*1 Pai, counsel) (Chuck C. Morse & for Defendant- Jack Appellant. Watanabe, (Kobayashi,
Berton T. Kato Koshiba & counsel) for Plaintiff-Appellee. HUSTACE, Plaintiff-Appellant, v. NELSON
MARIA M. Officer Chief Elections DOI Lieutenant Governor and Hawaii, State, Defendants- State of Appellees
NO. DECEMBER KOBAYASHI, OGATA, RICHARDSON, C.J., WELL, JJ., and KID and CIRCUIT LUM JUDGE J., MENOR, absent *2 KIDWELL, THE BY OPINION OF COURT J. of Maui mayor
Plaintiff-appellant was a candidate for inclusion County nonpartisan. qualifying After election, primary and before the ballot at the primary held, provisions to test the brought this action criteria for inclusion established the of the election law which elec- at the nonpartisan candidates on the ballot validity the elec- confirming Summary judgment tion. 19, September defendants granted law was to the tion taken. election, appeal was and this prior primary to the 26, 1978, prior to the October of this court entered By order opinion This was affirmed. judgment our order. the reasons for explains is contained law challenged provision of the election 12-41, in full as follows: reads re- persons or person §12-41 of election. Result or primary at the of votes greatest number ceiving the shall for an office a party candidate of special as a primary or following general at candidate of be the for a more candidates but not special general elected; provided there are offices to be party than county the board of education any any candidate for or office who is the sole candidate for that office at the election, or who primary special primary only op- or running or on his own posed by a candidate running opposed by any ticket and is not candidate ticket, otherwise, nonpartisan or and is nominated other shall, special primary or after duly be deemed and declared to special primary or elected to the office for which he is a candidate at legally regardless of the number special primary Any nonpartisan him. of votes received *3 the per at ten cent of the total votes cast for receiving least primary special or office for which he is a candidate at by the primary, equal or a vote to the lowest vote received primary nominated in the or partisan candidate who was following special primary, shall also be a candidate at election; nonpartisan candi- that when more provided, offices to be nomination than there are qualify dates for election, there general special general voted for at the following election for the shall be certified as candidates votes, but not more number of receiving highest those candidates than are to elected. 1978, there September found that on
The circuit court 30,355 County, of which voters in Maui registered were 19,022 Democrat, 2,516 Republican, as were statute, 8,477 undesignated. By and were nonpartisan 105 as Saturday first was fixed as the the date of the disputed October, 7,1978. § 12-22. It is not or October for herself as a candidate appellant qualified that had the ballot place and was entitled to a on primary election her action, sought to establish appellant In this that election. election, as general on the ballot for the place entitlement to a that she mayor, in the event nonpartisan a in the nonpartisan votes cast majority receive a should primary election. from the deposition taken
The record contains elections, appears from which it director office in Maui county candidate for a only nonpartisan mayor, County. Republican No candidate had filed and being appellant. candidates for that office two Democrats seats, by Republi- only Of four were contested nine council remaining Although all were Democrats. cans and candidates also contested in nominations for state offices were to be election, not and does contain names record party affiliations of the for those offices. Since candidates judgment was entered before the we do record, relevant, fared know from this nor is it how in that election.
