There’s no dispute that the 2012 general election was marred by widespread ballot shortages that caused confusion and delays at many polling places.

Now the Hawaii Supreme Court will have to decide what, if anything, needs to be done about it. The court heard oral arguments last week in the appeal of a lawsuit brought by the Green Party of Hawaii and seven individual voters stemming from the 2012 ballot fiasco.

The plaintiff’s contend the methods and procedures for printing and handling ballots are in fact agency rules that should have been adopted pursuant to the state’s Administrative Procedures Act. They sought a ruling that elections officials be required to go through the public rule-making process before applying them in future elections.

While election officials have acknowledged that many “unfortunate” mistakes were made, they say the ballot procedures are purely matters relating to the internal management of the agency, do not affect the rights of the public, and are therefore exempt from rule-making requirements.

Further, if the Green Party and others want rules, election officials argued, they should first file a petition spelling out their proposed rules for the Office of Elections to consider. They argued that, without exhausting that potential administrative remedy, the plaintiffs’ lawsuit should be rejected.

A Maui judge ruled in favor of the Office of Elections in 2014 and that decision was affirmed by the Intermediate Court of Appeals in a December 2015 opinion.

However, the attorney representing the Office of Elections at the May 18 Supreme Court hearing ran into an unusual barrage of critical questions from all five Supreme Court justices in what Honolulu attorney and law blogger Robert Thomas called “as close to a feeding frenzy as you might witness in the usually decorous air of the state’s high court.”

Election Day 2012

Within hours of the polls opening on the day of the 2012 General Election, there were reports of ballot shortages, some as early as 10 a.m. Before the day was out, more than 50 polling places reported running low on printed ballots. Two dozen ran out of English language ballots before the polls closed.

When ballots ran out, voters were given several choices. They could wait for newly printed ballots to arrive. They could vote on available foreign language ballots. Or they could stand in line to use a voting machine.

To further confuse matters, additional ballots delivered to two polling places were inadvertently switched. As a result, several dozen voters received the wrong ballots that included races for a different district in which they were not legally entitled to vote.

Officials acknowledge the ballot mess resulted in voters waiting up to four hours to cast their ballots. And there’s no dispute that an unknown number of voters simply gave up and left without voting.

“We knew that bad things had happened during the election,” says attorney Lance Collins, who represents the Green Party.

In a telephone interview Tuesday, Collins described what happened to plaintiff Elizabeth Ruze when trying to vote at Hokulani Elementary School at the bottom of St. Louis Heights.

“First, they ran out of ballots,” Collins said. “She was then offered a ballot in Ilocano.”

She was able to recognize the names of candidates in order to cast those votes, but when she got to a complex ballot issue, she realized it was not going to work, Collins said.

Ruze was then told she could use a voting machine instead of completing a paper ballot.

“But there was only one voting machine and a very long line of people waiting to use it,” Collins said.

After a wait of several hours, more ballots were finally delivered.

Despite the widespread problems, Collins says elections officials refused to respond to requests for information from Green Party representatives.

“They wouldn’t talk to anybody about anything to do with the election,” Collins said,

And so they filed their lawsuit.

Public Rights Versus Internal Procedures

In its December 2015 ruling, the Intermediate Court of Appeals acknowledged the ballot problems, but rejected the argument that the ballot procedures should be considered rules. Further, the ICA agreed with the state’s argument that these mistakes did not undermine fundamental voting rights.

According to the ICA opinion: “It appears, however, that: all voters in line at the close of voting received the opportunity to vote; if English language paper ballots were not immediately available at a particular polling place, voters could vote at an electronic voting machine or on an alternative language paper ballot; every voter who signed a precinct book cast a ballot; every voter who voted on the wrong paper ballot had his or her vote counted in every race in which he or she was entitled to vote; and, none of the races that could have been impacted by the ballot mix-up were close enough to have been affected.” 

But it didn’t take long for the justices of the Supreme Court to begin ripping into that assessment.

The quotes that follow are drawn from the official recording, which does not identify every speaker.

Kimberly Tsumoto Guidry, first deputy solicitor general, appearing for the Office of Elections, began by apologizing for the errors, but quickly said that everyone had the opportunity to vote.

“No person’s right to vote was infringed on Election Day because of a lack of a rule,” Tsumoto Guidry said.

The justices seemed stunned by this argument. What about people who couldn’t vote because there were no ballots? What about people who were given the wrong ballots? Weren’t they denied the right to vote in their district’s legislative races when they were given a ballot for the wrong district?

Tsumoto Guidry seemed to dig herself deeper into a hole when she was asked how election officials could say the determination of how many ballots to print, and how to get them to polling places, doesn’t affect the private rights of the public.

She replied that these procedures are aimed at agency officials behind the scenes.

And, she added, “paper ballots are not the only means by which people can vote.”

Paper ballots just facilitate voting, she said.

“Even with the ballot shortage, people were able to vote by electronic voting machine,” she said.

A justice shot back: “If they stood in line for several hours?”

“Nobody was turned away,” Tsumoto Guidry replied.

Then a quick and caustic comment from a justice: “As long as people are willing to stand there for a couple of hours, despite having family obligations or work obligations, and work only allowing two hours off to go vote, as long as they could have stood in line until midnight, that’s fine? Is that the state’s position?”

Another justice returned to the same point a few minutes later.

“You say it doesn’t affect voters’ rights, but some were not able to vote. How does that not affect a voter’s right?”

It’s only an indirect effect, Tsumoto Guidry repeated several times.

She was asked: “So it’s just unfortunate, but it’s not a violation of the person’s constitutional right?”

Her reply: “Voters’ constitutional right was the right to vote. That right was fulfilled because they were given the opportunity to vote.”

But the justice was not satisfied. “So those voters who came home, who left without voting, they’ll say, it didn’t affect me even though I wasn’t able to vote. That’s your argument?”

Finally, several justices questioned why the state is so resistant to having rules relating to ballots.

After all, they pointed out, the Office of Elections has many rules down to small details like the color of ink or the softness of the graphite in pencils used to mark ballots.

One justice asked incredulously, “You can prescribe the graphite level, but you don’t want a rule that says this is the number of ballots that you shall print based on the statute that requires the number to be based on registered voters?”

Tsumoto Guidry tried to draw a distinction, saying the rule on what pencils or pens are required affects a voter directly.

A justice responded: “But whether or not  a voter gets to vote is not something that affects the public? That is the states’s position? Seriously?”

Justice Sabrina McKenna seemed to sum it up: “This is not rocket science, right? And you are dealing with a situation that your client reported 70 calls from 51 polling places about ballot inventory. Twenty-four of them ran out of paper ballots. How can the state take the position that this does not affect private rights of the public?”

Tsumoto Guidry meekly replied, “because everyone who wanted to vote was able to vote.”

On the basis of the questions, it appears the Supreme Court is highly likely to find in favor of the plaintiffs, overturn the lower court rulings, and order the Office of Elections to adopt ballot rules.

What the Office of Elections appears to need is a whole change in attitude that accepts and acknowledges its accountability to the public, but that’s probably something beyond the scope of the pending court ruling.