HONOLULU (CN) - A Republican who lost his party's August primary for the late Sen. Daniel Inouye's seat claims the election was unconstitutional and wants the winner kicked out of office.
Inouye, a nine-term senator who won the Medal of Honor in World War II, died on Dec. 17, 2012. Gov. Neil Abercrombie on Dec. 26 appointed Lt. Gov. Brian Schatz to serve the remainder of Inouye's term.
A primary election was held on Aug. 9 to select the candidates for the Nov. 4 general election.
Schatz won the Democratic primary, Campbell Cavasso the Republican. They face off on Tuesday.
John P. Roco lost overwhelmingly to Cavasso in August, taking just 12 percent of the vote to Cavasso's 72 percent.
But on Oct. 30, Roco sued the governor, the state Democratic Party, Schatz, and the state's Elections Board in Federal Court, seeking a mulligan.
Roco claims that Hawaii Revised Statute 17-1, on how to fill a Senate vacancy, is unconstitutional because it contradicts the 17th Amendment, which established the system of direct election of U.S. senators.
The 17th Amendment, ratified in 1913, took election of U.S. senators out of the hands of state legislatures.
The state law allows the governor to make a temporary appointment selected from a list of candidates submitted from the same party as the prior incumbent. That appointee is to serve until the election, when voters can choose a replacement who must have been a member of the prior incumbent's party for the past six months.
The Constitution states that the governor should issue a writ of election to fill any vacancy, and that the Legislature may empower the governor make temporary appointments until an election can be held.
Roco objects that defendant Chief Election Officer Scott Nago - not the governor - called the "vacancy election" for August.
"Despite the passage of over 18 months since Sen. Inouye's death, defendant Abercrombie has yet to comply with the 17th Amendment and issue a writ of election for the holding of an election in which the people of Hawaii can elect a permanent replacement to fill the vacancy," Roco says in federal complaint.
"Defendant Nago is not the executive authority of the State of Hawaii and is therefore not authorized by the 17th Amendment to issue a writ of election to fill the Inouye vacancy," Rock claims.
He seeks declaratory judgment that the August election was invalid, that the Senate seat must be vacated, that Hawaii Revised Statute 17-1 is unconstitutional and that the governor must issue a writ of election to start the constitutional process.
Schatz won the Democratic primary from U.S. Rep. Colleen Hanabusa by 1,769 votes, after an intense intraparty fighting. Abercrombie is believed to have bucked Inouye's deathbed request that he appoint Hanabusa.
Roco and co-plaintiff Eugene Hamamoto, a voter, are represented by James Hochberg.
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