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Electronically Filed Supreme Court SCEC-XX-XXXXXXX 25-JUL-2024 12:02 PM Dkt. 30 OPPC
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
KARL ORLANDO DICKS, Plaintiff,
vs.
STATE OF HAWAIʻI, OFFICE OF ELECTIONS; SCOTT NAGO, Chief Election Officer, State of Hawaiʻi, Defendants.
SCEC-XX-XXXXXXX
ORIGINAL PROCEEDING
JULY 25, 2024
RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ.
PER CURIAM
In this election contest, filed before the election results
have even posted, a nonpartisan candidate alleges that the
primary election ballots suffer from constitutional and
statutory infirmities. We disagree.
For the reasons discussed, we dismiss all election contest
claims for failure to state a claim. We also liberally construe *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
the complaint as seeking a petition for a writ of mandamus
directed to a public officer, and deny the petition.
I. Background
On July 11, 2024, Plaintiff Karl Orlando Dicks filed a
complaint challenging the primary election ballot’s requirement
that the voter select a political preference to vote. Plaintiff
claims the primary ballot violates article II, section 4 of the
Hawaiʻi Constitution and Hawaiʻi Revised Statutes (HRS) §§ 12-21,
12-31, and 12-42 (2009), and citing to HRS §§ 11-172 (Supp.
2021), 11-173.5 (2009 & Supp. 2023), 11-174.5 (2009 & Supp.
2021), 91-14 (2012 & Supp. 2016) and 602-5 (2016), he seeks an
order directing Defendants to design a ballot that conforms to
the law and to declare the current ballot invalid.
On July 16, 2024, Defendants State of Hawaiʻi, Office of
Elections and Scott Nago, in his official capacity as Chief
Election Officer of the State of Hawaiʻi, moved to dismiss the
complaint for failure to state a claim or lack of jurisdiction.
II. Discussion
A. Plaintiff’s claims under HRS §§ 11-173.5, 11-174.5 and 91-14, are dismissed
Defendants moved to dismiss the complaint for failure to
state a claim.
Dismissal of a claim is appropriate where the plaintiff can
prove no set of facts in support of a claim to be entitled to
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relief. See Bank of Am., N.A. v. Reyes-Toledo, 143 Hawaiʻi 249,
258, 428 P.3d 761, 770 (2018).
HRS § 11-173.5 applies to primary election contests, and
the relief available is for this court to enter a judgment that
decides which candidate was nominated or elected. See HRS § 11-
173.5(b). Under HRS § 11-174.5, for a general election the
remedies available are for this court to decide which candidate
was elected, or to invalidate the election when the correct
result cannot be ascertained. Thus, to state a claim to relief
under HRS §§ 11-173.5 and 11-174.5, the complaint must plead
that election results have posted.
Here, the complaint fails to state a claim under HRS §§ 11-
173.5 and 11-174.5 because no posted election results are
challenged. In addition, Plaintiff’s reliance on HRS § 91-14 is
misplaced as HRS § 91-14 applies to an appeal of a contested
case, and has no application to election contests.
Based on the foregoing, the complaint’s claims made under
HRS §§ 11-173.5, 1 11-174.5, and 91-14 are dismissed for failure
to state a claim.
1 For a primary election contest, HRS § 11-173.5(b) requires the disposition be entered by “the fourth day after the return[.]” To fall under this deadline, the complaint must challenge the primary election results. See HRS § 11-173.5(b) (requiring the judgment to decide what candidate was nominated/elected). Accordingly, we find that the disposition deadline stated in HRS § 11-173.5(b) has no application because, as detailed in the complaint and Defendants’ motion to dismiss, no election results have posted.
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B. Plaintiff’s claims under HRS § 11-172 are dismissed
Plaintiff’s complaint also challenged all primary election
ballots statewide under HRS § 11-172. In opposition, citing to
HRS § 11-172 and Tax Found. of Hawaiʻi v. State, 144 Hawaiʻi 175,
439 P.3d 127 (2019), Defendants argued that Plaintiff, as a
nonpartisan candidate for the Mayor’s race in the City and
County of Honolulu, has no standing to challenge all statewide
ballots, and only has standing to bring an election contest in
the race where he is a candidate.
The question presented is thus whether a nonpartisan
candidate for a county race has standing under HRS § 11-172
to challenge all primary ballots statewide.
In Hawaiʻi state courts, standing is solely an issue of
justiciability, arising out of prudential concerns of judicial
self-governance, and is based on concern about the properly
limited role of courts in a democratic society. See Tax Found.,
144 Hawaiʻi at 190-92, 439 P.3d at 142-44.
The rules of statutory interpretation require us to apply a
plain language analysis when statutory language is clear. See
Barker v. Young, 153 Hawaiʻi 144, 149, 528 P.3d 217, 222 (2023).
