POSTED: 10:20 a.m. HST, Aug 14, 2014
LAST UPDATED: 2:17 p.m. HST, Aug 14, 2014
HILO >> A state Circuit Court judge on Thursday ruled that the state Office of Elections can proceed with a vote Friday for two precincts in Puna that could not open for Saturday's primary in the wake of Tropical Storm Iselle.
U.S. Rep. Colleen Hanabusa, who trails U.S. Sen. Brian Schatz by 1,635 votes in the Democratic primary for Senate, had asked for a temporary restraining order to delay the vote until residents in Puna have had more time to recover from the storm.
Circuit Court Judge Greg Nakamura said that if a popular poll were taken right now, the poll would 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 people in Puna."
But Nakamura said that case law supports the view that "the court is not supposed to interfere with an ongoing election process even if it is unconstitutional. So the court is constrained not to grant the injunctive relief."
State election officials have set the vote at Keonepoko Elementary School for voters in the two precincts that were closed for the primary. Results of the election will be announced on Friday evening.
"We are extremely disappointed for the people of Puna, especially since Judge Nakamura said that holding this election tomorrow lacks 'common sense' and 'shows some insensitivity to the plight of people in Puna.' The judge decided that they did not deserve more time to focus on recovering from the effects of the storm," said Hanabusa spokesman Peter Boylan in a statement.
"We will continue to distribute food, water, fruit and ice to those in need but we need people to be aware that there is an election tomorrow. We are canvassing the precincts and will provide rides to anyone who needs a lift to Keonepoko Elementary School. This campaign is not over and we will continue to work very hard to earn every vote," Boylan said.
The campaign for Schatz also released a statement after the hearing.
"Senator Schatz 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 campaign manager Clay Schroers said. "His commitment to recovery in Puna extends beyond the election."
Hanabusa's attorney Richard Wurdeman had argued that Puna residents are focusing on survival from the storm, not voting. Going forward with the election would be "repugnant" to the constitutional rights of Puna voters, and the only way to ensure voting rights is to mail or handout absentee ballots to all eligible voters, he argued.
Wurdeman said afterward that the "fundamental right to vote, that cornerstone of our democracy, that's what's being violated in this case."
He said the Hanabusa campaign would focus on storm relief efforts and the election and not on any further legal challenges.
Deputy Attorney General John Molay, who represented the state's chief election officer, said afterward that the state was pleased by the judge's ruling. "We are happy that the election will go forward tomorrow as we believe would be appropriate," he told reporters.
Molay said the state believes Hanabusa did not have the right to speak on behalf of Puna voters because she is a registered voter on Oahu. "No one appointed her to be their spokesperson," he said.
Molay said "no court has ever stopped a election the day before."
In addition to the Senate primary, state Rep. Faye Hanohano (D, Hawaiian Acres-Pahoa-Kalapana) is behind attorney Joy San Buenaventura in a House primary. Hawaii County Councilman Greggor Ilagan, who represents Puna, is facing three challengers in a council race.