"Mistakes Were Made"
During last week's oral arguments (also streaming below) in Green Party of Hawaii v. Nago, No. SCWC 14-0001313 (May 18, 2016) -- arguments that ran nearly 50% over the scheduled one hour length -- the justices of the Hawaii Supreme Court appeared to be searching for a practical answer to the central question in the case: since the State Office of Elections admittedly goofed up the delivery and printing of ballots during the 2012 general election (and had other well-publicized problems), what, if anything, could the court do to make sure these problems don't recur?
Mea Culpa, Mea Culpa
All the lawyer for the agency could offer was the Election Officer's mea culpa, and assurances that 2012's problems wouldn't be repeated. She opened her portion of the arguments like this:
At the outset I want to acknowledge the mistakes that were made -- that mistakes were made during the 2012 general election. No one, least of all the State, wants a repeat of the mistakes that occurred in 2012, and as the Chief Election Officer acknowledged in a written statement, which is in the record, the idea is to do better in the future.
The agency's biggest problem was caused by what it and Intermediate Court of Appeals characterized as a one-off bad decision by a lone bureaucrat to base the amount of blank ballots ordered on the number of voters in the last election, and not on the number of registered voters, as the governing statute requires. The plaintiffs argue that this bad decision was a "rule," and the agency should have gone though the rulemaking process in the Administrative Procedures Act before going forward.
No Harm, No Foul
The agency argued that its failure to print the correct number of ballots and to deliver them to the correct precincts is an internal matter that wouldn't be repeated, and we'll fix our internal problems internally. No need for rulemaking, nor is judicial intervention necessary. Besides, in this case, no-harm, no-foul: the plaintiffs weren't denied the opportunity to vote -- the Office's problems just made it more difficult for them to have voted than it should have been. There was, as counsel repeatedly tried to explain, a lack of "proximate causation." That is, an actual link between the agency's mistakes and any ills the plaintiffs say they suffered. And since the relief the plaintiffs seek -- declaring the agency's practices to be illegally-adopted rules, and requiring it to adopt rules properly -- would not impact the outcome of the election, there's nothing for the court to do here.
The court of appeals agreed and let the agency off the hook, concluding with the same passive voice that "mistakes were made,' but that the problems with the ballot were the result of internal operating procedures, and thus were not administrative "rules" that must have been subject to official rulemaking and not a stand-alone bureaucrat.
Two Main Questions
The Supreme Court's questioning focused on two main threads:
- First, was there really no foul, no downside to the agency's goofs? No question that the agency's screw ups didn't alter the election results as the ICA noted, but did they impact the plaintiffs' rights to cast their votes?
- Second, beyond the assurances of the agency that it would not happen again, what does the statute require and what remedy should the court impose should it decide to do so? We saw this as a question of how detailed the court's mandate should be (our read of the arguments is that there isn't too much question in the justices' minds about the agency's liability).
A Judicial Feeding Frenzy
The agency's arguments may have satisfied the ICA, but as a listen to the recording after the 31:30 mark reveals, they were the like blood in the water at the Supreme Court. The immediate onslaught of questions, incredulity, and downright scorn directed from the bench towards the agency's counsel was as close to a feeding frenzy as you might witness in the usually decorous air of the state's high court. No doubt, a very long half-hour-plus for the Election Office's advocate.
It began when Justice Pollack interrupted her opening confessional and promise "to do better in the future" with an obvious question: "Well how are we going to do better? I mean, it looks like to me the same thing could happen again." She had no answer to that question, either for Justice Pollack or in response to the similar questions the other justices continued to hurl her way.
Rocket Science And Common Sense
The court seemed incredulous. How could the agency allow a single bureaucrat to make the decision when the statute says otherwise, and how was this not a "rule?" Besides, how hard could it be to adopt rules to guide the number of ballots printed, and their distribution to the precincts -- Justice McKenna remarked that this certainly wasn't "rocket science." Counsel didn't agree that it was necessary to undertake rulemaking, because the 2012 election was a reapportionment cycle and not your usual election, and this was a "one time calculation/miscalculation of what would be a sufficient number of blank ballots" (as the ICA opined). To "set in stone" a formula to determine the number of ballots to be printed and delivered in future elections isn't necessary.
If the justices appeared skeptical of the agency's arguments against its actions being "rules," what really seemed to get them going was the agency's claim that voting rights weren't impacted. Chief Justice Recktenwald even asked counsel if her argument comported with "common sense." The plaintiffs indeed had alleged that in some cases, they couldn't vote properly.
Declaratory Judgments On The Validity Of An Agency's Rules Are Not Election Contests
It is true that their votes would not have changed the outcome of the election, but this case was not set up as an election challenge (which requires a showing of a different outcome). Rather, the plaintiffs seek a declaratory judgment about the validity of the agency's rules. In those kind of cases, all the plaintiffs need show is that they are "interested persons," and that the agency rule "violates constitutional or statutory provisions, or exceeds the statutory authority of the agency, or was adopted without compliance with statutory rulemaking procedures."
After these unrelenting attacks, it is hard to envision that the Supreme Court will simply affirm the ICA.
This leads us to believe that the major question is exactly what the court is going to order the agency to do, and how detailed its order will be.
Unfortunately, neither lawyer had much of a roadmap for the court, and the justices were mostly left on their own. All of the questioning, searching, and probing of counsel didn't yield any clear answer about what rule the court should fashion, even if it was pretty clear that there is a majority willing to impose a remedy and order the agency to do something other than make promises of doing better in the future.
The cert briefing, posted on journalist Ian Lind's blog here, doesn't offer much help either:
So here's what we think:
- The procedures and methodologies employed by the Elections Office may not have been statements of future effect, but they sure do seem to be ones of general applicability that interpreted law.
- So we're thinking that they are "rules" and should have been adopted by APA rulemaking, not a lone bureaucrat.
- Thus, the plaintiffs have met their burden to be both "interested persons," and of demonstrating that the policy was "adopted without compliance with statutory rulemaking procedures."
- The big question is now what? What will the court order the agency to do, and how detailed will it get?
Unfortunately, the briefing and arguments were not very helpful in figuring that out, leaving it up to the court to fashion a remedy (if any could be, other than to order the Election Office to adopt some rules). The court, of course, didn't render a decision from the bench, so we probably won't know for a while what it will do.
But if we were counsel for the Elections Office, we'd get started drafting those rules on Monday.