HRS § 11-172 provides:
§ 11-172. Contest for cause; generally
With respect to any election, any candidate, or qualified political party directly interested, or any thirty voters of any election district, may file a complaint in the supreme court. The complaint shall set forth any cause or
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causes, such as but not limited to, provable fraud, overages, or underages, that could cause a difference in the election results. The complaint shall also set forth any reasons for reversing, correcting, or changing the decisions of the voter service center officials or the officials at a counting center in an election using the electronic voting system. A copy of the complaint shall be delivered to the chief election officer or the clerk in the case of county elections.
Construing HRS § 11-172, the plain language limits who may
file an election contest to “any candidate, or qualified
political party directly interested, or any thirty voters of any
election district” based on grounds that could cause a
difference in the election results. With this, the legislature
expressed its intent to limit who may file election contests.
It follows that a candidate for an elective public office only
has standing to file a complaint under HRS § 11-172 to challenge
the election results in the election where that candidate
appears on the ballot. A construction of the statute in this
manner would give effect to the language in HRS § 11-172 that
requires a plaintiff to have a direct interest in the election
to file an election contest in the supreme court. See State v.
Plichta, 116 Hawaiʻi 200, 213, 172 P.3d 512, 525 (2007) (noting
that for statutory interpretation “our sole duty is to give
effect to the statute’s plain and obvious meaning”).
Here, Defendants conceded that Plaintiff is a nonpartisan
candidate for Mayor in Honolulu. Applying HRS § 11-172, we hold
that Plaintiff has standing to file a complaint only as to this
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race — where he appears as a candidate — and may not challenge
the primary ballots for all statewide races.
We turn now to the question of whether Plaintiff’s
complaint states a claim under HRS § 11-172 with respect to the
City and County of Honolulu race for Mayor.
To state a claim under HRS § 11-172, the election contest
complaint, at the bare minimum, must plead that the conduct in
question by the election official could cause a difference in
the election results.
Defendants argued that because Plaintiff is on the
nonpartisan county ballot, that none of the provisions cited by
Plaintiff as having been violated are applicable. In this way,
Defendants argued that Plaintiff’s challenge to the instructions
on the primary ballot, even if true, could not cause a
difference in the nonpartisan race.
We agree with Defendants.
Here, the complaint fails to state a claim under HRS § 11-
172. The ballot attached to Plaintiff’s complaint plainly
states that the voter is eligible to vote for all county
contests. As such, even if the allegations in the complaint
were true, the purported defect on the voter instructions would
have no impact on Plaintiff’s nonpartisan race.
HRS § 11-172 are dismissed for failure to state a claim.
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C. Mandamus relief is not appropriate
Plaintiff cited HRS § 602-5 to support his request for an
order directing Defendants to design the ballots in accordance
with Plaintiff’s belief as to how the law should apply.
Plaintiff is self-represented. A fundamental tenet of
Hawaiʻi law is that filings by self-represented parties are
construed liberally. See Erum v. Llego, 147 Hawaiʻi 368, 391,
465 P.3d 815, 838 (2020). Under a liberal construction,
Plaintiff’s claims could be construed as a petition for a writ
of mandamus directed to a public officer.
This court has discretion to entertain applications for
“writs of mandamus directed to public officers to compel them to
fulfill the duties of their offices[.]” HRS § 602-5(a)(3).
“Writs are rare.” Rivera v. Cataldo, 153 Hawaiʻi 320, 324, 537
P.3d 1167, 1171 (2023). In the ordinary case, a writ will not
issue unless the petitioner demonstrates a clear and
indisputable right to the relief requested and a lack of other
means to redress adequately the alleged wrong or to obtain the
requested action. See Womble Bond Dickinson (US) LLP v. Kim,
153 Hawaiʻi 307, 319, 537 P.3d 1154, 1166 (2023); see also
Barnett v. Broderick, 84 Hawaiʻi 109, 111, 929 P.2d 1359, 1361
(1996) (similar).
Plaintiff’s complaint failed to meet this high standard.
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1. Plaintiff’s complaint failed to establish a clear and indisputable right to the relief requested
To recap, Plaintiff’s complaint asserted that the primary
election ballots conflict with the Hawaiʻi Constitution, article
II, section 4 because the instructions require a voter to select
one political preference for the vote to count.
Article II, section 4 of the Hawaiʻi Constitution,
“Registration; Voting,” provides:
The legislature shall provide for the registration of voters and for absentee voting and shall prescribe the method of voting at all elections. Secrecy of voting shall be preserved; provided that no person shall be required to declare a party preference or nonpartisanship as a condition of voting in any primary or special primary election. Secrecy of voting and choice of political party affiliation or nonpartisanship shall be preserved.
Defendants countered that the ballot conforms to the law.
Defendants focused their arguments on the statutes, and did not
address, in detail, the constitutional issue presented.
Upon review, we find that Plaintiff failed to establish a
clear and indisputable right to the relief requested.
