Great SCOT! Actually, No "SCOT" According To State: ACLU Complaint About Postponed Puna Primary Not An "Election Contest"

by Robert Thomas, Inverse Condemnation, August 26, 2014

You can tell what kind of case is before what Hawaii appellate court by the case designation at the top of the fist page flysheet. First two letters are the court, second two are the type of case, followed by the actual case number. Thus, when a case is labeled "CAAP," that means its before the Intermediate Court of Appeals, and it is an appeal. When it says "SCJD" it's a case of judicial discipline before the Supreme Court. "SCWC" means a writ of cert before the Supreme Court. And so on.

It's rare that we see cases labeled "SCOT," since that means "Supreme Court - Other." Mysterious. Or, maybe not so mysterious since it could be an election contest under Haw. Rev. Stat. § 11-172, which gives the Supreme Court original jurisdiction over such cases. So it was last week, when the ACLU Hawaii and other plaintiffs invoked the court's "Other" jurisdiction and filed Lathers v. Abercrombie, No. SCOT 14-0001069, which asks the court to allow Big Island voters who were not able to make it to the polls on primary day because of the tropical storm, to vote even though the nominees have already been selected. 

Yesterday, the state defendants (the Governor, the Attorney General, the state's Chief Election Officer) filed a Motion to Dismiss which asserts that the case doesn't deserve an "OT," but rather belongs in circuit court (Hawaii's trial court of general jurisdiction), since it isn't really an "election contest."

We detailed the allegations in the complaint in this post, in which we did some issue spotting. Sure enough, the state's motion raises arguments which we are not surprised to see: the case is not an "election contest" over which the Supreme Court of Hawaii can exercise original jurisdiction, and even if it qualified, the complaint doesn't state a claim for a primary election contest in which the only remedy the Supreme Court can impose is a declaration that one candidate or another is a party's nominee.

Bottom line, as the motion puts it, "This case is a civil action filed in the wrong court, and nothing more." 

There's a little daylight for the plaintiffs in that the Hawaii Supreme Court has on occasion exercised its original election contest jurisdiction over a case which was not a "typical" election contest. See, e.g, Taomae v. Lingle, 108 Haw. 245, 118 P.3d 1188 (2005). But those cases, according to the state's motion, are really about the validity of constitutional amendments that were on the ballot, and not a primary election, as here. Motion at 6. We'll see if the plaintiffs' arguments get any traction with the court. 

More on the arguments via the Honolulu Star-Bulletin's story, "State wants suit over election to be dismissed."

PDF:  State Defendants' Motion to Dismiss for Lack of Jurisdiction, Lathers v. Abercrombie, No. SCOT 14-0001...