I. discriminating challenges the election law as Appellant impos- and as candidates between seeking undue ing an burden general understanding An place on the election ballot. law by the election
qualifications procedures prescribed, of these conten- necessary background is a to consideration tions. obtaining only method
Hawaii one recognizes county state and by candidates for election ballot in the person may offices. No be a candidate primary. We immediately preceding unless nominated *4 in of candidates qualification here with the are concerned recently election, addressed which was the issue primary the 430, A Doi, 955 in 583 P.2d Nachtwey v. 59 Haw. the may in nomination as primary election seek candidate the certify he which case must party, of a candidate its carry platform, will out party the and he is a member of that requirement no as a may or seek nomination HRS political group be demonstrated. any that affiliation with for one party for each § separate prepared A ballot 12-3. only may receive 12-21, Each voter §§ -22. HRS nonpartisans. of these ballots. one primary in a previously voter has voted
Any who the only) must select race (other of education than a board voted, or a previously he ballot whose party of the same ballot nonpartisan, unless voted previously he if nonpartisan ballot changed designation party days he has his not later than 90 election, before the or his party disqual- has become § ified or he has HRS 12- reregistered. nonparti- 31.1 Thus a san may only seek votes from voters who are desig- previous nated or have not voted in a primary or by disqual- the freed their affiliation previous have been from noted, reregistration. their As has been party by ification of 30,355 registered + voters Maui (8,477 105) of the action appellant’s the time County category were the came before circuit court. for qualify party as a order which was party must either be a
prepared, political group suffi- and received ballot at last the organized it been or must have qualified, votes to remain cient requires of qualification Retention political party. a new presented details) the shall have (ignoring party minor all voted on the of the offices for at ledst one senator, one of the of state of the state or at leást offices voters education, party the and that representative state or board for cast of all the votes at least 10% shall have received at least voters of the state or 10% the offices voted on all the congressional the votes in at least 50% of of all the cast districts, represen- districts, the state senatorial state § districts. districts or the state school board tative must, not later than party a qualify group To as a new 11-61. petition present days prior to the containing signatures The names of must rules. HRS 11-62. party file the must be new committee officers the central county com- filing, at the and those of
presented time of II, We do not consider the 4 of effect of amendment of article section approval Hawaii Constitution which was submitted for the of the electorate at the follows, election November 1978. amended article reads as language being underlined added:' legislature provide registration Section 4. The of voters and shall prescribe votingf;] voting absentee and shall at all elections. method *5 Secrecy voting preserved[.]; provided required of person shall be that no shall party voting preference nonpartisanship any a in declare or a condition of primary special primary Secrecy voting political or election. and choice of of party nonpartisanship preserved. shall be affiliation primary before days mittees not later than' 120 the 11-64. § for each the party Nomination the candidate of by election is a votes cast at the plurality determined of the by office particular election for for the candidates ballot, minimum voters who selected the without requirement. nonpartisan, In as a a order be nominated nonpartisan votes plurality receive a must cast must particular for candidates for the office and also receive least of all cast at the votes candidate, for the office which he or vote equal by to that partisan received candidate for office who Appel- nominated lowest vote. HRS 12-41. alleged lant’s provision, attack centers which is non- partisan as against discriminate favor candidates nonpar- partisan an burden on candidates and undue candidates. tisan
II. discrimination, charge We turn our first to attention the laws equal protection guarantee which invokes the States of the United provided by the amendment fourteenth Constitu- I, of the Hawaii article section and Constitution contention, in a but with a similar recently tion. dealt We Doi, dis- There context, Nachtwey supra. different non-indigent indigent was between alleged crimination election, and the qualifying for the candidates In wealth. attack was under basis of the classification treatment with the different we concerned present case are qualifying candidates accorded under attack classification and the basis between differentiates United challenge, similar approaching affiliation. Party Texas v. in American said Supreme Court States White, qualifica- (1974): 415 U.S. “[W]hether burdens as substantial are viewed position tions for against parties [not or as associate discriminations right depends validity criteria], their qualification meeting *6 upon necessary they whether are to further compelling state ” said, standard, satisfy interests. To this the Court the condi- to the ballot must be imposed tions on a candidate’s access objec- in of vital state “reasonably pursuit taken measures equally significantly well in less tives that cannot be served ways.” at burdensome 415 U.S. 781. interests,
Although expressed compelling in terms of it is does con clear so enunciated that standard template challenged of a election law scrutiny” “strict We need not sense in which that term is sometimes used. Doi, repeat It Nachtwey supra. here what has said in been v. Brown, explanation sufficient to refer to the Storer v. rejected the con expressly U.S. 724 There the Court doctrine, tention, that cases scrutiny its founded on strict “rule suggested a dealing qualifications with candidate restric every automatically substantial invalidates [which] U.S. at 729. tion right on vote associate.” may have the candidate imposed Although burden bur substantial, balancing been to be determined is a matter thereby against den the state interests served degree. portion very unlikely large
It is that all or even our muster under pass state election laws would fail to cases; pass and the rule fashioned Court of election provisions challenges specific constitutional those provides litmus-paper separating laws no test for are invidious restrictions that are valid from those that rule not self- Equal under the Protection Clause. executing judgments and is no hard substitute others, is context, must be made. Decision this Blumstein, very v. degree,” much a “matter of Dunn supra, very “considering] at much a matter law, interests facts and behind circumstances the interests which the be protecting, State claims to classification.” disadvantaged of those who are Blumstein, 30; Rhodes, Williams v. supra, at Dunn will be process supra, at 335. What the result of great specific may very predict difficult case assurance.
