you, Honolulu Civil Beat, for posting them), but here is the short version:

  • The plaintiff is Democrat Colleen Hanabusa, a candidate for the Democratic Party’s nomination as U.S. Senator. There are two claims for relief:
  • The first is a

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Continue Reading Too Soon? Lawsuit To Delay The Delayed Puna Precincts Primary Filed