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HAWSCT To Decide On Timing Of Voter Registration Appeals: When Is An Appeal "Filed?"

by Robert Thomas, InverseCondemnation, May 20, 2016

If there's one thing that makes lawyers sit bolt upright in a sweat at 3 am, it's the prospect of missing a jurisdictional deadline. A statute of limitations, a notice of appeal. Come on, you know you've been there. Keep your carrier's number on speed dial.

Well here's one that might help you sleep better by making the rules for when and how to file more clear, at least in voter registration challenges.

On May 11, 2016, the Hawaii Supreme Court accepted certiorari and agreed to review the Intermediate Court of Appeals' unpublished memorandum opinion which upheld the dismissal by the Big Island's Board of Registration of a voter registration challenge. The ICA held that the appeal to the BoR was not timely filed even though the challenger mailed the appeal to the state's Office of Elections (located on Oahu) within the 10-day time limit, because it was not received in that window.

This is a challenge to a candidate's voter registration for not being a resident of the district. In these cases, the County Clerk makes the initial determination, reviewed by a county's BoR, with appeal to the ICA. The Big Island clerk determined that the candidate was indeed a resident of the district in which he registered. The challengers filed an appeal with the BoR by putting it in the mail addressed to the Office of Elections' Pearl City, Oahu, office. It arrived on after the deadline. Nightmare time.

We put it in the mail within the deadline, the challengers argued, and in civil litigation, putting something in the mail gives you a couple of extra days. Nope, concluded the ICA, the statute requires the appeal be "filed" within 10 days, and filed means received by the Office of Elections, not sent. That rule of civil procedure which gives extra time in civil cases? Not applicable here, this isn't civil litigation subject to the Rules of Civil Procedure, but is governed by the statute. And the statute says "filed" with no mention of any mailbox rule. And that extra day because of Discoverers' Day? Not a state holiday, so that doesn't help either.  

The Supreme Court's order accepting cert did not schedule oral argument, so unless one party requests it and the court agrees, we're probably not going to get an early sense of why the justices took up this case, or which way they might be leaning. But it does seem like two threads intersect in this case. On one hand, the need for quick resolution and repose in election law cases. The court tends to view election-related challenges through a very narrow lens, with the idea that they need to be resolved quickly and subject to exacting standards. A rule that the 10-day deadline must be strictly complied with would further that. On the other, however, the court might be bothered by the practicalities here: there was no place on the Big Island where the appellants could file in person, so what were they supposed to do, get on a flight and bring it over to Oahu? Or do non-Oahu challengers just have less time to appeal? This seems like an unfair and unequal burden on neighbor island challengers.

Stay tuned, and sleep tight.

PDF: Hyland v. Gonzales, No. CAAP-15-0000053 (Haw. App. Feb. 10, 2016)