On Monday morning, while ballots printed with Tommy Waters’ name lay on kitchen tables across East Honolulu, Judge James Ashford ruled that Waters may not run for the seat on offer.
It is the third time in 12 years that a judge has been asked to weigh in on the council election in District 4.
Trevor Ozawa beat Waters by 41 votes in 2014. Waters challenged the result without success. When Ozawa won reelection by 22 votes in 2018, Waters sued again. That time, courts ordered a do-over election, which Waters won in 2019 by a thousand votes.
This time, Ozawa has sued before votes are counted. Courts ruled Waters ineligible to run because he has already served two consecutive terms in office. Waters has said he plans to appeal.
Each man has thrown challenge flags, and the referee wears a robe and holds a gavel.
Anyone tempted to despair over this should read a short book. The Commentariolum Petitionis is a campaign manual attributed to Quintus Cicero, written for his brother Marcus.
Marcus, better known as Cicero, was then running for consul, the highest elected office. He was a lawyer from a family of no great name, with a thin military record. In Rome, that was rather like running for lifeguard without knowing how to swim.
But Marcus was a gifted speaker and lawyer, and he had a sound strategy.
Roman consuls were most often generals, and Roman campaigns could become wars. Office was won by canvassing, favors, and patronage, and sometimes by violence. The most famous campaign rally of the age was Caesar walking an army across the Rubicon.
Quintus’s advice, in Philip Freeman’s translation, has a familiar ring: promise everything to everybody, don’t leave town, learn your opponents’ weaknesses, flatter the voters shamelessly, give people hope.
Cicero had to climb a series of offices to the highest post. The ladder of offices survives here in a gentler form. A Kawakami may climb from council chamber to State House to mayor’s office on his way, perhaps, to Washington Place — without anyone bleeding.
In Honolulu the ambitious fight with briefs and motions, and the only suffering is that we have to read about it. We have become lawful to the point of banality, and the banality is the blessing.
The law that keeps the knives sheathed exacts a fee, and the fee is paid in technicalities. A society that settles its quarrels in courtrooms must sit through the arguments, the opinions, and the appeals.
In 1992, Honolulu voters amended their charter so that no council member could serve more than two consecutive four-year terms. The intent isn’t hard to read. Voters did not want anyone holding a seat for more than eight years in a row. They certainly did not want someone serving 12 years in a row.
Waters’ attorneys reply that he has not yet served two four-year terms. “It is undisputed factually that Mr. Waters has not yet been elected to serve two ‘four-year terms,’” they wrote last month, “as he has served one four-year term and one partial term that lasted three years, seven months, and twenty-five days.” The term was short, of course, because of the lawsuit Waters filed over the 2018 count.
The arithmetic is sound, and it proves nothing. A man who eats 11 and a half of a dozen donuts has not, strictly speaking, eaten a dozen.
Everyone in Honolulu knows what the voters meant, and Waters knows it best of all, because these voters are the people he has spent nearly eight years serving.
In the court of common sense, Waters would be laughed out. But in the court of law, he is owed an appeal. This is the tedium we accept in exchange for peace — better than Rome, certainly, but a citizen may be forgiven for checking his watch.
Of course, we do the same. When the technicality favors us, we praise the letter of the law and call it our right. When it favors the other fellow, we discover the spirit of the law and call him a scoundrel.
Both Ozawa and Waters are lawyers, and they know the difference between the letter and the spirit. Lofty notions tend to sink when a job is on the line.
An elected official ought to fight for the people to the full extent of the law; that is the job. There is a difference, though, between fighting for the people within the law and fighting the people with it.
Waters has spent nearly eight years styling himself a servant of the public — the empty homes tax, relief on vehicle weight taxes — and there is no reason to doubt he means it. The temptation to squeeze the last drop from a legal text is not a mark of unusual wickedness. It is what nearly anyone would feel when a career seems to hinge on a legal opinion.
Waters claims that the voters of District 4 should have a chance to decide. He’s right, and they will. But the voters in his district are not the only ones who matter. As chair of the Honolulu City Council, Waters has a duty to uphold the city charter.
We call our elected officials public servants for a reason. Councilmembers serve the people, and Honolulu’s voters gave their instruction in 1992. They said that our servants on the council should not serve for more than eight years in a row, and a servant of the people honors the people’s word by putting his own interest beneath it — which means stepping aside.
Quintus’s ultimate piece of advice to his brother was to give people hope.
Waters can spend the coming months giving Honolulu litigation instead, or he can give the people something rarer than a successful appeal: a politician who honors their will.
Author Sterling Higa can be reached at hello@sterlinghiga.com.
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