Hawaii Elections Commission Asks the Supreme Court for Permission to Meet
The Hawaii Elections Commission that oversees Chief Election Officer Scott Nago has not met in four months. On October 16, the Hawaii Supreme Court heard why. Commissioners Ralph Cushnie and Tamara McKay petitioned the court to order the Office of Elections to provide the staff support that Hawaii requires. The hearing was set to private after its livestream on the State YouTube account, but thankfully a good citizen captured it on screen recording:
The commission last met on June 10. Members agreed to return on June 24, but then-Chair Michael Curtis canceled that meeting without a commission vote. McKay told the court she asked the office for support nine times between July and September. Two requests were refused in writing and seven went unanswered. This is the same chair we reported shutting down testimony and blocking motions to remove Nago. The body that hires and fires Nago is now sidelined entirely, and a Justice noted it owes him a public performance review within two months of the general election.
Moving Goalposts
In July, the office said only a chair could call a meeting, or the commission had to vote first. With no chair, they knew that was impossible. Days before the hearing, its position became that five commissioners must request support. The court called it substituting one impossibility for another, and specifically told counsel it seemed the office was doing whatever it could to prevent a meeting.
The office holds every commissioner’s private email address. Its counsel said it will not release them without commission agreement or a court order, calling them sensitive. Commissioners do not have state email addresses. Counsel also admitted the office did not forward meeting requests sent to the general commission email, even though the commission voted in 2024 to share all correspondence with every commissioner.
The Attorney General Problem
In January we reported that the Attorney General’s office represents both the accused and the commissioners. The AG invoked privilege to close discussion of the lawsuits against Nago and Curtis, and it tried to manage the Sunshine Law complaints filed against the commission, including Commissioner Cushnie’s.
Every time the office’s counsel was asked why staff had not acted, the answer led back to the commission’s lawyer. Staff were told by commission counsel not to distribute commissioner correspondence. Asked why no one had emailed the commissioners to ask if they wanted a meeting, counsel said staff consulted commission counsel and that it “wasn’t called for.” Asked why the office couldn’t send that email the same day, he said it was not the office’s place and that it had consulted counsel for the commission. He identified that counsel as a deputy attorney general assigned to the commission.
So the lawyer whose client is the commission advised the office that was refusing the commission’s request for support, and the commission has not met in four months as a result. One Justice called it “unheard of” for a lawyer to take this role and noted nothing in the record shows the lawyer obtained the client’s consent. Another Justice asked whether there is a conflict of interest between the Office of Elections and members of the commission. Counsel said he could not speak to the details. The court questioned why the deputy attorney general was not in court, given that the commission was joined as a party in the court’s October 5 order.
The Concessions
Under questioning, the office’s counsel agreed that scheduling a meeting is not board business and would not violate the Sunshine Law. He agreed a simple email asking commissioners whether they want a meeting would work, but no such email has gone out in four months. He said the office would not send one without a directive from the court. A justice asked, “Why do you need a direction?” and added that staff support “doesn’t necessarily mean sitting on your hands.”
In March, Libertarian Party of Hawaii Chairman Martin called for a chair who respects the law and Robert’s Rules of Order, urging them to adopt basic rules of procedure. At the hearing, the office again questioned whether the commission validly adopted them. A justice noted the commission has operated under them since February and its own lawyer never objected. Cushnie pointed out that under Robert’s Rules, any commissioner can call a meeting when there is no chair. McKay’s closing statements noted that commission minutes show it ran without a chair from 2004 to 2007.
What Comes Next
The court took the matter under advisement. The general election is November 3. The commission’s open items include the unresolved reconciliation findings from 2024 and the federal voter roll dispute, which we have covered since January.
We will keep you updated.
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