415 U.S. 730. *7 test, balancing the examples application
As
one-year
in which a
Court
referred
decisions
Storer
invalid,
residency
Dunn v. Blum
requirement had
held
been
of 50
stein,
(1972),
residency requirement
a
405 U.S.
but
330
(1973);
Lewis,
Appellant mounting challenge a to the primarily facial only distribution given election law. We are the number and support appellant’s of the voters for registered as factual imposed upon nonpartisan requirements contention that the unfairly partisan in favor of candi- candidates discriminate precisely dates. We do not know the number of votes appellant had in order to to obtain in votes cast for satisfy requirement that she poll 10% most, had registered if all electors mayor. office of At the have not requirement could primary, voted the vote votes, remaining all assuming even that have exceeded 2760 Although partisan for candidate. single votes were cast a would be parties as adherents of registered voters appellant, more than 8500 unavailable for ballot and to vote a were entitled select out, candidate But, partisan a appellant. appellant points oppo- his nearest votes to outnumber only poll need sufficient partisan a might his secure nent on the ballot of for of those cast than many fewer votes nomination differ- whether We must consider particular office. invidious discrimination. ence constitutes general elec- to the routes has alternative provided Hawaii can- candidates. partisan tion ballot securing may obtain nomination qualified party didate few, they constitute if votes, how no matter number any party, votes plurality cast candidates while a nonpartisan candidate must receive a minimum number of number, however, votes. That minimum never be more can which has been sufficient to than the number votes nomi- nate a candidate for same office same the road to the Appellant does not contend that who in general election ballot easier for competing fact were with her in this election. discrimina- alleges tion which is found in fact that subject require- would not have been to the minimum vote qualified ment if she chosen to run as the candidate had only to obtain event she would have needed party, which par- for that competing more votes than other *8 system the thus favors ty’s It is contended that nomination. office, and to dis- political parties political as the channels comparison, The there- nonpartisan favors the route to office. fore, candidates but is not between the burdens individual the their candidates placing between burdens borne in organized by political groups which are general election ballot by political those political parties compared with borne groups organized. which are not so place on the noted, may
As obtain a party has been a new by signed only by filing petition a ballot in a election Once in the state. registered voters at least of all the 1% only by polling at qualification qualified, party may a retain its cast for an all the votes general the election at least 10% of last at all the state or least office voted on the 10% congressional in of the cast for an office all of the votes districts, representa- districts, the state the state senatorial present school board districts. tive or the state districts Appellant tests. quantify us these permit record does not upon a record present challenge has her chosen to County, and for Maui only registration the data contains the number precisely which does enable us determine a new required either support of voters whose an estab- qualification party or to retain party lished an di- effective providing protecting and purpose objective, pur- state clearly is a vital system
rect may require suit which a as an alternative support public substantial
demonstrate
Storer v.
party primaries.
of the direct
in one
being nominated
Nevertheless,
provide
must
the state
Brown, at 733.
