Waters v. Nago ( 2019 )

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Electronically Filed
Supreme Court
SCEC-XX-XXXXXXX
25-JAN-2019
03:52 PM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
SCEC-XX-XXXXXXX
THOMAS WATERS a/k/a TOMMY WATERS, Plaintiff,
vs.
SCOTT NAGO, Chief Election Officer; STATE OF HAWAIʻI OFFICE OF
ELECTIONS; and GLEN TAKAHASHI, in his official capacity as the
City Clerk of the City and County of Honolulu, Defendants.
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SCEC-XX-XXXXXXX
NATALIE IWASA; DAVID ABBOTT; NOA BATLIN; MICAH BATLIN; DENISE
BOISVERT; JOHN CHOI; RUTH P. CHUN; ANGELA CORREA-PEI; RAFAEL del
CASTILLO; LEA del CASTILLO; NINA DASWANI; RENE M. GARVIN; JASON
GODWISE; KENNETH HAMILTON; RICHARD HIRAMOTO; LAURA HIRAMOTO;
DWIGHT H. IWASA; ORIAN IWASA; DANIEL JACOB; CYNTHIA JARRELL;
JEANNINE JOHNSON; KIM JORGENSEN; MARSHA JOYNER; JAMES E. KIRK;
DONALD KOELPER; RICHARD LACEY; TORI MARCHIEL; JAMES MARTINDALE;
RICKY MARUMOTO; ARNOLD MATSUURA; BONNIE DAVIS OZAKI; NALANI
PARRY; RICHARD PARRY; BEN ROOSEVELT; MAXINE RUTKOWSKI; SHIRLEY
MARGARET ROPER; RICK ROPER; CINDY ROTE; EVANGELINE YACUK,
Petitioners,
vs.
SCOTT NAGO, Chief Election Officer; STATE OF HAWAIʻI OFFICE OF
ELECTIONS; and GLEN TAKAHASHI, in his official capacity as the
City Clerk of the City and County of Honolulu, Respondents.
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ORIGINAL PROCEEDING
JANUARY 25, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
PER CURIAM
Two election contests were brought as original actions
with this court challenging the result of the City and County of
Honolulu second special election for councilmember for District
IV held on November 6, 2018. The critical issue in these cases
concerns the collection of 350 absentee mail-in return envelopes
by the City Clerk at the Honolulu Airport post office on
election day of November 6, 2018. Under our election law, these
envelopes were required to be “received” by the City Clerk no
later than the close of the polls on election day, which was set
by statute at 6:00 p.m. However, it is undisputed that the City
Clerk did not take possession of these absentee mail-in return
envelopes until after that deadline, retrieving them from the
mail facility in pickups that occurred at approximately 6:30
p.m. and 7:30 p.m. The ballots that were included in these
envelopes were subsequently commingled with other ballots and
then counted in determining the outcome of the election.
We conclude that the 350 absentee mail-in return
envelopes were “received” by the City Clerk after the deadline
established by state law, and accordingly, the ballots they
contained should not have been counted. These 350 ballots
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exceed the 22-vote margin by which the election was decided and,
because they have become commingled with other ballots that were
validly cast, it is now impossible to exclude the late-received
ballots and determine the correct election result. Therefore,
the only alternative is to invalidate the result of the Honolulu
City Council District IV special election.
Thus, having heard this matter with oral argument and
in accordance with HRS § 11-174.5(b) (2009) (requiring the
supreme court to “give judgment, stating all findings of fact
and of law”), we consolidate these original actions for
disposition, set forth the following findings of fact and
conclusions of law, and enter judgment.
FINDINGS OF FACT
Absentee Ballots in City and County of Honolulu
Special Elections
1. Pursuant to the Revised Charter of the City and
County of Honolulu, nonpartisan special elections for elective
officers are held in conjunction with the State of Hawai‘i’s (the
“State”) primary and general elections except as otherwise
provided. Revised Charter of the City and County of Honolulu §
13-116 (2017).
2. In these joint elections, the City and County of
Honolulu (the “City”) administers the absentee walk-in
locations, the mailing and receipt of absentee mail ballots, and
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the resolution of provisional ballots. The State of Hawaiʻi
Office of Elections (“Office of Elections”) supervises the
overall administration of the election, including managing the
polling places, selecting the precinct officials, and counting
the validly cast ballots.
3. Twenty days prior to an election, the City Clerk
mails an absentee ballot to each registered voter who has
requested one, together with a yellow envelope to seal the
completed ballot (the “secret ballot envelope”) and a larger
blue business reply mail envelope in which to return the secret
ballot envelope (the “absentee return envelope”). A voter
affirmation statement and a line for the voter’s signature are
printed on the outside of the absentee return envelope.
4. A voter may cast an absentee ballot at any time
prior to the close of polls on election day by mailing a sealed
absentee return envelope to the City Clerk via the United States
Postal Service (the “USPS”) or by hand delivering a sealed
absentee return envelope to any polling place. Polling places
include absentee walk-in locations managed by the City Clerk
that are open prior to election day and in-person election day
polling places administered by the Office of Elections.
5. Absentee return envelopes that are returned to in-
person polling places on election day are collected by Office of
Elections polling officials, who transfer the sealed absentee
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return envelopes to the City Clerk following the closing of the
polls.
6. The City Clerk “validates” the voter’s signature
appearing on each absentee return envelope, which under Hawaii
Administrative Rules (HAR) § 3-174-11 is performed by comparing
it to the signature on the voter’s absentee ballot request or
voter registration. The City Clerk does not open any absentee
return envelopes.
7. The City Clerk marks those absentee return
envelopes that are not validated “invalid” and retains custody
of them, to be disposed of in a manner prescribed by statute.
8. The City Clerk transfers the validated absentee
return envelopes to the Office of Elections for tabulation.
The November 6, 2018 Second Special Election
for the District IV City Council Seat
9. On November 6, 2018, in conjunction with the
State’s general election, the City held a nonpartisan second
special election for the seat of the District IV city
councilmember.
10. Thomas Waters (also known as Tommy Waters) and
Trevor Ozawa were the nonpartisan candidates for the District IV
councilmember seat.
11. Twenty days prior to the November 6, 2018 second
special election, City Clerk Glen I. Takahashi (“City Clerk
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Takahashi” or “City Clerk”) mailed out absentee ballots,
together with secret ballot envelopes and absentee return
envelopes, to 172,526 registered voters who had requested
absentee ballots.
12. For the 2018 general election, the City Clerk
deemed a total of 132,016 absentee return envelopes to be
validly returned during the entirety of the absentee voting
period, which ran from October 17, 2018, to the close of polls
on election day.1 The record does not indicate the total number
of absentee return envelopes received from registered voters in
District IV during the entirety of the absentee voting period.
13. Following the close of polls on election day, the
Office of Elections issued a total of four printouts detailing
the ongoing tabulation of votes in various races.
a. The first printout was issued at 6:09 p.m. and
reported the result of the race for the office of councilmember
for District IV as follows:
OZAWA, Trevor 10,597 (46.4%)
WATERS, Tommy 10,529 (46.1%)
Blank Votes: 1,686 ( 7.4%)
Over Votes: 10 ( 0.0%)
1 There are approximately 734 absentee return envelopes that the
City Clerk retrieved after November 6, 2018, of which the City Clerk retains
possession.
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b. The second printout was issued at 8:08 p.m.
and reported the result of the race for the office of
councilmember for District IV as follows:
WATERS, Tommy 11,616 (46.0%)
OZAWA, Trevor 11,609 (46.0%)
Blank Votes: 2,009 ( 8.0%)
Over Votes: 10 ( 0.0%)
c. The third printout was issued at 9:36 p.m. and
reported the result of the race for the office of councilmember
for District IV as follows:
WATERS, Tommy 17,795 (46.4%)
OZAWA, Trevor 17,723 (46.2%)
Blank Votes: 2,796 ( 7.3%)
Over Votes: 10 ( 0.0%)
d. The fourth printout was issued at 11:23 p.m.
and reported the result of the race for the office of
councilmember for District IV as follows:
WATERS, Tommy 17,795 (46.4%)
OZAWA, Trevor 17,723 (46.2%)
Blank Votes: 2,796 ( 7.3%)
Over Votes: 10 ( 0.0%)
14. The following day, on November 7, 2018, at 4:11
a.m., the Office of Elections generated a fifth printout for the
election. The result of the race for the office of
councilmember for District IV was reported as follows:
OZAWA, Trevor 18,357 (46.3%)
WATERS, Tommy 18,335 (46.3%)
Blank Votes: 2,908 ( 7.3%)
Over Votes: 10 ( 0.0%)
15. Although the fifth printout was entitled “Final
Summary Report,” a “post-election process” occurred over the
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next week that resulted in an additional three votes being added
to the totals from the fifth printout: one vote each for Ozawa
and Waters and one blank vote. A second “Final Summary Report”
was generated on November 15, 2018 and posted on the Office of
Elections’ website. The final result of the race for the office
of councilmember for District IV was reported as follows:
OZAWA, Trevor 18,358 (46.3%)
WATERS, Tommy 18,336 (46.3%)
Blank Votes: 2,909 ( 7.3%)
Over Votes: 10 ( 0.0%)
16. According to this Final Summary Report, the
difference in the number of votes between Waters and Ozawa was
22 votes. The report thus indicated that Ozawa had received the
highest number of votes.
