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Green Party of Haw. v. Nago

Intermediate Court of Appeals of Hawai'i

December 18, 2015

SCOTT NAGO, Chief Elections Office, State of Hawai'i, and STATE OF HAWAI'I, Defendants-Appellees

As Corrected March 17, 2016.


On the briefs: Lance D. Collins, for Plaintiffs-Appellants.

Kimberly Tsumoto Guidry, First Deputy Solicitor General, State of Hawai'i, for Defendants-Appellees.



Page 988

[137 Hawai'i 59] LEONARD. J.

Following the 2012 General Election, Plaintiffs-Appellants Green Party of Hawaii, Karen M. Holt, Elizabeth M. Ruze, Michael Kratzke, Moani Keala Akaka, Kim Duffett, Mary Jo Dennison, and Maka'ala Ka'aumoana (collectively, Appellants) filed suit against Defendants Scott Nago, Chief Election Officer (Nago) and the State of Hawai'i (State) (together, Appellees), alleging that: three of the methodologies and procedures used by-the State in conjunction with the 2012 General Election were " rules" within the meaning of Hawaii Revised Statutes (HRS) Chapter 91; these purported rules were not promulgated in compliance with HRS Chapter 91; and therefore, they should be declared invalid and subject to a permanent injunction. The Circuit Court of the Second Circuit (Circuit Court)[1] rejected Appellants' arguments and entered Judgment in favor of Nago and the State.

Appellants appeal from the Circuit Court's October 24, 2014 Final Judgment and challenge the Circuit Court's September 26, 2014 " Findings of Fact, Conclusions of Law and Order: (1) Granting Defendants Scott Nago, Chief Election Officer, and the State of Hawaii's Motion for Summary Judgment; and (2) Denying Plaintiffs' Motion for Summary Judgment" (FOF/COL and Order). We affirm.


This case arose out of the 2012 General Election. It is undisputed that mistakes were made. There was a shortage of paper ballots in English at a number of precincts across the State. In addition, when reserve ballots were sent out to the polling places, there was a mix up of the ballots sent to two locations; this resulted in 57 voters casting votes on incorrect ballots. It appears, however, that: all voters in line at the close of voting received the opportunity to vote; if English language paper ballots were not immediately available at a particular polling place, voters could vote at an electronic voting machine or on an alternative language paper ballot; every voter who signed a precinct book cast a ballot; every voter who voted on the wrong paper ballot had his or her vote counted in every race in which he or she was entitled to vote; and, none of the races that could have been impacted by the ballot mix-up were close enough to have been affected. Nevertheless,-as widely acknowledged, Appellees' execution of the 2012 General

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[137 Hawai'i 60] Election fell short of the electorate's reasonable expectations.

Appellants filed a Complaint on December 7, 2012, alleging that Appellees engaged in unlawful rule-making. Appellants demanded declaratory and injunctive relief as follows:

(1) the use of the methodology used to determine the number of ballots to be printed in a federal and/or state election, (2) the procedures by which a precinct requests additional paper or marksense ballots when the precinct runs out of ballots and receives additional blank paper or marksense ballots, and (3) the procedure used to rectify the situation when a voter votes a ballot that contains some races to which the voter is not entitled to vote, to be invalid [rules], temporary, preliminary and/or permanent injunctive relief prohibiting [Appellees] from acting pursuant to such invalid rules, and an award of reasonable attorney's fees and costs.

Appellants filed " Plaintiffs' Motion for Summary Judgment" on May 30, 2014. Appellees filed " Defendants Scott Nago and State of Hawaii's Motion for Summary Judgment" (Appellees' MSJ) on June 9, 2014. The hearing on both motions was held on July 18, 2014. The Circuit Court entered its FOF/COL and Order on September 26, 2014.

