HILO — More than one-half million Hawaii ballots were printed with the presidential candidates in no particular order, despite a state law that says all candidates must be in alphabetical order within their respective races.
The state Office of Elections has downplayed the error, and officials contacted this week also don’t see it as a problem, especially for the Barack Obama-Mitt Romney race. But Hawaii County Clerk Jamae Kawauchi is seeking a legal opinion after her office was contacted by voters.
With Hawaii-born Obama on the ticket of an overwhelmingly blue state, there’s little chance the candidate will be missed, even if he’s at the very bottom of the line-up behind the GOP candidate Romney, at the top, followed by Green Party candidate Jill Stein and Libertarian Gary Johnson, they say. Obama received 71.5 percent of the Hawaii vote in 2008.
“We don’t see it as a problem at all,” said Ria Baldevia, director of Obama for America in Hawaii. “President Obama is very popular in Hawaii, and we love him, and we are confident he will win here.”
But close races elsewhere on the ballot could be challenged based on the illegal order at the top, said Kyle Kondik, a spokesman for noted political analyst Larry Sabato’s Center for Politics, based at the University of Virginia.
“If lawyers could get at something, they will,” Kondik said. “If there’s something to sue about, they’ll sue.”
That’s not likely to be the Obama-Romney battle, nor the next race on the ballot, between Democrat Mazie Hirono and Republican Linda Lingle for the open U.S. Senate seat being vacated by Democratic Sen. Daniel Akaka. The Center for Politics sees an “overwhelming majority” for Obama in Hawaii, and has pegged the Hirono-Lingle seat as “likely Democratic.”
Ballot position has been shown to be important. Candidates listed first on the ballot gain an automatic 5 percentage point advantage over other candidates simply by being first, according to a 2010 study by researchers from Kellogg School and the University of Pennsylvania.
The Republican Party of Connecticut recently successfully sued the Connecticut secretary of state because the secretary, a Democrat, did not follow state law requiring the party that won the previous gubernatorial election be placed first on the ballot. The Connecticut Supreme Court on Sept. 26 agreed with the party, and the ballots were redone in time for the election.
The federal government generally leaves ballot design decisions to the states, said U.S. Elections Assistance Commission spokesman Bryan Whitener. Best practices manuals provided to West Hawaii Today by Whitener don’t address alphabetization of candidates, and in fact, some sample ballots are shown with candidates not in alphabetical order.
The commission was created as part of the Help America Vote Act following the problematic 2000 election in Florida. The independent, bipartisan commission is charged with adopting voluntary voting system guidelines, maintaining the national mail voter registration form and serving as a national clearinghouse of information on election administration. It also certifies voting systems, according to its website.
Hawaii’s law reads, “The names of the candidates shall be placed upon the ballot for their respective races in alphabetical order,” except for candidate vacancies appointed by political parties, vice presidential and lieutenant gubernatorial candidates who are placed with their respective candidates for the president and governor, or “for the limitations of the voting system in use.”
In addition, a case note on the law says that “circuit courts may prevent use of ballots not in conformity with law and may compel officials to use proper ballots.”
Kawauchi said in an email Saturday to state Chief Elections Officer Scott Nago that voters were questioning whether their votes would be legal. She asked Nago to get a legal opinion from the state Attorney General’s Office.
Nago, in reply, explained how the error happened, but didn’t address the legal question.
“The Office of Elections has stated this was an error on its part and that it apologizes,” Nago said in the email, obtained under Hawaii’s open records laws. “The ballots will not be reprinted as all candidates for president are on the ballot and voters are still able to exercise their right to vote.”
West Hawaii Today’s questions to Nago’s office Thursday about the legality of the ballot were referred to the Attorney General’s Office. Spokesman James Walther said the law also requires the state Office of Elections and the county clerks’ offices to provide candidates and political parties an opportunity to review draft ballots before they’re printed.
“There was a process for review prior to printing and nothing was said about any problems,” Walther said.
Kawauchi said her office concentrated on verifying the county races, and left the federal contests to the state.
Obviously, the Legislature would prefer that state agencies follow the law, said state Sen. Will Espero, chairman of the Senate Committee on Public Safety, Government Operations and Military Affairs. But considering the time factor and the fact that it was an error and not malicious, there is little recourse for the Legislature, he said.
“We do have laws in place,” Espero said. “But there is a cost-benefit analysis to consider. This doesn’t seem to raise red flags. … Unless someone attempts to sue us, then a court or judge will decide.”