Post-Election Communications
17. On November 16, 2018, Waters sent an e-mail to
Chief Election Officer Scott T. Nago (“Chief Election Officer
Nago”) and City Clerk Takahashi requesting a range of
information regarding, inter alia, the handling of absentee
ballots and the manner in which ballots were tabulated in the
November 6, 2018 election. Among the specific items of
information Waters requested were an explanation of where and
how the new ballots counted in the fifth printout were cast; the
details of when and how mail-in absentee return envelopes were
received, including the times at which mail-in absentee return
envelopes were picked up or delivered on election day; an
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accounting of the absentee ballots that were invalidated within
District IV; the details of the process employed in validating
signatures on absentee return envelopes; a list of the devices
used to cast and tabulate votes, along with the margin of error
associated with each; a list of “overages and underages” and the
details of how such discrepancies are addressed in a manner that
does not impact the final election result; and an explanation of
how voter intent is determined in a close election without
resorting to hand counting the ballots. Waters also offered to
sit down with Chief Election Officer Nago or City Clerk
Takahashi to discuss his questions.
18. On November 21, 2018, Waters received a response
from Jaime Kataoka of the Office of Elections providing the
final summary report of the November 6, 2018 election, the
“Records of Ballots Cast,” the “AB-3: Walk and Mail Voted Ballot
Summary” for the absentee mail and walk-in polling places, and a
matrix of the overages and underages for the district/precincts
associated with the District IV race.
19. On November 23, 2018, Waters received a letter
from Rex Quidilla, Elections Administrator for the Office of the
City Clerk, Elections Division, City and County of Honolulu,
State of Hawai‘i, indicating that the City Clerk invalidated 616
mail absentee return envelopes for the 2018 general election and
providing a breakdown of the reasons for the invalidation.
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20. The answers from Kataoka and Quidilla are the only
information that Waters received in response to his inquiry.2
21. A November 19, 2018 article published in the
Honolulu Star-Advertiser that was included as an exhibit in a
filing by Waters included relevant information that was not
included in Kataoka’s or Quidilla’s answer to Waters’s inquiry.
Specifically, the article described the transfer from Office of
Elections personnel to the City Clerk of absentee return
envelopes that were dropped off at in-person polling places, the
verification process, and the subsequent transfer of ballots
back to the Office of Elections for tallying. The article cites
Quidilla as the source of the information.
The Election Contest filed by Waters (SCEC-XX-XXXXXXX)
22. On November 26, 2018, Waters filed a complaint
contesting the election results for the District IV
councilmember race.
23. Waters asserts two counts for relief:
2 In a complaint filed by thirty-nine registered voters residing in
District IV, discussed infra, the voters allege that they also made inquiries
with the Office of Elections regarding the handling of the ballots that were
included in the fifth printout and were directed to the Office of the
Attorney General. The voters indicate that the deputy attorney general to
whom the calls were referred initially stated that she had no information
about the ballots included in the fifth printout, the procedures used, or any
established rules governing the chain of custody of absentee return
envelopes. The voters allege that one week later, the deputy attorney
general confirmed that the Office of the Attorney General had no knowledge of
any written procedures or rules regarding the chain of custody, nor of how
the ballots were actually transported on the night of the election.
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a. Count I -- Waters alleges that the 1,2863
absentee ballots in the District IV election that were counted
between the fourth printout and the fifth printout were
miscounted because they were transported to and received by the
clerk in the State Capitol on November 6, 2018, nearly six hours
after polls had already closed, in violation of HRS § 15-9
(2009). The improper inclusion and counting of the 1,286
invalid absentee ballots after 100 percent of the
district/precincts in District IV reported their ballot
tabulations “directly changed the proper result of the
election.”
b. Count II -- Waters alleges that 39,603 ballots
in the District IV election were miscounted because the
difference of 22 votes is 0.00055 of 1%, which falls within the
margin of error for the vote-counting machines used in Hawai‘i
for the 2018 general election, and that the failure to verify
the accuracy of the count, including the 2,908 “blank” votes and
3 In Waters’s complaint, Waters identifies the number of absentee
ballots that were allegedly received after the close of polls as 1,286
absentee votes, consisting of 1,173 counted ballots and 113 blank ballots.
(At various points in the complaint, Waters also makes reference to 1,174
counted ballots.) These numbers roughly correspond with the difference
between the number of votes reported by the Office of Elections in the fourth
and fifth printout or the November 15, 2018 “Final Summary Report.” Quidilla
initially stated in a filing to this court that there were 1,286 absentee
return envelopes for District IV received by the City Clerk on election day.
In a January 14, 2019 declaration, Quidilla clarified that the actual number
of absentee return envelopes received on election day was 1,201.
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the 10 ballots which indicated votes for both candidates, and
the invalidated and spoiled ballots, “constituted an error,
mistake or irregularity which would change the outcome of the
election.”
24. Waters asks the court to (1) invalidate the
inclusion of 1,174 invalid absentee ballots counted in the fifth
printout and declare him the prevailing candidate and winner of
the election for Honolulu City Councilmember for District IV;
(2) order a hand count and human inspection of the 39,603
ballots cast in District IV and other invalidated ballots; or
(3) invalidate the result of the general election for
councilmember for District IV and require that a new election be
held.
The Election Contest Filed by 39 Voters Who Reside and are
Registered to Vote in District IV (SCEC-XX-XXXXXXX)
25. On November 26, 2018, 39 voters who reside and are
registered to vote in Council District IV filed a complaint
contesting the election results for the District IV
councilmember race.
26. The 39 voters assert three counts for relief:
(1) the “Last Printout Procedure Gives Rise to a Mistake” (Count
I); (2) the “Margin of Error Constitutes a Mistake” (Count (II);
and (3) “Discrepancies Constitute Fraud and/or Mistake” (Count
III).
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27. The 39 voters allege that Chief Election Officer
Nago, the Office of Elections, and City Clerk Takahashi
“miscounted, misapplied, and mishandled more than 22 valid
ballots cast in the District IV election” and that if the
ballots had been properly counted and handled as prescribed by
law, Waters would have been deemed to have received the majority
of validly cast votes. They further allege that the difference
of 22 votes out of more than 39,000 votes is within the margin
of error for the utilized voting machines that was previously
identified in a 1999 State of Hawaiʻi Legislative Auditor’s
Report of an election oversight committee.
28. The 39 voters ask the court to (1) exclude the
fifth printout and declare that Waters received the majority of
valid votes cast in the District IV election; (2) invalidate the
results of the District IV election due to an inability to
determine the winner; or (3) require a hand recount in order to
ensure an accurate count of all votes cast.
City Clerk Takahashi’s Answer to the Complaints
29. On December 6, 2018, City Clerk Takahashi filed
answers to the two complaints.
30. City Clerk Takahashi denies any improper conduct
or that any irregularities transpired during the second special
election. City Clerk Takahashi contends that all of the
absentee return envelopes that were received on election day,
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either by USPS mail or drop-off delivery at a polling place,
were received and handled in compliance with HRS § 15-9(a), and
thus were correctly included in the vote count of the ballots
for Council District IV.
31. With respect to the allegations in the complaints
related to the alleged margin of error and discrepancies
involved in the counting of votes, City Clerk Takahashi explains
that he is not involved in any way in the tabulation of ballots
or printouts and has no knowledge as to the truth or falsity of
the allegations.
32. Attached to City Clerk Takahashi’s answers are
declarations by Quidilla and himself setting forth additional
details regarding the handling, collection, and receipt of
absentee return envelopes on election day.
33. Consistent with past practice, representatives of
the City Clerk met with representatives of the USPS’s Oʻahu
operations (“USPS O‘ahu”) on September 28, 2018 in preparation
for the 2018 general election.
