Notes for the Call with Aaron Schulaner
These are the notes I made for myself to use when I spoke with HI Deputy AG Aaron Schulaner. My summary of his responses is in bold.
Nov 24, 2009
Aaron B. Schulaner, Deputy AG of Hawaii:
Thanks for returning my call. I’m looking at the statutes regarding presidential elections and had a few questions I wanted to ask you about that, if you can spare me a few minutes of your time.
HRS 11-113(c)(1) describes the most common way of putting presidential candidates on the general election ballot. It says:
(c) All candidates for President and Vice President of the United States shall be qualified for inclusion on the general election ballot under either of the following procedures:
(1) In the case of candidates of political parties which have been qualified to place candidates on the primary and general election ballots, the appropriate official of those parties shall file a sworn application with the chief election officer not later than 4:30 p.m. on the sixtieth day prior to the general election, which shall include:
(A) The name and address of each of the two candidates;
(B) A statement that each candidate is legally qualified to serve under the provisions of the United States Constitution;
(C) A statement that the candidates are the duly chosen candidates of both the state and the national party, giving the time, place, and manner of the selection.
Question 1) Who is “the appropriate official of those parties”? This is up to them to decide. It should be either a party official or somebody authorized by the party, but beyond that it is up to them to determine who is appropriate.
Question 2) The DNC said that in 2008 there was confusion over who was supposed to do this requirement. Did the attorneys for the Hawaii Democratic Party or the DNC consult you regarding this? I have no records or memory of that. But it’s an internal thing for them to decide.
Question 3) This requires a “sworn application”. Is there an application FORM that is filled out and submitted, or are the Certifications of Nominations considered the application? The Certifications of Nomination are considered the application.
Question 4) Most government application forms have spaces for all the required information to be entered and then a self-subscribing or notarized oath that everything contained therein is true on pain of perjury. If a statement is submitted instead, does it have to include what is normally on a sworn application – that is, all 3 required items and an oath that all 3 are true on pain of perjury? “Sworn” doesn’t mean specifically an oath. It’s used as a general term – like affirmation, oath, swear, verify, etc. If it’s signed it counts as a sworn statement. Follow-up: Elsewhere in the Hawaii election laws it says the sworn statement must be a self-subscribing oath or notarized. Those seem to be the two ways to make a sworn statement. It doesn’t say it’s a sworn statement, it just says it is a self-subscribing oath or needs to be notarized. If a statute doesn’t say that it has to be a self-subscribing oath or a notarized oath then it’s pretty much just a person saying it. When it talks about self-subscribing oath and notarized, it doesn’t define those as the meaning of “sworn”. And what is in those statutes has no bearing on what is in this one. Just because a sworn statement in another statute has to be notarized or self-subscribing, it doesn’t apply to this statute. Follow-up question: So the word “sworn” isn’t used as a legal term there – as, for instance, some of the legal definitions I’ve seen online describing that to swear means to make an oath, either self-subscribing or notarized? You won’t find a legal definition of the only way an oath can be made. And there is other legal terminology used as well. The term “certify” or “certification”, for instance, means that the statement is being claimed as truthful. If somebody says they “certify” we consider that sworn. Follow-up question: Is there anything that would not be accepted? I wouldn’t say that. I can’t think of anything off-hand but it’s a case-by-case thing. Follow-up (later): Is there any place in the Hawaii statutes where it defines “sworn”? No. Summarizing question: So it’s not specifically defined and the interpretation of “sworn” is pretty much just somebody saying something? Pretty much, yeah.
Question 5) The Chief Elections Officer is required to send a letter to the candidate telling them whether or not their name was accepted for placement on the ballot. Does the elections officer consult with you regarding the adequacy of what has been submitted? He/she may or may not, depending on whether there is something questionable. Follow-up: And there’s pretty much nothing that the parties could submit that wouldn’t be considered adequate? Pretty much. Historically, we’ve never had anything that has jumped out at us.
Question 6) What should happen if a party submits documents where either A, B, or C is not contained within a sworn statement? (DIDN’T ASK)
Question 7) The past 3 presidential elections have had this situation and the names were still printed on the ballots. Was there something besides the Certifications of Nomination from the HDP and DNC which fulfilled the requirements of 113(c)(1)? (DIDN’T ASK)