U.S.
parties
of all
for candidates
feasible means
avoid
ballot and
appear on
candidates to
par
monopolies on established
conferring
effective
However, “to
Rhodes,
Texas alternative routes to ballot it is problematical .... at best which is more oner- system not ous It sufficient to note that the does fact. promote create or substantial imbalance in relative difficulty qualify of each to for the U.S. ballot. 415 group n.16. of this test is illustrated application Jenness Fortson, recog- election law Georgia U.S. 431 political any party as a whose candidate qualified party nized guber- of at the most recent received or more the vote 20% par- of such election. The candidates presidential natorial elections, parties’ ties, became selected other any A of nominee general nominees at file a to required or a candidate was body Votes signed by eligible voters. nominating petition 5% of permitted. were Prospective for write-in candidates candi- challenged validity of provisions dates these in a declara- tory judgment proceeding present similar to the It action. was that, facially, of held neither the alternative routes available getting prospective candidate for his name on a inherently than the was more burdensome other not between the and there was invidious discrimination parties candidates of established and other candidates. Jenness, qualification was between comparison percentages votes cast at an consisting criteria hand, percentages of consisting on the one and criteria eligible signing petition, voters on the other. Notwith- weigh standing commonality, the lack of was able to the Court against respective imposed each other burdens of the qualification criteria and to from the face conclude present In the they inherently equivalent. statute that were case, politi- comparisons are more An established direct. various qualification by polling its party cal retains 10% general elec- preceding cast at the aggregations the votes by polling qualification tion. A candidate attains sought. We are unable 10% the votes cast for the office in this apparent conclude that invidious discrimination If for an established comparison. party a new is substituted is that the requirement party comparison, in the the relevant signatures of the party new obtain the recognition qualify order to itself us what this The record does tell primary election. election, but prior number would have been signa- number such we have no to believe that the reason was less required tures a new was obtain which required than the number of votes which election ballot. qualify obtain in order to would onerous was in fact more requirements Which of these speculation. be an unwarranted law is the election attempt whether will not to consider We there are no circumstances perfectly so devised that diffi- in the relative might there be a substantial imbalance *10 ballot as election on the culty placing candidates groups political parties and organized between However, appar- is imbalance no substantial and individuals. conclude that case. We ent us in the circumstances against invidiously discriminate does not election law which, under and is measure appellant supporters and her which cannot us, objectives vital state the facts before serves less burdensome significantly be well in equally achieved appellant procedures applicable ways. The election her deprive not here did under consideration equal protection of the law. m. we challenge requires that appellant’s The other arm of upon imposed consider whether the election law conditions election ballot opportunity appear her unduly burden which, discriminatory, were although vote which validity of the minimum some. Here the ad must be required to obtain supporters and her light rights judged effectively. The vote and to purposes associate for Brown, supra, degree” “matter test enunciated in Srorer which are from those that are valid separating restrictions clause, equally appli the equal protection invidious under consid present analysis. But different cable in'the somewhat erations enter into the evaluation of the restriction. demonstrate, to view
It is never as the cases possible, disregard total imposed candidate in aspiring burdens hand, a the other of those candidates. On placed other validity of conditions may respect to the question exist with ballot, though even placed upon access to the prospective candi- among all rigorous equality maintained the state and interests of A tension exists between the dates. resolved, must aspirations of candidates which any relevance. has protection clause equal whether or not placed been recently of the state have The interests rights: Amendment good in the context of First perspective gov- republican form are to afford If the States gerteral elec- ernment, provide for they must definition the contents standards tions and for some *11 294 will used
official ballots which at those elections. The legislature legislation em- decision of the state enact in bodying regulations such is therefore not sense an one; optional standards, there must be some however few, prescribe contents of the ballot if official to be popular among will is translated into choice issues, Dealing necessity candidates. thus these in strong “limiting places States have interests ballot to those candidates who demonstrate substantial ” ante, They support, have a like interest in popular at 96. fac- discouraging “splintered parties and unrestrained candi- might the number of proliferate tionalism” which virtually unintelligi- so to make it dates on state ballot ble the average voter. Valeo, 1, (1976), opinion
Buckley 424 U.S. 292 v. Justice Rehnquist. interest, if not a
It state has an has also been said that “a from political process duty, integrity of its protect Carter, v. Bullock frivolous or fraudulent candidacies.” Fortson, 134, (1971). supra, the Court U.S. v. Jenness said: surely requiring an interest in important
There
of a
modicum
preliminary showing
significant
some
organiza-
printing
the name of a
support before
— interest,
other,
if no
tion’s candidate on
confusion,
in
even frustration
avoiding
deception, general
election.
