"Mistakes Were Made" - Elections Office Practices Are Not "Rules"

by Robert Thomas, Inverse Condemnation, December 26, 2015

Here's one that combines two of our practice areas, election and admin law. Land users should also pay attention because admin law issues frequently arise there, also.

In Green Party of Hawaii v. Nago, No. CAAP-14-0001313 (Dec. 18, 2015), the Hawaii Intermediate Court of Appeals concluded that certain practices by the State Office of Elections were not "rules," and thus need not have been adopted via the rulemaking procedures in the Hawaii Administrative Procedures Act.

The procedures complained of were reactions to the shortage of printed ballots and other well-known difficulties the Elections Office had during the 2012 General Election. The ICA acknowledged "[i]t is undisputed that mistakes were made." Slip op. at 2. See also slip op. at 24 ("In sum, mistakes were made in conjunction with the 2012 General Election.").

Election law types know that courts are generally pretty reluctant to intervene when the plaintiff can't show that the complained-about actions made a difference in an election. Here, no different. The use of the passive-voice cliché tells you where this one was going (the Elections Office really goofed, but no-harm, no-foul), and indeed, "none of the races that could have been impacted by the ballot mix-up were close enough to have been affected," even if the Elections Office's "execution of the 2012 General Election fell short of the electorate's reasonable expectations." Slip op. at 2.

Admin law types should really read the opinion in detail, because it details the tests for when an agency procedure must be adopted by rulemaking. We won't spell the details out here, because the opinion does a good job of it, in our view.  Short version: the procedures and methodologies employed by the Elections Office were not statements of general applicability or future effect that interpreted law. Consequently, they were not "rules," as defined by the Admin Procedures Act, and it was not error for the Elections Office to not have adopted them by the usual rulemaking process.

Only time -- and the next election -- will tell whether "mistakes [will continue to be] made."

PDF: Green Party of Hawaii v. Nago, No. CAAP-14-0001313 (Haw. App. Dec. 18, 2015)