When Tropical Storm Iselle hit the Big Island on August 8, it did more than take down trees, block roads, and knock out power for thousands of residents. It also derailed the normal procedures for the primary election, forcing a one-week delay in voting for two hard-hit precincts, blocking some residents in adjacent precincts from getting to the polls, and exposing shortcomings in planning for emergencies by state election officials.
Under other circumstances, it seems likely the resulting problems might have been seen as among the many burdens to be shouldered by storm survivors, such as happened when the 1992 primary election proceeded as scheduled on Kauai despite the devastation caused by Hurricane Iniki. But this time around, the razor-thin margin in the high-profile U.S. Senate race brought additional scrutiny to the situation in Puna.
A lawsuit brought by the American Civil Liberties Union on behalf of a half-dozen Puna residents who were unable to cast ballots is now asking the Hawaii Supreme Court to wrest control of the election process from the state’s Office of Elections in order to reopen voting for those who couldn’t get to the polls.
The case raises novel legal issues for Hawaii courts, but the situation is certainly not unique. Consider some of the disasters that have threatened other recent U.S. elections.
• Hurricane Sandy devastated much of the Northeastern U.S. just a week before the 2012 presidential election.
• Hurricane Katrina forced many New Orleans residents to relocate, and thousands were still displaced and unable to return to their homes, or even to the New Orleans area, when the next municipal elections rolled around.
• The 9-11 attack on the World Trade Center occurred on election day in New York.
• A storm ranging from the lower Ohio Valley through the Southern U.S. spawned at least 84 tornadoes on the same day in early 2008 when 24 states were holding presidential primary elections. The elections went on as scheduled.
• Virginia, Maryland, and the District of Columbia were holding presidential primaries on the same day in February 2008 when a dangerous ice storm brought freezing rain and dangerous driving conditions that made it difficult for voters to get to the polls.
Obviously, some of these devastating events had far broader and more serious effects than Iselle, but most did not produce litigation or threats of litigation alleging constitutional violations. The exception was Katrina, when some critics charged that post-hurricane election procedures didn’t go far enough to encourage voting by the thousands of displaced residents of New Orleans, with a disproportionate impact on the city’s black voters.
In my view, that seems to make it unlikely that the ACLU lawsuit will lead to a Supreme Court ruling that there were constitutional defects in the election. Practical errors or questionable decisions, undoubtedly. But trampling of voting rights? I think not.
One consideration is that issues that can properly be challenged in court right up to the day of an election may not be suitable for post-election challenges, according to an analysis by the Election Law Project, a joint venture of the National Center for State Courts and the William & Mary Law School.
“For example, a voter wrongly denied the opportunity to vote can seek an Election Day order that she be allowed to cast a ballot,” according to a footnote in their analysis. However, “unless it appears her vote would have affected the outcome, such as when the election ends in a tie or a one-vote margin of victory, she is unable to receive post-election relief because she was unable to vote.”
While an emergency election day challenge may have had merit, too many factors seem to weigh against a post-election challenge like the Puna case.
It should be noted that even in the best of times, mundane problems—poll workers not showing up, ballots delivered late, power failures, room keys lost, etc—can cause significant problems in individual voting places.
“Elections are not different from any other event that attempts to engage a large number of people in a communal process,” according to a 2013 report by the American Bar Association’s Standing Committee on Election Law. “Events like weddings, concerts, and professional sports games require careful planning to ensure that the event runs smoothly. Arguably, elections require even more planning because of their vast scale and short timeframe.”
Add a major weather event, and complexities increase exponentially.
A report published in January 2014 by the National Association of Secretaries of State examined state laws and practices for the emergency conduct of elections.
Practical errors or questionable decisions, undoubtedly. But trampling of voting rights? I think not.
The report found that only a minority of states—12 of 37 states responding to a survey — have laws specifically authorizing an election to be postponed in case of emergency.
Hawaii is one of the states that makes a clear assignment of that authority, in our case to the chief election officer, in the case of state elections, or to the county clerks for local elections.
Other states require a court order, legislative action, or an emergency declaration by the governor, according to the NASS report. Hawaii was one of just four states in which the chief election officer (or secretary of state) is authorized to make emergency decisions.
States differ on the degree to which they have contingency plans in place to deal with emergencies. According to the NASS, many existing plans deal with communications between elections staff and emergency workers at all levels, procedures for informing voters, power outage procedures (including estimates of emergency wattage needed to operate lights and voting machines at different polling places), and plans for dealing with staff or equipment shortages.
Given the confusion that was apparent as Iselle approached the islands, it would appear Hawaii did not have robust contingency plans to rely on. Plans, perhaps. Sufficent plans, no.
It is widely recognized that one way to minimize the impact of a disaster on election day is to encourage early voting.
According to the ABA report, “32 states allowed no-excuse early voting, 27 states offered no-excuse absentee ballots, and 2 states — Oregon and Washington — hosted all-mail elections.”
Again, Hawaii is on the good side of the ledger as one of the “no-excuse” states, a plus for our election process. The more votes that are cast early, the fewer voters are potentially impacted by an unexpected and unplanned event.
Indeed, one defense against the ACLU lawsuit was that voters in the storm-threatened areas could have taken advantage of walk-in absentee voting beginning July 28 and through the end of Thursday, Aug. 7, the day before Iselle hit and two days before the scheduled election.
I doubt that the Hawaii Supreme Court will step in to order a resumption of primary election voting. Hawaii has done many things right. The state has provided for no-excuse walk-in and absentee mail-in voting, has clearly assigned authority for emergency election decision-making, and has good communication between state and county election officials.
However, I wouldn’t be suprised to see political support continue to grow for legislative action mandating steps to avoid, or at least mitigate, the effects of such a weather event in the future. Detailed contingency planning, close cooperation with emergency management officials, and improved communications with the public are three obvious steps that come to mind.