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Green Party of Hawaii v. Nago

Supreme Court of Hawaii

July 19, 2016

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, Petitioners/Plaintiffs-Appellants
v.
SCOTT NAGO, Chief Elections Office, State of Hawai'i, and STATE OF HAWAI'I, Respondents/Defendants-Appellees.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0001313; CIVIL NO. 12-1-0956(2))

          Lance D. Collins for petitioners

          Kimberly Tsumoto Guidry for respondents

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          POLLACK, J.

         This case involves an action by the Green Party of Hawaii and seven registered voters who voted in the 2012 General Elections (Green Party) seeking a declaratory judgment pursuant to Hawai'i Revised Statutes (HRS) § 91-7 (2012) that certain methodologies and procedures used by the Office of Elections in the 2012 election are invalid under the Hawai'i Administrative Procedure Act (HAPA).

         Specifically, Green Party contends that the Office of Elections violated rulemaking requirements because of its failure to adopt administrative rules pursuant to HAPA regarding the methodology and procedures used to (1) determine the number of election ballots to be delivered to the precincts, (2) request additional ballots when a precinct runs out of paper ballots, and (3) count the votes cast on a ballot for a precinct in which the voter is not entitled to vote. We conclude that the procedures used to determine that there will be a sufficient number of ballots ordered for each precinct for a primary or general election and the policy for counting votes cast on ballots for the incorrect precinct are "rules" under HAPA and thus subject to the rulemaking requirements of HAPA.

         I. BACKGROUND

         A. The 2012 Election

         Chief Election Officer Scott T. Nago reported on the election-day issues that arose during the 2012 General Election in memoranda to the Elections Commission dated November 9, 2012, and November 20, 2012:

On the day of the General Election, it was discovered that there was a deficiency in the amount of the ballots that had been ordered for the election.
The initial lack of a sufficient inventory of ballots at various polling places across the state was the result of a deficient model used for ordering ballots, a failure to follow the safeguards that exist to modify the order or to reallocate existing ballots prior to election day, and a failure to deploy additional ballots in a timely manner on election day.[1]
.....
The Office of Elections proceeded to deliver reserve ballots to a number of polling places before they ran out. However, as the day went on, the amount of polling places experiencing this problem outstripped the Office of Elections' ability to deliver ballots in a timely manner before various polling places ran out of paper ballots and were forced to direct voters to use the traditionally less utilized direct recording electronic voting machines, while they waited for the reserve ballots to be delivered.
In the end, we received approximately 70 calls from 51 polling places about their ballot inventory, and 24 of them actually ran out [of] paper ballots before our delivery of ballots to them. Significant delays were experienced at various polling places given that the direct recording electronic voting machine could be used by only one voter at a time, compared to paper ballots which can be quickly issued to voters, who can then go to separate voting booths to fill them out, and then quickly have them read by the standard precinct counter for paper ballots.

         Nago then addressed several notable incidents resulting from the insufficient ballot inventory at the polling places:

As part of the urgency of getting the ballots out to the polling places, the ballots for two polling places were accidentally delivered to the wrong polling places towards the end of the day. Specifically, Hokulani Elementary School (District Precinct 20-04) and Waialae Elementary School (District Precinct 19-03) received each other's reserve ballots.
The precinct counters are programmed to only read ballots of the specific ballot type associated with that precinct. As such, the precinct counters rejected the ballots and would not read them. In situations where the precinct counter will not read a ballot, the voter is able to have it deposited in the emergency ballot bin, where it will be scanned at a later time. This is what occurred at Hokulani Elementary School and Waialae Elementary School for those voters provided the incorrect ballot at the end of the day. These ballots were eventually counted at the State Capitol. However, only the contests that the voters were eligible to vote on were counted. Specifically, the voters at Hokulani Elementary School (District Precinct 20-04) were not eligible to vote on the State Representative, 19th District, State Senate 9th District, and Council District IV contests on the Waialae Elementary School ballots (District Precinct 19-03). Similarly the voters at Waialae Elementary School (District Precinct 19-03) were not eligible to vote on the State Representative, 20th District, State Senate, District 10 and Council District V contests on the Hokulani elementary School ballots (District Precinct 20-04) . A total of 46 ballots at Hokulani Elementary School and 11 at Waialae Elementary School had to be treated in this manner.