process
democratic
at
these interests
compelling
at 442. The
nature of
U.S.
Brown,
732,
American
v.
recognized
supra
also
Storer
n.14,
White,
v.
and Lubin
Party
Texas
at 782
supra
Panish, 415 U.S.
715-16
considered
substantially
question
We
faced with
are
re-
Brown,
statute
supra.
Storer v.
There
California
candidate,
obtain
quired
that a
ballot,
not less
by voters
signed
file a
petition
the last
than
votes cast at
number
total
in the last
Those who had voted
aof
petition
disqualified
signing
were
from
that a
proposition
with the
candidate. The
started
Court
possess
who do not
excluding candidates
state’s interest
*12
recog-
limits
subject to constitutional
support
substantial
Rhodes,
percentage
in
The voter
supra.
nized Williams v.
its
as not excessive
by
was viewed
required
California
requirement
face, in
of a similar
approval
view of the Court’s
Jenness, however,
Fortson,
the voter
In
supra.
in
Jenness
might
pool
prospective nonpartisan
from which
candidate
a
electorate,
of
exclusion
draw included the entire
without
noted the
in
The Court
primary.
who had
the
those
voted
might be
signers
possibility
pool
possible
that the available
of
reduced,
primary,
in the
by
so
elimination of those who voted
signatures by
of
a
obtaining
requisite
as to make
the
number
nonpartisan
impractical undertaking.
an
Since
candidate
record,
case was
the
not be resolved on the
question could
the burden
the
respect to
extent
findings
remanded
law. The
under California
imposed
nonpartisan
candidates
was
District Court
by
to be resolved
question
ultimate
a rea-
politics, could
the context of California
stated: “[I]n
satisfy
sonably
independent
expected
diligent
candidate
rarely that the
only
it be
signature
or will
requirement,
getting
on the ballot?
will succeed
unaffiliated candidate
disqualification, petition, of those who had voted of the possiblity that this feature primary. The theoretical was candidates might nonpartisan freeze out all election law Court, effect given but not recognized by the question The requirement. invalidating petition signature one, on the facts to be answered practical was dealt with as a require- signature particular The burden of the case. Court by the District appraised to be ment was directed factors, interplay of the relevant excluding other light, pool the size of required, total voters percentage signatures. to obtain and the time allowed eligible voters burden, as by of this validity California imposition actually faced light circumstances finally evaluated Court, “the became before the by prospective applying to be judgment”, resolved question inevitable diligence. the standard of reasonable A may numerical test of what be demanded of rea- candidate, sonably diligent petition signature in terms of Storer, emerged has not from the cases. In requirements, more yet approved Court noted that it had not than eligible way open voter but left the to the District Court pool, Different from higher percentage. to validate a considerations in the appraisal petition signa- those which are relevant of a im- appraising ture have a the burden requirement posed of a of the vote in a requirement percentage per- election in which the participate. mitted to candidate in personal law need not establish contact election under Hawaii *13 support to petition signers may appeal with address an for generally. electorate nonpartisan candidate must obtain of the vote primary only 10% cast at the when that number is polled less than the vote by partisan the weakest candidate. No time limits or formal exist restrictions hamper appeal of the nonpartisan sup- candidate for the port of those eligible nonpartisan to cast a ballot. The fact that law, the Hawaii election insignificant exceptions, with bars registered voters who have previously voted primary not, supporting ballots from nonpartisan a candidate does Storer, the authority of in- facially make unreasonable and valid a requirement that a nonpartisan candidate obtain the support of an percentage otherwise reasonable of the voters. 12-41, We consider requiring appellant that HRS obtain mayor at least votes cast for the office of County Maui at the on its was not an face unconstitutionally obtaining a severe restriction on her ballot at the election. conclusion, course,
