COMMENTARY
Elections chief new scapegoat

By Robert M. Rees
Moderator of 'Olelo Television's "Counterpoint" and Hawai'i Public Radio's "Talk of the Islands"

We in Hawai'i, just like the townsfolk in Shirley Jackson's short story "The Lottery," enjoy gathering periodically to stone to death one of our citizens. This provides a needed catharsis and allows us to make believe we are making progress.

Dwayne Yoshina

Next on tap may be UH President Evan Dobelle, and crowds are gathering in anticipation of the event.

For right now, the target is Dwayne Yoshina, the state's chief elections officer.

Yoshina's life, like Okuda's, has a storybook quality. A Japanese American born in Hilo, Yoshina worked hard for his education. He was at Hilo Union Elementary in the days when nearby Riverside Elementary served as the "English standard school," a euphemism for segregated.

After graduating from high school, Yoshina served 29 months in Berlin with the Army at the height of the Cold War. He went on to college, where he earned a master's degree from California State University. To top it off, he was awarded a grant to the Technology Development Institute at the East-West Center.

In 1981, Lt. Gov. Jean King, then the state's chief elections officer, interviewed Yoshina and hired him to work in the office of elections. He has been there ever since.

In 1995, because Gov. Ben Cayetano thought it a bad idea for the state to have a partisan lieutenant governor as chief elections officer, the Elections Appointment and Review Panel was created by legislation. The elections panel was attached administratively to the lieutenant governor's office but became functionally independent. The governor, House speaker, Senate president, and House and Senate minority leaders each appoint one of the panel's five members. The panel, in turn, selects a chief elections officer.

Yoshina, once selected, led Hawai'i out of the punch-card voting that was to plague other states; it was he who selected computerized voting machines that provide a verifiable record; and it was he who refused to succumb to the entreaties of the Cayetano administration to adopt a procedural scenario contrived by the Democrats following the death of Rep. Patsy Mink in 2002.

You'd think Yoshina would be a statewide hero. Instead, everybody's out to get him.

Casting the first stone

Yoshina's difficulties began in November 1998, when the Democratic Party challenged Republican Emily Auwae's upset of incumbent Merwyn Jones in the 44th District.

It was Attorney General Margery Bronster's brief to the state Supreme Court that ignited the controversy. Eager to circle the wagons around any appearance of state fallibility, Bronster intimated that overvote errors in District 44, Wai'anae-Makaha, had stemmed from the residents' low levels of education.

State Sen. Colleen Hanabusa, whose district includes Wai'anae-Makaha, was infuriated by what she saw as a suggestion that she and her constituents are too dumb to vote.

Bronster lost, and the court ordered a manual tally of the results as counted by Machine No. 194. Only seven overvotes were found, and Auwae was declared the winner.

However, Yoshina decided that they might as well double-check all the votes recorded by Machine No. 194. This meant manually counting 6,000 of the ballots from the Senate District 21 contest, won by Hanabusa by a margin of 8,201 to 2,611.

Hanabusa's office learned of this, and campaign manager John Souza went to the scene of the recount, legislative Conference Room 016, to object to the unannounced and unsupervised recount. Yoshina, in turn, objected to the unauthorized presence of Souza, and Souza's parting words were, "We'll see you in court."

Hanabusa, now furious at Bronster and Yoshina, called for legislative hearings and verification of all ballots cast in the 1998 election.

By now, despite their earlier motion to the Supreme Court to affirm Auwae's victory in District 44, the Republicans realized they could package Linda Lingle's loss to Gov. Ben Cayetano in the camouflage of an election tainted by fraud. Suddenly, Hanabusa was an ally.

"Election fraud" became the new Republican mantra. Lingle's campaign manager, Bob Awana, claimed to know about 34 instances of voter fraud. House Republicans fired off a letter to the U.S. attorney alleging fraud and urging an investigation. Pacific Business News and radio talk-show host Rick Hamada joined the stoners in circulating the urban legend.

When the joint legislative committee suggested by Hanabusa convened Feb. 8, 1999, the Republicans were in a frenzy. At the center of this now-perfect storm was Yoshina, a shy and somewhat awkward public servant whose only faults seem to be an honest bluntness and lack of "people skills."

Says Yoshina of the committee hearing: "I don't remember much. I remember sitting there for a number of hours."

Among those testifying were Lingle and her director of campaign communications, Kitty Lagareta. In exceptionally strong language, they suggested wrongdoing aimed "at the brave men and women who have fought to guarantee that we Americans have the right to vote."

In response to all this, Yoshina employed two types of technology to recount the ballots from the general election. Incredibly, both recounts showed the same results as the original tally, and both accounted for all 412,000 ballots.

