HONOLULU, Hawaii – The state has filed a motion to dismiss for lack of jurisdiction in a special election lawsuit brought forward by six Puna voters and the American Civil Liberties Union of Hawaii Foundation. The state asserts that the case is not a proper election contest, and the lawsuit should have been filed in Circuit Court, rather than the Hawaii Supreme Court. Governor Neil Abercrombie, Attorney General David Louie, Cheif Election Officer Scott Nago, and Hawaii County Clerk Stuart Maeda were all named as defendants in the lawsuit.

Hurricane Iselle put a major crimp in the state’s election plans. After postponing primary voting for two precincts in Puna following the damage, a special election was held a few days later. But many missed their chance to cast their ballot, according to the ACLU.

Here is what the ACLU said last week:

A lawsuit filed Thursday, August 21 by Pahoa residents and the American Civil Liberties Union of Hawai‘i Foundation (“ACLU”) asks the State Supreme Court to allow any registered voter affected by Tropical Storm Iselle to cast a vote that will be included in the August 2014 primary results. The lawsuit also asks the Court to find that the Legislature failed in its constitutional obligation to protect the fundamental right to vote by delegating all decisions relating to natural disasters to the Office of Elections. The lawsuit concerns the fundamental right to vote and the disenfranchisement of hundreds and potentially thousands of affected voters. The lawsuit does not challenge the results of any particular race nor does it endorse any campaign.

On August 6, 2014, Governor Abercrombie signed an emergency proclamation, in advance of two anticipated storms projected to impact Hawai‘i: Hurricanes Iselle and Julio. The proclamation – valid from August 6 through August 15 – included a statement that “the danger of disaster is of such magnitude to warrant preemptive and protective action in order to provide for the health, safety, and welfare of the people[.]”

Facing massive damage from Iselle on August 8, and thousands of Hawai‘i County residents dealing with historic flooding, power outages, property damage, and road closures – some of which continue even now – the Chief Elections Officer determined that the primary would go on as scheduled on August 9. the Chief Elections Officer went on to change the rules of the election (who could vote, where and how) at least two more times over the course of three days.

This series of decisions led to the denial of the right to vote for many Hawai‘i County residents. Indeed, Precinct 04-03 had among its lowest voter turnout ever.

Daniel Gluck, Senior Staff Attorney said: “Although the votes in question may not change the outcome of any of the various races, the ACLU filed this suit because the right to vote is a cornerstone of our democracy. Every vote counts equally – this is about an individual exercising a fundamental right and not about the results of any single race. The government has a duty to respond to conditions on the ground to make sure people can vote. Here the government failed to do that, and changes are needed now to preserve the integrity of future elections.”

The ACLU, as a non-partisan organization, has regularly intervened to protect the rights of the electorate. Within the last ten years, the ACLU successfully challenged proposed amendments to the State Constitution because the electorate was misinformed or because the amendment was improperly passed by the Legislature. The ACLU also successfully challenged the use of public funds to advocate for particular results in an election. The right to vote is critical to the mission of the ACLU.ACLU media release (August 21, 2014)

The state countered with this Motion To Dismiss on Monday, saying:

This case is a civil action masquerading as an election contest. It is a deliberate attempt to avoid the laws governing Hawaii’s primary elections. There is one simple reason why Plaintiffs have cast their complaint as an election contest when it isn’t one in truth: they wanted to file in this Court now. As outlined below, this Court must unequivocally reject this attempt to circumvent the strict jurisdictional limitations set by Hawaii Revised Statutes (HRS) chapter 11. Plaintiffs’ case is not a proper election contest. Nor is it like Taomae v. Lingle, 108 Hawai’i 245, 118 P.3d 1188 (2005) and the cases that preceded it, which concerned constitutional amendments on a general election ballot. These cases do not support Plaintiffs’ attempt to invoke this Court’s jurisdiction here.

Nor should this Court accept Plaintiffs’ invitation to allow any case that has anything to do with an election to be filed before this Court in the first instance. Plaintiffs ask the Hawaii Supreme Court to act as a trial court. They want this Court: (1) to resolve unproven, contested questions offact regarding the individual Plaintiffs’ access to the polls on the day of the primary election, (2) to declare a state statute unconstitutional based on those contested, unproven facts, and (3) to enjoin the Office of Elections from taking the steps that are absolutely critical to prepare for the general election. But none of these remedies are proper in a primary election contest, which is the only method by which the results of a primary election can be challenged in this Court.

If Plaintiffs want to assert a claim that a state statute was implemented in a manner that was unconstitutional, such a suit could properly be filed in circuit court. It is completely improper for Plaintiffs to seek to bypass the normal process of litigation while simultaneously asserting that they need not meet the statutory requirements that would give this Court jurisdiction over a primary election contest. Yet that is precisely what Plaintiffs’ complaint seeks to do. The motion to dismiss must be granted.State of Hawaii (defendants) – Motion to Dismiss