Waters v. Nago ( 2014 )

Electronically Filed
Supreme Court
SCEC-14-0001317
24-DEC-2014
09:30 AM
SCEC-14-0001317
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
THOMAS WATERS a/k/a TOMMY WATERS, Plaintiff,
vs.
SCOTT NAGO, Chief Election Officer; STATE OF HAWAII OFFICE OF
ELECTIONS; and BERNICE K.N. MAU, in her official capacity as the
City Clerk of the City and County of Honolulu, Defendants.
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW, and JUDGMENT
(By: Recktenwald, C.J., Pollack, and Wilson, JJ., Intermediate
Court of Appeals Chief Judge Nakamura, in place of Nakayama, J.,
recused, and Intermediate Court of Appeals Associate Judge Foley,
in place of McKenna, J., recused)
Upon consideration of (1) the first amended complaint
contesting the second special election for councilmember for
District IV (Waikiki-East Honolulu), City and County of Honolulu,
filed by Plaintiff Thomas Waters, a/k/a Tommy Waters (“Waters”),
(2) the answer to the first amended complaint filed by Defendant
Bernice K.N. Mau (“Mau”), in her official capacity as the City
Clerk of the City and County of Honolulu, (3) the motion to
dismiss the first amended complaint or, in the alternative, for
summary judgment filed by Defendants Scott Nago (“Nago”), Chief
Election Officer, and the Office of Elections for the State of
Hawai#i (“Office of Elections”), (4) the answer to the first
amended complaint and the joinder to the motion to dismiss the
first amended complaint or, in the alternative, for summary
judgment filed by Intervenor Trevor R. Ozawa (“Ozawa”), and
(5) the opposition to the motion to dismiss the first amended
complaint or, in the alternative, for summary judgment, filed by
Plaintiff Waters, and in accordance with HRS §§ 11-172 (2009) and
11-174.5(b) (2009), we set forth the following findings of fact
and conclusions of law and enter the following judgment.
FINDINGS OF FACT
The November 4, 2014 Second Special Election
for the District IV City Council Seat
1. On November 4, 2014, in conjunction with the State
of Hawai#i’s general election, the City and County of Honolulu
held its nonpartisan second special election for city
councilmember for District IV.
2. Waters and Ozawa were the nonpartisan candidates
for the District IV councilmember seat.
3. On November 5, 2014, at 1:26 a.m., the Office of
Elections generated a “Final Summary Report” for the elections.
According to Nago and the Office of Elections, the report
reflected the results of the November 4, 2014 election subject to
any audit of the poll books, record books, and the reconciliation
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reports compiled by the county clerks. At that time, the results
of the District IV race were reported as follows:
Trevor Ozawa: 16,371 (44.1%)
Tommy Waters: 16,324 (43.9%)
Blank Votes: 4,451 (12.0%)
Over Votes: 16 (0.0%)
4. On November 18, 2014, at 5:11 p.m., following a
post-election audit and the reconciliation process, the Office of
Elections generated a final “Final Summary Report.” The results
of the District IV race were reported as follows:
Trevor Ozawa: 16,374 (44.0%)
Tommy Waters: 16,333 (43.9%)
Blank Votes: 4,455 (12.0%)
Over Votes: 16 (0.0%)
5. The difference in the two reports was the addition
of 16 ballots to the final tally, which included 4 provisional
ballots that were approved for counting, 10 absentee mail ballots
for which the signatures on the return envelopes had been
confirmed, and 2 federal write-in absentee ballots.
6. The difference in the votes between Waters and
Ozawa was 41 votes.
Post-Election Communications
7. On November 10, 2014, Waters’ counsel, James
Kawashima (“Kawashima”), sent a letter to the Office of Elections
requesting information about the second special election. He
asked the Office of Elections for the margin of error of the
voting system used. He also asked the Office of Elections to
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take the following action: (1) verify and investigate the
possible errors with the overages and underages; (2) investigate
the 4,451 blank votes for accuracy and validity; and (3) review
the 16 overvotes in accordance with operating procedure.
Kawashima asked the Office of Elections to “apply every test or
process available to you in making sure the result was accurate
and valid.”