The constitutional history for article II, section 4 of the
Hawaiʻi Constitution, 2 as detailed in Democratic Party of Hawaii
v. Nago, 982 F. Supp. 2d 1166, 1169-71 (D. Haw. 2013), aff’d,
833 F.3d 1119 (9th Cir. 2016), cert. denied, 581 U.S. 972
2 “In order to give effect to the intention of the framers and the people adopting a constitutional provision, an examination of the debates, proceedings and committee reports is useful.” State v. Kahlbaun, 64 Haw. 197, 204, 638 P.2d 309, 316 (1981).
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(2017), belies Plaintiff’s claim that the primary election
ballot suffers from a constitutional infirmity.
The prohibition on declaring a party preference in article
II, section 4 of the Hawaiʻi Constitution was meant to change the
elections in Hawaiʻi from a closed primary system to an open
primary. See Democratic Party, 982 F. Supp. 2d at 1169-71.
Under the closed primary system, a voter had to both
register with the party and identify his registered party to the
precinct official in order to vote, which information was also
recorded with the county clerk. Id. In an open primary, a
person may vote without having to register with a party
beforehand or declare a party preference to the precinct
official; provided, a voter may only vote for the party’s
nominees for all offices in a single party. Id. In short, a
voter in an open primary is required to vote only for candidates
of one political persuasion. Id.
Likewise, Plaintiff’s claims grounded in HRS §§ 12-21, 12-
31, and 12-42 are without merit. First, it appears Plaintiff is
claiming that the primary ballot fails to comply with the
provision in HRS § 12-21 that states “[t]he name of each party
and the nonpartisan designation shall be distinctly printed and
sufficiently separate from each other.” Yet the ballot attached
to Plaintiff’s complaint appears to do just that by identifying
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and separating the candidates in the respective races by party
and nonpartisan designations.
Next, as to HRS § 12-31, it appears Plaintiff is claiming
that the primary ballot violates that statute by requiring a
person to identify a party preference before voting. As
discussed above related to article II, section 4 of the Hawaiʻi
Constitution, Plaintiff’s reading of the law is incorrect. See
also 1979 Haw. Sess. Laws Act 139, §§ 1, 9 at 313, 317 (amending
HRS § 12-31, in pertinent part, to implement article II, section
4 of the Hawaiʻi Constitution, and eliminate the requirement that
a voter “state his party preference or nonpartisanship to the
precinct officials” in order to vote). Further, HRS § 12-31
expressly provides that in a primary election “[a] voter shall
be entitled to vote only for candidates of one party or only for
nonpartisan candidates.”
Finally, as to HRS § 12-42, the complaint claims that the
ballot violates that statute because unopposed candidates should
not be on primary ballots. Defendants countered that HRS § 12-
42 only applies to special elections and because the upcoming
election is a primary election, HRS § 12-42 does not apply.
Here, a review of the plain language of HRS § 12-42 confirms
that it only applies to a special election; not the subject
primary election.
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For the reasons stated, Plaintiff has failed to establish a
2. Plaintiff failed to establish a lack of other means to redress adequately the alleged wrong or to obtain the requested action
Defendants’ motion to dismiss argued that laches should bar
the complaint, and noted that Plaintiff had participated in, or
was aware of litigation regarding the design of the primary
election ballots in 2022. While the Defendants’ motion to
dismiss is silent on the alternative means that may be available
to Plaintiff to pursue a challenge to the design of the primary
election ballots, the burden is on Plaintiff — not the
Defendants — to establish a lack of other means to redress his
grievance.
Plaintiff failed to assert that he lacks alternative means
to obtain the relief requested by his petition. Yet it appears
the Plaintiff, in the first instance, could raise his grievance
with the elections commission. The legislature established the
elections commission, see HRS § 11-7(a) (2009), with duties,
among other things, to “[i]nvestigate and hold hearings for
receiving evidence of any violations and complaints.” HRS § 11-
7.5(2) (Supp. 2015). The administrative rules implementing this
statute provide that an appropriate subject for a complaint to
the elections commission concerning an administrative act of the
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office of elections might be that the act is contrary to law.
See Hawaiʻi Administrative Rules § 3-170-6 (eff. 2008).
Here, the burden was on Plaintiff to establish a lack of
other means to redress adequately the alleged wrong or to obtain
the requested action related to his ballot grievance. See
Womble, 153 Hawaiʻi at 319, 537 P.3d at 1166. We find that
Plaintiff’s complaint failed to meet this burden.
III. Conclusion
Defendants’ motion to dismiss is granted in part.
Plaintiff’s election contest claims are all dismissed for
failure to state a claim.
To the extent the court has liberally construed the
complaint as a petition seeking a writ of mandamus directed to a
public officer, the petition is denied. See Hawaiʻi Rules of
Appellate Procedure, Rule 21(c) (“If the court is of the opinion
that the writ should not be entertained, it shall deny the
petition.”).
Judgment is entered in favor of Defendants and against
Plaintiff.
Karl Orlando Dicks /s/ Mark E. Recktenwald plaintiff /s/ Sabrina S. McKenna Randall S. Nishiyama and /s/ Todd W. Eddins Reese R. Nakamura /s/ Lisa M. Ginoza for defendants /s/ Vladimir P. Devens