State wants suit over election to be dismissed

The state on Monday asked the Hawaii Supreme Court to dismiss a legal challenge to the primary election filed by the American Civil Liberties Union of Hawaii, arguing that the court does not have jurisdiction to hear the case and that the lawsuit threatens to derail preparations for the November general election.

The ACLU has alleged that six voters in Puna on Hawaii island were deprived of their constitutional right to vote. The voters have said they could not get to their polling places in Pahoa for the primary because of damage from Tropical Storm Iselle, then were barred by the state from casting ballots in a makeup election for two precincts in Puna that did not open for the primary because of the storm.

The ACLU has asked the Supreme Court to allow voters in Puna affected by the storm to vote by Sept. 19. The suit also urges the court to invalidate a state law that gives the state’s chief election officer discretion over how to conduct a postponed vote after a natural disaster, contending that the Legislature should have prescribed the process.

But the state Attorney General’s Office argues that the Supreme Court does not have jurisdiction because the ACLU chose not to file a typical election contest that seeks to overturn a specific primary result. The only exceptions the court has made in the past, the state contends, involved constitutional amendments approved during general elections.

The state claims the ACLU is trying to avoid having to meet the legal standard for an election contest, in which complaints must prove that voting problems changed the outcome of the primary.

"This case is a civil action masquerading as an election contest," Deputy Attorney General Deirdre Marie-Iha wrote in a court filing. "It is a deliberate attempt to avoid the laws governing Hawaii’s primary elections."

Marie-Iha also warned that any delay in certifying the primary results could derail planning for the Nov. 4 general election.

"The point of all of this is simple: An election has many moving parts," Marie-Iha wrote. "Move one date and you move them all. A delay of even one week beyond that which is absolutely, strictly necessary will make it increasingly difficult for the Office of Elections to prepare for the general election."

The ACLU acknowledged on Monday that its legal challenge is novel.

"This court has never previously decided a matter in which government officials prevented voters from casting ballots following a natural disaster, as defendants did here, because no such situation has ever presented itself," Daniel Gluck, a senior staff attorney for the ACLU, wrote in a court filing.