Hawai‘i just came through the most extraordinary election in memory.
A state House race decided by one vote, then tied, then settled by drawing an egg from a lauhala basket at the State Capitol. A second tie in a Senate district the same day. A council chairman whose eligibility was not resolved until the Hawai‘i Supreme Court ruled — after voters had already marked ballots bearing his name. Honolulu has since acknowledged that two voters were handed the wrong district's ballot and voted in a race whose margin was zero.
Under oath last week, Hawai‘i's chief election officer testified there is no administrative rule, no written manual, and no standard procedure governing how a tied election here is decided. He chose the method himself, days before using it, and it was never tested for fairness. A justice asked whether he had consulted the Elections Commission first.
He said no.
He could not have. The Commission has not been able to meet since June 30.
On Sept. 4, the Hawai‘i Supreme Court ruled unanimously that the tiebreaker was invalid because the Office of Elections never adopted a rule for it, and that the two misissued ballots were enough to determine the race. District 43 voters will vote again on Nov. 3.
The Elections Commission is the body the Legislature created in 2004 to oversee the Office of Elections. It appoints the chief election officer. It evaluates him. State law charges it with advising him on election matters and receiving complaints about how elections are run. It is the public's check on the office that administers Hawai‘i's elections.
It has no chair. The previous chair's term ended June 30. On June 10 Michael Curtis announced the Commission would meet June 24 to choose his successor. On June 15 he cancelled that meeting.
There is a straightforward remedy, and it is not our invention. On Feb. 4, all nine commissioners voted to adopt Robert's Rules of Order as the Commission's parliamentary authority. Robert's Rules addresses exactly this: when a body has no presiding officer, any member may call the meeting to order, and the members elect a chair pro tempore by majority vote.
At the Commission's June 10 meeting, the deputy attorney general assigned to advise us said on the record that electing a chair pro tempore was an available option, that it should come from a sitting member, and that it would take a simple majority. Twelve days later he issued a written opinion concluding the Chief Justice would select the chair if the Commission did not act within 15 days.
Since July, we have asked the Office of Elections repeatedly to do what it has always done for Commission meetings: post the public notice, provide the video conference link, and email the notice to people who signed up on the state's own website to receive it.
The answer has been refusal, then silence. No explanation. No legal basis. In August, multiple requests received no reply at all.
We are told a single commissioner cannot call a meeting. But the Sunshine Law bars three or more of us from coordinating outside a noticed meeting. If calling a meeting required a vote of the Commission, that vote could never happen. The law written to keep government open is being used to keep this body closed — and the Office of Elections is actively preventing anyone from stepping into the gap.
Follow that logic to its end: a commission with no chair may not convene, because it has no chair. That is not a rule. It is a trap, and it renders a body created by statute permanently inoperable.
Error is what oversight exists to catch. A commission that meets asks how two voters got the wrong ballot and whether the procedure has been fixed. It asks why the method for deciding a tied election was chosen in three days by one person with no rule behind it. It receives the complaints citizens have filed all summer — complaints that now reach no one, because no body is assembled to receive them.
None of that happened. None of it could.
Article I, Section 1 of Hawai‘i's Constitution provides that all political power is inherent in the people. The Elections Commission is how the people exercise that power over their own elections.
Every request and every non-answer is documented in the public record of Cushnie and McKay v. Nago, filed in July and still pending before the Hawai‘i Supreme Court. An entire election cycle has passed. The primary was held, contested, and litigated before that same court — while the body created to oversee how it was administered has been unable to hold a single meeting.
We are asking for one meeting, with one item on the agenda: elect a chair, so the Commission can function again.
For two months, that has been too much to ask.
Ralph S. Cushnie and Tamara McKay are members of the Hawai‘i Elections Commission, representing Kaua‘i County and Maui County. They are petitioners, appearing pro se, in SCPW-26-0000498.
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