The "Oprah Theory Of Elections" - Everyone Wins! Hawaiians-Only Election "Terminated," All Candidates Invited To Participate
by Robert Thomas, InverseCondemnation, December 15, 2015
You win the election, and you win the election! and ...
We can't take credit for the pithy headline because we cribbed it from elections law guru, lawprof Rick Hasen ("Hawaii Election Subject to #SCOTUS Stay Cancelled") ("(It’s the Oprah rule: You get elected! You get elected! Every-body-gets-elected!)").
Coming up with lines like this is why Professor Hasen earns the big bucks.
We appropriated it because it accurately captures the end result of the announcement this morning by Nai Aupuni, the NGO set up to conduct the election -- funded with millions of dollars of taxpayer money -- of delegates to a convention whose purpose it will be to settle on a way forward for Hawaiians to have some sort of sovereignty (or maybe not, since all options are professed to be open). Nai Aupuni announced this morning that the election was "terminated," and that the outfit actually doing the ballot counting has been instructed to stop taking ballots, and never, never, never to count those that it has already received.
And here's the Oprah part: Nai Aupuni also announced that the "aha," the quasi-constitutional convention for which the now-terminated election was choosing delegates, is going to happen in February 2016 anyway, and every candidate who was in the race -- all 196 of them -- is invited to be a delegate.
In other words, in effect they all got elected.
After Thanksgiving, the U.S. Supreme Court had enjoined the counting of ballots and certification of the election pending a decision by the Ninth Circuit in the appeal from the District Court's denial of an injunction. The central issue is whether the "election," was a private affair, and thus insulated from the requirements of the Fourteenth and Fifteenth Amendments, or whether the public funding and questions involved meant that this could not be a race-restricted election. On the challengers' motion for a preliminary injunction, the District Court upheldthe private nature of the election, and the Ninth Circuit refused to issue a stay on appeal.
Supreme Court Justice Anthony Kennedy, however, as Circuit Justice, issued a stay pending review by the entire Court, and when the rest of the justices got a look, they split 5-4 and prohibited the counting of ballots and the certification of the election. In response, Nai Aupuni announced that the closing date of the election would be extended for three additional weeks, which resulted in a lot of cringing in the peanut gallery since that's the sort of thing that is supposed to happen only in a banana republic.
But now that doesn't appear to matter, as the election has been called off, and according to the press release, we should expect a motion by the defendants to dismiss the appeal as moot.