8. Three days later, on November 13, 2014, Kawashima
sent a follow up letter to the Office of Elections. He informed
the Office of Elections of the upcoming deadline to take legal
action to challenge the election and asked for a status regarding
a response to the November 10, 2014 letter. He also informed the
Office of Elections that he was ready and available to meet and
discuss the issues.
9. On November 14, 2014, Nago sent Kawashima a letter
acknowledging the November 10 and 13, 2014 letters. Nago
informed Kawashima that the Office of Elections was in the
process of completing its post-election processes before it could
finalize the election results and that it would forward a copy of
the final summary report along with the overages and underages
related to the districts/precincts associated with the District
IV contest at the conclusion of the process.
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10. On November 19, 2014, Nago sent Kawashima a final
statewide summary and attached a matrix of the overages and
underages for each District IV district/precinct.
11. The following day, on November 20, 2014, the
Office of Elections sent Kawashima an updated version of the
overages and underages for the District IV districts/precincts.
12. The updated chart reflects an overage total of 11
and an underage total of 39.
The Election Contest
13. On November 24, 2014, Waters timely filed a
complaint contesting the election results for the District IV
city council race. The following day, on November 25, 2014,
Waters filed a first amended complaint.
14. The first amended complaint asserts two counts for
relief:
• Count I - Waters alleges that Nago, the
Office of Elections, and Mau “miscounted 74
ballots cast as being totally blank in
regards to voting in the District 4 election,
when those 74 ballots had actually been
validly cast for either candidate Waters or
candidate Ozawa, with said miscounting being
a cause, within the meaning of HRS, § 11-172,
that could cause a difference in the outcome
of the District 4 election.”
• Count II - Waters alleges that Nago, the
Office of Elections, and Mau mishandled the
overages and underages by intermingling 50
ballots (39 underages and 11 overages) with
valid ballots that had been voted and counted
when they should not have been counted or
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issued and voted and not yet counted when
they were supposed to have been counted.
15. Waters attached a copy of the “Report of the
Election Oversight Committee on the Audit of the 1998 General
Election” (the “1998 Audit”).
16. The 1998 Audit reviewed the electronic voting
system used in the 1998 election. The electronic voting system
used to calculate the votes in the 1998 election was from
Electronic Systems & Software (“ES&S”).
17. In the first amended complaint, Waters asks the
court to order a manual recount of the 4,455 blank votes or, in
the alternative, order a new special election for District IV by
mail-in ballots only. He also asks the court to award him
attorneys’ fees and costs, order the Office of Elections to
answer the questions he posed in previous correspondence, provide
him access to the election results and the instruments used in
tallying the final results, and permit minimal discovery.
18. On December 5, 2014, Mau filed an answer to the
first amended complaint and asks the court to dismiss the first
amended complaint. Mau denies any wrongdoing, improper conduct,
or irregularities with respect to the second special election.
Mau argues that Waters’ reliance on the 1998 Audit is misplaced
because it was an audit of election results of a different
election that used voting machines different from the ones used
in the 2014 election.
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19. On December 5, 2014, Nago and the Office of
Elections moved to dismiss the first amended complaint or, in the
alternative, for summary judgment. They argue that Waters’
conclusion that 74 of the blank ballots are valid is hypothetical
and purely speculative because Waters is relying on an audit of a
different election involving a different voting system. They
also argue that the addition of the 16 ballots that were
submitted to the Office of Elections by Mau were properly part of
the post-election process. They further argue that the
distribution of the overages and underages did not demonstrate
fraud or mistakes by the precinct officials to establish that the
election results were incorrect.
20. Attached to the motion to dismiss or, in the
alternative, for summary judgment, are declarations from Nago and
Rich Geppert (“Geppert”), one of the professional services
managers for Hart Intercivic, Inc. (“Hart Intercivic”), the
vendor of the electronic voting machines used in the 2014
election.
21. The voting system used in the 2014 election has
been used by the Office of Elections since 2008, when it replaced
the ES&S voting system that was first used in the 1998 election
when the Office of Elections implemented an electronic voting
system.
