Hawaii Advisory Opinions September 15, 1988: AGO 88-5 (September 15, 1988)

AGO 88-5.

"Votes Cast" in Determining the Results of the Honolulu Prosecutor's Election This is in response to your oral request for our opinion as to whether blank and spoiled ballots should be included as "votes cast" to determine which candidate, if any, may be deemed elected to fill the office of prosecuting attorney of the City and County of Honolulu.1/

We answer in the negative.

Article VIII, section 8-102 of the Revised Charter of the City and County of Honolulu as amended in 1986 (hereafter "charter amendment"), provides in part:

1/We have previously opined that blank ballots should not be counted as votes cast when determining the qualification of a political party under Hawaii Revised Statutes 11-61. See Attorney General Opinion No. 81-6. However, we have also opined that blank and spoiled ballots should be counted to determine ratification of proposed constitutional amendments, relying on constitutional history which indicated a specific intent to include such ballots as part of the votes cast. See Attorney General Opinion No. 82-7.The candidate receiving a majority of votes cast for the office of the prosecuting attorney shall be deemed elected. In the event that no candidate receives a majority of the votes cast in the special election held in conjunction with the primary election, a second special election shall be scheduled to be held in conjunction with the general election scheduled for the same year.

The general legal view is that blank, illegal, and unintelligible ballots should be rejected in computing the number of votes. Republican Party of Hawaii v. Waihee, 709 P.2d 980 (Haw. 1985) (holding that blank ballots could not be counted as a yes or no vote "on the question" of recall and could not be considered in determining total vote for purposes of determining majority vote) (citing 26 Am.Jur.2d Elections 314). Further, the Hawaii Supreme Court has approvingly pointed to a federal case which held that blank ballots should not be counted where the applicable law included the same phrase used in the charter amendment, i.e., that the officers were to be elected by a "majority of the votes cast." Waihee, 709 P.2d at 981, citing Todman v. Boschulte, 694 F.2d 939 (3rd Cir. 1982).

The caveat to the general view attached by the court in Waihee, i.e., whether that general view has application in a particular case depends on the particular wording of the charter, statute or constitutional provision in question, id. at 901, does not appear to require a conclusion other than the one we reach here since nothing in the language or history of the charter amendment indicates any legislative intent to include blank and spoiled ballots as part of the votes cast. Therefore, we conclude that blank and spoiled ballots should not be included as a part of the "votes cast" for determining the results of the Honolulu Prosecutor's election.

Very truly yours,

Gordon D. Lee

Deputy Attorney General GDL/laf APPROVED:

Warren Price, III

Attorney General