A hearing will take place 10:30 a.m. Thursday before Hilo Circuit Judge Greg Nakamura to determine whether or not a special election in the Puna district will take place Friday as planned. Nakamura will likely rule shortly after the hearing but appeals are also likely.
U.S. Rep. Colleen Hanabusa filed for an emergency temporary restraining order Wednesday morning, asking a state court to delay Friday's make-up election in two precincts hard hit by Tropical Storm Iselle last week.
The legal case, filed on Wednesday, asked the court to ensure that all voters “have a meaningful opportunity to cast their vote.”
“Due to the storm, voters in the affected precincts are still without power and water and many roads are inaccessible or blocked with the debris,” Hanabusa's memo asking for a preliminary injunction said.
“There is still limited electricity and phone service in these areas and it is unlikely that full power will be restored or that roads will be unblocked prior to or on Friday, August 15, 2014."
State elections officials are planning to consolidate the two precincts that did not vote last Saturday into one, at Keonepoko Elementary School this Friday and hold walk-in voting from 7 a.m. until 6 p.m. and announce the results Friday night.
Hanabusa trails U.S. Sen. Brian Schatz by 1,635 in the race for the remainder of the term of the late U.S. Sen. Dan Inouye. In the other two Puna precincts where voting went ahead last Saturday, Schatz garnered about 10 percent more of the vote than Hanabusa.
Meaghan Smith, Schatz's campaign spokeswoman, released a statement that said:
“The Office of Elections or the courts will determine the best way to move forward to maximize voter participation. Senator Schatz believes that the voters in Puna and across Hawaii must be given fair access to voting and the Senator's campaign will be committed and respectful whenever the election is held. The Senator's priority is to help the people of Puna get back on their feet.”
Legal experts said that in order to the courts to grant a delay, Hanabusa would have to show that elections officials erred in setting the Friday date and that she would have won the election if the vote were held at a later date.
She also has to show that she was irreparably harmed by election officials' decision, they said.
Former state Supreme Court Justice Steven Levinson said Hanabusa faces an uphill battle in proving that election officials' decision will cost her the race.
He said that even if half of the registered voters in the two Puna districts turned out to vote, she would need three-quarters of those voters to win. So far, her best showing was in Leeward Oahu districts, where she received 63 percent of the vote.
"The merits ultimately don't work in Colleen Hanabusa's favor simply because of the hole she has to dig herself out of," he said.
"She has a tough road to hoe."
But another component of the TRO formula is irreparable harm. Her lawsuit argued that thousands of registered voters in the Puna district are being harmed setting the election on Friday.
Former Gov. Ben Cayetano believes elections officials should push back the date for those residents without electricity and who are struggling in the aftermath of the storm.
"I can't imagine how four or five election clerks sitting around the table could determine whether the people had a chance to vote or not. They should go out and look at the area," he said.
"That's irreparable harm because you're denying a person under these circumstance his or her right to vote."