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22. Geppert explains that the Hart Intercivic system
uses three main components to record votes -- (1) eSlate - direct
recording electronic voting unit with disabled access unit to
assist voters with disabilities; (2) eScan - digital ballot
imaging precinct counter in which a voter inserts his or her
ballot to be counted and deposited; and (3) Ballot Now - high
speed scanners that scan absentee ballots for counting. In
calculating absentee ballots, Ballot Now uses commercial full-
sheet scanning technology to record a full digital image of the
voted ballot. After the scanner converts the paper ballot into
an electronic image, Ballot Now analyzes marks at a resolution of
200 dots per inch. The software counts the number of pixels
inside each option box in the digital image. According to
Geppert, the Ballot Now digital scanning system “has been used in
hundreds, if not thousands, of elections and has accurately
processed millions of votes.”
23. In his declaration, Nago explains that the
legislature vested authority in the Chief Election Officer to
adopt a voting system and to define what marks will constitute a
vote for purposes of utilizing the adopted system, which he notes
has been done by administrative rule. Nago cites HRS §§ 16-1,
16-2, 16-41, and 16-42, and HAR §§ 3-172-83 and 3-172-85 to
support his explanation. Nago also states that the law requires
that the system must be subject to inspection, audit, and testing
by qualified observers before and after an election. Nago
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further declares that the voting system used during the 2014
primary and general election was from Hart Intercivic and that it
was inspected and tested by official observers in preparation for
use in the general election during absentee walk, polling place,
and absentee mail voting.
24. Nago states that “[n]o errors in the counting of
votes by the voting system were found for the 2014 general
election.”
25. In his declaration, Nago further explains that
official observers were present at the State Capitol on the
November 4, 2014 election day to observe the counting of ballots,
and on November 18, 2014, to observe the counting of additional
ballots at the conclusion of the post-election review process.
He states that on the night of the general election, the official
observers requested the manual audit team, which audits the
computer generated results to ensure the accuracy and integrity
of the ballot counting program, to supplement its audit with two
of the District IV precincts (D/P 17-03 and 18-03) and that after
conducting the audit, the manual audit team certified that the
computer results of the audited precincts were accurate.
26. Nago describes overages as follows:
An overage is defined as there being more
ballots counted than the poll book indicates. HRS
§ 11-153. Specifically, we determine overages by
counting the signatures in the poll book associated
with an issued ballot and comparing it to the amount
of ballots counted by the voting machines at the
polling place. For purposes of absentee mail, if
there are more ballots counted than the number of
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returned ballot envelopes that were received and whose
signatures had been matched against the signatures on
file, then we consider this to be an overage. In
regard to absentee walk sites, if there are more
ballots counted than the amount of verified absentee
ballot applications completed by the voters at the
site, then the difference is considered an overage.
27. Nago describes underages as follows:
An underage is defined as there being less
ballots counted as cast than the poll book indicates.
HRS § 11-153. Likewise, for absentee mail and
absentee walk there are less ballots counted than the
amount of validated absentee ballot applications at an
absentee walk site or the amount of returned ballot
envelopes that were received and whose signatures had
been matched against the signatures on file.
28. Nago also provides examples of overages and
underages. For overages, Nago provides the following example:
26. For example, a poll book could have the
names of 200 voters, with 100 who have a signature by
their name in conjunction with the issuance of their
ballot, and 101 ballots that have been counted by the
voting machines. In this situation, the overage can
result from the voter not having signed the poll book.
In other words, 101 voters asked for and received a
ballot, while only 100 of them signed the poll book,
and then all 101 voters had their ballot counted by
the voting machine. The end result is an overage of 1
ballot, with all ballots having been cast by qualified
voters.
For underages, Nago indicates that “[a]n underage may occur when
a voter is issued a ballot and subsequently decides to walk away
without voting, due to a long line, or otherwise not wishing to
wait to cast his or her ballot.”
29. Nago states that the distribution of overages and
underages among the seventeen district/precincts for District IV
“shows no pattern of fraud or mistake from which it could be
concluded that the correct result of the election had not been
ascertained.”
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30. Nago declares that he is “not aware of any issues
or problems with the accuracy of the vote counting system, the
handling of ballots, or any other matters that would impact the
integrity of the November 4, 2014 general election results of
Council District IV.”
31. Nago states that even if a recount was ordered,
the Office of Elections is required to follow the same set of
rules in counting the ballots as used on the general election day
and under no circumstances is a different set of rules or a
different standard used after an election to count ballots.
