Hawaii's "Resign To Run" Law - When Must A Candidate Resign?

We mostly cover property and land related issues on this blog. But since our interest (and practice) includes election, voting, and campaign finance law, we occasionally touch upon those subjects as well. For example, we've posted on residency requirements for county council members, how a voter registered as a resident of one district changes his residency to another, why Hawaii voters can't vote on property taxes, and Hawaii's "open primary" system. So we're going only slightly off-topic when we discuss Hawaii's "resign to run" requirement for state officials seeking another state elected office.

With election season in full swing and the game of candidate musical chairs well underway, the current mayor of Honolulu recently announced that he wanted the job of governor. Although he announced he was running, he did not resign. He stated he would not take out his nomination papers until the just before the July deadline. This triggered calls from a candidate for the job the mayor will be vacating, and from his primary election opponent that he resign his post now. Neil Abercrombie, who voluntarily resigned as a Congressman in order to run for governor, issued this statement:

"Mayor Mufi Hannemann has been raising money and holding campaign rallies for the Governor’s race since June of last year, all the while using the city government and Honolulu’s rail project in particular as political leverage. This latest pronouncement is just the latest step in planning to enter the race for Governor sometime in July.

"If he is truly running for Governor, the Hawaii State Constitution requires the Mayor to resign from office. Even if he has found a loophole to exploit, he displays a continuing willingness to violate the spirit of the Constitution for his own personal advantage. Although I was not required by law to resign, I did so because I didn't feel it was right to campaign for Governor in this critical election year while holding public office and collecting a government paycheck. Mayor Hannemann has a different view.

So what's the deal? Did Hannemann find a "loophole" in the law? Read on, then you decide.

As a result of the 1978 Constitutional Convention, article 2, section 7 was added to the Hawaii Constitution. That provision requires that in order to be "eligible as a candidate" for another state office, a state elected official must resign:

Any elected public officer shall resign from that office before being eligible as a candidate for another public office, if the term of the office sought begins before the end of the term of the office held.

Haw. Const. art. 2, § 7. This only applies to state or county officials running for another state or county office, and does not govern the behavior of officials occupying federal offices (federal law is supreme). Further, in 1986, the Hawaii Supreme Court concluded that it does not require a state elected official to resign to run for federal office. See Cobb v. Watanabe, 68 Haw. 564, 722 P.2d 1032 (1986).

In 2002, the Hawaii Supreme Court analyzed when a state official is required to resign. In Blair v. Harris, 98 Haw. 176, 45 P.3d 798 (2002), the plaintiff asserted that Honolulu mayor Jeremy Harris, who was seeking the governorship, should have resigned before he filed a gubernatorial campaign spending report. The court rejected the argument and concluded that a candidate's taking out of nomination papers is the event that makes her "eligible as a candidate for another public office," and that before that time, an officeholder has no obligation to resign, even if she acts like a candidate:

We hold that, under section 7, a public officer becomes "eligible as a candidate for another public office" at the time he or she files nomination papers for the second office. Therefore, he or she must resign from his or her present office before filing nomination papers for the second office, if the term of the office sought begins before the end of the term of the office held. 

Id. at 177, 45 P.3d at 799. The court focused on the phrase "eligible as a candidate," and concluded:

Thus, the resignation requirement is triggered when an individual becomes "qualified" to "seek" office as a candidate. The "eligibility" or "qualification" requirement must be significant in helping to determine the definition of the word "candidate." If the "eligibility" or "qualification" requirement did not help to shape the meaning of the word "candidate," any valid officeholder would always be "qualified" to "seek" another office as a candidate. Thus, the officeholder would be required to resign immediately upon taking office.   Clearly, such an absurd result was not intended. The question, therefore, focuses on how the phrase "eligible as a candidate" determines the definition of "candidate."

Id. at 179, 45 P.3d at 801.

The court determined that an earlier decision in which it held that a state judge became a candidate and thereby forfeited his office when he announced his candidacy for Lieutenant Governor was not applicable because the language of the constitutional requirement in that case was not the same as article 2, section 7. Id. at 181, 45 P.3d at 803 (citing In re Pioneer Mill Co., Ltd., 53 Haw. 496, 497 P.2d 549 (1972)).

Thus, it's been settled law for more than a few election cycles that an official must resign only before taking out nomination papers. Before that time, he's not "eligible" to run, even if he announces his candidacy and takes other steps towards that end. If this is a "loophole," it is one created by the language of article 2, section 5, and the Hawaii Supreme Court's read of the constititional text. Of course, the question of whether an officeholder should resign as a matter of honor when he throws his hat into the ring for another office is an entirely different issue from whether he is required by law to do so.