34. During the meeting, the representatives of the
City Clerk and USPS O‘ahu discussed the USPS’s collection and
handling of the mail absentee return envelopes in the USPS
mailing system on election day. The following procedures were
agreed to:
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a. USPS personnel would conduct a “sweep” of its
Honolulu Airport mail processing plant at 6:00 p.m. on election
day to collect all mail-in absentee return envelopes within the
facility.
b. In addition to the regularly scheduled 9:00
a.m. mail pickup, the City Clerk would conduct two additional
pickups to retrieve the mail-in absentee return envelopes
collected during the 6:00 p.m. “sweep” of the mail processing
plant. The first additional pickup time was scheduled for 6:30
p.m. A second additional pickup time was scheduled to occur at
7:30 p.m. if there were any mail-in absentee return envelopes
collected during the 6:00 p.m. “sweep” of the mail processing
plant that were not included in the 6:30 p.m. pickup.
35. Neither City Clerk Takahashi’s nor Quidilla’s
declaration provided actual details of what occurred at the USPS
Honolulu Airport mail processing plant on the day of the
election, and there is no evidence in the record regarding the
procedures actually employed by the USPS on election day.
36. Following the close of polls on the day of the
November 6, 2018 general election, Office of Elections personnel
completed the transfer of the absentee return envelopes that
were dropped off by hand at in-person polling places to the City
Clerk at approximately 9:00 p.m.
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37. Upon receiving the absentee return envelopes from
the Office of Elections, the City Clerk’s staff transported the
envelopes to the City Clerk’s Elections Division facility
located near the Daniel K. Inouye International Airport for
signature validation.
38. The City Clerk received a total of 8,120 absentee
return envelopes on the day of the election, 1,201 of which were
from registered voters in Council District IV.
39. The City Clerk validated 8,088 of the absentee
return envelopes received on election day, of which 1,189 were
from registered voters in Council District IV.
40. The City Clerk invalidated a total of 620 absentee
return envelopes received throughout the absentee voting period,
of which 91 were for Council District IV. The ballots were
invalidated for the following reasons:
a. 433 absentee return envelopes, of which 64
were from voters registered in Council District IV, were
invalidated because the signature on the voter’s affirmation
statement was deemed not to correspond with the voter’s
signature on the absentee ballot request or voter registration
affidavit.
b. 140 absentee return envelopes, of which 17
were from voters registered in Council District IV, were
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invalidated because no signature appeared on the voter
affirmation statement.
c. 43 absentee return envelopes, of which 9 were
from voters registered in Council District IV, were invalidated
because the voter was found to have already voted or voted at
the wrong precinct, to have cancelled the ballot, to be
deceased, or to have relocated to the Mainland.
d. 4 absentee return envelopes, of which 1 was
from a voter registered in Council District IV, were invalidated
because the voter had cast an electronic ballot without
providing the required privacy waiver or affirmation documents.
41. After the signatures on the absentee return
envelopes were validated, the City Clerk contacted the Office of
Elections to arrange for the pickup of the envelopes. The
Office of Elections picked up the sealed absentee return
envelopes at approximately 12:30 a.m. on November 7, 2018, and
transported the envelopes to the State Capitol for opening and
ballot tabulation.
The Motions to Dismiss or, in the Alternative,
Motions for Summary Judgment
42. On December 6, 2018, Chief Election Officer Nago
and the Office of Elections (collectively, the “State
Defendants”) filed motions in both cases to dismiss the election
complaints or, in the alternative, for summary judgment. They
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ask the court to declare that Ozawa was elected as councilmember
for District IV.
43. In the motions, the State Defendants contend that
the complaints lack any allegations that demonstrate errors,
mistakes, or irregularities that would change the outcome of the
election.
44. The State Defendants contend that both the
absentee return envelopes that were dropped off at polling
places and the mail-in absentee return envelopes were received
by the close of the polls, verified, and securely transported to
the counting center at the State Capitol to be opened and
counted with the remaining ballots. This handling is in
compliance with all applicable election laws, the State
Defendants argue.
45. The State Defendants assert that, although the
difference in the votes cast for Ozawa and Waters is small,
there is no statutory provision for an automatic recount of the
ballots. They argue that the election challengers did not
provide specific information regarding any margin of error for
the voting machines, and they thus failed to provide actual
information of mistakes or errors sufficient to change the
result of the election as required by law.
46. Lastly, the State Defendants contend that any
suggestion that a “large shift towards Ozawa” in the fifth
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printout indicates fraud or mistake is purely speculative and
thus legally insufficient.
47. Attached to the motions to dismiss or, in the
alternative, motions for summary judgment, are declarations from
Chief Election Officer Nago and Rich Geppert, one of the
professional services managers for Hart InterCivic, Inc.
(“Hart”), the vendor of the electronic voting machines used in
the 2018 elections. The declarations provide details regarding
the handling, tabulation, and reporting of votes in the 2018
general election.
48. The voting system that was used during the 2018
general election was inspected and tested by official observers
in preparation for use in the general election, and official
observers were present at the State Capitol to observe the
counting of ballots.
49. There are four scheduled times on election night
at which the Office of Elections releases reports of the
election tallies as they then stand: (1) upon the close of
polls, (2) at 8:30 p.m., (3) at 10:00 p.m., and (4) at 11:30
p.m. The Office of Elections then releases a final election
night report once all ballots have been counted. It is not
uncommon for the final report of the night to come in the early
morning hours following the day of the election.
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50. In the November 6, 2018 race for councilmember for
District IV, the 4:11 a.m. fifth printout that was released on
November 7, 2018, included the absentee ballots provided to the
counting center by the City Clerk as well as so-called
“defective ballots” that had been duplicated for counting.4
51. On the night of the general election, a manual
audit team audited the computer-generated tally of ballots voted
at the polls as well as mail-in absentee ballots to confirm the
accuracy of the vote counting system.
52. The audit team did not request an expanded audit.
53. Should a recount be required, the Office of
Elections states that it is required to follow the same set of
rules in counting the ballots as was used on election day.
54. In sum, Chief Election Officer Nago was not aware
of any issues or problems with the accuracy of the voting and
vote counting system, the handling of ballots, or any other
matters that would impact the integrity of the general election
results in Council District IV.
55. On December 14, 2018, City Clerk Takahashi filed
joinders to the motions to dismiss or, in the alternative,
4 A “defective ballot” is “any ballot delivered to the counting
center that cannot be processed and read by a central counter or precinct
counter.” When this occurs, a “duplicate ballot” is created, which is “a
ballot used solely for the purpose of creating a facsimile of a defective
ballot that is reproduced for counting and tabulation.” HAR § 3-172-1.
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motions for summary judgment with respect to claims and issues
related to the collection, receipt, and handling of the mail-in
absentee return envelopes and the functions of the City Clerk in
the election process.
Ozawa’s Answers to the Complaints
56. On December 17, 2018, Ozawa, who had been granted
permission to intervene in these election contests, filed
answers to the respective election complaints.
57. Ozawa argues that City Clerk Takahashi and the
Office of Elections have averred and explained that all ballots
that were counted as part of the fifth printout were received
before the closing of the polls. Ozawa further argues that
there is no evidence of provable fraud and that simply alleging
that the purported margin of error exceeds the margin by which
the vote was decided is legally insufficient because there is no
evidence that any miscalculated votes were cast for Waters.
Ozawa thus maintains that neither Waters nor the 39 voters have
met their burden to prevail in their respective election
challenges.
58. On December 17, 2018, Ozawa also filed substantive
joinders to the State Defendants’ motions to dismiss or, in the
alternative, motions for summary judgment.
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The December 28, 2018 Order
59. On December 28, 2018, this court issued an order
directing Chief Election Officer Nago, the Office of Elections,
and City Clerk Takahashi to provide information setting forth
the margin of error for the electronic vote counting machines
that were used in the November 6, 2018 election and information
setting forth how the intent of the voter is ensured in a close
election without a hand recount, which was previously requested
by Waters shortly after the election and before he filed his
complaint.
60. On December 31, 2018, the State Defendants filed a
response to the court’s December 28, 2018 order.5 Included with
the response are declarations from Chief Election Officer Nago
and from David Magedson, a program manager for Hart. The
declarations set forth information regarding the electronic
voting systems used in the November 6, 2018 election.
5 On December 31, 2018, City Clerk Takahashi filed his response to
the court’s December 28, 2018 order. City Clerk Takahashi explains that he
is not involved in the tabulation of ballots or review of “marginal marks” on
ballots and, therefore, he does not have any information to provide the court
and the parties in response to the court’s request for information. City
Clerk Takahashi notes that he relies on Chief Election Officer Nago and the
Office of Election’s response to the court’s request for information. The
same day, Ozawa also filed a response to the court’s December 28, 2018 order
in which he reiterates his contention that the election challengers’
complaints fail to meet their burden of demonstrating fraud or mistake that
would alter the result of the election or make it impossible to determine an
accurate result.
