(Editor’s note: A version of this story appeared in the Aug. 25 edition of the Big Island Weekly.)
By Tiffany Edwards Hunt
Maile David will be on the ballot as a candidate for Hawaii County Council District 6. But the reality is her candidacy is in limbo.
David’s candidacy is being challenged by County Clerk Ken Goodenow in Third Circuit Court. The challenge is due the fact that the Hawaii County Charter states a candidate for Hawaii County Council must be registered to vote in the district he or she is running in at least 90 days prior to the Primary Election. David is a 20-year resident of the island, however she has only lived in District 6 since December 2008 and registered to vote in that district 84 days prior to the Primary. District 6 is comprised of South Kona, Ka’u, and Upper Puna.
David’s attorney, Mike Matsukawa, maintains there is a conflict in the County Charter, stating in one section that a person must be registered to vote in his or her district 90 days prior to the Primary and stating in another section that a person merely has to be registered to vote at the time of pulling nomination papers. Matsukawa argues the “fundamental” right and privilege of our democratic society is to run for public office and “courts have favored a policy ‘to promote rather than defeat candidacy.’”
Corporation Counsel Lincoln Ashida, meanwhile, believes the argument that the County Charter has conflicting sections is without merit. “In this case, we have a residency requirement and a registered voter requirement,” Ashida said. “The people of our county who enacted and imposed this requirement recognized there are people who have the means to own multiple residences. If you run for Council, the people want to make sure you not only live in the district — something relatively easy to do by showing a utility bill — but you are registered to vote in the district. Ashida noted that, without such a requirement, “you have Hillary Clinton qualifying to be a senator from New York.”
Still, Matsukawa isn’t swayed. “The law we’re talking about, it’s the kind of law used in the 1960s to stop people from running for office. I thought we had passed that a long time ago,” Matsukawa said. “But, if you look at the law in question, it was made in the 1960s and has carried over today. As recently as 2009, the 9th Circuit Court of Appeals said you cannot enact or enforce this kind of law.” As for David, she is going to leave the court to decide whether or not her candidacy is valid and if there is a conflict in the Charter. In the meantime, she is going to proceed as a candidate and campaign as much as she can.
If David’s candidacy is found to be invalid and the County pursues criminal charges, she could face a misdemeanor that is punishable by a $500 fine, six months imprisonment or both, for violating the Charter. And she could also face felony voter fraud, which is punishable by a $10,000 fine, five years imprisonment or both. Ashida asserts that the County Clerk informed Maile about her lack of qualification and Matsukawa “jumped the gun,” filing a writ of mandamus with the Hawaii Supreme Court to demand that Goodenow issue David her nomination papers.
“This is where it gets real sticky for Maile, and I am not sure everyone fully recognizes the ramifications of what is occurring concerning her legal well-being,” said Ashida. “She got the papers, filled them out, and then filed them. Presumably this was done knowing what our Charter provides. By signing the forms, I am concerned about her criminal exposure. This may be considered either False Swearing or Unsworn Falsification to Authorities. I am in no way suggesting conclusively she has committed a crime — I just offer this observation based on my 13 years experience as a prosecutor — but there would have been a less hazardous way to challenge the law. Perhaps the better way would have been to file a declaratory action with the Circuit Court — no doubt there would have been a case or controversy. This would not have put Maile at risk. Look at it from the perspective of the County Clerk,” Ashida said, noting the Charter is “unambiguous.”
“What if the Clerk said, ‘Well, let’s bend the rules for Maile,’ or ‘She only missed it by a few days,’ or ‘I think this part of our laws is unconstitutional, especially since it was the voters that enacted it and not the Council, so I’m going to ignore it this time,’ Ashida said. “This is why the Clerk did what he did; the last thing we wanted to see was one of our clients commit a crime. And that is why the above lawsuit was filed. State law requires the Clerk to file this type of declaratory judgment lawsuit any time they determine a candidate is not qualified. That is exactly what the Clerk did. This is not a very pleasurable experience for anyone. As I stated, Maile is such a nice person. I think there was a clearly less hazardous way for this law to be ‘tested’ by the courts, without putting anyone at legal risk. Luckily, Maile is represented by a very competent attorney, and I trust he has her best interests in mind.”
Matsukawa, meanwhile, argues there is a procedure established in state law that allows a person’s candidacy to be challenged by the voters and the County Clerk was wrong to screen David’s qualifications. Matsukawa notes that only the Big Island Charter requires that a person has to register to vote 90 days before filing, and that such a durational requirement only applies to the County Council. Had David sought a State House or a State Senate seat, she could have registered to vote the same day she pulled nomination papers. He believes the durational requirement is “unconstitutional.” Ashida said Matsukawa is free to make such an argument, but county officers and employees cannot make such an “arbitrary and capricious decision.”
“The bottom line is this was not a case about the exercise of discretion,” Ashida said. “For Ms. David’s lawyer to succeed, he will have to successfully argue this part of the Charter, i.e., the will of the people, since the Charter may only be promulgated or amended by the voters, is legally invalid. If he is successful, so be it. This has never been a political or personal issue — despite what some uninformed people may have suggested; in fact we have all worked with Maile when she was with the County, and no doubt she was one of the most respectful, nice and efficient employees I have worked with.” David worked in the County Clerk’s Office as a legislative assistant to former Council Vice Chair Angel Pilago, of North Kona.
Third Circuit Court judge Greg Nakamura is expected to take up the County Clerk versus David case at 8:30 a.m., Sept. 7, 2010 in a Hilo courtroom. Along with David, Marie Burns, of Ocean View, and Brittany Smart, of Na’alehu, also are to be on the ballot challenging incumbent Guy Enriques. The Primary Election is Sept. 18.