Posted on 11/01/2014 3:05:33 PM PDT by kaehurowing
Lawsuit Challenges Legality of Senate Special Election
From Text of Lawsuit filed October 31, 2014
...Plaintiffs bring this action challenging the election being conducted by Defendant Nago and the State of Hawaii Office of Elections in relation to filling the vacancy caused by Senator Daniel K. Inouye's death as unconstitutional under the Seventeenth Amendment because the election is not pursuant to a writ of election issued by the Governor and because Defendant Nago's proclamation states that the candidate elected at the special general election to fill the vacancy shall not take office until January 3, 2015.
Despite the passage of over 18 months since Senator Inouye's death, Defendant Neil Abercrombie (Abercrombie) has yet to comply with the Seventeenth Amendment and issue a writ of election for the holding of an election in which the people of Hawaii can elect a permanent replacement to fill the vacancy caused by Senator Inouye's death.
Plaintiffs also challenge the constitutionality of Section 17-1 of the Hawaii Revised Statutes (HRS) under the Seventeenth Amendment of the United States Constitution because HRS § 17-1 impermissibly requires the Governor of Hawaii to make a "temporary appointment" to fill a Senate vacancy and limits the Governor to choosing an appointee "by selecting a person from a list of three prospective appointees submitted by the same political party as the prior incumbent."
Because of these constitutional flaws in HRS § 17-1, the Hawaii State Legislature has not validly "empower[ed]" the Governor under the Seventeenth Amendment to "make temporary appointment until the people fill" the vacancy caused by Senator Inouye's death, and Defendant Brian Schatz (Schatz) has therefore not been validly appointed to temporarily fill the vacancy.
Additionally, the constitutional flaws in HRS § 17-1 with regard to temporary appointments are unseverable from the part of the statute delaying the election to fill the vacancy to "the following state general election," thereby making the election-timing provision void.
Plaintiffs accordingly seek an order (1) declaring the election being conducted by Defendant Nago and the State of Hawaii Office of Elections in relation to the permanent filling of the vacancy is unconstitutional under the Seventeenth Amendment because the election is not pursuant to a writ of election issued by the Governor; (2) declaring HRS § 17-1 unconstitutional and not validly "empower[ing]" the Governor under the Seventeenth Amendment to "make temporary appointment until the people fill" the vacancy caused by Senator Inouye's death; (3) declaring that Defendant Schatz has not been validly appointed to temporarily fill the vacancy resulting from Senator Inouye's death and enjoining him from acting in and removing him from the office of United States Senator unless and until he is elected in a special general election pursuant to a writ of election issued by the Governor to fill the remainder of Senator Inouye's term, (4) declaring that the constitutional flaws in HRS § 17-1 with regard to temporary appointments are unseverable from the part of the statute delaying the election to permanently fill the vacancy to "the following state general election," thereby making the election-timing provision in HRS § 17-1 void, (5) mandating Defendant Abercrombie to immediately comply with the Seventeenth Amendment by issuing a writ of election for the holding of a special general election to fill the vacancy at the earliest practicable date; and (6) declaring that the candidate elected at the special general election to fill the vacancy shall take office immediately upon the candidate's election and qualification....
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