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61. Since 2008, Hawai‘i has utilized the Hart voting
system, which is composed of three main components: (1) eSlate,
an electronic voting unit on which a voter may directly cast a
vote; (2) eScan, a digital ballot imaging precinct counter that
allows a voter to cast a vote by inserting a paper ballot into
the machine; and (3) Ballot Now, which is software that utilizes
high-speed scanners to scan and tally absentee ballots.
62. The Hart voting system is certified to federal
standards, which relate to the initial testing of the machines.
See Federal Election Commission, I Voting System Standards:
Performance Standards § 3.2.1 - Accuracy Requirements (2002).
The error rate in the federal standards refers to a misreading
of ballot positions that is not attributable to an error on the
part of the voter, and it thus addresses only situations in
which a ballot has been properly marked.
63. The Ballot Now system records a digital image of a
voted ballot with a resolution of approximately 200 dots per
inch, which is saved on the Ballot Now system and used for all
subsequent election activities. The software counts the number
of marked pixels inside each option box in the digital image to
determine whether a vote has been cast for that option. If more
than 4.2% of the pixels are marked, the option box will
generally be recorded as having been marked.
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64. Thus, when a voter makes a “marginal mark” or a
mark that does not fully comply with ballot instructions, the
vote will generally be counted if 4.2% or more of the pixels
within the option box are marked.
65. When an option box is marked so that the number of
pixels marked falls within approximately seven pixels of 4.2%,
it is possible for an option box to be read as marked in one
scan but read as unmarked in a second scan (or vice-versa).
Studies of past election data have shown that around 0.046% of
option boxes fall into the pixel range where this variance can
occur.6
66. On January 4, 2019, Waters filed a reply to the
State Defendants’ response to the December 28, 2018 order.
67. Waters argues that Chief Election Officer Nago and
the Office of Elections’ responses are misleading and reveal
that the Hart system does not ensure the intent of the voter is
honored in a close election without a hand count because it
disregards ballots that are not “properly marked” regardless of
6 Ballot Now can also apply an algorithm (the Ballot Now Overvote
Reduction Algorithm, or “BNORA”) to decrease this variance rate by
eliminating false overvotes caused by pen rests, dirt, or other small marks
on the ballot. The precinct counters used in polling places and at absentee
walk-in locations do not use BNORA. Instead, as the voter is present in
those locations, the precinct counters are equipped to return the ballot to
the voter if the precinct counter detects an overvote (i.e., more voting
positions have been marked in a contest than permitted) or a blank vote for a
contest (i.e., no voting position in the contest has been marked).
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the evidence of voter intent. Waters states that the manner in
which marginal marks are counted is problematic because the
system’s cutoff of 4.2% of pixels marked is an arbitrary
standard.
68. In his reply, Waters also argues that absentee
ballots that were not received by the City Clerk or the Office
of Elections by the close of the polls at 6:00 p.m. were wrongly
counted in the election results. Waters contends that, pursuant
to HRS § 15-9(a), absentee ballots must be received by the City
Clerk by the close of the polls, which is 6:00 p.m. He
maintains that, contrary to statute, the ballots were received
by the City Clerk during the 6:30 p.m. and 7:30 p.m. pickups at
the airport. Waters contends that these ballots must be
invalidated, thereby altering the result of the election and
making him the victor.
The 39 Voters’ Opposition to the Motion to Dismiss or,
in the Alternative, Motion for Summary Judgment
69. On January 4, 2019, the 39 voters filed a
memorandum in opposition to the motion to dismiss or, in the
alternative, motion for summary judgment.
70. The 39 voters argue that they have carried their
burden of demonstrating fraud or mistake that could alter the
election result. They contend that HRS § 15-9 obligated the
City Clerk to invalidate the absentee return envelopes that were
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collected from the USPS after the closing of the polls. The 39
voters argue that the invalidation of these ballots would
ultimately change the outcome of the election in Council
District IV.
71. The 39 voters also argue that the State
Defendants’ response to this court’s December 28, 2018 order
raises questions about the actual margin of error because blind
acceptance of the manufacturer’s stated error rate ignores
documented instances in other states in which the Hart system
has produced more inaccurate results. The State Defendants have
a duty to protect voter rights and ensure accurate results, the
39 voters contend, and this includes investigating the accuracy
of the manufacturer’s assurances.
72. The 39 voters further contend that the State
Defendants’ response to this court’s December 28, 2018 order
demonstrates that the State applies an inconsistent standard in
determining voter intent. In the absence of any explanation of
how the cutoff of 4.2% of pixels was determined, the voters
argue, the number must be regarded as an arbitrary figure. The
voters assert that this standard, in conjunction with the
variance that occurs when a marginal marking falls within seven
pixels of the threshold, demonstrates that no meaningful
distinction exists between those marginal votes that are counted
and those that are not.
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The January 8, 2019 Order
73. On January 8, 2019, this court issued an order
directing the State Defendants and City Clerk Takahashi to
provide a detailed explanation of the factual circumstances and
procedures that were actually followed by the USPS and the City
Clerk regarding the handling and collection of the mail-in
absentee return envelopes retrieved from the USPS on election
day. The order requested, among other information, the time(s)
of the collection and pickup of the absentee ballots; a
description of the procedures that were actually used to ensure
that any mail-in absentee return envelopes received, collected,
or “swept” by the USPS after 6:00 p.m. on election day were set
aside and not counted; and an accounting of whether any mail-in
absentee return envelopes received, collected, or “swept” by the
USPS after 6:00 p.m. were included in the election results.
74. On January 10, 2019, the City Clerk filed a
response to the court’s January 8, 2019 order.
75. City Clerk Takahashi submits that the Office of
the City Clerk complied with applicable statutes and
administrative rules governing the collection of mail-in
absentee return envelopes related to Council District IV and
other contests that occurred on November 6, 2018.
76. There were three scheduled pickup times on
election day at which City Clerk personnel retrieved mail-in
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absentee return envelopes from the USPS airport facility:(1) a
9:00 a.m. pickup; (2) a 6:30 p.m. pickup; and (3) a 7:30 p.m.
pickup.
77. The 9:00 a.m. pickup time was a pre-established
time for City Clerk personnel to pick up mail-in absentee return
envelopes from the USPS airport facility. City Clerk personnel
picked up mail-in absentee return envelopes from the facility at
this time on a daily basis (excluding Sundays) from October 17,
2018 through November 6, 2018.
78. The 6:30 p.m. pickup and 7:30 p.m. pickup were
additional pickup times scheduled only for election day.
79. On November 6, 2018, City Clerk personnel picked
up mail-in absentee return envelopes at the USPS airport
facility at approximately 9:00 a.m. and 6:30 p.m.
80. City Clerk personnel received a call from USPS
personnel at approximately 7:00 p.m. on November 6, 2018, during
which USPS personnel informed City Clerk personnel that
additional mail-in absentee return envelopes were ready for
pickup.
81. At approximately 7:30 p.m., City Clerk personnel
picked up additional mail-in absentee return envelopes from the
USPS airport facility.
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82. The following chart summarizes the number of mail-
in absentee return envelopes picked up by City Clerk personnel
on election day at 6:30 p.m. and 7:30 p.m.:
Island-wide District IV only
USPS Airport 6:30 p.m.
pickup 1,093 165
USPS Airport 7:30 p.m.
pickup 1,247 185
Total 2,340 350
83. At approximately 12:00 a.m. on November 7, 2018,
the City Clerk contacted the Office of Elections to arrange for
the pickup of the mail-in absentee return envelopes that were
picked up from the USPS at 6:30 p.m. and 7:30 p.m., as well as
the absentee envelopes that were dropped off at polling places.
84. In his declaration, City Clerk Takahashi explains
that he relies on the processes and procedures used by the USPS
in implementing the agreement between the City Clerk and the
USPS covering the USPS’s receipt, collection, and/or “sweeping”
of its facilities and system as of 6:00 p.m. on November 6,
2018. He states that the practical administrative reality of
the receipt, collection, and pickup of mail-in absentee return
envelopes in the election process requires the City Clerk to
work cooperatively and in conjunction with the USPS, as occurred
in this election cycle and past election cycles.
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85. Mail-in absentee return envelopes that were not
included in the 9:00 a.m., 6:30 p.m., or 7:30 p.m. pickups on
November 6, 2018, have been retrieved by City Clerk personnel
and set aside by the City Clerk, but they have not been provided
to the Office of Elections. As of the filing of City Clerk
Takahashi’s declaration, there were 734 mail-in absentee return
envelopes that the City Clerk retrieved after November 6, 2018.
