by Andrew Walden

Heading towards a January 2 showdown before Federal District Judge Derrick K. Watson, the motions and counter motions are flying in a case which challenges the legitimacy of Gov Neil Abercrombie's appointment of Brian Schatz' to the US Senate.

Deputy Attorneys General Deirdre Marie-Iha and Valri Lei Kunimoto filed a "Memorandum in Support of State Defendants' Motion to Dismiss" November 21, 2014.  They argue:

Plaintiffs allege that Governor Abercrombie acted improperly when he temporarily appointed Brian Schatz to the U.S. Senate after Senator Daniel Inouye passed away in 2012. Plaintiffs waited nearly two years before bringing suit, filing this action in late October 2014. As outlined below, Governor Abercrombie and Scott Nago, Chief Election Officer,’ respectfully request that this Court dismiss Plaintiffs’ complaint in full. There are several reasons why:

• This Court lacks jurisdiction because Plaintiffs’ case is moot. The election governing the rest of Senator Inouye’s last term has already been held.
• Plaintiffs’ request to invalidate Hawaii’s 2014 election for U.S. Senator is a “drastic, if not staggering” form of relief, which would be improper in these circumstances even if a constitutional violation could be shown. Hart v. King, 470 F. Supp. 1195, 1198 (D. Haw. 1979) (citation and internal quotations marks omitted).
• This Court lacks jurisdiction because Plaintiffs lack standing. Plaintiffs cannot show injury-in-fact, causation, or redressability. Neither Plaintiff alleges he was deprived of the right to vote.
• Plaintiffs fail to state a claim for which relief can be granted because they state no cognizable claim under the Seventeenth Amendment....

Plaintiffs' attorney Sean Morales-Doyle, of the Chicago Labor Law firm Despres, Schwartz & Geoghegan, Ltd, replied December 12, 2014 with a "Memorandum in Opposition re: Motion to Dismiss" which responds:

...Sadly, Senator Inouye passed away in December 2012, with more than 4 years remaining in his term. Since that date, contrary to the primary purpose of the Seventeenth Amendment, Hawaii has been—and continues to be—represented in the U.S. Senate by a Senator who holds his seat as a result of an appointment, rather than because he was “elected by the people” of Hawaii. Indeed, by the time the instant motion is heard, Hawaii will have been represented by an appointed Senator for an entire Congress. This undemocratic situation, which degrades the republican character of the Constitution, is the result of a Hawaii statute that directly conflicts with the Seventeenth Amendment and the Defendant Governor’s adherence to that law rather than to the “supreme law of the land” as expressed in the Amendment. There is no dispute that the Governor never issued a writ of election to fill Senator Inouye’s seat, as the Seventeenth Amendment mandates. To make matters worse, Defendants, pursuant to Hawaii law, selected this appointee through a process that ignores the Seventeenth Amendment. While the Amendment only gives Hawaii’s legislature the ability to “empower” the Governor to make such appointments in his discretion, the legislature has instead ordered the Governor to make appointments, and restricted his choices to a short list of candidates chosen by a private political party. Plaintiffs bring this suit to challenge these straightforward violations of the Constitution.

Plaintiffs recognize that now that an election has taken place, it would not serve the interests of democracy to set aside the results of that election and hold a new election at this late date. Accordingly, Plaintiffs withdraw their request for that relief.  However, Plaintiffs still seek declaratory relief to rectify the unconstitutional nature of Hawaii’s election law, which has resulted not only in an ongoing deprivation and abridgment of Plaintiffs’ right to elect their Senators, but because that deprivation creates a controversy that is “peculiarly ‘capable of repetition, yet evading review,’” as the law dictates what will happen in the case of future vacancies....

The case is Hamamoto et al v. Ige et al CIV NO. 14-00491 JMS-BMK.  More documents can be found on PACER.

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Background:

• Inouye Successor Will Face Election in 2014
• Hawaii Succession Law Unconstitutional: Senate Could Have Refused to Seat Schatz
• Senate Vacancies, And Why Governors Must Pick Temporary Appointees Chosen By Political Parties
• Top Chicago Labor Law Firm Takes Aim at Illegal Appointment of Brian Schatz