Justices on the Hawai‘i Supreme Court seemed incredulous Friday over a dispute between the Hawai‘i Elections Commission and the state Office of Elections.
The Elections Commission, the board that appoints and evaluates the state Election Officer, has been unable to meet since June. The previous election chair’s term concluded that month, and without a successor in place, it has fallen to other commissioners to schedule a meeting in which a new chair can be selected.
This seemingly trivial task has been met with repeated roadblocks by the Office of Elections, leading commissioners Ralph Cushnie and Tamara McKay to file a petition for the Supreme Court to intervene and clarify what authority the Office of Elections has over the Commission.
Aaron Schulaner, the attorney representing the Office of Elections and Election Officer Scott Nago, repeatedly told the Supreme Court Friday that the Office of Elections only serves an administerial role for the Commission, advising them on what they are or are not permitted to do based on state statutes.
If, for example, a leaderless Commission wishes to schedule a meeting, Schulaner said the Office of Elections can do so — so long as a majority of the eight commissioners request the office for assistance scheduling a meeting. But without that request by the majority of the Commission, the Office of Elections cannot provide administrative support, Schulaner said.
Cushnie and McKay argued that this alone appears to not be backed up by state law. McKay said Schulaner’s reasoning seems to be based on the statutory requirement that the Commission act by majority, but the definition of “act” is based on actions taken during an agendized meeting, not administrative functions like scheduling meetings.
But justices of the court seemed shocked at the dysfunction between the Commission and the Office of Elections, two bodies that are charged with serving the public good.
Associate Justice Sabrina McKenna questioned why the Office of Elections hasn’t been more proactive in scheduling a meeting after four months of inactivity by the Commission with a general election looming.
“Why are we here?” McKenna exclaimed. “Why can’t this be done by rational people that are trying to serve the public?”
Schulaner said the Office of Elections could proactively send emails to each commissioner, asking them if they agree with holding a meeting, and if five commissioners answer in the affirmative, then the office would begin scheduling a meeting. But McKenna again was incredulous: “If you’re conceding that you could do that, why haven’t you done that?”
The Commission’s own inability to schedule meetings was also called into question. Cushnie said the commissioners do not have access to their fellows’ email addresses or contact information, which has prevented him from coordinating other commissioners.
Schulaner suggested that allowing commissioners to know each other’s emails could raise concerns about violations of the Sunshine Law, the government transparency law that, among other things, prohibits public boards from discussing business outside of agendized meetings. But he also could not confirm that the state Office of Information Practices specifically advised the Office of Elections to not share commissioners’ contact information with each other.
“You’re telling us that in all the years that this commission existed and that we’ve had email, that they haven’t created an email that would just say ‘RalphCushnie@ec.gov’?” scoffed Circuit Judge Peter Cahill.
Justices also questioned whether the Commission’s legal representation represents a conflict of interest. Cushnie and McKay represented themselves Friday; the Commission’s own attorney, Deputy Attorney General Jordan Ching, did not appear.
In fact, Schulaner said that Office of Elections staff reached out directly to the Commission’s counsel and received advice from him to not distribute correspondence among the commissioners.
“So your client is contacting the other entity’s lawyer directly and asking for advice?” Cahill said, calling this behavior “unheard of” for a lawyer. “So the lawyer is making decisions, and there’s nothing to indicate in the record that the lawyer obtained the consent of his own client to have these communications?”
The court made no decision Friday, and did not indicate when a decision would be forthcoming. But McKay told Aloha State Daily afterward that she hopes a decision will be made soon, as the election is looming.
But regardless of the court’s decision, McKay said there is “true division” among the Commission, with animosity and “bad behavior” between the Commission and the Office of Elections, as well as between commissioners themselves.
McKay added that the question of whether the Commission is receiving proper legal representation “needs to be visited” as well in the future.
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