32. On December 12, 2014, Waters filed an opposition
to the motion to dismiss or, in the alternative, for summary
judgment. He clarifies that, at this time, all he is seeking is
for the court to order the Office of Elections to answer the
questions he raised in a series of correspondence about the
election process, which he alleges the Office of Elections
ignored, in order for him to determine whether sufficient error
exists to warrant further review or a new election.
33. Waters contends that the Office of Elections has
ignored his efforts to get information, that there is a question
as to whether some of the blank ballots were correctly marked to
count as a valid vote, and that if procedures were properly
followed, there would not be any discrepancies between the poll
book counts and the actual ballots cast at a precinct to create
an overage or underage.
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34. Waters explains that his counsel attempted to
resolve this matter without going further and scheduled a meeting
to obtain the sought-after information. The meeting was
scheduled for December 8, 2014, but was later cancelled. Shortly
thereafter, Waters received a copy of the motion to dismiss or,
in the alternative, motion for summary judgment.
35. Waters questions Nago and the Office of Elections’
failure to attest to the accuracy and reliability of the eSlate
and eScan systems used on election day.
36. Waters submits e-mail correspondence between
Kawashima and Valri Kunimoto (“Kunimoto”), counsel for Nago and
the Office of Elections, which was dated after Nago and the
Office of Elections filed the motion to dismiss or, in the
alternative, for summary judgment in this election contest.
37. In the e-mail, Kawashima informs Kunimoto that he
reviewed Nago’s declaration and asks Kunimoto if Nago would sign
a declaration with the following statements:
• that the voting system is 100% accurate;
• that nothing more can be done to assure that
there may be errors in the system that may
make a 41 vote difference in the final tally;
• that if the vote had resulted in a one vote
difference, nothing more than was done would
have been done to confirm the accuracy of the
results; and
• that there is no human decision-making that
is part of the process as it may relate to
overages, underages, blank ballots, and
spoiled ballots.
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38. Kunimoto responded that “Mr. Nago stands on his
declaration which has already been submitted to the Court and
will not submit a supplemental declaration with the statements
you proposed. Thank you for your consideration.”
39. On December 15, 2014, Ozawa, who was permitted to
intervene on December 10, 2014, filed an answer to the first
amended complaint and also filed a joinder to the motion to
dismiss or, in the alternative, for summary judgment. Ozawa
argues that Waters’ reliance on the 1998 Audit is misplaced and
has no bearing on the 2014 election. He also argues that Waters
fails to demonstrate that the overages and underages would cause
a difference in the election results and that, ordering a recount
or new election based on overages and underages “would open the
floodgates for future baseless election challenges because it
would require [the Office of Elections] to recount every election
where overages or underages occur, particularly in cases where
those numbers come close to the margin of win.”
CONCLUSIONS OF LAW
1. An election contest is instituted by filing a
complaint in the supreme court “set[ting] forth any cause or
causes, such as but not limited to, provable fraud, overages, or
underages, that could cause a difference in the election
results.” HRS § 11-172.
2. A complaint challenging the results of a special
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general election pursuant to HRS § 11-172 fails to state a claim
unless the plaintiff demonstrates errors, mistakes or
irregularities that would change the outcome of the election.
Tataii v. Cronin, 119 Hawai#i 337, 339, 198 P.3d 124, 126 (2008);
Akaka v. Yoshina, 84 Hawai#i 383, 387, 935 P.2d 98, 102 (1997);
Funakoshi v. King, 65 Haw. 312, 317, 651 P.2d 912, 915 (1982);
Elkins v. Ariyoshi, 56 Haw. 47, 48, 527 P.2d 236, 237 (1974).
3. A plaintiff challenging a special general election
must show that he or she has actual information of mistakes or
errors sufficient to change the election result. Tataii, 119
Hawai#i at 339, 198 P.3d at 126; Akaka, 84 Hawai#i at 388, 935
P.2d at 103; Funakoshi, 65 Haw. at 316-317, 651 P.2d at 915.
4. Sufficient evidence requires something more than a
“mere fishing expedition undertaken in the hope that in an
examination of all the ballots enough might be discovered to
change the result.” Brown v. Iaukea, 18 Haw. 131, 133 (1906).
