Election Contests in Hawaii

• Publication year: 2021

Election Contests in Hawaii

by Lance Collins

An election contest is the legal proceeding used to challenge the results of an election. The main object of an election contest is to determine who has been legally elected according to In re Contested Senatorial Elections, 10 Haw. 216 (Rep., 1896)' As stated in Akizaki v. Fong, 51 Haw. 354 (1969), the fundamental interest protected by a contest is in ensuring that the people can decide whomever they please to represent them. In City and County of Honolulu v State, 143 Haw. 455, 431 E3d 1228 (2018), though, it was said "No matter how justified a court may be in setting aside the results of a popular election, such an action may be perceived as a subversion of the directly expressed will of the people." This follows the long held belief stated in In re Contested Senatorial Elections that the law should be construed so as not to disenfranchise the voter. Justice Wilder in Kulike v. Fern, 19 Haw. 278 (Terr., 1909) argued that a contestant should be given ample opportunity to present their case and evidence to the end that "the will of the people in the choice of public officers may not be defeated."

Elkins v. Ariyoshi, 56 Haw. 47, 48 (1974) reaffirmed that the basis for an election contest is to correct errors that would change the outcome of the election. In the Akizaki Case, a contest can also be brought if the correct result cannot be ascertained because of mistake or fraud. Any matter that would impair the fairness of the election result is a proper subject and that includes, according to Blake v. Baker, 19 Haw. 264, 265 (Terr., 1908), incorrect vote counting done in good faith by officials. In Waters v. Nago, SCEC 18-0000909 January 25, 2019), the counting of ballots obtained by the city clerk after the statutory close of the polls was another. The Elkins Case noted that poorly run or inadequately supervised election processes that only prove "room for abuse" or "possibility of fraud" are generally not adequate bases for a contest. This was extended in Thirty Voters of Kauai County v. Doi, 61 Haw. 179 (1979) to exclude from election contests election officials' failure to strictly comply with election laws where substantial compliance occurred and there was no showing of fraud.

Under limited circumstances, a challenge to a candidate's qualification or eligibility can be raised as an election contest of a primary election under H.R.S. § 11-173.5. However, determination of the winning primary candidate's voter registration after a primary election does not constitute an election contest.¹

Tie votes are sometime subject to contest. Matton v. Barnard, 8 Haw. 732, 734 (King., 1892) held that an election contest cannot be used to determine the winner of a tie vote. In Blake v. Blake, 19 Haw. 264 (Terr., 1908), the appropriate remedy in an election contest which determines a tie is the ordering of a new election. Currently, under H.R.S. § 11-157, a tie is resolved through a statutory formula involving precinct or district averages.

The applicability of the mootness doctrine is narrow. Because an election contest challenges the validity of the election, there is no action other than discontinuance by the contestant(s) that can moot the case. Even where the legislature seats a party to an election contest before final judicial resolution, as was done in the Akizaki Case, the case is not moot.

Jurisdiction over Election Disputes

The right to contest an election is purely statutory. As noted in In rePaikuli, 8 Haw. 680, 687 (King., 1890), during the Kingdom, the Supreme Court and the legislature had concurrent jurisdiction to adjudicate election contests. The Republic of Hawaii's constitution removed election contests from the jurisdiction of the legislature with the following purpose: "to remove all these exciting questions from the domain of partizan [sic] feeling[.]"²

[Page 14]

The U.S. Congress initially returned election contest disputes to the houses of the legislature in adopting the 1901 Organic Act and the Hawai'i Supreme Court held that it lacked jurisdiction to decide election contests over county elections when county offices were created, for lack of statutory authority.³ Akizaki v. Fong, 51 Haw. 354 (1969) held that the constitutional assignment of election contests to the courts in the 1950 State Constitution is not limited or defeated by the constitutional provision empowering the legislature to be the judge of the elections of its members.

The present Hawai'i State Constitution provides that a "court of competent jurisdiction" shall decide an election contest. H.R.S. § 11-172 assigns jurisdiction over election contests to the Hawai'i Supreme Court. In Lathers v. Abercrombie, SCOT 14-0001069 (August 28, 2014), the court ruled that the statutory requirements to perfect an election contest are jurisdictional and failure to comply with all the statutory requirements for an election contest will oust jurisdiction from the Hawai'i Supreme Court.

Election law violations by officials, voters, candidates or others may render an election illegal and quo warranto proceedings may be used to determine whether the seriousness of the violations invalidated an election.⁴ The extent to which quo warranto could be used to resolve disputes as to nomination papers was left an open question in Kanealii v. Hardy, 17 Haw. 9 (Terr., 1905). Circuit courts are the appropriate forum to test the legality of an officeholder's title to office.⁵

Matters Outside Election Contests

A number of election matters are not appropriately brought as election contests. The Supreme Court held in Logan v. Kealoha, 18 Haw. 659 (Terr., 1906) that it lacks jurisdiction in an election contest to entertain challenges to candidate qualifications or eligibility. A challenge to candidate qualifications or eligibility must be brought pursuant to H.R.S. § 12-8 and is appropriately challenged in the circuit court.⁶ In Constitution Party v. Lingle, No. 29473 (December 5, 2008), it was held that eligibility determination of a presidential candidate was not appropriately raised through an election contest. In Clark v. Arakaki, 118 Haw. 355, 194 P.3d 176 (2008), interpretation and...