86. City Clerk Takahashi contacted the USPS Honolulu
District to request that one of its officers submit a
declaration to provide information relative to the USPS’s
handling of mail-in absentee return envelopes for the November
6, 2018 election. He was informed that the USPS would not be
able to submit a declaration in response to the court’s January
8, 2019 order given the court’s timeframe and deadline. The
USPS did not give City Clerk Takahashi any indication that such
a declaration could be made. There is thus no evidence in the
record of what actually occurred at the USPS airport facility on
November 6, 2018.
87. On January 9, 2019, the State Defendants filed
their response to the court’s January 8, 2019 order. The State
Defendants explained that they are not involved in the handling
and collection of the mail-in absentee ballots from the USPS on
the day of the general election and have no information to
provide this court and the parties in response to the January 8,
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2019 order. They state that they rely on City Clerk Takahashi’s
response.
88. On January 9, 2019, Ozawa filed his response to
the court’s January 8, 2019 order.
89. Ozawa argues that he was duly elected as
councilmember for District IV pursuant to the procedures set
forth by statute and administrative rules. Ozawa contends that,
under HAR § 3-174-2(a), the City Clerk was authorized to
designate the USPS as the City Clerk’s representative, thus
allowing the USPS to legally receive absentee ballots on the
City Clerk’s behalf. Any ballots the USPS received prior to the
close of polls were thus validly counted, Ozawa contends.
90. Ozawa maintains that there is no evidence that the
USPS received any ballots after 6:00 p.m. and that City Clerk
Takahashi has averred that the USPS collects only absentee
ballots that are at the mail processing plant at 6:00 p.m.
91. Ozawa thus argues that there is no evidence that
any absentee return envelopes that were not validly received
within the time limit provided in HRS § 15-9(a) were included in
the election results.
92. On January 10, 2019, the 39 voters filed a reply
to the respective responses filed by Chief Election Officer Nago
and the Office of Elections, Ozawa, and City Clerk Takahashi
with respect to the court’s January 8, 2019 order.
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93. The 39 voters contend that City Clerk Takahashi
did not provide a detailed explanation as to what occurred at
the USPS facility with respect to the 6:00 p.m. “sweep.” They
argue that City Clerk Takahashi admits that 350 mail-in absentee
return envelopes were picked up from the USPS after 6:00 p.m. on
election day, which does not satisfy a plain reading of HRS §
15-9(a). Thus, the 39 voters maintain that only those ballots
that were retrieved by City Clerk Takahashi, the Office of
Elections, or the polling places by 6:00 p.m. may be properly
counted.
94. On January 11, 2019, Waters filed a reply to the
responses that were filed with respect to the court’s January 8,
2019 order.
95. Waters contends that the City Clerk’s responses
demonstrate mistakes on the part of election officials. Waters
specifically argues that the responses fail to detail the
procedures actually followed on November 6, 2018, to ensure that
the USPS’s handling and collection of mail-in absentee return
envelopes were in accordance with HRS § 15-9(a) and the
agreement between the City Clerk and the USPS.
96. Waters further argues that HRS § 15-9(a)(1) does
not permit the City Clerk to designate a representative to
receive mail-in absentee return envelopes, as is permitted under
HRS § 15-9(a)(2) and (3).
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97. Waters thus argues that City Clerk Takahashi
acknowledges that 350 ballots were received by the City Clerk
after 6:00 p.m. The counting of these ballots was in violation
of HRS § 15-9(a)(1), Waters concludes.
The January 11, 2019 Order
98. On January 11, 2019, the court issued an order
(a) consolidating SCEC-XX-XXXXXXX and SCEC-XX-XXXXXXX for oral
argument, (b) scheduling oral argument for January 15, 2019, at
2:00 p.m., and (c) providing the parties an opportunity to file
any further declarations and/or memoranda no later than 4:30
p.m. on January 14, 2019.
99. City Clerk Takahashi filed a declaration on
January 14, 2019, stating that he has no reason to believe and
has been presented with no evidence that the USPS did not comply
with the arrangement agreed to at the September 28, 2018
meeting. Like his previous submission, City Clerk Takahashi
does not provide details that the arrangement was actually
followed on election day.
100. Ozawa also filed a response on January 14, 2019.
Ozawa maintains that for the City Clerk to carry out his duties,
it is reasonably necessary that he be able to delegate the duty
to receive absentee ballots by the close of polls.
Specifically, Ozawa argues that the City Clerk can delegate to
the USPS his duty to receive by 6:00 p.m. on election day the
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mail-in absentee return envelopes. Ozawa does not provide any
evidence that such a delegation of duty occurred for the
November 6, 2018 election.
Oral Argument
101. Oral argument was held on January 15, 2019. See
Oral Argument, Waters v. Nago et al. (SCEC-XX-XXXXXXX) and Iwasa
et al. v. Nago et al. (SCEC-XX-XXXXXXX),
http://oaoa.hawaii.gov/jud/oa/19/SCEC_18_909_910.mp3.
102. Counsel for the City Clerk acknowledged that the
City Clerk did not “actually have in [his] hands as of 6:00
p.m.” the mail absentee envelopes that were purportedly in the
USPS system at 6:00 p.m. See Oral Argument at 47:33-47:41.
103. When asked about the City Clerk’s delegation of
authority under HAR § 3-174-2, counsel for the City Clerk stated
that “there’s no administrative rule or statutory guidance in
terms of actual delegation.” See Oral Argument at 41:39-41:55.
Counsel then explained that he “think[s] the designated
representative is what the City characterizes the USPS as[.]”
See Oral Argument at 42:07-42:13.
104. Counsel for the City Clerk indicated that the
absentee return envelopes provide the City Clerk’s post office
box as the return address, which is located at the USPS airport
facility. See Oral Argument at 42:56-43:22. Counsel then
clarified that the absentee return envelopes are gathered by the
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USPS from throughout the airport facility for pickup by the City
Clerk and are physically “probably in USPS bins” prior to being
collected. See Oral Argument at 43:58-44:07.
105. Later, counsel for the City Clerk stated that he
is not making any suggestion that the USPS is the City Clerk’s
agent and explained that, within the statutory scheme, the USPS
is a designated representative. See Oral Argument at 47:57-
48:28.
106. When asked whether the USPS knew that they were
the designee under HRS § 15-9, counsel for the City Clerk stated
that he “believed” that that was the function of the meeting
that was held between representatives of the City Clerk and USPS
O‘ahu representatives. See Oral Argument at 53:26-54:30.
107. Counsel for the City Clerk reiterated the
arrangement with the USPS and explained that it was agreed that,
at 6:00 p.m., the USPS would “sweep” its facility of all the
“blue envelopes” (i.e., mail-in absentee return envelopes) to
ensure that, as of that time, the City had as many blue
envelopes as possible. See Oral Argument at 55:48-56:00. When
asked about the definition of “sweep,” counsel stated that it is
a characterization of the efforts of the USPS to make sure that
their entire facility gathers up the blue envelopes in their
system as of 6:00 p.m. See Oral Argument at 56:02-56:54.
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108. Counsel for the City Clerk was asked about the
difference in the number of envelopes between the 6:30 p.m. and
the 7:30 p.m. pickup following the “sweep” by the USPS, the
latter of which included a greater number of absentee return
envelopes despite being intended to retrieve only those absentee
return envelopes that were missed during the previous pickup.
Counsel stated that “that is what the record reflects,” that he
“ha[s] no explanation for it,” and that “that is just the
universe of facts that we have to deal with.” See Oral Argument
at 57:57-59:22.
109. Counsel for the State Defendants explained that
the Office of Elections relies on the City Clerk’s handling of
the absentee ballots. Counsel noted the September 28, 2018
meeting between representatives of the City Clerk and the USPS
representatives and described their relationship as “at least an
agency relationship.” Counsel explained that she did not know
if the relationship was “a designated one” or whether the agency
agreement had to be in writing. See Oral Argument at 1:21:53-
1:24:07.
110. Counsel for the State Defendants explained that
the 350 ballots that were picked up from the USPS at the 6:30
p.m. pickup and the 7:30 p.m. pickup were “commingled together,
put through the scanner” with the absentee ballots that were
dropped off at the polling places as well as the facsimile
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ballots that were created from the defective ballots and,
therefore, cannot now be separated. Counsel explained that the
Office of Elections would not be able to ascertain what the
correct result would be if the 350 ballots were declared
invalid. See Oral Argument at 1:31:48-1:32:28.
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 (2009).
2. A complaint challenging the results of an election
pursuant to HRS § 11-172 fails to state a claim unless the
plaintiff alleges either 1) errors, mistakes or irregularities
that could change the outcome of the election, see Tataii v.
