HAWSCT Dismisses Postponed Puna Precincts Primary Challenge

by Robert Thomas, InverseCondemnation, August 28, 2014

Here's the Order Granting Motion to Dismiss, just filed in Lathers v. Abercrombie, No. SCOT-14-0001069 (Aug. 28, 2014).

That's the original jurisdiction action filed by several voters from Puna and the ACLU Hawaii, which asked the court to allow them to vote because they were prevented by the tropical storm which whacked the Big Island on primary day.

The State defendants sought dismissal, and the court agreed that it lacked subject matter jurisdiction:

Plaintiffs concede that their complaint is “not a typical ‘election contest’” within the meaning of HRS §§ 11-172 (2009) or 11-173.5 (2009) and that they do not meet the statutory requirements for an election contest. Further, the court does not have jurisdiction under the statutory and constitutional provisions cited in the Complaint and First Amended Complaint to grant the relief requested. Therefore,

IT IS HEREBY ORDERED that the motions to dismiss are granted. The complaint and first amended complaint are dismissed.

That's all, folks? There is at least one other election challenge pending about the postponed primary, but for the Lathers plaintiffs, it seems like the only possible avenue left is a complaint in circuit court.

PDF: Order Granting Motion to Dismiss, Lathers v. Abercrombie, SCOT-14-0001069 (Aug. 28, 2014)

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The Other Two Election Contests To The Postponed Puna Precincts Primary Also Dismissed

by Robert Thomas, InverseCondemnation, August 28, 2014

Today must be election contest day at the Hawaii Supreme Court. We say that because the court today disposed of all three election contests which were filed stemming from the postponed Puna precincts primary and other primary election problems.

Earlier, we posted the court's order dismissing for lack of subject-matter jurisdiction the original jurisdiction action filed by several voters from Puna and the ACLU Hawaii, which asked the court to allow them to vote because they were prevented by the tropical storm which whacked the Big Island on primary day. Now we have decisions on the merits in the other two election contests which were filed by the deadline.

In Waikiki v. Nago, No. SCEC-14-0001072 (Aug. 28, 2014), the court issued findings of fact and conclusions of law, and held that an election contest which complained about the state's Chief Election Officer temporarily misplacing 800 Maui County votes, and which sought a re-vote or re-count. The court held that the complaint did not state a viable legal claim under the election contest statutes because a "complaint contesting the results of a special primary election fails to state a claim unless the plaintiff demonstrates errors, mistakes or irregularities that would change the outcome of the election." Order at 3. Since Mr. Waikiki "can prove no set of facts that would entitle him to relief inasmuch as Waikiki fails to present specific acts or 'actual information of mistakes or error sufficient to change the results of the election.'" Id. at 4.

Next, in Cermelj v. Nago, No. SCEW-14-0001070 (Aug. 28, 2014), the court disposed of handwritten complaint raising an election contest, in which the plaintiffs alleged that they could not vote in the primary because of Tropical Storm Iselle, which walloped the Big Island on primary day. The court concluded that the "[p]laintiffs are not proper parties to the election contest and lack the requisite standing" under the statute, because they are not a "candidate, qualified political party directly interested, or any thirty voters." Order at 3. Even if they did have standing, the plaintiffs, like Mr. Waikiki above, did not allege that allowing them to vote would alter the outcome of the primary election.

That's it, at least as far as original jurisdiction actions filed in the Hawaii Supreme Court regarding the primary election. As far as we know, no other such cases were instituted. 

Findings of Fact, Conclusions of Law and Judgment, Waikiki v. Nago, SCEC-14-0001072 (Aug. 28, 2014)

Findings of Fact, Conclusions of Law and Judgment, Cermelj v. Nago, No, SCEC-14-0001070 (Haw. Aug. 28, 2014...

Complaint, Cermelj v. Nago, No. SCED-14-0001070 (filed Aug. 21, 2014)