State elections chief sued following ballot snafu


HILO — The Green Party of Hawaii and seven voters representing every major island are suing state Chief Elections Officer Scott Nago, alleging he improperly promulgated rules dealing with ballot shortages in the Nov. 6 General Election.

Although ballot shortages resulting in long lines and delayed voting occurred almost exclusively on Oahu, Lance Collins, the Maui attorney representing the plaintiffs, said the issue of improperly drafting and following rules affected voters statewide.

“The fundamental issue is the Office of Elections is consistently not following the procedural laws that are in place, and in every election, voters get disenfranchised,” Collins said.

Nago on Monday said his office is not commenting on pending litigation.

The Hawaii Island plaintiff in the case is former Office of Hawaiian Affairs Trustee Moani Keala Akaka, a well-known political activist in Puna. She could not be reached for comment Monday.

Collins filed the lawsuit in Maui’s 2nd Circuit Court on Friday, and held a news conference on Oahu on Monday.

Nago and the state Elections Office has come under increasing scrutiny over the past few months, first when Hawaii County, under the supervision of former County Clerk Jamae Kawauchi, experienced delays in poll openings, resulting in Gov. Neil Abercrombie issuing an executive order requiring polling places in Hawaii County to stay open 90 minutes longer. The ensuing battle between Nago and Kawauchi ended with the state taking over Hawaii County’s Nov. 6 General Election.

While Hawaii Island’s General Election ran smoothly, Oahu’s did not. Following the problems, both the state Election Commission and state legislators called for an investigation. Nago has issued public apologies, and Lori Tomczyk, longtime ballot operations section head, resigned.

But Collins said Nago wasn’t specific in his apology, and didn’t say what remedies the state would take to ensure it didn’t happen again.

Collins had successfully sued the former chief elections officer, Kevin Cronin, in 2008, alleging similar violations of the Elections Office promulgating rules without following the proper procedures, in that case rules governing the transmission of vote tallies over telephone lines and the Internet. Cronin resigned shortly afterward, and Nago, who was a section head, took over as elections chief.

In the latest case, Collins is asking the court to declare the methodology used to determine the number of ballots for each precinct in the 2012 federal and state election invalid, as well as the procedure for precincts requesting additional ballots. In addition, the lawsuit seeks to invalidate the procedures used to rectify problems when a voter votes on a ballot containing some races the voter isn’t entitled to vote for, which happened when the wrong ballots were sent to some precincts.

The state sets rigid guidelines over how new administrative rules may be drafted and adopted, a process that often includes a public comment period.

Collins said he didn’t include in the lawsuit the problem with the ballots contrary to state law not showing the presidential candidates in alphabetical order, even though that error directly affected where Green Party candidate Jill Stein appeared on the ballots statewide.

“They admitted that it was wrong, and they said they would address it,” Collins said.