Cronin, 119 Hawai‘i 337, 339, 198 P.3d 124, 126 (2008) (citing
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),
or 2) that the correct result cannot be ascertained because of a
mistake or fraud on the part of the precinct officials. HRS §
11–174.5(b) (2009); Akaka, 84 Hawai‘i at 387, 935 P.2d at 102.
3. In order for a complaint to be legally sufficient
in the first circumstance, the complaint must include actual
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information “show[ing] that the specific acts and conduct of
which they complain would have had the effect of changing the
results of the [] election.” Elkins v. Ariyoshi, 56 Haw. 47,
49, 527 P.2d 236, 237 (1974); Akaka, 84 Hawai‘i at 388, 935 P.2d
at 103 (holding that, in order for an election challenge to have
merit, “the petitioner must ‘show that he [or she] ha[s] actual
information of mistakes or errors sufficient to change the
result’” (quoting Funakoshi, 65 Haw. at 316–17, 651 P.2d at
915)). “An election contest cannot be based upon mere belief or
indefinite information.” Tataii, 119 Hawai‘i at 340, 198 P.3d at
127. Further, if 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, 84 Hawai‘i at 388, 935 P.2d at 103 (citing Elkins, 56 Haw.
at 49, 527 P.2d at 237).
4. Similarly, a complaint alleging that fraud or
mistake by election officials has made it impossible to
ascertain the correct result must include specific facts that if
true would prevent an accurate determination of the election
outcome. Id.; Akizaki v. Fong, 51 Haw. 354, 461 P.2d 221
(1969).
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5. Under either standard, “[i]t is not sufficient that
the petitioner points to a ‘poorly run and inadequately
supervised election process’ that evinces ‘room for abuse’ or
‘possibilities of fraud.’” Akaka, 84 Hawai‘i at 388, 935 P.2d at
103 (quoting Elkins, 56 Haw. at 48, 527 P.2d at 237).
6. In Count I of his complaint, Waters alleges that
the absentee ballots in the District IV election counted between
the fourth printout and the fifth printout were miscounted
because they were not delivered to the State Capitol for
counting before the polls closed on election day. Waters claims
that as many as 1,2867 absentee return envelopes were not
received by the City Clerk or the Office of Elections by the
close of the polls at 6:00 p.m. on November 6, 2018. Waters
contends that the counting of these ballots violates HRS § 15-
9(a), and they therefore cannot be considered.
7. The 39 voters allege in Count I of their complaint
that the City Clerk “miscounted, misapplied, and mishandled” the
ballots included in the fifth printout by “failing to follow
requirements set forth within the governing statutes and
administrative rules.” In subsequent filings, the voters
clarified their argument, contending that the City Clerk had
7 See supra, note 3.
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violated HRS § 15-9(a) by collecting mail-in absentee return
envelopes after the closing of the polls.
8. Because Waters and the 39 voters allege a
particular error that would invalidate a number of votes greater
than the 22-vote margin by which the election was decided, they
have alleged a specific mistake “sufficient to change the
result,” as is required to state a claim for relief under our
precedents.8 Akaka, 84 Hawai‘i at 388, 935 P.2d at 103 (quoting
Funakoshi, 65 Haw. at 316–17, 651 P.2d at 915).
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).
8 The court notes that the response that Waters and the 39 voters
received from the State Defendants and the City Clerk in answer to their
inquiries shortly after the election put them at a disadvantage in meeting
their burdens in this election contest. Less than one day after the November
15, 2018 “Final Summary Report” was generated, Waters sent questions to the
Office of Elections and the City Clerk about the election. Notwithstanding
Waters’s status as a candidate with a clear interest in the outcome of the
race, the Office of Elections and the City Clerk did not respond to all of
the questions, particularly with respect to the pickup or delivery times of
the mail-in absentee return envelopes on election day, the margin of error
for the voting machines, and the manner in which a voter’s intent is ensured
in a close election without a manual hand count. Similarly, the 39 voters
allege that their inquiries were directed to a deputy attorney general who
was unable to provide any of their requested information. Further, some of
the information that Waters and the 39 voters sought and were not provided
appears to have been readily available, as it appeared in a newspaper article
shortly thereafter. We note that timely and complete responses to valid
election day inquiries help to ensure a meaningful and transparent election
process.
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10. Summary judgment is appropriate when 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 & Cty.
of Honolulu, 115 Hawai‘i 1, 6, 165 P.3d 247, 252 (2007).
11. The fundamental starting point for statutory
interpretation is the language of the statute itself. Where the
statutory language is plain and unambiguous, this court’s sole
duty is to give effect to the statute’s plain and obvious
meaning, which is obtained primarily from the language contained
in the statute itself. Statutory language must be read in the
context of the entire statute and construed in a manner
consistent with its purpose. See Castro v. Melchor, 142 Hawai‘i
1, 11, 414 P.3d 53, 63 (2018).
12. HRS § 15-9, which governs the return and receipt
of absentee return envelopes, provides as follows:
(a) The return envelope shall be:
(1) Mailed and must be received by the clerk
issuing the absentee ballot not later
than the closing of the polls on any
election day;
(2) Delivered other than by mail to the clerk
issuing the absentee ballot, or another
election official designated by the clerk
to act on the clerk’s behalf, not later
than the closing of polls on any election
day; or
(3) Delivered other than by mail to any
polling place within the county in which
the voter is registered and deposited by
a precinct official in the ballot box
before the closing of the polls on any
election day.
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(b) Upon receipt of the return envelope from any person
voting under this chapter, the clerk may prepare the
ballots for counting pursuant to this section and
section 15-10.
(c) Prior to opening the return and ballot envelopes and
counting the ballots, the return envelopes shall be
checked for the following:
(1) Signature on the affirmation statement;
(2) Whether the signature corresponds with
the absentee request or register as
prescribed in the rules adopted by the
chief election officer; and
(3) Whether the person is a registered voter
and has complied with the requirements of
sections 11-15 and 11-16.
(d) If any of the above requirements is not met or
if the return or ballot envelope appears to be
tampered with, the clerk or the absentee ballot
team official shall mark across the face of the
envelope “invalid” and it shall be kept in the
custody of the clerk and disposed of as
prescribed for ballots in section 11-154.
(e) If an absentee polling place is established at
the clerk’s office prior to election day, the
officials of the absentee polling place shall
check the return or ballot envelopes for the
above requirements prior to depositing them in
the correct absentee ballot box.
(Emphases added); see also HRS § 15-5(b) (2009 & Supp. 2017)
(addressing the delivery of absentee ballots by electronic
transmission to voters and providing that “[t]he voter may
return the voted ballots and executed forms by electronic
transmission or mail; provided that they are received by the
issuing clerk no later than the close of polls on election
day”).
13. HRS § 15-9 requires all absentee return envelopes
to be returned no later than the closing of polls on any
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election day. By the closing of polls, all absentee return
envelopes must be either (1) mailed and received by the clerk
issuing the absentee ballot; (2) delivered other than by mail to
the clerk issuing the absentee ballot or another election
official designated by the clerk to act on the clerk’s behalf;
or (3) delivered other than by mail to any polling place within
the county in which the voter is registered.
14. Absentee ballots that are received before the
closing of the polls on any election day in compliance with HRS
§ 15-9(a) and that satisfy the affirmation and verification
requirements will be counted in determining the result of the
election. HRS § 15-10 (2009); see also, e.g., HAR §§ 3-174-11
(procedure for validating signatures on voter affirmation
statements); 3-174-12 (procedure for processing damaged,
duplicate, or unidentifiable absentee return envelopes); 3-174-
13 (procedure for receiving absentee return envelopes at the
precincts); 3-174-14 (procedures for processing absentee mail-in
return envelopes after the polls close); 3-174-15 (procedure for
transfer of absentee return envelopes to counting center); 3-
174-16 (procedure upon receiving absentee ballots at the
counting center); 3-174-17 (procedure for processing absentee
ballots at the counting center for electronic voting system
ballots).
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15. For absentee return envelopes that are returned by
mail on election day, HRS § 15-9(a)(1) requires that the return
envelope be “received by the clerk issuing the absentee ballot
not later than the closing of the polls on any election day.”
16. HRS § 11-131 (2009) provides that the closing time
for the polls on election day is 6:00 p.m., subject to an
exception for in-person voters who are in line at the close of
voting.9
17. HAR § 3-174-2(a), which was promulgated to
implement HRS § 15-9 and other election related statutes,
provides that “[w]henever a duty is to be performed by the
clerk, the clerk may delegate it to a designated representative
or the election officials of the absentee polling place.”
