EDITORIAL
Delayed special vote would make no sense
It's good news that Gov. Ben Cayetano has decided to test whether there is a way around holding a delayed, and expensive, special election to fill out the last days of Patsy Mink's current term in Congress.
After all, the last thing Mink would have wanted is an unseemly squabble over the cost of selecting her replacement in the U.S. Congress.
But that seems to be what we may get, and it is not necessary.
By virtue of the timing of her death, Mink's name will remain on the general election ballot. So it is possible — perhaps even probable — that she will win that election even though she has already passed away.
This set of circumstances has happened before on numerous occasions in other jurisdictions.
If Mink wins, then there will be a special winner-take-all election to select a replacement for the two-year term that begins next January. On that, there seems to be little confusion.
Some have argued that it would be simpler if the election were simply defaulted to one of the other candidates: Republican Bob McDermott, Libertarian Jeff Mallan or Natural Law candidate Nicholas Bedworth.
But that makes little sense. It would disenfranchise all those voters who desire to vote for a Democrat but would have no opportunity to do so through no fault of their own.
So a special election to find a replacement — should Mink happen to prevail on Nov. 5 —seems to make sense despite its $2 million cost.
But the planned earlier "special-special" election to fill out the remaining weeks of Mink's current term makes far less sense. There should be a way of avoiding this $2 million exercise in following the letter of the law over the cliff.
Cayetano and U.S. Rep. Neil Abercrombie, among others, have argued that it is important to get someone in Mink's seat for those final days of the current session. Abercrombie, particularly, points out that important votes are coming up on a long slate of appropriations bills, and Congress may even be facing a vote on war and peace, they point out.
Good enough. But elections officials have scheduled this special election for Nov. 30, the first Saturday following 60 days after Mrs. Mink's death. Election law says that at least 60 days must transpire between the day the election is called and when it is held.
That presumably gives potential candidates time to organize, file and campaign. And it prevents someone from calling a trick "snap" election.
Under ordinary circumstances, this makes sense. But these are hardly ordinary circumstances. If it is indeed important that someone be placed into Mink's 2nd District seat, then it should be done as soon as possible. After all, more of those important votes Abercrombie cites will occur in November than in late December.
Since we will be holding a statewide election on Nov. 5, why not hold that special election on the same day and in the same polling places?
Not only would this give the people of the 2nd District their representation sooner, it would save taxpayers the $2 million that the short-term special election would cost.
Laws are meant to be interpreted reasonably. In all cases, it is a matter of balancing equities.
We saw this play out just this week in New Jersey, where that state's Supreme Court allowed Democrats to find a replacement for Sen. Robert Torricelli, even though the legal deadline for such a replacement had already passed. Even more on point, the New Jersey Supreme Court in 1969 allowed a replacement candidate after the deadline because the original candidate had died.
In both cases, the New Jersey court obviously balanced equities and concluded that the right of the voters to have a viable candidate from each of the major parties trumped the letter of the state law on replacement deadlines.
Whatever one feels about the merits of the New Jersey decision (and Republicans are hopping mad), it is in keeping with case law in which courts apply a balancing test between state interests and constitutional rights.
In our case, it is hard to imagine any party thinking it would be preferable to hold this special election way out on Nov. 30 at a cost of $2 million if an alternative solution could be found.
The section that sets out the rules for a special congressional elections states that that election shall be conducted and the results ascertained "so far as is practicable" in accordance with that particular title. We're no lawyers, but that language suggests the authors envisioned there could be special circumstances.
If a replacement indeed must be found for the final weeks of Rep. Mink's current term, let's find a way to do it as soon as possible and at the least possible cost. Cayetano's decision to have his attorney general take the question before the Hawai'i Supreme Court is the right way to go.