5. “In the absence of facts showing that
irregularities 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.”
Tataii, 119 Hawai#i at 339-40, 198 P.3d at 126-27.
6. “An election contest cannot be based upon mere
belief or indefinite information.” Id.
7. When reviewing a motion to dismiss a complaint for
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failure to state a claim upon which relief can be granted, the
court must accept the plaintiff’s allegations as true and view
them in the light most favorable to him or her; dismissal is
proper only if it appears beyond doubt that the plaintiff can
prove no set of facts in support of his or her claim that would
entitle him or her to relief. AFL Hotel & Restaurant Workers
Health & Welfare Trust Fund v. Bosque, 110 Hawai#i 318, 321, 132
P.3d 1229, 1232 (2006).
8. Conclusory allegations and unwarranted inferences
are not sufficient to defeat a motion to dismiss. Kealoha v.
Machado, 131 Hawai#i 62, 74, 315 P.3d 213, 225 (2013).
9. The court’s consideration of matters outside the
pleadings converts a motion to dismiss into one for summary
judgment. Buscher v. Boning, 114 Hawai#i 202, 212, 159 P.3d 814,
824 (2007).
10. Summary judgment is appropriate where there is no
genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law. Silva v. City and
County of Honolulu, 115 Hawai#i 1, 6, 165 P.2d 247, 252 (2007).
11. In Count I, Waters alleges that 74 blank votes are
likely valid votes and may cause a difference in the vote
distribution for his race. In reaching this conclusion, Waters
relies upon the statements contained in the 1998 Audit and
concludes that 0.2% of all blank votes are actually valid votes.
The 1998 election, however, involved a different voting system
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with a different vendor. Consequently, the data contained in the
1998 Audit provides no actual information of mistakes or errors
with regard to the November 4, 2014 second special election for
the city council race that would change the election result.
12. In Count II, Waters alleges that the overages and
underages were “mishandled.” However, Nago indicates that the
existence of overages and underages occurs in the ordinary course
of an election. After reviewing the distribution of overages and
underages across the District IV precincts, and considering that
a manual audit of two of the District IV precincts confirmed the
accuracy of the computer results on the night of the general
election, Nago and the Office of Elections conclude that “there
is nothing in the distribution of the overages or underages that
reflects any mistakes or pattern of fraud” to demonstrate
irregularities in the election. Waters has not presented
specific evidence or actual information of mistakes or errors to
dispute this conclusion such that it would change the election
result.
13. In his opposition to the motion to dismiss or, in
the alternative, for summary judgment, Waters indicates that his
basis for filing the election contest was to “satisfy himself”
that there was no fraud, mistake, or irregularities. In
accordance with seeking to obtain information to “satisfy
himself” that the election was valid and accurate, Waters
requests the court’s assistance to order the Office of Elections
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to cooperate with him in order to answer reasonable questions and
to view non-confidential elements of the process.
14. Waters, however, does not explain how the sought-
after documents or information demonstrates fraud,
irregularities, or mistakes sufficient to change the election
results, instead premising his argument on the absence of
information that he was provided.
15. Therefore, Waters has not shown in his pleadings
submitted to this court actual information of errors, mistakes,
or irregularities sufficient to change the outcome of the
election.
JUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, judgment is entered in favor of Nago, the
Office of Elections, and Mau and against Waters. Ozawa received
the majority of the votes cast in the November 4, 2014 second
special election and has been elected councilmember for District
IV, City and County of Honolulu.
A copy of this judgment shall be served on Nago and Mau
who shall act in accordance with the requirements set forth in
HRS § 11-174.5(b) (“If the court shall decide which candidate or
candidates have been elected, a copy of that judgment shall be
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served on the chief election officer or county clerk, who shall
sign and deliver to the candidate or candidates certificates of
election, and the same shall be conclusive of the right of the
candidate or candidates to the offices.”).
DATED: Honolulu, Hawai#i, December 24, 2014.
/s/ Mark E. Recktenwald
/s/ Richard W. Pollack
/s/ Michael D. Wilson
/s/ Craig H. Nakamura
/s/ Daniel R. Foley
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