Hawaii’s Elections Watchdog Drags Supreme Court Into Its Drama

For the last four months, the commission that oversees Hawaiʻi’s elections has not met — left in limbo by their own internal bickering over picking a chair and disagreements with the Office of Elections it is supposed to supervise.

The timing is of some urgency. For months, the elections office has been mired in controversies over ballot tiebreakers and election integrity, as well as disputes with the Trump administration over federal demands for voter data.

This week, a hearing before the Hawaiʻi Supreme Court could launch the process of allowing the elections commission to meet and function again. Two members of the Hawaiʻi Elections Commission have filed a lawsuit seeking that outcome, and on Friday the Supreme Court will be hearing oral arguments in the matter.

The case is led by commissioners Ralph Cushnie and Tamara McKay, who argue the Office of Elections is refusing to provide the commission with the support it needs to do its work. They argue that state law clearly states that office staff shall provide support to the commission when it requests the help.

Scott Nago, the chief elections officer who is the defendant in the case, did not directly counter that point. In his response to the lawsuit, he said the commission needs a majority of members to request support from the staff, based on state law and long-standing practice.

The commission, which typically meets once a month and sometimes twice, has not met since June 10, when the primary agenda item was to hold interviews and elect a new commission chair.

Eight people applied to be elections commission chair, including Cushnie, but the nine-member commission could not attain a majority vote on who should succeed outgoing chair Mike Curtis, whose last day was June 30.

Curtis did not participate in the vote for a new chair, and another commissioner, John Sabas, recused himself because he objected to Cushnie applying for the job.

That meeting concluded with commissioners agreeing to reconvene June 24 in order to hear from a deputy attorney general to “clarify the process” for replacing a chair without the required six votes. But Curtis abruptly canceled that meeting, concluding that the politically split commission was unable to agree on a new chair.

Then, on June 30, Senate Minority Leader Brenton Awa appointed McKay to replace Curtis as one of the four state Republican-appointed commissioners — the other four are appointed by state Democratic officials. McKay is also one of the two Maui commissioners, as the commission is required to have two members each from that island as well as from Oʻahu, Kauaʻi and Hawaiʻi island.

McKay is a former chair of the Hawaiʻi Republican Party who also applied to be commission chair. She and Cushnie pushed to get the Office of Elections to help the eight commissioners meet without a chair on July 14 but, according to the petition, they were stymied by the office.

On July 8, Cushnie and McKay submitted an emergency petition to the Hawaiʻi Supreme Court, citing a state law that says the office “shall provide staff support to the elections commission, as requested by the elections commission.”

The “sole question” for the court, they said, was whether the Office of Elections, which is run by Nago, “may refuse to perform the ministerial duty imposed” by Hawaiʻi Revised Statutes 11-1.5 (b). Cushnie and McKay v. Nago will now be heard Friday at 10 a.m. at Aliʻiōlani Hale.

The court hearing is the latest chapter in the elections commission’s tumultuous history, which is several years running. As Civil Beat has reported, it has been marked by contentious public meetings that last up to seven hours, allegations of voting fraud and heated disputes between commissioners.

Members of the commission, which hires and fires the chief election officer, have tried several times to fire Nago without success.

The commission, which also investigates and holds hearings for receiving evidence of election violations and complaints, has also been unable to meet amid various legal disputes. In late August, the Hawaiʻi Supreme Court was forced to settle who could run in a Honolulu City Council race. It also had to rule on whether the Office of Elections properly conducted a remedy for a tied state House race.

The court hearing comes less than three weeks before the Nov. 3 general election, which will determine control of Congress and likely prompt legal battles over how states handled their elections.

The court is not being asked to address all that, however, as Cushnie and McKay acknowledged in their petition. But if the two should prevail in court and are able to resume commission meetings, any disputes arising from the general election are likely to consume the board’s time and attention.

For now, though, the court asked Nago to answer three questions:

1. Can the elections commission convene lawfully and request staff support even if it does not have a chair?

2. What must election commissioners do absent a chair that is consistent with state law and administrative rules?

3. Would the election of a temporary chair be subject to the two-thirds vote requirement?

Nago’s response, filed Tuesday, is this:

4. Yes, the elections commission may lawfully convene and ask for support but only if the request comes from five commissioners — that is, a majority. As well, the authority to schedule a meeting and set an agenda lies with the chair. And the deadline to pick a new chair has expired.

5. As to what the commission should do now, it could meet as long as it does not engage in any substantive “board business.” But it could meet to decide on a future meeting’s agenda, and the public could testify.

6. On electing a pro tem chair administrative rules do not recognize the use of one unless it is for a limited period of time or circumstance. That temporary pro tem chair would come from the existing eight commissioners while the Hawaiʻi Supreme court chief justice picks a new chair that is also the ninth commissioner.

Nago concluded his filing by requesting the high court to deny the Cushnie-McKay petition.

The chief justice, Vladimir Devens, is recused from hearing the case. Two circuit court judges have been named as substitutes for Devens and a current vacancy on the high court.

An inquiry into the judiciary as to why Devens recused himself did not receive a response by Wednesday.

___

This story was originally published by Honolulu Civil Beat and distributed through a partnership with The Associated Press.