9 During oral argument, counsel for the City Clerk and the State
Defendants argued that, because HRS § 11-131 permits any voter who is waiting
in line when the polls close to vote “irrespective of the closing hour of
voting,” the actual closing of at least some polling places occurs after 6:00
p.m. Counsel for the City Clerk appeared to suggest that, under HRS § 15-
9(a)(1), the City Clerk may validly receive mail-in absentee ballots after
6:00 p.m. so long as in-person voting had not concluded at all polling
places. As an initial matter, the record contains no evidence by which this
court could determine the actual closing of polls according to this argued
interpretation. And were we to adopt such a reading of the statute, it would
follow that any voters whose absentee mail-in ballots were “received” after
6:00 p.m. but before the conclusion of in-person voting would have been
improperly disenfranchised if their votes were not included in the pick-ups
following the 6:00 p.m. sweep. In any event, we hold that HRS § 11-131
unambiguously establishes 6:00 p.m. as “the prescribed hour for closing the
polls” and it is this time that constitutes “the closing of the polls” for
purposes of the HRS § 15-9(a)(1) deadline.
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18. Thus, HRS § 15-9(a) requires that all absentee
mail-in return envelopes must be received by the City Clerk or
an authorized representative by 6:00 p.m. on election day.10
19. There were 2,340 mail-in absentee return envelopes
that were collected by USPS personnel at the Honolulu Airport
mail processing plant on November 6, 2018, that were picked-up
by the City Clerk’s representative at 6:30 p.m. and 7:30 p.m.
350 of these were from voters registered in Council District IV.
The City Clerk argues that these envelopes were the result of a
“sweep” of the Honolulu Airport mail processing plant performed
by USPS personnel at 6:00 p.m. in accordance with an “agreement”
entered into at a September 28, 2018 meeting between
representatives of the City Clerk and USPS O‘ahu.
20. The record indicates that an agreement was made
during the September 28, 2018 meeting between representatives of
the City Clerk and USPS O‘ahu. According to the agreement, USPS
personnel would conduct a “sweep” of its Honolulu Airport mail
10 Waters and the 39 voters point out that, unlike HRS § 15-9(a)(2),
HRS § 15-9(a)(1) does not include language indicating mail-in absentee
ballots may be received by “another election official designated by the clerk
to act on the clerk’s behalf.” Therefore, the election challengers argue,
HAR § 3-174-2(a) does not permit the City Clerk to delegate this duty to
receive mail-in absentee return envelopes to anyone unaffiliated with the
Office of the City Clerk. Because we hold infra that no evidence was offered
demonstrating that the City Clerk’s designated representative was present at
the Honolulu Airport mail processing plant at 6:00 p.m. on November 6, 2018,
we need not now decide the extent to which the City Clerk’s HRS § 15-9(a)(1)
duties are delegable to individuals other than City Clerk personnel.
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processing plant at 6:00 p.m. on election day.11 Despite
requests by Waters and this court, no evidence was provided as
to what actually occurred on November 6, 2018 at the USPS
Airport mail processing plant at 6:00 p.m. (or any time
thereafter) with respect to the mail-in absentee return
envelopes.
21. There is no dispute that at 6:00 p.m. the City
Clerk’s office did not have physical possession or control of
the 350 mail-in absentee return envelopes for District IV that
were purportedly “swept” by the USPS at its Airport facility and
picked-up by the City Clerk’s office at 6:30 p.m. and 7:30 p.m.
on November 6, 2018. While counsel for the City Clerk at oral
argument indicated that the City Clerk has a post office box at
the airport facility where mail-in absentee return envelopes are
sent, it was acknowledged that the envelopes were distributed
throughout the facility, were not placed in an actual physical
enclosure designated for the City Clerk’s exclusive use, and
remained within the control of USPS personnel. We thus hold
that the facts of this case are legally insufficient to
11 Neither the City Clerk nor the State Defendants provided an
explanation in their filings as to what “sweep” means, the parameters of the
“sweep,” or the length of time required to conduct a “sweep.” As discussed
supra, counsel for the City Clerk stated only during oral argument that a
“sweep” is a characterization of the USPS’s efforts to gather up all absentee
return envelopes in their facility as of 6:00 p.m.
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establish the receipt of the challenged envelopes by the City
Clerk at 6:00 p.m. Cf. Stewarts’ Pharmacies, Ltd. v. Fase, 43
Haw. 131, 145–46 (1959) (“When we apply the intended and correct
meaning of the word ‘receipt’ as used in the act, it is
conclusive to our minds that the tax of the retailer, referred
to, is paid when the articles are in his possession and when the
merchant has unlimited control and dominion over the [items].”
(quoting Bacon & Sons v. Martin, 305 U.S. 380, 381 (1939)).
22. A pivotal question, therefore, is whether the City
Clerk delegated his duty to “receive” the mail-in absentee
return envelopes to a designated representative and, more
specifically, whether such a duty was delegated to the USPS or
another party present at the facility.12
23. Initially, it is noted that in the introduction to
the “State and Local Election Mail-User’s Guide” published by
the USPS and included with Ozawa’s Response to this court’s
January 11, 2019 order, the USPS states that the guide contains
“information election officials must consider before they”
utilize the mail.13 Significantly, the Mail-User’s Guide
12 This court makes no determination as to whether the USPS may be a
designated representative for purposes of HRS § 15-9(a)(1) and HAR § 3-174-
2(a).
13 United States Postal Service, State and Local Election Mail-
User’s Guide 15 (March 2018), http://about.usps.com/publications/pub632.pdf
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specifies that, if election officials wish to arrange to pick up
mail-in absentee ballots at a postal service facility, they
should “[l]et [their] Postal Service Election Mail coordinator
know [their] cut-off time for receiving returned ballots” and
“[a]rrange the latest time when an election official may pick up
last-minute returns.” (Emphasis added.) The USPS thus appears
to regard itself as neither an election official nor a
representative thereof in the state and local elections in which
the USPS provides assistance.
24. The September 28, 2018 meeting between
representatives of the City Clerk14 and USPS O‘ahu at which the
USPS agreed to conduct a “sweep” of its Honolulu Airport mail
processing plant at 6:00 p.m. on election day did not establish
a delegation of the City Clerk’s duty to receive mail-in
absentee return envelopes.15 No party has provided a declaration
14 It is noted that the City Clerk’s declarations regarding the
meeting do not indicate that any representative of the Chief Election Officer
was in attendance, and the Chief Election Officer stated in response to this
court’s January 8, 2019 order that he had no information to provide regarding
the handling and collection of mail-in absentee ballots. While the City
Clerk is responsible for many aspects of a county-wide election, the ultimate
responsibility to supervise a county election held in conjunction with a
state election remains in the Chief Election Officer. See HRS § 11-2(a)
(2009) (tasking the Chief Election Officer with supervision of all state
elections); HRS § 11-91.5(e) (2009 & Supp. 2015) (“The chief election officer
shall adopt rules pursuant to chapter 91 to provide for uniformity in the
conduct of federal, state, and county elections by mail.”).
15 As stated, HRS § 15-9(a)(1) requires that absentee ballots
delivered by mail must be received by the City Clerk by the close of polls on
election day in order to be valid. If the USPS as a whole had been
designated as the City Clerk’s representative as argued by counsel for the
(continued . . .)
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or document indicating that an individual, group, or entity had
been designated as the City Clerk’s representative at the
Honolulu Airport mail processing facility on election day.
Prior to oral argument, neither the City Clerk nor the Chief
Election Officer argued in any filing to this court that a
designation had been made, nor did they identify any procedure
by which such a designation would have occurred.16
25. The record is thus devoid of any evidence that the
City Clerk effectively delegated his authority to receive mail-
in absentee return envelopes at 6:00 p.m. on election day to the
USPS or any other designated representative.
26. What the record demonstrates instead is that,
after the 9:00 a.m. mail pickup at the USPS Honolulu Airport
location on November 6, 2018, City Clerk personnel conducted two
(. . . continued)
City Clerk, then arguably all ballots “received” by the USPS mail carriers or
placed within USPS mail receptacles before 6:00 p.m. on election day should
have been counted, effectively creating a “mail box rule” for mail-in
absentee ballots. At oral argument, counsel for the City Clerk contended
that only those mail-in absentee return envelopes located within the USPS
airport facility should be considered as timely received. But it is self-
evident that the inanimate building cannot be designated as the City Clerk’s
representative. The law does not permit the City Clerk to enfranchise
certain voters not meeting statutory requirements while disenfranchising
others.
16 During oral argument, counsel for the City Clerk stated that
“there’s no administrative rule or statutory guidance in terms of actual
delegation.” Counsel then asserted, for the first time, that he “think[s]
the designated representative is what the City characterizes the USPS as[.]”
Counsel was unable to affirm whether the USPS knew of its purported status as
the City Clerk’s designated representative under HRS § 15-9(a)(1).
