ACLU files complaint over Primary Election

A group of Pahoa residents, working with the American Civil Liberties Union in Hawaii, have filed a complaint with the Hawaii Supreme Court, asking the state’s top judges to allow every resident affected by Tropical Storm Iselle to cast a ballot in the primary.

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A group of Pahoa residents, working with the American Civil Liberties Union in Hawaii, have filed a complaint with the Hawaii Supreme Court, asking the state’s top judges to allow every resident affected by Tropical Storm Iselle to cast a ballot in the primary.

The suit, filed late Thursday, named Gov. Neil Abercrombie, Attorney General David Louie, Chief Election Officer Scott Nago and Hawaii County Clerk Stewart Maeda.

“In the wake of Hurricane/Tropical Storm Iselle, the defendants failed to take steps necessary to allow the individual plaintiffs the opportunity to exercise their right to vote,” the 26-page complaint said. “The Legislature delegated authority to the Chief Elections Officer to determine whether, in the event of a natural disaster, to delay a vote (or to allow voters another opportunity to cast their ballots). Defendants exercised this discretion in such a way as to deny the individual Plaintiffs (and, on information and belief, many other registered voters in at least Precincts 04-03 and 04-04) the opportunity to vote. Defendants’ exercise of discretion was unreasonable and unlawful under any standard of review.”

The ACLU believes the Legislature was also culpable for creating the situation — a makeup election for just two Puna precincts just one week after the storm, when thousands of residents were still without power or, in some cases, were unable to leave their homes or neighborhoods because of storm damage — by creating the conditions that allowed it to develop, the suit said.

“By vesting unfettered discretion in the Chief Elections Officer as to whether and when to alter voting in the event of a natural disaster …, the Legislature has abdicated its constitutional responsibilities.”

The complaint asks the court to declare unconstitutional a state law permitting, but not requiring, the chief election officer to make any accommodations in the event of a natural disaster.

South Kona/Ka‘u Councilwoman Brenda Ford said Thursday she wondered what the state’s disaster plan is. Both primary and General Elections fall within hurricane season, she said.

Ford has been critical of how Nago and other officials handled the primary election, which came a day after Iselle blasted parts of Puna and Ka‘u. She filed a formal complaint with a federal commission on election access and planned to testify before the state Elections Commission in Honolulu today.

“I don’t know what possessed (Nago) to run this election less than a week after this storm hit,” Ford said.

Daniel Gluck, ACLU senior staff attorney said the complaint is not about the election results.

“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,” Gluck said in a written statement. “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.”

Abercrombie declared a state of emergency three days before the election, ACLU officials noted. Nago changed makeup election plans at least twice before the two Puna precincts, closed because of damage in the region, were able to cast their ballots Aug. 15.

Ford said no election results should have been released until all the precincts were done with voting, calling the election results “tainted.”

She said she would like to see Nago removed from office.

The lawsuit included the stories of several Pahoa residents, including Merrill Lathers, who claim they were unable to cast a ballot on the original primary election date of Aug. 9, and subsequently could not vote because they lived in other precincts.

“Although his polling place — Precinct 04-04 — was open on Aug. 9, 2014, Mr. Lathers was unable to access his polling place on that date due to Hurricane/Tropical Storm Iselle,” the complaint said. “Specifically, although Mr. Lathers intended to vote in the primary, he was physically prevented from doing so: approximately 20 downed trees blocked his driveway. Although Mr. Lathers is sometimes able to access the road by cutting through his neighbor’s property, Mr. Lathers was unable to do so because his neighbor’s gate was locked.”

Even if Lathers could have left his property, more trees blocked a number of the nearby roads. He attempted to vote on Aug. 15, but was turned away because he did not live in the correct precinct, the complaint said.

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“Mr. Lathers has voted for many years, and believes that voting is important, but was disenfranchised in the 2014 primary election,” it said.

Elections office spokesman Rex Quidilla said he could not comment on the pending litigation.

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