Hawaii’s process for filling vacant legislative seats is getting closer scrutiny

Gov. Josh Green is calling for changes to the process of filling legislative vacancies after being forced to choose a new senator for Waianae just a little over a week before the primary election.

The current law requires the governor to make an appointment 60 days after a seat becomes vacant. Former Sen. Maile Shimabukuro resigned in late May and endorsed Rep. Cedric Gates, who is running for her seat and was on the shortlist to replace Shimabukuro.

Green initially said he would only announce an appointment after the primary election to avoid influencing the outcome. But on Tuesday he named Cross Crabbe to the seat. Crabbe is Gates’ office manager and is running for the House seat currently held by Gates.

The other two choices were Gates and Stacelynn Eli, who are competing against each other in the primary election for Senate District 22.

“It is my constitutional obligation to support free and fair elections, and this was the only path to maintain that integrity,” Green said in a press release announcing Crabbe’s appointment.

The governor said he would propose a bill to extend the selection window from 60 days to 120 days to avoid instances where a governor’s selection of a candidate to fill a vacancy might unduly influence the outcome of an election.

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Lawmakers have considered reforming the process in recent years, including by having replacements selected by special election, but the proposals have all failed.

The process currently requires the governor to select a new legislator from a list of three names compiled by the party of the departed lawmaker, in this case, the Democratic Party.

Half of U.S. states fill vacancies by special election, according to the National Conference of State Legislatures. Hawaii is an outlier in that regard — it’s one of 11 states that require the governor to appoint replacements.

But it wasn’t always that way.

In 1959, the Legislature decided that legislative vacancies would be filled by special election. That changed in 1963 when the Legislature scrapped that process and instead gave the governor appointment authority with the stipulation that replacements come from the same political party.

Lawmakers changed the process again in 2007 by allowing political parties to step in and deliver a list of names to the governor for selection.

The impetus for that change came in 2005 when Gov. Linda Lingle appointed Bev Harbin, who registered as a Democrat just days before the resignation of the representative she replaced.

There have been at least 17 House vacancies and nine Senate vacancies filled by the current process since the law changed in 2007.

The process for selecting the three names that go to the governor is left to the internal rules of each political party. The Democrats select their shortlist through councils made up of elected party members from each House district. The council members meet in settings typically open to the public to interview and select the nominees.

Bart Dame, a longtime party official, said that in the past those district council seats stayed vacant until an appointment was needed. A mad rush to fill those seats sometimes ensues when there’s a vacancy in the Legislature, and party chairs have tried to limit the local district councils from packing the membership in a way that may skew who gets nominated, Dame said.

“Filling a legislative vacancy is when we should be on our best behavior,” Dame said.

On Wednesday, Democrats in House District 1 will hold a meeting in the Honokaa High School cafeteria to select possible replacements for Rep. Mark Nakashima, who died in early July.

The meeting is open to the public, and there are seven nominees to fill the seat, according to district chair Mattias Kusch. While the interview and selection process will be open to the public, only the council members will ask questions and vote on which three names go forward.

Kusch said the process is fair and that “great pains were made to keep this open and transparent.”

Three years ago, Nakashima took up bills to take the appointment power away from political parties and the governor and give it back to voters.

That year, as chairman of the House Judiciary and Hawaiian Affairs Committee, Nakashima advanced measures that would have required vacancies to be filled by special elections.

The state Office of Elections testified that it would likely require emergency funding in the event of vacancies. The cost of holding special elections for legislative seats ranges from $223,000 to upwards of $274,000.

The special elections bill died in conference committee.

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This story was originally published by Honolulu Civil Beat and distributed through a partnership with The Associated Press.