Ahia v. Lee ( 2023 )

Electronically Filed
Supreme Court
SCEC-XX-XXXXXXX
20-JAN-2023
02:54 PM
Dkt. 81 FFCL
SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________
J. NOELANI AHIA, SHAYNE NAMEAAEA HOSHINO, KACI-CHEREE DIZON,
SHAWN-CHRISTIAN DIZON, CODY NEMET, FAY MCFARLANE, NORRIS
MCFARLANE, JADE CHIHARA, KEVIN BLOCK, OLIVIA NGUYEN, TRINETTE
FURTADO, KEISA LIU, CAROL LEE KAMEKONA, EMILIE VINCENT, LAURA
JOHNSON, HARRY JOHNSON, SARA TEKULA, RENA BLUMBERG, MAYA
MARQUEZ, JASON MEDINA, STACEY MONIZ, CHRISTY KAHOOHANOHANO,
REAGAN KAHOOHANOHANO, ZION EBBERSON, RAUL GOODNESS, TERRILL
JAMES KANE ALII WILLIAMS, LORI SIERRA KNIGHT, GRETCHEN
LEISENRING, JONATH PADILLA, ALENA ORNELLAS, and
SANDRA IMBERI IOAKIMI, Plaintiffs,
vs.
ALICE L. LEE, KATHY L. KAOHU, County Clerk, County of Maui, and
SCOTT T. NAGO, Chief Elections Office, State of Hawaiʻi,
Defendants.
________________________________________________________________
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
(By: Recktenwald, C.J., Nakayama, McKenna, and Eddins, JJ.,
and Wilson, J., dissenting)
Upon consideration of the “Complaint for Election Contest”
filed by the Plaintiffs on November 25, 2022 (complaint), the
parties’ submissions, and oral argument, we conclude that the
Plaintiffs failed to establish a viable election challenge that
would “cause a difference in the election results.” See Hawaiʻi
Revised Statutes (HRS) § 11-172 (Supp. 2021). In accordance
with HRS § 11-174.5 (Supp. 2021) we enter the following findings
of fact, conclusions of law and judgment.
FINDINGS OF FACT
1. As of 2020 the elections in the State of Hawaiʻi have
been conducted primarily by mail, but in-person voting is still
available at voter service centers. See HRS §§ 11-101 (Supp.
2021), 11-109 (Supp. 2021).
2. On November 8, 2022, the County of Maui held a
nonpartisan general election for the seat of the Wailuku-Waiheʻe-
Waikapū councilmember (subject election contest). The two
candidates were Defendant Alice L. Lee and Plaintiff Noelani
Ahia (also known as J. Noelani Ahia).
3. For the subject election contest, Defendant Scott T.
Nago, Chief Election Officer for the Office of Elections, State
of Hawaiʻi (Chief Election Officer) was responsible for the
printing and counting of ballots. See HRS § 11-110(b)(1)(B)
(Supp. 2021). Defendant Kathy L. Kaohu, in her official
capacity as the County Clerk of Maui County (Clerk) was
responsible for voter registration, mailing ballots, voter
service centers, receipt of ballots, and reviewing the return
identification envelope received from the voter to confirm it
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was signed. HRS § 11-110(b)(1)(A); see HRS §§ 11-106, 11-108
(Supp. 2021).
4. HRS § 11-102 (Supp. 2021) sets forth the procedures
for conducting elections by mail. Under this process, on or
about Friday, October 21, 2022, the Clerk began mailing out the
ballot packages to the registered voters. See HRS § 11-102(b).
The ballot package to a voter includes: (1) An official ballot;
(2) A return identification envelope with postage prepaid; (3) A
secrecy envelope or secrecy sleeve; and (4) Instructions. HRS
§ 11-102(a).
5. The Clerk from Saturday, October 22, 2022 until
Wednesday, November 9, 2022 at approximately 5:30 a.m. (Dkt.
49:4, ¶ 16) reviewed all of the return identification envelopes
submitted by the voters, and the number of return identification
envelopes reviewed each day follows:
DATE NUMBER REVIEWED
Saturday, October 22, 2022: 6
Sunday, October 23, 2022: 0
Monday, October 24, 2022: 1,699
Tuesday, October 25, 2022: 2,738
Wednesday, October 26, 2022: 2,614
Thursday, October 27, 2022: 2,678
Friday, October 28, 2022: 1,786
Saturday, October 29, 2022: 2,412
Sunday, October 30, 2022: 0
Monday, October 31, 2022: 590
Tuesday, November 1, 2022: 2,940
Wednesday, November 2, 2022: 4,698
Thursday, November 3, 2022: 3,438
Friday, November 4, 2022: 2,324
Saturday, November 5, 2022: 2,453
Sunday, November 6, 2022: 0
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Monday, November 7, 2022: 5,093
Tuesday, November 8, 2022: 15,516
See also HRS § 11-108(a) (establishing the earliest date ballot
processing for tabulation may begin). With respect to the
15,516 return identification envelopes that were reviewed by the
Clerk on Tuesday, November 8, 2022, some of these were reviewed
into the early morning on November 9, 2022. The Clerk completed
the review of return identification envelopes by approximately
5:30 a.m. on Wednesday, November 9, 2022. See HRS § 11-108(b).
