Voting is on in Puna as judge rejects challenge

PAHOA, Hawaii >> Naomi Powers and her husband went to Hawaiian Paradise Community Center first thing Saturday morning to vote in the primary election but found out their polling place was closed because of Tropical Storm Iselle.

The couple, who have a small, hydroponic vegetable farm at their home in Hawaiian Paradise Park, were directed to another precinct at Pahoa High and Intermediate School, where they were told they could not vote, but would receive an absentee ballot in the mail.

Powers later heard on the radio that they might be able to vote Friday at Keonepoko Elementary School, and received a notice from the state in the mail confirming that location.

"We always vote," Powers explained, "but I’m a little bit exasperated with everything that’s going on."

After state Circuit Judge Greg Nakamura in Hilo on Thursday rejected a legal challenge by U.S. Rep. Colleen Hanabusa, 6,821 voters in Puna will be able to cast ballots at Keonepoko Elementary on Friday and settle Hanabusa’s Democratic primary for Senate against U.S. Sen. Brian Schatz and a few other close contests.

While Powers will likely vote Friday, she is not sure how many others in Puna who are still coping with Iselle’s aftermath will take — or know of — the opportunity.

"They should have waited," said Powers, whose home is drawing electricity from a generator. "I think it’s too fast, too soon. There’s a lot of hardship. People don’t have running water. They don’t have food. They don’t have ice."

Nakamura recognized the difficulties in proceeding with the vote so soon after the storm but held that the courts are not supposed to interfere with an ongoing election, even if the process is unconstitutional.

The judge said that if a poll were taken, the results would likely indicate that "there’s some lack of common sense to hold the election tomorrow in light of the natural disaster caused by Iselle, and people are trying to recover from the property damage caused by storm conditions, the lack of ability to freely move about, the lack of electrical power, and difficulties in regard to obtaining food and water."

"There are concerns regarding the adequacy of notice of the election and ability to vote tomorrow. Also, there would be a concern regarding the legitimacy of the election if it is held tomorrow. If held tomorrow, likely a post-election challenge is invited, and likely there will be a perception made — or there would be a public perception — that the election was not fair.

"And, frankly, holding the election tomorrow shows some insensitivity to the plight of the people in Puna."

Along with the close U.S. Senate primary, state Rep. Faye Hanohano (D, Hawaiian Acres-Pahoa-Kalapana) trails attorney Joy San Buenaventura in a state House primary, and Hawaii County Councilman Greggor Ilagan, who represents Puna, is holding off three challengers in a Council race.

Hanabusa, who is behind Schatz by 1,635 votes, needs high voter turnout in the two precincts eligible to participate Friday and a dominating share of the vote to overtake the senator. Schatz had the advantage in the two other precincts in House District 4, which already voted.

The state Office of Elections is expected to announce the results Friday evening.

"When you really come down to it, we filed the lawsuit, but the real losers are the people of Puna because they’re the ones who clearly feel disenfranchised and feel that this election should not proceed," Hanabusa said.

Hanabusa said she thought it was remarkable that Nakamura felt strongly enough to make critical comments about the election process from the bench.

"The thing that struck me is I know why neighbor island and rural Oahu people, for example, get so frustrated with government, because they think we’re so Honolulu-centric," she said.

Clay Schroers, Schatz’s campaign manager, said in a statement that the senator "continues to focus his energies on helping the people of Puna to recover, and that’s what he will do on an ongoing basis. His commitment to recovery in Puna extends beyond the election."

In court, Richard Wurdeman, an attorney for the Hanabusa campaign, argued that the state’s decision to call the vote for Friday was "repugnant" to constitutionally protected voting rights.

Wurdeman questioned whether Scott Nago, the state’s chief election officer, had the authority to sidestep a process outlined in state law that gives Nago the ability to hold a vote by absentee ballot delivered by mail or hand up to 21 days after a postponed election.

"What’s the rush? What’s the rush with all of this at stake?" Wurdeman asked.

Nakamura, however, found that Nago has the discretion to use the absentee ballot process or not.

State Deputy Attorney General John Molay, who represented Nago, said Nago was informed that the roads in Puna are sufficiently clear of storm debris and that voters will have access to the polling place Friday. Nago, he said, chose Keonepoko Elementary as the sole polling place because he could not reach anyone at Paradise Community Center — the other precinct involved — and because Friday is a state holiday and school would be out.

"We need finality to this election," he told the court. "The entire state elections are being held up by this."

Molay questioned whether Hanabusa, a registered voter on Oahu, had legal standing to bring the lawsuit solely because she "appointed herself" to speak for Puna voters.

The state — and Judge Nakamura — relied on Guntert v. Richardson, a state Supreme Court ruling in which the court refused to interfere in the 1964 elections even though a reapportionment plan had been found unconstitutional.

Hanabusa — or any other candidate, political party or group of at least 30 voters of any election district — can contest the election results before the state Supreme Court within six days after the vote.

Hours after the court ruling, campaigning in Puna, which has taken place largely under the radar since Iselle, became more visible.

Schatz volunteers waved campaign signs along Highway 130.

Hanabusa was joined by comedian Augie T, who was wearing a Hanabusa T-shirt, at her nightly water and chili giveaway at Makuu Farmer’s Market. The congresswoman’s supporters have been passing out pink fliers telling voters about Friday’s election and offering phone numbers for free rides to the polling place.

Philip Matlage, the Hawaii Democrats’ state House District 4 chairman, said he thought it was unfortunate the court did not delay the vote. He fears many Puna voters will not be notified in time.

"What the court sees as a procedural matter, the way we voters in Puna see it is we are not going to be allowed the opportunity to cast our votes," he said.