This into an- inquiry transfers the whether, other question area. The relevant becomes under actually the vote re- appellant, circumstances faced quirement capable was of satisfaction in the exercise of rea- Storer, diligence. sonable In contrast with we know from the record before us the pool appel- size of the voter available to lant showing sup- from which to obtain the needed of voter port. registered In excess could have voted a of 8500 voters not consider We do at the in the exercise impracticable appellant, that it was mod- requisite if diligence possessed reasonable she mayor, to office of for the support icum of voters. The up the votes of to 2760 of these obtain so in fact been eligible pool voter had whether the question is thus an diminished as create undue burden or- inquiry further factual the record and the answered necessary in this case. in Storer is not dered in the It voter interest argued by appellant that keen it made governor contest for the Democratic nomination of the undes- number unrealistic to assume that substantial deprive ignated ballot and would select Several major themselves in the contest. participation It involves argument apparent. are possible flaws in this es- which are to voter motivation assumptions respect weigh evidence sentially proof. Any attempt beyond of a place the court role prospective voter action would questions which seem outside political pollster dealing with ar- Perhaps significantly, adjudication. most field validity any pros- necessarily to attack gument seems For the elections. cription voting of cross-over that, giving full say it purposes opinion," of this is sufficient have existed for weight competition may to the the burden voters, had available the fact *14 did not accept nonpartisan to ballot these voters persuading votes to secure sufficient make it for impracticable to do so demon- Her failure qualify general for modicum requisite “significant strated that she lacked support.”2 2 v. Austin, (D.C. Supp. rejected 419 F. Hudler A similar contention denied, 924, rehearing 1976), There the aff'd, 431 U.S. U.S.
Mich. qualify position at required party, for a ballot new in order to that a state election law signed by requisite percentage petition both submit a primary of a registered vote also obtain the affirmative electors and party at the percentage the new requisite who chose to endorse the voters. Voters primary. voting thereby primary disqualified from otherwise themselves primary elections who attended that the voters was introduced the effect Evidence partisan unlikely highly their major party surrender who were adherents were party It was held to the ballot. merely support of a new the addition votes above,
For the reasons stated we have concluded that 12-41, case, § HRS under validly the circumstances of this appellant, required placed to be order elec- ballot, tion obtain favorable vote of of those voting for the office mayor of Maui County primary election the judgment from appealed should therefore be provided by affirmed as our order of October 1978. counsel) Ken T. Kuniyuki (Kuniyuki Pang of & Plaintiff-Appellant. Sousa, General,
Maria Deputy Attorney for Defendants- Appellees. RICHARDSON,
DISSENTING OF OPINION CJ.
I respectfully dissent. I generally majority opinion’s
While concur with the facts, statements of law and I disagree the conclusion application reached of the law to the facts.
FACTS instituted this action to test the constitu- tionality § it her equal HRS 12-41. contends that denied She protection unduly right her of asso- the laws and burdened against by discriminating ciation and the voters’ to vote right to a nonpartisan opposed her because she is a as granted judgment. candidate. summary The defendants were to win their requires partisan 12-41 win their election while candidates must including support, that of voters party to marshal of new effort demanded that the primary, an burden on the undue have attended would otherwise was.not who impracticable. requirement party compliance voter with the and did not make new Austin, in this case supra, ourselves in Hudler v. The conclusions reached expression necessary pool depend of a of voters from both the existence sufficiently high may practicably If a support be obtained. of percentage at the voter County mayor of Maui voters at disqualified to receive a designated been and had thus adherents had been name, might sufficient containing appellant’s have been that fact *15 require- vote practicably comply appellant with the minimum not could to show that us, however. before That case is not ment.