6. From all of the return identification envelopes
received from voters, the Clerk determined 865 were deficient
based on one of the grounds set forth in HRS § 11-106, including
an unsigned affirmation, an affirmation signature that did not
match a reference signature image, or another condition such as
a tampered ballot. For all 865 of these voters, the Clerk
mailed a notice to each voter that informed the voter of the
deficiency and provided information on how to cure the
deficiency (“notice-to-cure”). See HRS §§ 11-106, 11-108.
7. The Clerk mailed the notice-to-cure to the 865 voters
with deficient return identification envelopes as follows:
October 26, 2022: 64 notices
October 27, 2022: 67 notices
October 28, 2022: 32 notices
October 31, 2022: 60 notices
November 1, 2022: 10 notices
November 3, 2022: 149 notices
November 4, 2022: 60 notices
November 5, 2022: 37 notices
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November 7, 2022: 55 notices
November 8, 2022: 89 notices
November 10, 2022: 27 notices
November 12, 2022: 215 notices
Total: 865
8. Ultimately, of these 865 voters with deficient return
identification envelopes 159 of the voters timely responded to
the notice-to-cure and corrected the deficiency. At the end of
the review period on November 16, 2022 there remained 706
uncured and deficient return identification envelopes. For
these 706 ballots, the Clerk was not able to establish their
validity and, thus, none of them were counted. See HRS § 11-
108(c).
9. The crux of Plaintiffs’ complaint was the Clerk’s
decision to delay mailing the notice-to-cure to some voters on
Saturday, November 12, 2022. At the time the complaint was
filed it appears the Plaintiffs did not know exactly how many of
the notice-to-cure were mailed on November 12, 2022. Based on
the evidence later submitted in this case, it is undisputed that
only 215 voters were mailed the notice-to-cure by the Clerk on
November 12, 2022. For all 215 of these voters, the Clerk
received the ballots by no later than Tuesday, November 8, 2022.
Yet the Clerk waited four calendar days, until Saturday,
November 12, 2022, to mail the notice-to-cure.
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10. Pursuant to HRS § 11-106, these 215 voters had until
Wednesday, November 16, 2022 to correct the deficiency with the
ballot or the vote would not be counted. See HRS § 11-108(c)
11. The Clerk gave at least three reasons to explain why
the Clerk had to delay mailing the notice-to-cure to these 215
voters by four calendar days. First, on the election day
(November 8, 2022) the Clerk’s election officials were providing
assistance to voters at the voter service center. Second, on
November 9, 2022 and November 10, 2022 the Clerk’s election
officials were “dismantling” the voter service center to return
the facility to another department of the county, and were also
returning rented equipment, dismantling cameras and storing
election equipment. Third, on November 11, 2022 the post office
was closed because it was a federal holiday. Thus, it was
impossible to mail the 215 notices on November 11, 2022.
12. The record establishes that at least some of these 215
voters received the notice-to-cure in the mail on Tuesday,
November 15, 2022. Thus, one-day before the deadline to
validate the ballot. See HRS §§ 11-106, 11-108(c).
13. In addition to this delayed-mailing issue, the
Plaintiffs also challenge the decision by the Clerk to withhold
the names of the voters with deficient return identification
envelopes from Plaintiff Ahia. Specifically, on Monday,
November 14, 2022, Plaintiff Ahia made a verbal and written
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request to the Clerk for “a copy of the list of voters whose
ballots had not been counted because their return identification
envelopes had been deemed deficient.” Dkt. 2 at 2, ¶ 4. The
Clerk denied Plaintiff Ahia’s request “on the grounds that the
information was not public but between the voters on the list
and her office.” Id., ¶ 7.
14. On November 22, 2022, the final result for the office
of councilmember for Wailuku-Waiheʻe-Waikapū was reported by the
Office of Elections as follows: Defendant Lee had received
22,733 votes; and, Plaintiff Ahia had received 22,220 votes.
Thus, the vote differential is 513 votes in favor of Defendant
Lee (election result).
15. On November 25, 2022, Plaintiffs filed the election
contest with this court and thereby challenged the election
result. The claims stated in the complaint are addressed below.
The Plaintiffs include the candidate, Plaintiff Ahia, as well as
thirty voters who reside within the subject election district.
16. Subsequently, the Defendants moved to dismiss the
complaint, or in the alternative for summary judgment.
