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For those of you following along with the politcal musical chairs following the death last week of Hawaii’s senior U.S. Senator Daniel Inouye, today Hawaii Governor Neil Abercrombie appointed his Lieutenant Governor, Brian Schatz, as the the temporary Senator to occupy the seat pending the selection by the voters in 2014 of a permanent replacement to serve out Senator Inouye’s term. 

This leaves the office of Hawaii Lieutenant Governor vacant, so what’s next?

The Hawaii Constitution does not establish rules of succession, and provides only that “[w]hen the office of lieutenant governor isvacant … such powers and dutiesshall devolve upon such officers in such order of succession as may be providedby law.” See Haw. Const. art. V, § 4.

Section 26-2 of the Hawaii Revised Statutes sets out the order, and the next person in line is the President of the Hawaii Senate:

(a)  When the office of…

Continue Reading Succession Rules In Hawaii

Here’s the latest election law case from the Hawaii appellate courts. In Kawauchi v. David, No. CAAP-10-0000066 (Dec. 13, 2012), the Hawaii Intermediate Court of Appeals held that the time deadlines in Haw. Rev. Stat. § 12-8 are mandatory, and that a constitutional challege to the Hawaii County Charter was not timely decided. The ruling emphasizes that in election cases under Hawaii law, the often-short repose periods must be followed precisely, even by courts, and even if the delay is the result of an understandable error. Failure to adhere to these deadlines will deprive a trial court of jurisdiction.

The case involved a challenge to the charter’s requirement that a candidate for public office be a resident of the district in which she intends to run for at least 90 days before the primary election. Section 12-8 establishes the procedures for challenging nomination papers and contains a 30-day repose…

Continue Reading HAWICA: In Election Cases, Time Deadlines Matter

Updates:

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Hawaii’s senior U.S. Senator, Daniel K. Inouye died today. We can’t add much to the remembrances pouring in about this war hero, trailblazer, and political icon, so we’ll just address what we know, the law regarding how the vacancy in the U.S. Senate will be filled. Mark Murakami and I did some quick research, and here is what we came up with.

The starting point is the Seventeenth Amendment to the U.S. Constitution, which provides, in relevant part:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people…

Continue Reading Now What?

Here is the final brief (the Plaintiffs’ reply to the Chief Election Officer and Reapportionment Commission’s Memorandum in Opposition to the Plaintiffs’ Motion for Preliminary Injunction) in the federal court lawsuit challenging Hawaii’s use of “permanent resident” as its reapportionment population basis. Kostick v. Nago, No. 12-00184 (complaint filed Apr. 6, 2012).

The U.S. Census includes everyone who is a “usual resident” of Hawaii in its count of population — this includes servicemembers, their families, and university students. The Hawaii Constitution requires the Hawaii Reapportionment Commission to only count “permanent residents,” and in an opinion issued in January 2012, the Hawaii Supreme Court held this means the Commission must “extract” active duty military, their families, and university students who do not pay resident tuition from the 1.3 million+ persons counted by the Census as usual residents of Hawaii.

The lawsuit argues that the Equal Protection Clause guarantees …

Continue Reading Final Brief In Reapportionment Challenge: Hawaii’s Exclusion Of Military Does Not Survive “Close Constitutional Scrutiny”

The Hawaii Chief Election Officer and the Reapportionment Commission have filed their  Memorandum in Opposition to the Plaintiffs’ Motion for Preliminary Injunction in the federal court lawsuit challenging Hawaii’s use of “permanent resident” as its reapportionment population basis. Kostick v. Nago, No. 12-00184 (complaint filed Apr. 6, 2012).

The U.S. Census includes everyone who is a “usual resident” of Hawaii in its count of population — this includes servicemembers, their families, and university students. The Hawaii Constitution requires the Hawaii Reapportionment Commission to only count “permanent residents,” and in an opinion issued in January 2012, the Hawaii Supreme Court held this means the Commission must “extract” active duty military, their families, and university students who do not pay resident tuition from the 1.3 million+ persons counted by the Census as usual residents of Hawaii.

The lawsuit argues that the Equal Protection Clause guarantees representational equality as well as…

Continue Reading State’s Brief In Hawaii Reapportionment Case: Military Stationed In Hawaii Are “Transients”

Here’s the motion for preliminary injunction we filed yesterday in the federal lawsuit challenging Hawaii’s exclusion of military personnel, their families, and university students who do not pay resident tuition, from the population count when reapportioning the state legislature.

The U.S. Census includes everyone who is a “usual resident” of Hawaii in its count of population — this includes servicemembers, their families, and university students. The Hawaii Constitution requires the Hawaii Reapportionment Commission to only count “permanent residents,” and in an opinion issued in January 2012, the Hawaii Supreme Court held this means the Commission must “extract” active duty military, their families, and university students who do not pay resident tuition from the 1.3 million+ persons counted by the Census as usual residents of Hawaii.

From the motion’s Introduction:

The Supreme Court maintains the touchstone of a state legislative reapportionment plan is population. Reynolds v. Sims, 377 U.S. 533…

Continue Reading Motion For Preliminary Injunction: Hawaii Legislative Reapportionment Must Include All Residents, And Cannot “Extract” Military, Military Families

The editorial in today’s Honolulu Star-Advertiser writes:

The state Supreme Court’s ruling in January that determined how boundary lines should be drawn for this year’s election in August made scant reference to the agency created primarily for that purpose: the U.S. Census Bureau. That is why a lawsuit in federal court should result in the prompt ordering of the lines to be redrawn to conform with the nationally customary method of including military and out-of-town students in the population count, in time for the upcoming elections.

…

The commission noted in its final report last year that the U.S. Supreme Court had ruled in 1962 that a state could not exclude military people from the population base “based solely on the nature of their employment,” but that seems to be what the state’s high court mistakenly has done.

In 48 other states, lines are drawn according to the Census Bureau’s…

Continue Reading Star-Advertiser: “Census should guide election boundaries”

Here’s the latest in the federal court reapportionment lawsuit, filed last week (we represent the plaintiffs). Above is the audio archive of my appearance yesterday morning on KHVH’s Rick Hamada Program. KITV also aired this report on the case. Posted below is the District Court order granting the request for a three-judge district court.

Order Granting Plaintiffs’ Request for a Three-Judge Court Pursuant to 28 U.S.C. § 2284, Kostick v. Nago, N…Continue Reading Latest In Federal Court Reapportionment Case

It may be Good Friday (an official State Holiday in Hawaii), but the federal courts are open, and today, on behalf of six plaintiffs including several veterans, we filed a lawsuit challenging under the Equal Protection Clause the State of Hawaii’s practice of excluding military personnel, their families, and university students who pay nonresident tuition from the population count when reapportioning the state legislature.

The U.S. Census counts everyone who is a “usual resident” of Hawaii in its count of population — including military, their families, and university students — but the Hawaii Constitution requires the Hawaii Reapportionment Commission to only count “permanent residents.” In an opinion issued in January 2012, the Hawaii Supreme Court held this means the Commission must “extract” active duty military, their families, and university students who pay nonresident tuition from the 1.3 million+ persons counted by the Census as usual residents of Hawaii. This…

Continue Reading Federal Court Lawsuit: Hawaii Legislative Reapportionment Cannot Exclude Military, Military Families