Court dismisses Puna election challenge

HILO — The Hawaii Supreme Court has dismissed a Puna candidate’s election protest, the third of four protests filed in the wake of the Aug. 11 primary election that the court has dismissed.

Hope Cermelj, the winner of the state House District 4 nonpartisan primary, protested the results for the Puna seat currently held by Democratic Rep. Faye Hanohano. A nonpartisan candidate who garnered 35 votes in the Aug. 11 primary to nonpartisan opponent Moke Stephens’ 32 votes, she needed 344 votes — 10 percent of the total cast for the office — in order to face off against Hanohano in the Nov. 6 general election. Hanohano had 3,371 votes.

The Supreme Court, in a judgment signed by all five justices and filed Tuesday, said Cermelj did not prove that problems at the polling places were sufficient to change the outcome of the election. The court deemed Hanohano elected to the seat, as there was no Republican candidate and neither of the nonpartisans met the threshold of 10 percent of votes cast.

“Taking Cermelj’s allegations as true and viewing them in the light most favorable to her, it appears that Cermelj can prove no set of facts that would entitle her to relief inasmuch as Cermelj has failed to present specific acts or actual information of mistakes, error or irregularities sufficient to change the results of the election,” the order said.

Although two of the three Puna polling places where she was a candidate opened on time and the third opened just 10 minutes late, Cermelj said she witnessed at least five people being turned away and not allowed to vote. The customary practice when a voter is not listed in the poll book is to allow him or her to vote a provisional ballot, she said.

“I just feel that my rights have been denied, and that’s all I can say,” Cermelj said Wednesday. “All my friends were counting on me and their rights were denied as well.”

The court has also dismissed two Oahu cases, saying those plaintiffs also didn’t prove that actions or problems changed the outcome of the election.

The court has not ruled on the remaining election challenge, filed by the second-place finisher in a four-way race for the state House District 6 Democratic primary for the open Kailua-Kona seat. Kalei Akaka, the 29-year-old granddaughter of U.S. Sen. Daniel Akaka, had 1,022 votes in the primary, just 45 fewer than the winner, Nicole Lowen. The winner faces Republican candidate Roy Ebert in the Nov. 6 general election.

Akaka claims any ballots after the polls were supposed to close at the statutory 6 p.m. closing shouldn’t have been counted. Gov. Neil Abercrombie, in a proclamation, had extended the poll hours by 90 minutes for Hawaii Island after learning many polling places opened late.

Two of the five precincts in District 6 opened late, according to a state Office of Elections report. In both of those polling places, Kahakai Elementary School and Kona Palisades Community Center, Akaka came in second in voting on primary election day, first in early walk-in votes and second in mail-in absentee votes. She came in second or third in two of the other polling places, and first in all three methods of voting at Kealakehe High School, according to the state precinct reports.

Akaka’s attorney, Charles Khim of Honolulu, is unfazed by the dismissal of the other three cases.

“I feel we’ve got a much stronger case,” Khim said.

Khim cites a successful state Supreme Court challenge of a 1968 election as setting precedent for Akaka’s challenge. In that case, Akizaki v. Fong, the challengers cited absentee ballots that were counted even though they were postmarked after the deadline. The court invalidated the election for two candidates in the 15th state House District and called on the governor to hold a new election.

“We’re not trying to impugn the governor. He tried to do what he thought he should do in good faith,” Khim said. “But (the proclamation) allowed them to count 46 or more people who were not entitled to vote.”