ACLU sues for Hawaii Island residents to get second chance to vote

by Malia Zimmerman, Watchdog.org, August 22, 2014 

HONOLULU — The American Civil Liberties Union filed a lawsuit Thursday on behalf of potentially thousands of Hawaii Island residents asking the Hawaii Supreme Court to allow them to participate in the election after the fact.

Hawaii’s Primary Election was scheduled to wrap up Aug. 9, but Tropical Storm Iselle slammed into Hawaii Island the previous two days, causing widespread damage.

Despite 8,100 people being without power and water, and thousands of residents unable to leave their homes because of downed trees and power lines, the Office of Elections opened all but two election polls in the Puna district. Turnout was as low as 11 percent there.

Although the Office of Elections could take up to 21 days to hold a special election to allow the two districts to vote, Chief Elections Officer Scott Nago scheduled the special election for Aug. 15, and decided to only allow voters registered in the two closed districts to participate.

The ACLU lawsuit, filed on behalf of Pahoa residents in the Puna district, asks the Hawaii Supreme Court to allow any registered voter affected by Iselle to cast a vote to be included in the August 2014 primary results.

Maintaining that the lawsuit “concerns the fundamental right to vote and the disenfranchisement of hundreds and potentially thousands of affected voters,” the ACLU also asked the high court rule that the state Legislature failed to protect residents’ right to vote by assigning all decisions relating to natural disasters to the Office of Elections.

“This series of decisions led to the denial of the right to vote for many Hawai‘i County residents. Indeed, Precinct 04-03 had among its lowest voter turnout ever,” the ACLU said in a statement.

ACLU senior staff attorney Daniel Gluck said “the government has a duty to respond to conditions on the ground to make sure people can vote. Here the government failed to do that, and changes are needed now to preserve the integrity of future elections.”

The Office of Elections hasn’t commented on the lawsuit.

Hawaii’s primary received national attention when initial results showed U.S. Sen. Brian Schatz ahead of U.S. Rep. Colleen Hanabusa by just 1,635 votes in the U.S. Senate Democratic race, but 6,800 of Puna’s 8,000 registered voters hadn’t cast ballots, making the race too close to call.

Hanabusa asked Nago not to rush the election, and noted the damage from this natural disaster wasn’t isolated to the two precincts in House District 4 that were closed Aug. 9.

When Nago didn’t respond favorably, Hanabusa filed a lawsuit in Hawaii Island’s Third District Court, requesting a temporary restraining order against the Office of Elections. After an emergency hearing, a judge denied Hanabusa’s motion and the special election was held.

Just 1,500 of the 6,800 people registered to vote in those two districts cast ballots during the special election. Elections officials also admitted Aug. 15 they discovered 800 ballots on the island of Maui that hadn’t been counted in the primary, which they added to the special election count.

On Tuesday, Hanabusa announced she wouldn’t challenge results that showed Schatz beat her by 1,769 votes, or 115,401 votes to her 113,632, but she expressed concern about the process.

“Though I will not be challenging the results of this election, I remain very concerned about the public’s confidence and trust in our election process,” she said. “I ask former colleagues and friends in the Hawaii State Legislature to explore what is necessary to ensure the people that their vote truly counts. I heard from many who feel strongly that they were disenfranchised from the voting process this election and I stand ready to support any collaborative effort to have those voices heard.”

The ACLU emphasized its lawsuit is not on behalf of a candidate and doesn’t take sides in that political race.

“Although the votes in question may not change the outcome of any of the various races, the ACLU filed this suit because the right to vote is a cornerstone of our democracy,” Gluck said.  “Every vote counts equally — this is about an individual exercising a fundamental right.”