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additional pickups--a 6:30 p.m. pickup and a 7:30 p.m. pickup.
These additional pickups resulted in a total of 2,340 additional
mail-in absentee return envelopes, including 350 from voters
registered in Council District IV–-(a) 1,093 envelopes from the
6:30 p.m. pickup, of which 165 were from voters registered in
Council District IV; and (b) 1,247 envelopes from the 7:30 p.m.
pickup, of which 185 were from voters registered in Council
District IV.17 The 350 mail-in absentee return envelopes from
voters registered in Council District IV were not received by
the City Clerk or a designated representative prior to the close
of polls.
27. While the City Clerk may have been trying to
maximize the receipt of absentee votes by counting all mail-in
absentee ballots that were in the USPS facility prior to the
closing of polls, any implemented process was required to comply
with HRS § 15-9(a)(1). Based on the record in this matter, it
cannot be said that there was compliance with the requirement in
17 In the declarations of the Elections Administrator for the City
and County of Honolulu that were included with the City Clerk’s December 6,
2018 answers to the complaints, it was stated that the 7:30 p.m. pickup was
scheduled “if there were any mail absentee return envelopes collected during
the 6:00 p.m. sweep of the mail processing plant that were not picked up at
the 6:30 p.m. pickup time.” During oral argument, counsel for the City Clerk
acknowledged that questions regarding the handling of mail-in absentee return
envelopes were raised by the fact that more envelopes were picked up in the
7:30 pickup than in the 6:30 p.m. pickup. Counsel stated that there was no
readily available explanation for the unexpectedly high number of envelopes
that had ostensibly been missed in the 6:30 p.m. pickup.
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HRS § 15-9(a)(1) that absentee return envelopes be received by
the clerk not later than 6:00 p.m.—the closing of the polls.
28. Additionally, under HRS § 15-9(d), the Office of
the City Clerk has a specific duty to mark and segregate any
ballots that do not meet the requirements of HRS § 15-9, which
includes those absentee ballots that were not received prior to
the closing of the polls. Because the City Clerk was unable to
make any direct representation regarding the procedures actually
employed at the USPS Airport mail processing plant, the City
Clerk is unable to provide adequate assurances that the
requirements of HRS § 15-9(d) were fulfilled.
29. “The right of the people to shape the way in which
they are governed through free and fair elections is the basis
of our democratic society.” See City & Cty. of Honolulu v.
State, 143 Hawai‘i 455, 455, 431 P.3d 1228, 1230 (2018).
“Implicit in that right is . . . the right to have as nearly
perfect an election proceeding as can be provided,” which
requires that objective standards be applied as to which votes
are properly counted toward the result. Akizaki, 51 Haw. at
356, 461 P.2d at 223; see also id. at 358, 461 P.2d at 224
(holding that the Hawai‘i Constitution provides for the “neutral
and disinterested” resolution of election contests). Based on
the record in this matter and the applicable law, the inclusion
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of the 350 mail-in absentee return envelopes that were
considered for validation18 and the subsequent counting of the
ballots from the validated envelopes in the vote tally for the
election for District IV was improper.19
30. The counting of these 350 invalidly received
absentee ballots potentially altered the election results for
Council District IV and, inasmuch as they have been inseparably
commingled with the other ballots, a recount that would exclude
the invalid votes is not possible.20 Consequently, a correct
18 During oral argument, counsel for the City Clerk was able to
offer few specifics regarding the signature validation process conducted
pursuant to HRS § 15-9(c)(2) and HAR § 3-174-11. Counsel was not aware of
any process by which voters are ever informed when their votes are
invalidated because the signatures on their respective affirmation statements
have been deemed not to correspond with those on their absentee ballot
requests or voter registrations. Further, counsel indicated that voter
signatures from other sources are consulted for comparison, including
drivers’ records from the “DMV”--a procedure that would appear to be
unauthorized under the plain terms of HRS § 15-9(c)(2) and HAR § 3-174-11.
We note that 64 votes from voters registered in Council District IV were
invalidated on signature grounds in this race.
19 During oral argument, counsel for the State Defendants argued
that the close-of-polls deadline for receiving mail-in absentee ballot set by
HRS § 15-9(a)(1) is directory rather than mandatory, relying on Lane v. Fern,
20 Haw. 290, 299–300 (Haw. Terr. 1910). To the extent Lane, which
interpreted a long-since repealed statute concerning the hours during which
in-person polling places must remain open, stands for the proposition that
this court should assume statutory time-limits on the casting of votes to be
non-binding, we hold that it is fundamentally incompatible with our more
recent precedent and must be regarded as overruled. See Akizaki, 51 Haw. at
360, 461 P.2d at 225 (holding that mail-in absentee votes that were not
postmarked by then-existing statutory deadline were not validly cast).
20 While an accurate recount could not have been conducted in this
case in light of election officials’ inability to separate the comingled
ballots, it is noted that there does not appear to be established procedures
for conducting a recount in Hawai‘i’s statutes or administrative rules. Cf.
Florida Admin. Code § 1S-2.031 (setting forth detailed recounting
procedures).
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result without the inclusion of the 350 ballots cannot be
ascertained.
31. Because the correct results of the November 6,
2018 special election for the city councilmember seat for
District IV cannot be determined, the special election must be
invalidated.21 See Akizaki, 51 Haw. at 360, 461 P.2d at 225
(“Our judgment is . . . that the election was invalid for the
reason that a correct result cannot be ascertained because of
the mistake . . . on the part of the election officials in
opening the late-post-marked envelopes and commingling those
ballots with ballots validly cast. Therefore . . . in order to
protect the right of the people . . . to choose their
representatives, we invalidate the election . . . .”); HRS § 11-
174.5(b) (2009) (stating that this court is authorized to
21 In a previous case addressing a county clerk’s failure to allow
the plaintiffs to view a minor change in the format of a ballot question made
to assure the layout complied with a relevant county charter provision, this
court stated that, “as a general rule, an election will not be invalidated
for failure of the election officials to comply strictly with an election
statute where there has been substantial compliance and there is no showing
of fraud.” Thirty Voters of Kauai Cty. v. Doi, 61 Haw. 179, 184, 599 P.2d
286, 290 (1979). In that case, we held the format change only modified the
manner in which the voter would express approval or disapproval of the ballot
question and could not “be deemed to have been substantive.” Id. By pointed
contrast, this case involves the very question of whether the absentee votes
were validly cast. We hold that the counting of 350 mail-in absentee ballots
that were not received by the City Clerk prior to the close of polls
substantially complied with neither HRS § 15-9(a)(1) nor HRS § 15-9(d), which
specifically provides that such ballots shall be marked “invalid” and
disposed of in the manner prescribed by statute. Cf. Akizaki, 51 Haw. at
360, 461 P.2d at 225.
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“invalidate the special . . . election on the grounds that a
correct result cannot be ascertained”).
32. In light of the court’s decision, the court need
not reach a decision on the merits of the election challengers’
remaining claims of mistake or fraud.
JUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, the election complaints are granted in part
in favor of Waters and the 39 voters and the motions to dismiss
or, in the alternative, motions for summary judgment filed by
Chief Election Officer Nago and the Office of Elections are
denied. Judgment is entered in favor of Waters and the 39
voters as to Count I of their respective complaints and against
Chief Election Officer Nago, the Office of Elections, and City
Clerk Takahashi. The second special election for councilmember
for District IV, City and County of Honolulu is invalidated.
Waters’s and the 39 voters’ complaints are denied in all other
respects.
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A certified copy of this judgment shall be filed with
the Governor of the State of Hawai‘i in accordance with HRS § 11-
174.5(b).22
Thomas Waters /s/ Mark E. Recktenwald
plaintiff, pro se
in SCEC-XX-XXXXXXX /s/ Paula A. Nakayama
Thomas M. Otake /s/ Sabrina S. McKenna
for plaintiffs
in SCEC-XX-XXXXXXX /s/ Richard W. Pollack
Ernest H. Nomura /s/ Michael D. Wilson
Duane W. H. Pang
for defendant
Glen Takahashi, City Clerk of
the City & County of Honolulu
Valri Lei Kunimoto
Patricia Ohara
for defendants
Scott T. Nago, Chief Election
Officer and State of Hawai‘i
Office of Elections
Abigail M. Holden
Joachim P. Cox
Robert K. Fricke
for intervenor
Trevor Ozawa
22 HRS § 11-174.5(b) provides in relevant part as follows: “If the
judgment should be that the . . . special . . . election was invalid, a
certified copy thereof shall be filed with the governor, and the governor
shall duly call a new election to be held not later than one hundred twenty
days after the judgment is filed.”).
55