No Savior from Waiver

Peroutka v. Cronin (HSC March 27, 2008)

Background. Peroutka with Baldwin and Ralph Nader with Camejo filed petitions with the Hawai'i Office of Elections to place their names on the presidential ballot as candidates for President and V.P. The Office of Elections rejected their petitions for a failure to collect the requisite number of signatures. Many of the signatures were stricken because they were not accompanied by an address, date of the signature, or other information. Both requested administrative hearings. At the Nader/Camejo hearing, it was agreed that a Nader representative would "flag" disputed signatures; that the Chief Election Officer would review the signatures and that his decision was final; and that Nader/Camejo reserved the right to challenge the constitutionality of Hawai'i regulations and statutes. At the Peroutka/Baldwin hearing, Peroutka objected to having the Chief Election Officer preside over the hearing. The agency concluded that both candidates failed to acquire enough valid signatures. Both appealed to the circuit court, where the findings and conclusions were affirmed.

A Direct Constitutional Challenge Waived Because it was not Argued. The HSC refused to determine whether the one-per-cent requirement was unconstitutional because the candidates failed to properly argue the issue on appeal. True, the candidates did challenge the constitutionality of the law as a point of error, but their arguments did not challenge the law itself. According to the HSC, the candidates argued for a liberal construction of the law because the law touched upon a fundamental right to run for office. This, according to the HSC, is not the same thing as a constitutional challenge to the law itself. When an argument is mentioned as a point of error, but is not advanced in the opening brief, the appellate court may deem that argument waived, HRAP Rule 28(b)(7), and here the HSC did just that.

An Ultra-fine Distinction? The candidates' arguments assume that the signature laws are not inherently unconstitutional. Rather, they argue that because they regulate or set up a barrier to the exercise of a constitutional right, they must be liberally construed. The argument leads to an inevitable conclusion that when the law is not liberally construed, the constitutional right is unduly infringed, and thus, the law as applied would be unconstitutional. The remedy is not necessarily the striking down of the law, but a liberal construction of that law. Nevertheless, the HSC takes the position that that is not the same thing as a direct constitutional challenge. It begs the question: how does an appellate lawyer avoid waiver? With a direct constitutional challenge to the laws themselves?

No Constitutional Argument, no error found. The candidates argued that the Office of Elections should have tried harder in deciphering the handwriting on the petitions and it should have attempted to cross-reference the address information with the registration rolls. The law requires at least one percent of the voting populace to sign on in favor of a candidate. HRS § 11-113(c)(2)(B). The regulations require that the chief election officer must ensure that the signatory is a registered voter; if the information provided is illegible, it "may" not be counted. The HSC held that the candidates failed to show why the Office of Elections must make these efforts in light of the fact that illegible and unverified information "may" be discounted. According to the HSC, the candidates pointed to nothing in the record or within the statutory and regulatory framework to support their claims.

But did they point to the state and federal constitutions? If they did, then the constitutional element appears to have been waived. And if it has been waived, are we dealing with a matter of characterization? By arguing that the constitutions require the Office of Elections to exercise its discretion in accepting or rejecting voter signatures in light of the constitutional right to run for office, haven't the candidates adequately preserved, albeit indirectly, a constitutional challenge to the application of the laws and regs? Perhaps if the candidates characterized their argument as a direct constitutional challenge--any framework that allows an agency to exercise unfettered discretion in rejecting the signatures without taking into consideration the right of the candidate to run for office or even a presumption favoring inclusion is an unconstitutional framework--they might have avoided this fate. Of course, this is mere speculation.

Due Process Satisfied with (and in spite of) the chief Officer Presiding. The HSC rejected the candidates' arguments that having the Chief of Election officer preside over the hearings was unfair and partial. The HSC affirmed the circuit court's conclusion that the candidates received a fair and impartial hearing because they failed to show that the Chief Election Officer had a "direct, personal, pecuniary interest" in the hearing's outcome. See Sifagaloa v. Bd. of Trs. of Employee's Ret. Sys., 74 Haw. 181, 191, 840 P.2d 367, 372 (1992).

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