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ACLU files legal challenge to primary election

By Star-Advertiser staff

LAST UPDATED: 4:35 p.m. HST, Aug 21, 2014

The American Civil Liberties Union of Hawaii on Thursday filed a legal challenge to the primary election on behalf of voters in Puna on Hawaii island who were unable to vote because of the damage left by Tropical Storm Iselle.

In a news release, the ACLU says the lawsuit concerns the fundamental right to vote and the disenfranchisement of hundreds and potentially thousands of affected voters. It asks the court to give any voter effected by Iselle the opportunity to vote in person or by absentee ballot by Sept. 20, the constitutional deadline for tabulating primary results.

The lawsuit also urges the court to invalidate a state law that gives Scott Nago, the state's chief election officer, the discretion over how to conduct a postponed vote after a natural disaster. The ACLU argues that the state Legislature should prescribe how such elections are conducted.

"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," Daniel Gluck, ACLU senior staff attorney, said in a statement. "Every vote counts equally - this is about an individual exercising a fundamental right and not about the results of any single race."

The ACLU's suit challenges the constitutionality of the election process, but is not a typical election contest that seeks to overturn any specific primary result. Under state law, a candidate, political party or any 30 voters of an election district can contest the primary within six days after the vote. Any complaint must show that voting problems changed the outcome of the primary, a difficult legal standard to prove.

The ACLU's suit argues that decisions by the Office of Elections after Iselle deprived Puna voters of their constitutional right to vote.

Nago chose to open two precincts in state House District 4 -- Pahoa Community Center and Pahoa High and Intermediate School -- for the Aug. 9 primary after consulting with civil defense and election officials that main roads nearby were cleared of storm debris and power was on at the polling places.

Nago did not open the two other precincts in the district -- Hawaiian Paradise Community Center and Keonepoko Elementary School -- because of storm damage. The state allowed voters in these two precincts to vote last Friday in a makeup election at Keonepoko Elementary School.

Dozens of voters from the Pahoa precincts showed up for the makeup vote, claiming that they were unable to get to their polling places on Aug. 9 because of storm damage, but they were turned away by election officials.

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