On January 4th U.S. Congressman for Hawaii Neil Abercrombie announced he will resign on February 28th to focus on his run for Governor in November. When a special election is required to fill a U.S. representative’s seat, it may not formally be announced until the current representative officially vacates his seat. Chapter 17-2 of the Hawaii Revised Statutes states that the elections officer must declare the special election not later than within 60 days of the date of the special election (unlike with senators, there is no provision for interim appointments.) Therefore, the earliest the state may hold the special election is May 1st.

Hawaii’s fiscal position has been arguably worse off than most since the recession. Skyrocketing housing speculation in previous years and the sagging tourism industry have begun to take their toll across the state. Governor Linda Lingle recently developed a plan to balance the budget, however that plan has a big problem: The balancing won’t be complete until June 2011. Election officials are concerned that a smooth special election is impossible in their teetering fiscal state.  Interim Chief Elections Officer Scott Nago (who was publicly grilled by state legislature last month, and appeared to know less about his position than most would agree should be required) has reported that due to strict budget cuts, the department currently has only $5,000 to last until July 1st (when their fiscal year begins.) A typical special election is estimated to cost approximately $1.2 million and is rarely, if ever, included in a budget due of their irregular nature. Election officials may have added the costs to their deficit in a normal economic climate, but the added pressure has led them to think more creatively. Oddly enough, Hawaii recently found an error in their accounting which led to the discovery of $1.3 million of government money. This money was reimbursement by the Federal Government for new voting machines, but was placed in the wrong account in 2003. Governor Lingle plans to ask the State Comptroller to use the funds for the election. While the U.S. Election Assistance Commission may also have funding available, many alternatives possibilities are being examined.

One option is to hold the special election by mail. Chapter 11-91.5 of the Hawaii Election Code states that any election not to be held on the date of a regularly scheduled primary election may be held by mail or at polling places. The district-wide program is estimated to cost $925,000, which represents a significant savings over walk-in precinct voting. As fellow blogger Nathan Pittman commented in our blog’s launch week, voting by mail may also be responsible for an increase in voter turnout in Oregon. Hawaii could use this increase, as it had the lowest turnout rate of any state for the 2008 Presidential election of 51.8% (shocking considering then-candidate Obama’s family ties.) This special election could be used as a test to determine whether voting by mail is efficient enough to be used in state-wide general elections.

Another alternative is to postpone the election until the regularly scheduled primary election on September 18th and hold the two simultaneously. Concurrent elections would allow for a significant savings in costs, convenience, increased voter turnout and also allow for the new fiscal year to kick in and for those funds to be used to run the election. The most obvious drawback to a postponement is the amount of time Honolulu citizens would be unrepresented in Congress. There is already the problem of being unrepresented for the mandatory 60 days, but this plan would extend that to over 6 months. Citizens would likely be this plan’s biggest critics but they, too, may feel the expense of a separate election is unwarranted. Some feel the money would be better spent on education and social services.  “We have to prioritize,” said state Senator Donna Mercado Kim.

There is also a fear that this sort of postponement may violate federal law. Undoubtedly there would be pressure with such a large group of Americans remaining unrepresented for an extended period of time. While this fear of federal violation is hinted by Hawaii’s attorney general Mark Bennett, there is no explicit law to the contrary. U.S. Code: Title 2,8 grants full authority to the state’s executive to create a timeline for electing a replacement. Vacancy law only points to a strict timeline under ‘extraordinary circumstances’ (Section (b)) which are described as a ‘catastrophic event’ in which at least 100 house seats are vacant (U.S. Code Title 2, 8.) This part of the code was passed in 2004 over concerns of continuity in representation in the wake of the 9/11 attacks. Bennett cites a 2004 federal appeals court that ruled the Constitution did not allow a state to forego a special election due to financial burden, as well as complex redistricting, and the shortened term the representative would have. However, this holding appears to be narrow, requiring only that a Special Election not be put off indefinitely. It has also been held that once a Governor proclaims the special election date, the courts would not have authority to compel an earlier date. It would appear that if the Governor is permitted to declare a special election to be held in September, the state may be able to put this problem behind it. Hawaii has had its share of misfortunes recently and it will sure be interesting to see how they think their way out of this challenge.

Alexander Grout is a student at William and Mary Law School.

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