POSTED: 1:30 a.m. HST, Aug 28, 2010
Certifying this year's general election results might be delayed, after the U.S. Defense Department denied yesterday Hawaii's request to ignore a new federal law that gives overseas troops more time to vote.
The law, passed last year, requires states to distribute absentee ballots to overseas and military voters 45 days before this year's general election. Hawaii's problem is that the state's primary is on Sept. 18, exactly 45 days before the general election.
One option could be for the state to agree to a consent decree to receive and count overseas ballots late, as it did in 1986. State law requires that ballots must be received by the close of polls.
Federal officials have asked the state whether it would agree to a consent decree, according to a July 27 letter from state Chief Election Officer Scott Nago to Federal Voting Assistance Program Director Robert Carey.
But Nago did not agree at the time, saying it was "premature" until the state found out whether it could get a waiver from the federal requirement.
"I guess we could argue as to how many days from the completion of the polls would be an adequate amount," said Dante Carpenter, chairman of the state Democratic Party. "If you say one week, well, I guess you'll have less screams than if you say two weeks. But there will be screams."
Elections spokesman Rex Quidilla said yesterday that discussions with federal officials are expected to commence "soon," but he did not specify how soon when asked by the Star-Advertiser.
The elections office also did not address the possibility of delaying election results.
About 300 military and overseas voters had requested ballots for the general election as of yesterday, Nago said. In the 2008 general election, 827 overseas ballots were cast out of a total of more than 456,000. In 2006 only 237 overseas ballots were cast.
Three other states — Alaska, Colorado and Wisconsin — were also denied waiver requests, as well as Washington, D.C., and the U.S. Virgin Islands.
In his waiver request, Nago said 35 days was sufficient time for distributing general election ballots, citing past elections in Hawaii in which ballots were received within 30 days. But the federal government found the argument inadequate and noncompliant with the new law.
Also at issue was the fact that Hawaii law does not allow the return of ballots via e-mail. Ballots can be e-mailed, faxed and mailed out but can be returned only by mail and fax.
"Although facsimile transmission is compliant with ... electronic transmission requirements, it is the least desirable method of electronic transmission, given that it is the least available among overseas active duty military voters, reserve component military voters and overseas DOD civilian employees," the Defense Department said in its waiver rejection.
U.S. Department of Justice spokeswoman Xochitl Hinojosa said the department is working with states to bring them into compliance.
However, lawsuits may be filed against any state that does not voluntarily comply, she said.
In 1986 the federal government entered into a consent decree with Hawaii to permit a late count of 632 overseas ballots 10 days after the polls closed.
"I guess the question now is, When will that other date be?" said Carpenter. "Everything goes on hold, but I guess that's a way of honoring the time of 45 days."
Carpenter wishes the state Legislature had adopted an earlier date for the primary election, "especially since we've always contended that we have more troops per capita than any other state," he said. "What I'm wondering is why nobody considered what would happen if the waiver was rejected."
Pushing up this year's primary election day was considered at the state Legislature last year but was rejected because of fears of low voter turnout and complicating the primary election's operations.
Polling stations are typically reserved two years in advance to ensure availability and accessibility, and moving up the date this year would have affected training for poll workers.
Election officials have already been forced to close 97 polling stations around the state, with 242 stations left. Hawaii also has typically had among the worst voter turnouts in the nation.
"The Office of Elections is already undermanned, with the closing of all the stations," said state Rep. Jon Riki Karamatsu, chairman of the House Judiciary Committee, which heard the bill. "We relied on this waiver."
Instead, the Legislature passed a law that would push up the primary date to August in 2012.
Karamatsu said he can see delays in certifying election results, which typically takes days after the polls close.
Jean Aoki, legislative chairwoman of the League of Women Voters, said she also did not envision a waiver denial.
She said close races might rely on the absentee ballots and that the state must ensure all votes are counted.
"The elections office does not need this on top of all the other problems they've had," she said. "They're really gonna be hard pressed to meet this deadline."