Election Law: Is Intending To Live Somewhere Enough To Be "Residing" There?

Yesterday, my Damon Key colleagues and I filed this brief on behalf of a Lanai voter, asking the Hawaii Intermediate Court of Appeals to affirm a decision by the State Board of Registration (County of Maui) which concluded that a Maui County councilperson who registered as a Lanai resident is actually a resident of Maui.

State law establishes the tests for determining residency for registration and other purposes, and includes "habitation," "permanent dwelling place," "physical presence," and a "present intention to establish the person's permanent dwelling place" in the district. See Haw. Rev. Stat. § 11-13 (1993). The councilperson registered as a resident of Lahaina, Maui, in 2006, but in 2008, the County Clerk determined the councilperson validly registered in the Lanai district. The Clerk determined only a registrant's stated intent is relevant. 

The Board overruled the Clerk, holding that both physical presence and intent are necessary under the statute, and the weight of the evidence showed no presence on Lanai. The Board issued these Findings of Fact, Conclusions of Law and Decision, and the Clerk and the councilperson appealed to the ICA. 

Here are the briefs filed so far:

• County Clerk's Opening Brief

• Councilperson's Opening Brief

• Lanai voter's Answering Brief

More to follow once briefing is complete.

Update: On June 10, 2009, we filed this application to transfer the case from the ICA to the Supreme Court, and for expedited consideration pursuant to Haw. Rev. Stat. § 11-52 (1993).