It was on this high note that Yoshina's first term as chief elections officer expired in 1999. The panel, despite testimony against him by Hanabusa, selected Yoshina for a second term.

Sticking to principle

During his second term, Yoshina encountered yet another challenge, this one from the Democrats. When Mink died on Sept. 28, 2002, two days after the statutory limit for the Democratic Party to name a replacement candidate for the Nov. 5 election, Yoshina warded off Democratic attempts to change the election laws.

On Oct. 6, Gov. Ben Cayetano stated: "Tomorrow, (the attorney general) is filing a petition to ask the Supreme Court to order Dwayne Yoshina ... to use his discretion under state law to allow the Democratic Party to replace Patsy Mink's name on the ballot for the new U.S. House term."

The court ruled that the very idea of ordering a discretionary act is an oxymoron. Yoshina, though isolated, stuck to the principle that he was being asked to exercise discretionary power without the proper rules required by law. He was a profile in courage even as Cayetano opined that he should be fired.

The big challenge of Yoshina's second term, of course, was the general election of Nov. 5, 2002. Despite Republican warnings, the balloting went smoothly, even as systems in other states crumbled.

Still, the Republicans were not assuaged, and apparently hadn't forgotten about Yoshina. Shortly after Lingle's victory, new Senate Minority Leader Fred Hemmings appointed one of Yoshina's harshest critics, Lagareta, to the Elections Appointment and Review Panel. Part of her job would be to evaluate Dwayne Yoshina.

Hemmings recalls that he appointed Lagareta because "she's fair and balanced." When asked whether anyone spoke to him about making the appointment, Hemmings says, "I can't remember."

Yoshina's second term expired Jan. 31. Instead of simply accepting his petition for reappointment, the newly reconstituted panel voted 3-2 to open up the position to others. Leading the drive to consider replacements were Lagareta and the other Republican on the panel, Kimo Sutton.

Sutton and Lagareta were joined in the 3-2 vote by panel chairman Ray Pua. According to Pua, Lt. Gov. Duke Aiona met with him privately just before the elections panel meeting to say, "This is a new administration, and we would like to work with you."

Specifically, Aiona asked for Pua's "cooperation" in considering candidates other than Yoshina.

Aiona's words carried extra heft. After all, only two weeks earlier Hanabusa had introduced Senate Bill 472. It called for the return to the pre-1995 era, when the lieutenant governor was chief elections officer. It would have exorcised Yoshina and the elections panel in one fell swoop.

Pua, in his words, decided "It was better to cooperate."

Only seven days after the elections panel vote on Jan. 31, Hanabusa's bill was held in committee due to lack of public support. House Bill 401, introduced by Rep. Scott Saiki to provide that the chief elections officer may be terminated only for good cause, was used as the vehicle for a new provision that the elections panel and chief elections officer henceforth be assigned administratively to the Department of Accounting and General Services.

Aiona asked that Hanabusa's original bill be reinstated, but it was too late. There were two possible reasons for Aiona's zeal. He may have wanted to provide his office with open positions, and thus a larger budget. Or he may have been feeling the need to get rid of Yoshina and the panel.

Sugar-coated pill

At its July 9 meeting — its first as part of DAGS — the elections panel greeted a new member, Phil Leas. Lagareta had resigned to accept an appointment to the UH Board of Regents, and Hemmings had appointed Leas, an attorney he described as "sympathetic to those values I hold dear."

Asked whether anyone had suggested Leas, Hemmings replied, "Kitty Lagareta felt he would be appropriate."

Leas, instead of first considering reappointment of Yoshina, joined Sutton in pushing for immediate consideration of others for the job.

One reason for putting the cart before the horse is that under the new statute, the chief elections officer may be terminated only for good cause, but he or she may be replaced for any reason at the end of the term.

Deputy Attorney General Gary Kam, assigned by the attorney general's office to advise the elections panel on legalities, says that all the panel need do is not accept an incumbent's petition for reappointment.

However, the law also requires that the elections panel conduct a performance evaluation of the chief elections officer every two years, for submission to the Legislature. Panel member Trudy Kiessling suggested on July 9 that the panel complete this required performance evaluation, and decide only then if it needed to look for a replacement.

Responded Leas, "I want to do everything all at once."

Two days later, by phone, Leas amplified his stance. "I don't have any preconceived notions. I don't know (Yoshina) well," he said. He added, however, that the panel should evaluate Yoshina and at the same time "give anybody who's a qualified candidate an opportunity."

This was the same position expressed by Sutton nine days before the committee met on July 9.

When the elections panel meets next, we can expect the stoning — now wrapped in the veneer of opening the position to all candidates — to continue.

If it's successful, Yoshina still has plans to pursue his passion. "I could retire," says the 60-year-old civil servant, "but I heard recently they are looking for people to set up elections in Iraq."