A special election to fill the remainder of U.S. Rep. Neil Abercrombie's term in Congress could be held in May, provided that funding becomes available and the state obtains new voting machines.

Abercrombie, D-Hawai'i, said yesterday that he will resign on Feb. 28 to concentrate on his campaign in the Democratic primary for governor. His two-year term in Congress expires in January 2011.

Abercrombie, who announced his intention to resign from his urban Honolulu congressional seat last month, said he was privileged to be part of the state's congressional delegation.

"I take all of these experiences and friendships with me into the future, as part of a proven partnership involving the state government, Congress and now the White House, to change the direction and leadership of our state," he said in a statement.

MAIL VOTE PREFERRED

Former U.S. Rep. Ed Case, state Senate President Colleen Hanabusa and Honolulu City Councilman Charles Djou have said they will run in the special election and in the primary and general elections to replace Abercrombie.

Under state law, a special election can be held no sooner than 60 days after Abercrombie resigns.

Scott Nago, the interim chief elections officer, told the state Senate Ways and Means Committee at a briefing yesterday that he would try to hold a special election on May 1.

Nago said his preference is for an all-mail special election with some walk-in sites with voting machines accessible for people with disabilities. He said an all-mail special election would cost about $925,000, compared to a traditional election with polling places, which would cost about $1.2 million.

Nago said the state Office of Elections will ask the U.S. Election Assistance Commission whether federal election money can be used to pay for the special election.

The federal Help America Vote Act money, provided to states after voting problems in the 2000 presidential election, was intended to improve election administration.

'I BELIEVE WE CAN'

If the federal election money is not available, Nago will likely ask the Lingle administration for state money to pay for the special election, possibly through an emergency appropriation that would go before the state Legislature.

Kevin Cronin, who resigned as chief elections officer last month, had warned that budget cuts to the Office of Elections could mean that a special election would not be held until the September primary.

Nago said yesterday that it is his intention to hold a special election as soon as possible.

"I believe we can," he said.

The state Elections Commission is also expected to meet soon and have a recommendation on when the special election should be held and how it should be conducted.

In addition to money to finance a special election, the Office of Elections also has to acquire new voting machines. The office is finalizing new administrative rules — which were required after a legal challenge to the voting machines used in the 2008 elections — and hopes to open the bid process again soon.

State Attorney General Mark Bennett told senators yesterday that the state has a federal obligation to hold a special election so that Hawai'i will have full representation in Congress.

Although state law does not specify when a special election must be held — it says only that it can be no sooner than 60 days after a proclamation calling for a special election is issued — Bennett said there would likely be a legal challenge if it is delayed until the September primary.

Bennett cited a 2004 federal appeals court ruling that found that the U.S. Constitution mandates that special elections be held to fill vacancies in the House, even when only a few months remain in a term. The ruling came after Ohio's governor refused to hold a special election after a congressman was expelled, citing cost, complexities due to redistricting, and the short time the replacement would likely serve in Congress.

"If someone asked me what the test ought to be, I would say: I think the courts would say that you have a reasonable amount of time, you can take into account practicalities, but you don't have the opportunity as a state to basically say we're going to let a long period of time go by without filling this because of monetary reasons," Bennett said.

"I don't think a federal court would allow that. I don't think a federal court would likely allow an extra five or six months of a vacancy because of money reasons."

A special election to fill Abercrombie's term would be winner-take-all. The winner would likely be favored to permanently replace Abercrombie, and — if also elected as the replacement — would have a seniority advantage over other newly elected House members.

Case, Hanabusa and Djou have had to accelerate their campaigns because of Abercrombie's resignation.

Hanabusa, D-21st (Nānākuli, Mākaha), said yesterday that she does not plan to step down as Senate president even if the special election is called for early May, about the time the next session of the Legislature is scheduled to end.

State Sen. Donna Mercado Kim, D-14th (Hālawa, Moanalua, Kamehameha Heights), the chairwoman of the Senate Ways and Means Committee, said after the briefing on the May timetable: "I think that's ambitious. It seems like they haven't done any legwork up until now, other than determining mail or walk-in, which is something that's obvious."

Kim said she is concerned, given all the challenges, about the ability of the Office of Elections to conduct a special election and prepare for the September primary and November general election.