The Law Behind Hawaii's Hurricane Senate Primary Election: Let The Games Begin!

by Robert Thomas, InverseCondemnation, August 10, 2014 

Of all of the impacts of Hurricane Tropical Storm Iselle -- which whacked the Big Island but thankfully not the rest of the state last Friday -- the one that may be the longest lasting may be that the Democratic Party primary election for the U.S. Senate seat vacated by the death of Dan Inouye (filled in the interim by Brian Schatz, appointed by the Governor) will come down to one little district on the Big Island.

As long-time readers may know, from time-to-time we also cover election law topics, so on this beautiful post-storm and sunny Sunday, so we're going to diverge a bit from our usual subject, because along with our colleague Mark M. Murakami, we were curious about the law governing the situation where a natural disaster interferes with an election.

First, the tale of the tape. According to the latest reports, after the smoke cleared last night, "a mere 1,635 votes" separate Schatz from challenger Colleen Hanabusa, and all votes statewide have been counted, except for two in the Big Island's Puna district, in which up to 8,000 votes may be in play:

Election officials still need to tabulate votes from two Puna polling sites that were closed as a result of roads damaged by Tropical Storm Iselle, affecting about 8,000 registered voters. Chief Elections Officer Scott Nago said ballots would be mailed to those who did not vote prior to Saturday by mail or walk-in and voters would have several days to return them.

Read the full story here.

Keep in mind two things. First, The Democratic Party primary is, in reality, the only election that matters since Hawaii really is "Blue" Hawaii, and the general election is mostly a formality in most races. It certainly will be so for the Senate seat, where there appeas to be no serious GOP candidate. Second, Hawaii has an "open primary" system in which a voter may pull any party's ticket, regardless of registration, so all 8,000 votes may be in play. Unlikely, given Hawaii's dismal voter participation rate, but with everything on the line and with the state's entire political establishment now targeting Puna voters, there might be a higher rate than usual. And for those of you thinking, wait, these guys get to vote after they know how everyone else voted, and knowing they can determine the race?

Yes, yes they can.

Here's the Hawaii election statute that says that election officials have up to 21 days to conduct the election:

§ 11-92.3 Consolidated precincts; natural disasters; postponement; absentee voting required; special elections. (a) In the event of a flood, tsunami, earthquake, volcanic eruption, high wind, or other natural disaster, occurring prior to an election, that makes a precinct inaccessible, the chief election officer or county clerk in the case of county elections may consolidate precincts within a representative district. If the extent of damage caused by any natural disaster is such that the ability of voters, in any precinct, district, or county, to exercise their right to vote is substantially impaired, the chief election officer or county clerk in the case of county elections may require the registered voters of the affected precinct to vote by absentee ballot pursuant to section 15-2.5 and may postpone the conducting of an election in the affected precinct for no more than twenty-one days; provided that any such postponement shall not affect the conduct of the election, tabulation, or distribution of results for those precincts, districts, or counties not designated for postponement. The chief election officer or county clerk in the case of county elections shall give notice of the consolidation, postponement, or requirement to vote by absentee ballot, in the affected county or precinct prior to the opening of the precinct polling place by whatever possible news or broadcast media are available. Precinct officials and workers affected by any consolidation shall not forfeit their pay.

Haw. Rev. Stat. § 11-92.3.

We don't know yet how long state election officials will keep the window open, and there don't seem to be any standards in the statute or elsewhere to help them. So until we hear otherwise, we're assuming the campaign is back on for another three weeks. In other words, candidates, fire up the phone lines, but more importantly, get yourselves to the Big Island:

Roland Casamina, a Schatz campaign co-chairman, said personal calls to Puna voters will be critical. 

"We really have to go and contact the people we know on that island," he said.

Former Gov. John Waihee said it's going to be an "on the ground" campaign with lots of hand-shaking.

"I think the senator will do very well there," he said.

Life imitates art yet again. Let the games begin.

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RELATED: Punatics in Two Closed Precincts Favor Schatz