ACLU election lawsuit misguided

State officials have made persuasive arguments defending decisions governing the recent primary election, and against the move by the American Civil Liberties Union to reopen voting for Puna voters affected by Tropical Storm Iselle.

The ACLU faces a much higher hurdle in its lawsuit, filed last week before the Hawaii Supreme Court. It would have to convince the justices to do more than overturn a specific election result, the usual petition made in an election challenge.

The ACLU complaint asks the court to allow voters in Puna affected by the storm to have until Sept. 19 to vote, asserting that otherwise voters will be disenfranchised.

Going even further, the organization wants judges to invalidate the law that gives the state Office of Elections chief discretion over election postponements in the event of a disaster, maintaining that the Legislature should prescribe the process.

But the fact is the Legislature enacted the law to allow that discretion, and it should be up to the lawmakers to decide whether to change it.

The Attorney General’s Office rightly questions the court’s jurisdiction to grant the ACLU’s request.

State law defines how much discretion the elections officer should have and sets out a more limited role for courts as arbiters of election disputes. If the ACLU wants the law changed, it should be making that argument before lawmakers, not judges.

For its part, the Office of Elections presented a thorough and logical analysis of its primary-election actions in the memorandum, signed by Chief Elections Officer Scott Nago and presented to the Elections Commission.

The commission has convened three subcommittees to review the decisions made before and after the primary voting began.

The investigation may be useful to the commissioners, but the basic principles behind the way elections are handled in an emergency are laid out fairly clearly in the Aug. 21 memorandum.

The Office of Elections, Nago wrote, primarily must "ensure the integrity and even-handedness of our election," by providing uniform options for voting and, as much as possible, the opportunity to vote on the same day.

Natural disasters compel adjustments to be made, he added, but the fundamental goals remain the same. Any more delay than necessary could cause problems in the general election planning as well.

The law empowers the elections officer to close a polling place in the event of a disaster and, based on the best information available at the time, Nago saw grounds to close two precincts because of damage to their polling places.

However, the extension sought by the lawsuit would run counter to statute, which gives only the governor the power to order such an extension, once voting begins.

The decision to open the polling station within seven days, rather than to allow mail-in voting within a 21-day window, also has a firm basis.

Nago said he consulted with county and state agencies and settled on opening polling stations as the preferred option, one less likely to cause further delays.

If any legislation would help, it may be a law setting a minimum period of a few days to assess conditions before announcing the rescheduled vote. A few days’ wait might have prevented the public confusion over the postponement that occurred in Puna.

As he should have, Nago did acknowledge his error in delaying a public announcement about the 800 absentee ballots that were missed in Maui’s initial vote totals.

The takeaway message of Hawaii’s 2014 primary is that natural disasters can upheave normal election protocols, requiring harried judgment calls, some of them imperfect.

Finding ways to reduce errors should produce a better result, but the ACLU legal challenge surely wouldn’t advance that aim.