by Andrew Walden
Under Hawaii election law, HRS 11-118, when a Party candidate is disqualified, the Party has three days to nominate a replacement candidate.
Hawaii Republicans lost their HD43 candidate Friday, August 3, 2018, when Office of Elections Chief Scott Nago issued a Proclamation stating “Sailau Timoteo is No Longer Considered to be a Candidate,” because the American Samoa-born Timoteo is a US National rather than a US Citizen.
The Republican Party did not name a replacement. Any opportunity for Republicans to field a replacement candidate in HD43 -- one of the few house districts a Republican can win -- is now lost.
In media interviews, neither Timoteo, nor Hawaii GOP Chair Shirlene Ostrov, nor frontrunning Republican Gubernatorial candidate Andria Tupola, have suggested that Timoteo is actually a US Citizen.
Hawaii News Now August 2, 2018 reports:
Tupola says that Timoteo should be allowed to run.
"She's been living in the community longer than I have, she has more Waianae roots than even me and my family and I know for a fact that her intention is to serve the community," Tupola said.
The state says Timoteo is ineligible because, as a citizen of American Samoa, she's considered a U.S. national and not a U.S. citizen.
Tupola said Timoteo is being treated like a second-class citizen.
"They're called American Samoans, but yet they have less rights than other American citizens," Tupola said on Thursday.
Instead of Republicans nominating a replacement, Sailau Timoteo, August 6, 2018, sent the following message to the Hawaii Attorney General:
Valri Lei Kunimoto
Deputy Attorney General, State of Hawaii
Dear Deputy Attorney General Kunimoto,
I object to the “preliminary decision” from the Office of Elections and the Attorney General. Until a final decision has been rendered by circuit court, the Office of Elections has no authority to post on their website that I am not a candidate. I respectfully request that this be taken down immediately.
1. Where in the HRS does it state that the office of elections is able to accept an objection after the deadline? Please refer to HRS 12-8
The Deadline to File Objection was Tuesday, June 12, 2018, 4:30 pm. An objection to a candidate's nomination paper may be made by the chief election officer, the clerk in County elections, 3 registered voter, or an officer of a qualified political party. All objections must be received not. later than 4:30 pm on the 60th day prior to the primary election (or next earliest Working day if that day is a Saturday, Sunday, or holiday).
2. The Supreme Court made it clear when deciding an election contest complaint in 2008. The deadline to file an objection is plain and unambiguous. Please refer to Tataii v. Cronin, 119 Hawai’i 337,198 P.3d 124
Where the language of a statute is plain and unambiguous that a specific time provision must be met, it is mandatory and not merely directory
3. Who filed the objection? Was it a registered voter, a political party, or the chief office of elections? There is a separate process for each type of objection. The letter from your office stated “it has come to our attention.” There was no clear determination of who objected based upon what evidence. Please refer to HRS 12-8 subsection b.c.d
b) If an objection is made by a registered voter. the candidate objected thereto shall be notified of the objection by the chief election officer or the clerk in the case of county offices by registered or certified mail.
c) If an objection is filed by an officer of a political party with the circuit court, the candidate objected thereto shall be notified of the objection by an officer of the political party by registered or certified mail.
d) Except for objections by an officer of a political party filed directly with the circuit court, the chief election officer or the clerk in the case of county offices shall have the necessary powers and authority to reach a preliminary decision on the merits of the objection; provided that nothing in this subsection shall be construed to extend to the candidate a right to an administrative contested case hearing as defined in section 914(5). The chief election officer or the clerk in the case of county offices shall render a preliminary decision not later than five working days after the objection is filed.
4. If the objection warrants disqualification, I would like to see your paperwork from the USCIS office. If you have aforementioned paperwork. I would like to know when you filed the objection with circuit court. Please refer to HRS 12-8 subsection e.
If the chief election officer or clerk in the case of county offices determines that the objection warrants the disqualification of the candidate. the chief election officer or clerk shall file a complaint in the circuit court for a determination of the objection; provided that the complaint shall be filed With the clerk of the circuit court not later than 4:30 pm. on the seventh working day after the objection was filed.
5. If the objection warrants disqualification, when did you notify the party? Please refer to HRS 11-117 subsection b.
On receipt of the notice of death, withdrawal. or upon determination of disqualification, the chief election officer or the clerk shall inform the chairperson of the political party of which the person deceased, withdrawing, or disqualified was a candidate. When a candidate dies, withdraws, or is disqualified after the close of filing and the ballots have been printed, the chief election officer or the clerk may order the candidate's name stricken from the ballot or order that a notice of the death, withdrawal, or disqualification be prominently posted at the appropriate polling places on election day.
6. You also referenced HRS 11-15 regarding a registered voter. When did the office of elections receive the appropriate paperwork and take the steps to disqualify me as a voter? Please refer to HRS 11-23.
Whenever the clerk receives from the department of health or any informing agency, information of the death, loss of voting rights of a person sentenced for a felony as provided in section 831-2, adjudication as an incapacitated person under the provisions of chapter 560, loss of citizenship, or any other disqualification to vote, of any person registered to vote in that county, or who the clerk has reason to believe may be registered to vote therein, the clerk shall thereupon make such investigation as may be necessary to prove or disprove the information, giving the person concerned, if available, notice and an opportunity to be heard. If after the investigation the clerk finds that the person is dead, or incapacitated to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning voting, or has lost voting rights pursuant to section 831-2, or has lost citizenship, or is disqualified for any other reason to vote, the clerk shall remove the name of the person from the register.
These are very valid concerns and the office of elections has pursued a reckless course by posting a “preliminary decision” on their official website and proceeding outside of the Hawaii Revised Statutes election procedures without official documentation or court ruling.
I appreciate your prompt time and attention to this matter and look forward to your response.
PDF: Original Letter
American Samoa Citizenship Question Not So Simple
Proclamation: HD43 Sailau Timoteo is No Longer Considered to be a Candidate
CB: GOP Candidate Challenges Citizenship Ruling
SA: Timoteo’s troubles highlight complexities of U.S. citizenship