Plaintiffs have also moved for summary judgment. In accordance
with HRS § 11-174.5, the parties also submitted evidence for the
court to review, including declarations and records.
17. On January 19, 2023, this court heard oral argument.
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CONCLUSIONS OF LAW
1. To prevail on an election complaint the plaintiff must
establish a mistake by an election official that “could cause a
difference in the election results.” HRS § 11-172. “We read
the words ‘difference in the election results’” in HRS § 11-172
“to mean a difference sufficient to overturn” the final election
results reported by the Chief Election Officer. See Elkins v.
Ariyoshi, 56 Haw. 47, 49, 527 P.2d 236, 237 (1974). But where
the specific irregularities complained of do not “exceed the
reported margin between the candidates, the complaint is legally
insufficient because, even if its truth were assumed, the result
of the election would not be affected.” Akaka v. Yoshina, 84
Hawaiʻi 383, 388, 935 P.2d 98, 103 (1997).
2. At Count 1 the Plaintiffs allege it was an error or
mistake by the Clerk to wait until Saturday, November 12, 2022
to mail notice to voters of “alleged deficiencies in their
return identification envelopes and instructions on how to cure
them.” Dkt. 1 at 6, ¶ 29. 1 On this record, it is undisputed
that 215 notice-to-cure were mailed on November 12, 2022.
3. Under HRS § 11-108(c) “[t]he clerk shall make
reasonable efforts to determine the validity of ballots within
seven days following an election day.” HRS § 11-108(c).
1 The Plaintiffs’ complaint at Count 1 is not barred by HRS § 11-
106 because the claim goes to the reasonableness of the Clerk’s actions as
set forth in HRS § 11-108.
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4. As it relates only to the 215 voters who were mailed
the notice-to-cure on November 12, 2022, we conclude the Clerk
did not make reasonable efforts to determine the validity of
these ballots. See HRS § 11-108(c). It was a mistake for the
Clerk to prioritize the breakdown of the voter service center to
return the facility to another department of the county and the
related activities of returning rented equipment or storing
election equipment over providing the notice-to-cure to these
215 voters. Id.
5. We are not persuaded by the Clerk that it was
reasonable to prioritize this other work over contacting voters
with deficient return identification envelopes. As this court
has stated, “The right to vote is perhaps the most basic and
fundamental of all the rights guaranteed by our democratic form
of government.” Akizaki v. Fong, 51 Haw. 354, 356, 461 P.2d
221, 222–23 (1969). Accordingly, the Clerk should have
prioritized completing the specific activities required to
protect the voters’ fundamental right to vote.
6. Thus, we find that it was an error to delay mailing
the 215 notice-to-cure to voters by four calendar days to
November 12, 2022. The notice-to-cure should have been mailed
sooner. 2
2
The Clerk also waited until November 14, 2022 to begin calling
the voters with deficient return identification envelopes. Yet the record is
silent as to why the Clerk waited to call these voters when the vast majority
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7. Based on the record, the court holds that the mistake
by the Clerk to wait until November 12, 2022 to mail the notice-
to-cure to the 215 voters would not change the outcome of the
election. See HRS §§ 11-172, 11-174.5. This is because the
reported vote margin between the candidates is 513 votes in
favor of Defendant Lee. Accordingly, as to Count 1, the court
rules in favor of Defendants and against Plaintiffs.
8. At Count 2, Plaintiffs allege the Clerk failed to
correctly follow Hawaiʻi Administrative Rule (HAR) § 3-177-652
during the review of the return identification envelopes.
9. In an election contest the burden is on the petitioner
to establish a mistake that would change the result. See Akaka,
84 Hawaiʻi 383, 935 P.2d 98. On this record, the Plaintiffs
failed to carry this burden.
10. Here, the record establishes that of the voters with
return identification envelopes that the Clerk determined were
deficient under HAR §§ 3-177-651 and 3-177-652, only 215 of
these voters were mailed the notice-to-cure on November 12,
2022. All of the remaining 491 voters were provided with
reasonable notice and the opportunity to correct the deficiency
on the return identification envelope before the November 16,
2022 deadline. See HRS §§ 11-106, 11-108(c).
of the deficient return identification envelopes would have been identified
before the November 8, 2022 election.
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11. Based on the record, the court holds that any
purported error by the Clerk in the review of the return
identification envelopes would apply to, at most, the 215 voters
who were not provided with a reasonable period of time to cure
the deficiency. HRS §§ 11-106, 11-108(c). The reported vote
margin between the candidates is 513 votes in favor of Defendant
Lee. Thus, Plaintiffs at Count 2 failed to establish a mistake
that would change the outcome of the election. See HRS §§ 11-
172, 11-174.5. Accordingly, as to Count 2, the court rules in
favor of Defendants and against Plaintiffs.
