There’s no dispute that the 2012 general election was marred by widespread ballot shortages that caused confusion and delays at many polling places. Now the Hawaii Supreme Court will have to decide what, if anything, needs to be done about it. The court heard oral arguments last week in the appeal of a lawsuit brought by the Green Party of Hawaii and seven individual voters stemming from the 2012 ballot fiasco. The plaintiff’s contend the methods and procedures for printing and handling ballots are in fact agency rules that should have been adopted pursuant to the state’s Administrative Procedures Act. They sought a ruling that elections officials be required to go through the public rule-making process before applying them in future elections.
While election officials have acknowledged that many “unfortunate” mistakes were made, they say the ballot procedures are purely matters relating to the internal management of the agency, do not affect the rights of the public, and are therefore exempt from rule-making requirements.
Further, if the Green Party and others want rules, election officials argued, they should first file a petition spelling out their proposed rules for the Office of Elections to consider. They argued that, without exhausting that potential administrative remedy, the plaintiffs’ lawsuit should be rejected.
A Maui judge ruled in favor of the Office of Elections in 2014 and that decision was affirmed by the Intermediate Court of Appeals in a December 2015 opinion. However, the attorney representing the Office of Elections at the May 18 Supreme Court hearing ran into an unusual barrage of critical questions from all five Supreme Court justices in what Honolulu attorney and law blogger Robert Thomas called “as close to a feeding frenzy as you might witness in the usually decorous air of the state’s high court.”