Two members of the Hawaiʻi Elections Commission on Friday asked the state’s highest court to force them to get back to business after being unable to meet for four months.

After more than an hour of oral arguments at Aliʻiōlani Hale, the Hawaiʻi Supreme Court seemed poised to do exactly that.

All five justices appeared dismissive of arguments from Aaron Schulaner, the general counsel for the Hawaiʻi Office of Elections, on why the commission could not resume work. The elections office, effectively the staff for the commission, contends that the appointed panel would either need to pick a chair or assemble a majority of commissioners to organize a public meeting.

The last chair finished his term June 30, however, and the deadline to pick a new one has passed. The remaining eight members, meanwhile, appear politically divided.

As Associate Justice Todd Eddins described it, that put the elections office and the elections commission in an almost Catch-22 situation: The commission lacks a chair because it is deadlocked, and even if it did meet, it might not be able to agree on a new chair.

But, because it is divided, the commission also cannot muster a majority to ask Nago and his staff to help facilitate a meeting. Schulaner argued that five members are needed to accomplish that — unless the high court decides to intervene.

In their lawsuit, commissioners Ralph Cushnie and Tamara McKay claim that the elections office has been blocking the commission from meeting. Schulaner repeatedly disputed that claim, saying that only the commission itself could order itself into action, and not the office, as it falls under the commission’s authority.

Schulaner also said that office, run by Chief Election Officer Scott Nago, only serves in an administrative capacity.

A core dispute centers on how the elections office and the commission chair actually communicate with other commissioners, who are unpaid volunteers. It’s via a list of email addresses for each of the eight commissioners, but they are private, not government-issued, and the contact list is controlled by the support staff of the elections office, not the commission. Cushnie has been unable to obtain those email addresses.

So even if Cushnie wanted to schedule a meeting with the other commissioners, he would have no way of inviting them.

Cushnie told the court that it should only take one commissioner to ask the elections office to set up a meeting. But he and McKay said that Nago’s office and the deputy attorney general that advises them, Jordan Ching, have repeatedly rejected that request. Ching was not at Friday’s hearing.

Eddins asked Cushnie whether it was possible for him and McKay to find three other commissioners to join their cause. After all, there are now new members on the commission, including McKay.

“I don’t know, but it may be,” Cushnie replied. “And that’s one of my questions. What happens if five members don’t ask for a meeting? Will we never meet again?”

The notion that the elections commission would never meet again, let alone in the midst of an election year, appeared unacceptable to the justices.

Acting Chief Justice Sabrina McKenna expressed bewilderment that a meeting could not be arranged. She speculated that the commissioners may have a backlog of complaints that they must address as part of their duties — something that McKay later confirmed.

“Like I said before, ‘Why are we here? Why can’t this be done by rational people that are trying to serve the public?”

Acting Chief Justice Sabrina McKenna

McKenna also noted that the commission would have to evaluate Nago’s job performance in the two months following the Nov. 3 general election.

“Like I said before, ‘Why are we here? Why can’t this be done by rational people that are trying to serve the public? Why isn’t something being done?’ I don’t understand why we’re here, candidly,” she said.

Schulaner’s response: “Because five members have not indicated they want to have a meeting.”

He added, “Even if they didn’t want to attend, you’re having a meeting, and then they could quickly say, ‘This is not a productive meeting. We’re done.’ They lose quorum, and the meeting’s over.”

Eddins also brought up the role of the chief justice in the case. Does the “CJ,” as the position is known, have the authority to appoint a ninth member to the commission? And does the chief justice have any role in appointing a chair? (Chief Justice Vladimir Devens recused himself from the case.)

Schulaner said it is a matter of interpretation of the statute if a commission vacancy is not filled with 15 days.

“That’s a matter for the elections commission,” Schulaner said of filling the ninth seat, “and we’re just stating that there are disagreements as to how do they fill it, and if they were to decide that as part of an agenda, that’d be board business.”

McKay told the court that she and Cushnie are not trying to “control” the commission, as critics have argued, including some of the commissioners appointed by Democratic elected officials. Indeed, McKay and Cushnie — who were appointed by Republicans — each applied to be chair in June.

Rather, McKay said, she and Cushnie are just trying to do their jobs.

“We need to be responsible. We are here for the people,” she said. “We are here to make sure that we are running fair and transparent elections, and the responsibility of the commission is great, and it serves purpose. Otherwise, the Legislature would not have created the commission.”