299 winning to a equal a vote either receive primary election and votes cast equal percent to ballot. to appear There Maui. mayor a candidate was 19,022 30,355 voters, regis- were were democrat, 2,516 republican, 105 as tered as 8,477 nonpartisans and undes- undesignated. Only and were § 12-31. ignated HRS appellant. voters could vote many partici- how record does reflect trial number of votes pated election or the also § 12-41. The trial record satisfy needed race gubernatorial does not reflect that the 1978 democratic many of the undes- caused highly probably and contested ignated ballot. voters to choose democratic
ISSUE summary judg- granting erred in trial court Whether the necessary to of facts deplete record is ment where the trial appel- unduly burdened determine HRS 12-41 whether right vote. right lant’s and the voters’ of association
DISCUSSION Rhodes, (1968) the First protected Williams 393 U.S. for the ad- “rights of individuals associate Amendment beliefs, qualified right vancement of their votes to cast their voters, regardless political persuasion, ’ strict subjecting requirements access effectively’ by scrutiny. at 30. Id. Brown, Party v. (1974) and American U.S. 724
Storer v. strict (1974) ignored the traditional White, 415 U.S. — automatically test imposition of the scrutiny where test effectively state and the subject statute invalidates — interest state compelling prevented showing from elec conducting effective interest in the state’s considered candi may require objective pursuit of this tions. but the re public support substantial dates demonstrate whether the The test is too restrictive. quirements cannot be *16 appear candidate can by election ballot exer- cising diligence. In applying reasonable the test the facts in particular case must be considered. White,
In Party American supra, challenged v. statute required political party percent to secure two of the vote in previous general signed regis- petitions file the. numbering tered voters least percent one of the votes cast prior upheld that election. The was statute because a reasonably party could diligent requirements meet This that two of the supported by statute. was evidence plaintiffs previously had appeared satisfied the statute and the ballot. Brown, imposed statute supra, challenged Storer v. five percent petition requirement independent candi eligible signers
dates to those who pool and restricted party’s primary had election. The participated another Thus, it was re record decide the inadequate case. reasonably with to determine whether manded instructions diligent satisfy candidate could the statute. case, opinion states that the majority
In the instant by exercising § 12-41 could have satisfied HRS 2,760 only votes diligence reasonable because she needed 8,477 undes 8,582 (105 nonpartisans from a pool of voters). “We not consider ignated opinion admits: do the votes of to obtain impractical appellant... it was for the Yet, opinion’s 2,760 up to voters.” these diligence test states that the reasonable statement of the law particular a view to “facts applied must be White, “The states: supra, Indeed, American Party v. case.” real, not be access to the electorate requires that Constitution ” Despite this established Id. at ‘merely theoretical.’ 783. case for rule, remanding the opinion concludes that Brown, supra, Storer inquiry, further factual as ordered necessary. is not summary judgment. instant case decided was. fact, summary disputed issues of there are
Where material Interna- Leisure E.g., will denied. judgment Creative We P.2d do tional, Aki, 59 Haw. Inc. v. satisfy needed many how votes not know undesig- many how 12-41 or of HRS requirements *17 choose a likely not to nated voters were facts These gubernatorial because of the democratic could necessary whether to determine are diligence. exercising reasonable satisfy 12-41 been denied judgment should have Therefore, summary of fact. these issues and the case remanded decide HAWAII, Plaintiff-Appellee, STATE OF JOSEPH KENDER, Defendant-Appellant JEFFERY
NO. 6145 29, 1978 DECEMBER OGATA, KOBAYASHI, RICHARDSON, C.J., WELL, AND KID MENOR JJ.