Green Party of Haw. v. Nago, SCWC–14–0001313.
Citation | 378 P.3d 944,138 Hawai'i 228 |
Decision Date | 19 July 2016 |
Docket Number | No. SCWC–14–0001313.,SCWC–14–0001313. |
Parties | GREEN PARTY OF HAWAII, Karen M. Holt, Elizabeth M. Ruze, Michael Kratzke, Moani Keala Akaka, Kim Duffett, Mary Jo Dennison and Maka ‘Ala Ka‘Aumoana, Petitioners/Plaintiffs–Appellants, v. Scott NAGO, Chief Elections Office, State of Hawai‘i, and State of Hawai‘i, Respondents/Defendants–Appellees. |
Court | Supreme Court of Hawai'i |
Lance D. Collins, for petitioners.
Kimberly Tsumoto Guidry, Honolulu, for respondents.
This case involves an action by the Green Party of Hawaii and seven registered voters who voted in the 2012 General Elections (Green Party) seeking a declaratory judgment pursuant to Hawai‘i Revised Statutes (HRS) § 91–7 (2012) that certain methodologies and procedures used by the Office of Elections in the 2012 election are invalid under the Hawai‘i Administrative Procedure Act (HAPA).
Specifically, Green Party contends that the Office of Elections violated rulemaking requirements because of its failure to adopt administrative rules pursuant to HAPA regarding the methodology and procedures used to (1) determine the number of election ballots to be delivered to the precincts, (2) request additional ballots when a precinct runs out of paper ballots, and (3) count the votes cast on a ballot for a precinct in which the voter is not entitled to vote. We conclude that the procedures used to determine that there will be a sufficient number of ballots ordered for each precinct for a primary or general election and the policy for counting votes cast on ballots for the incorrect precinct are "rules" under HAPA and thus subject to the rulemaking requirements of HAPA.
Chief Election Officer Scott T. Nago reported on the election-day issues that arose during the 2012 General Election in memoranda to the Elections Commission dated November 9, 2012, and November 20, 2012:
Nago then addressed several notable incidents resulting from the insufficient ballot inventory at the polling places:
Nago concluded that the irregularities that had occurred did not appear to be legally sufficient to change the election results:
In reviewing the impacted contests of State Representative, 19th and 20th Districts, State Senate 9th and 10th Districts, and Council Districts IV and V, the margins of victory were significant and would not have been impacted by these ballots. In the present case, these irregularities do not appear to be legally sufficient to change the election results.
Nago also explained that the voting delays did not affect voters in line at the close of polls as they were permitted to vote:
By state law, all voters in line at the close of polls are able to vote. As such, in talking to the media, we encouraged all impacted voters to remain in line as they would be permitted to vote and that they should utilize the electronic voting machines. In the end, all voters in line at the close of polls were permitted to vote. However, as previously noted, there were significant delays.[2 ]
Elizabeth M. Ruze, a plaintiff in this case, submitted a sworn declaration that recounted her voting experience:
Nago concluded his November 9, 2012 letter to the Elections Commission with the following:
The Chief Election Officer is required to deliver a sufficient number of ballots to each of the precincts before the polls open on election day. The ballot order methodology used to calculate the number of ballots printed for the primary and general elections in 2010 is reflected in an undated document entitled Ballot Order. The 2010 ballot order methodology appears to be substantively similar to the prior version, Ballot Order 2002.
Prior to the 2012 General Election, the model for ordering polling place ballots involved calculating 85% of the amount of registered voters in the precinct. Voter turnout in comparable elections could be used as a basis to increase or decrease the ballot order as necessary. The number of absentee mail ballots, absentee walk ballots,3 and reserve ballots4 ordered was based on a percentage of the number of the polling place ballots. The absentee mail ballots ordered were generally equal to 35% of the polling place ballots; absentee walk ballots ordered were equal to 20% of the polling place ballots; and reserve ballots were equal to 6% of the polling place ballot order.
Historically and in 2012, the ballot order calculation was supplemented by a review of the number of absentee ballots cast prior to the opening of the polls. An unusually low absentee mail or absentee walk turnout would act as a warning sign that there were a higher number of remaining voters eligible to vote at the polling places, resulting in the need to deploy reserve ballots prior to the opening of the polls. If there were concerns regarding whether the number of reserve ballots was sufficient, then unissued absentee ballots could be used, and the...
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