12. At Count 3, Plaintiffs assert it was an error for the
Clerk to withhold the names of the voters with return
identification envelopes that had been deemed deficient. We
disagree.
13. The court finds the Clerk did not commit an election
mistake on November 14, 2022 in refusing to release the names of
the voters with deficient return identification envelopes to
Plaintiff Ahia.
14. The specific information in question is the
information on whether-a-person-voted as identified from a
return identification envelope submitted by the voter. We find
this information is “voted materials” under HRS § 11-97(b)
(2012) and it was not an error for the Clerk to withhold this
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confidential information from Plaintiff Ahia on November 14,
2022. 3
15. In support of Count 3 the Plaintiffs cited to Coray v.
Ariyoshi, 54 Haw. 254, 506 P.2d 13 (1973). But the holding in
Coray is distinguishable from this case. Coray did not address
whether the election official (i.e., the government) was
obligated to provide the poll watchers with the name of the
persons who voted. 54 Haw. at 262, 506 P.2d at 17. To the
contrary, in Coray it was the poll watchers who witnessed the
election process and gathered this information for their
political party. Id. The poll watchers were not given this
information (i.e., as to who voted) by the government. Id.; see
HRS § 11-77 (Supp. 2019).
16. In sum, the Clerk was correct to not immediately
disclose the confidential information. And, a party seeking to
compel the disclosure of the confidential voted materials must
apply for an order from the court. See HRS § 11-97(b). See
e.g., Haw. Const. art. I, § 6, art. II, § 4. Accordingly, the
3
In this case, the Chief Election Officer explained that the term
“voter status” refers to whether a voter is an “active voter” in terms of
their voter registration record being in proper order to be able to vote.
Dkt. 67:6, ¶ 5; see HRS § 11-97(a). In contrast, and as further explained by
the Chief Election Officer, the term “voter status” does not include
information on whether a person actually voted. See Dkt. 67:6, ¶ 7. See,
e.g., HRS § 11-2(a), (e) (2012) (“The chief election officer shall supervise
all state elections” and “shall adopt rules governing elections[.]”).
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court rules in favor of Defendants and against Plaintiffs on
Count 3.
17. At Count 4, Plaintiffs claim the lack of
administrative rules or unlawful rule making is a type of
election error and, as a result, “a correct outcome” of the
election contest “cannot be ascertained.” Dkt. 1:8-9. We
disagree.
18. The court finds that the Chief Election Officer has
promulgated rules. See HAR § 3-177-650, et seq. Plaintiffs’
claim as to Count 4 is without merit and is not supported by any
evidence.
19. Accordingly, the court holds, as a matter of law,
that Plaintiffs’ Count 4 fails to assert a viable cause to
challenge the election contest under HRS §§ 11-172 and 11-174.5.
The court rules in favor of Defendants and against Plaintiffs at
Count 4.
20. Plaintiffs’ claims at Count 5 and Count 6 are based on
the Clerk’s decision to delay by four-calendar days from
November 8, 2022 until November 12, 2022 the mailing of the
notice-to-cure to the 215 voters with return identification
envelopes that the Clerk identified as deficient.
21. Here, the indisputable evidence is only 215 ballots
were subject to the alleged unequal treatment (Count 5) or were
not provided due process (Count 6). The final result as
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reported by the Chief Election Officer is Defendant Lee with
22,733 votes and Plaintiff Ahia with 22,220, representing a vote
differential of 513 in favor of Defendant Lee. Based on the
record, the court holds that any purported mistake by the Clerk
as alleged at Count 5 and Count 6 would not change the outcome
of the election. See HRS §§ 11-172, 11-174.5. Accordingly, as
to Count 5 and Count 6, the court rules in favor of Defendants
and against Plaintiffs.
22. The court issues this decision based on the evidence
submitted by the parties and the record before the court. See
HRS § 11-174.5(b) (providing “the court shall cause the evidence
to be reduced to writing and shall give judgment, stating all
findings of fact and of law.”). Accordingly, the motions
pending before the court are denied as moot.
JUDGMENT
It is hereby ordered in accordance with HRS § 11-174.5 as
follows:
We find that Defendant Alice L. Lee received a majority of
the votes cast and has been elected to the office of
councilmember for the Wailuku-Waiheʻe-Waikapū seat on the Maui
County Council.
The court enters judgment in favor of Defendants and
against Plaintiffs as to all claims stated in the complaint.
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A copy of this judgment shall be served on the Chief
Election Officer, who shall sign and deliver to Defendant Alice
L. Lee the certificate of election which shall be conclusive of
the right of Defendant Alice L. Lee to the office of
councilmember for the Wailuku-Waiheʻe-Waikapū seat on the Maui
County Council.
DATED: Honolulu, Hawaiʻi, January 20, 2023.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Todd W. Eddins
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