Concerning the methodology used to determine the number of blank ballots printed for the 2012 General Election, the Circuit Court's undisputed findings include:

Ballot Delivery
6. The Chief Election officer is required to deliver a sufficient number of ballots to each of the precincts before the polls open on Election Day. Haw. Rev. Stat. § § 11-119, 11-120; Haw. Admin. R. § § 3-172-72, 3-172-73, 3-172-74.
7. Prior to the 2012 General Election, the model for ordering polling place ballots was based on calculating 85% of the amount of registered voters in the precinct. In other words, if there were 100 registered voters in a precinct, 85 ballots would be assigned to the polling place for Election Day voters.
8. Voter turnout in comparable elections can be used as a basis to increase or decrease the ballot order as necessary (i.e. depending on previous elections 85% can be increased to 90% or reduced to 80%). This is more difficult to do in an election following a reapportionment. Thus, in 2012, a direct correlation in the number of ballots needed for the current precincts and the precincts that existed for the 2010 General Election and the 2008 General Election (which was the last presidential election) could not be made because the recently completed reapportionment/redistricting process changed the district boundaries.
9. Polling place voter turnout has historically ranged from 22.6% to 40.6% of registered voters, depending on the year and whether it was a primary.election, general election, presidential election, or gubernatorial election and as a result, this calculation (85% of registered voters in a precinct) resulted in essentially twice as many ballots ordered as polling place voters.
10. Percentages are based on the summary report for elections from 2008 to 2010, under the heading " precinct turnout" which refers to the percentage of registered voters who voted at the polls. The low was 22.6% for the 2008 Primary Election and the high was that same year in the 2008 General Election at 40.6%. The 2010 Primary Election was 23.8% and the General Election was 32.2%.
11. In the past, the absentee mail ballots ordered were generally equal to 35% of the polling place ballots, absentee walk ballots ordered were 20% of the polling place ballots and reserve ballots were equal to 6% of the polling place ballot order, (i.e., Amount of Polling Place Ballots = Registered Voter Count x 85%; Amount of Absentee Mail Ballots = Amount of Polling Place Ballots x 35%; Amount of Absentee Walk Ballots = Amount of Polling Place Ballots x 20%; and Amount of Reserve Ballots = Amount of Polling Place Ballots x 6%).
12. Absentee walk ballots are ballots that are cast by voters who vote prior to Election Day at a polling place outside of

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[137 Hawai'i 61] their precinct that is set up for early voting.
13. Generally, the end result is a ballot order of 137 ballots for every 100 registered voters or, in other words, a ballot order of 137% of the voter registration count for a precinct.
14. In addition, the ballot order calculation can be supplemented by a review of the absentee ballot utilization to determine whether reserve ballots should be deployed with the polling place ballots prior to the opening of polls.
20. Additional ballots may also be printed by the vendor on Election Day.

Ballot Delivery for the 2012 General Election

22. The 2012 General Election was the first General Election following the reapportionment and redistricting of the precincts in 2011.
23. As a result of reapportionment and redistricting, precinct/district boundaries changed and there was no prior General Election to use as a starting point in calculating the number of ballots needed in each of the post-reapportionment and redistricting precincts.
24. Accordingly, for the 2012 General Election, the Office of Elections modified the ballot order calculation by utilizing the 2012 Primary Election voter turnout as the base and multiplied the numbers by 125%. Due to concerns regarding the adequacy of 6% reserve ballots, that percentage was increased to 25%.
25. The 2012 General Election ballot order for the polling places was 32.4% of the registered voters; absentee mail ballots were calculated at 29.1%; absentee walk was 5.8%; and the number of reserve ballots was increased to 25.1%.
26. During the 2012 General Election, certain polling places experienced a shortage of paper ballots in English.
27. While certain polling places experienced a shortage of paper ballots in English during the 20.12 General Election, voters who went to those polling places, could vote on a minority language ballot or by using an electronic voting machine.
28. During the 2012 General Election, no voter[] who was in line at a polling place prior to 6:00 p.m. and was eligible to vote, was turned away and not allowed to vote.

Concerning the procedures used by the precincts to determine to request additional ballots on election day, the Circuit Court1s undisputed findings include:

40. On Election Day, precinct workers monitor the supply of paper ballots at the polling place and when it appears that the supply of ballots is running low, a precinct worker calls the counting center at the State Capitol and ...

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