Hawaii Supreme Court: Some Office Of Election Ballot Practices Are "Rules," Some Maybe Not

by Robert Thomas, InverseCondemnation, July 20, 2016

Like many high-profile cases, the legal challenge to the actions of the State Office of Elections tracks two threads. On one hand, the Office's travails are well known and frequently reported. The public understands only too well the difficulties the Office encountered when it failed to print enough ballots, and had other problems in recent Hawaii elections. The media reports in the wake of the disastrous oral argument (from the Office's perspective) focused on how upset the Justices seemed to be with the way the Office approached the situation, and its arguments in the case. We had a similar view when we wrote, "After A Judicial Feeding Frenzy, The Hawaii Supreme Court Searches For Rules To Fix The Office Of Elections."

On the other hand, judicial opinions (particularly by a unanimous court) tend to focus on the legal nuances which a case presents, by detailing things like precedent, the statutory language, and standards of review that don't really make for interesting reading for anyone but lawyers. Even if the underlying case is "ripped from the headlines."

So even though we predicted after oral argument that the Hawaii Supreme Court would conclude that the Office of Elections practices regarding ballot printing and delivery are administrative rules that must have been adopted via the rulemaking process in the Administrative Procedures Act, we were not sure how strongly the opinion would come out of the gate about the non-legal stuff. How "tart" would the opinion be?

Well today we got our answer. In Green Party of Hawaii v. Nago, No. SCWC-14-0001313 (July 19, 2016), Justice Pollack, writing for a unanimous court, kept the bench slaps to a minimum. A quick read of the opinion reveals that the court ruled as narrowly as it could: it determined that some of the policies and practices are rules, and that they should have been adopted under the APA's procedures. And, despite giving the Office of Elections a real grilling at oral argument, it also concluded that other practices were not rules, or at least the plaintiffs hadn't introduced enough evidence into the record to prove that they were. So this was technically speaking, a split decision.  

We think any lawyer with an interest in Hawaii administrative law (that includes you, land users) should read and understand this opinion. Even if you don't cover election law, the court's differentiation between those things that are rules -- and those that aren't -- is an important distinction you need to understand. The opinion is replete with discussion of past decisions, and the nuances of what is a "rule" and what isn't.

We lawyers dig these sort of things of course, but the real bottom line question the public probably wants to know is whether the Office of Elections has righted the ship (with or without the Supreme Court's prodding), and whether the Office's assurances that these problems won't crop up again at the next election should be believed.

On that, the opinion gives no overt answer. The relief the court granted was, as we mentioned above, narrow: it did not require the Office to adopt rules, and only determined that the agency should have adopted rules and because it had not, the specific practices were invalid. But given the tenor of the oral arguments, and the resulting unanimous opinion (even if it is dry legal text), we'd be surprised if the Office didn't get the message. 

PDF: Green Party of Hawaii v. Nago, No. SCWC-14-0001313 (Haw. July 19, 2016) 

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Hawai’i Supreme Court Rules Chief Elections Officer Violated The Law

News Release from the office of Lance D. Collins July 19, 2016

HONOLULU – The Hawai’i Supreme Court today ruled that the Chief Elections Officers violated state law when conducting the 2012 general election.

The case was originally filed on Maui in 2012 by the Green Party of Hawai’i and seven registered voters from across the state, from different political parties, due to widespread problems at various polling sites across the state – including 57 voters who were denied the right to vote.

The Green Party and individual voters alleged that three aspects of the running of the 2012 general election violated state law Chapter 91, HRS: (1) the formula for determining how many ballots to print, (2) the process for obtaining additional ballots when a precinct runs out, and (3) the procedure for counting a ballot that has been cast in the wrong precinct.

The Chief Elections Officer claimed that those formulas and procedures were “internal management of the agency” and not subject to the public notice and hearing and publication requirements.

Both the trial court and the Intermediate Court of Appeals ruled in the Chief Elections Officer’s favor.

In rejecting the Chief Elections Officer’s defense, however, the Supreme Court noted that the “internal management” exception to formal rule-making is a very limited exception that cannot be used when the regulations “affect private rights or public procedures”.

The Supreme Court ruled that ballots shortages “may result in the deprivation of the right to vote” and so regulations that can cause ballot shortages are not merely the “internal management of the agency.”

Attorney Lance D. Collins said: “This clarification strongly supports the purpose and intent of the Hawai’i Administrative Procedure Act – which is to provide openness and transparency in government.”

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CB: Court Rules Against Elections Office In Ballot Shortage Case