         Nago concluded that the irregularities that had occurred did not appear to be legally sufficient to change the election results:

In reviewing the impacted contests of State Representative, 19th and 20th Districts, State Senate 9th and 10th Districts, and Council Districts IV and V, the margins of victory were significant and would not have been impacted by these ballots. In the present case, these irregularities do not appear to be legally sufficient to change the election results.

         Nago also explained that the voting delays did not affect voters in line at the close of polls as they were permitted to vote:

By state law, all voters in line at the close of polls are able to vote. As such, in talking to the media, we encouraged all impacted voters to remain in line as they would be permitted to vote and that they should utilize the electronic voting machines. In the end, all voters in line at the close of polls were permitted to vote. However, as previously noted, there were significant delays.[2]

         Elizabeth M. Ruze, a plaintiff in this case, submitted a sworn declaration that recounted her voting experience:

3. I went to Hokulani Elementary on November 6, 2012 to vote in the general election near the end of the day.
4. I was given a paper ballot by the poll workers. I voted the ballot including some races that I did not know were in my district. I then gave the ballot to the poll worker.
5. The poll workers told me that there was something wrong with the machine so they were putting ballots under the automatic feeder into the ballot slot.
6. It was then discovered that these ballots were for the wrong district and we were told we could vote on a minority language ballot or use the electronic voting machines. We all assumed that these additional ballots were good because we saw them arrive and the poll worker said, "Good. We've got ballots."
7. I first looked at the minority language ballot to see if I could vote one but I couldn't figure out the ballot "referendum" type questions so I ended up voting on the electronic voting machine.
8. When I was finished voting on the electronic voting machine, I asked a poll worker about the disposition of my original ballot because I was worried about voting twice. He told me "don't worry about the first time you voted."
9. Many people were getting off work to vote and were irritated when they had to stand in long lines after the wrong ballots were discovered. Some voted on minority language ballots but a number left because they said they couldn't wait any longer.
10. I was never told by the elections office what happened to my first ballot.

         Nago concluded his November 9, 2012 letter to the Elections Commission with the following: "What has happened is clearly unacceptable. Having been entrusted with the integrity of our elections, our voters deserved better. We will be taking steps to ensure that this never happens again."

         B. Determination of the Number of Ballots to Order

         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. The ballot order methodology used to calculate the number of ballots printed for the primary and general elections in 2010 is reflected in an undated document entitled Ballot Order. The 2010 ballot order methodology appears to be substantively similar to the prior version, Ballot Order 2002.

         Prior to the 2012 General Election, the model for ordering polling place ballots involved calculating 85% of the amount of registered voters in the precinct. Voter turnout in comparable elections could be used as a basis to increase or decrease the ballot order as necessary. The number of absentee mail ballots, absentee walk ballots, [3] and reserve ballots[4]ordered was based on a percentage of the number of the polling place ballots. The absentee mail ballots ordered were generally equal to 35% of the polling place ballots; absentee walk ballots ordered were equal to 20% of the polling place ballots; and reserve ballots were equal to 6% of the polling place ballot order.

         Historically and in 2012, the ballot order calculation was supplemented by a review of the number of absentee ballots cast prior to the opening of the polls. An unusually low absentee mail or absentee walk turnout would act as a warning sign that there were a higher number of remaining voters eligible to vote at the polling places, resulting in the need to deploy reserve ballots prior to the opening of the polls. If there were concerns regarding whether the number of reserve ballots was sufficient, then unissued absentee ballots could be used, and the vendor could also print additional ballots on election day.

         Polling place voter turnout ranged from 22.6% to 40.6% of registered voters in the years 2008 through 2010, depending on the year and whether it was a primary election, general election, presidential election, or gubernatorial election. Thus, ordering eighty-five polling place ballots for every one hundred registered voters resulted in essentially twice as many ballots ordered as polling place voters.

         For the 2012 General Election, the former Office of Elections' Ballot Operations Section Head determined the formula used to calculate the number of ballots printed in the primary and general elections. The ballot order formula was modified based on the actual voter turnout for the 2012 Primary Election instead of the number of registered voters. To determine the number of voters expected to vote in the 2012 General Election, the voter turnout for the 2012 Primary Election was multiplied by 125%. Thus, instead of using the number of registered voters as a base and multiplying it by a percentage of around 80%, the 2012 General Election ballot order method ...


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