Lam v. State of Hawai'i Office of Elections

Electronically Filed
Supreme Court
SCEC-XX-XXXXXXX
29-AUG-2022
08:52 AM
Dkt. 15 FFCL
SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
ADRIEL LAM, Plaintiff,
vs.
STATE OF HAWAI#I, OFFICE OF ELECTIONS, Defendant.
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT
(By: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.)
On August 18, 2022 Plaintiff Adriel Lam (Lam) filed a
letter, which we construe as an election complaint, as well as
documents attached and submitted in support. On August 23, 2022
Defendant State of Hawai#i Office of Elections (Office of
Elections) filed a motion to dismiss. On August 25, 2022, Lam
filed a “Memorandum; Objection to Defendant’s Motion to Dismiss
and in Support of Motion for Hand Recount” (objection). Upon
consideration of the complaint, motion to dismiss, and objection,
and having heard this matter without oral argument, we enter the
following findings of fact, conclusions of law, and judgment.
FINDINGS OF FACT
1. Lam was one of two Primary Election Republican
Party candidates in the Senate District 24 race.
2. The 2022 Primary Election was held on August 13,
2022.
3. Following a mandatory recount, the election result
for this race was, as follows:
Fernandez, Antionette 1,490
Lam, Adriel C 1,446
Blank votes 787
4. The election result was later updated on August
22, 2022, with the following result that included the last
ballots validated by the City Clerk for the City and County of
Honolulu:
Fernandez, Antionette 1,513
Lam, Adriel C 1,474
Blank Votes 800
5. On August 18, 2022, Lam filed a letter seeking to
file a complaint under Hawai#i Revised Statutes (HRS) § 11-172
(Supp. 2021), which requests the following relief:
(a) That an order be issued requiring a halt in
the certification of the 2022 Primary Election so that a manual
recount may be conducted of the 2022 Republican Party Senate
District 24 Primary Election race; and
(b) An order requiring certain requests be
granted “to restore public confidence and assurances regarding
the integrity of Hawaii elections and reduce vulnerability to
election and voter fraud” that include maintenance of the voter
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rolls, voter education, certain ballot handling procedures, an
adequate elections budget, increased access to voting to increase
voter participation, and preserving all elections records from
the “2020 General Election” beyond the federally mandated twenty-
two month retention period to improve transparency and access to
public records.
6. Lam asserts a lack of transparency during the
mandatory recount process, lack of resolution on certain election
integrity inquiries, and pending final ballot counts support his
requested relief.
7. With regard to his assertion that there was a lack
of transparency during the mandatory recount process, Lam
recounts his observations and interactions with the Office of
Elections during the mandatory recount process, including the
lack of a response from the Office of Elections during the
mandatory recount process.
8. With regard to his concern about the lack of
resolution on certain election integrity inquiries, Lam asserts
there were many deficiencies concerning: (a) a Manual Audit
Certification that was raised regarding the 2020 General
Election; (b) cybersecurity threats from foreign and other non-
state threats to alter the election results to conform to their
interests; (c) maintenance of the voter registration rolls in
light of a “specific case of a registered voter” in the 2020
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General Election; and (d) various aspects with elections by mail.
9. With regard to his assertion that a pending final
ballot count supports his requested relief, Lam attached an email
dated August 17, 2022, from the Office of the City Clerk of the
City and County of Honolulu that states the “number of ballots
that still need to be verified is approximately 3,700[,]” and the
“number of ballots pending verification for Senate District 24 is
235.” He also asserts there were 34,559 ballots received on
August 14, 2022, that “could have met the deadline for receipt by
7 p.m., Aug 13, 2022,” if receipt of these 34,559 ballots were
recorded in Greenwich Mean Time (GMT) because Hawai#i standard
time is ten hours behind GMT.
10. Lam cites Hawai#i Revised Statutes (HRS) § 11-172,
as well as HRS §§ 11-109 (Supp. 2021), 16-42 (2009), and 19-3
(Supp. 2014), in support of his assertions and requested
remedies.
11. The Office of Elections asserts that the complaint
should be dismissed with prejudice.
12. Lam’s objection asserts that “[a] manual recount
is in order and the motion to dismiss should be overruled.”
CONCLUSIONS OF LAW
1. HRS § 11-172 governs election contests and
provides in relevant part: “With respect to any election, any
candidate, or qualified political party directly interested, or
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any thirty voters of any election district, may file a complaint
in the supreme court. The complaint shall set 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.”
2. HRS § 11-173.5 (2009 & Supp. 2021) provides for
contest for cause to be filed in the supreme court involving
primary elections, special primary elections, and county
elections held concurrent with a regularly scheduled primary or
special primary election.
3. A complaint challenging the results of a primary
election fails to state a claim unless the plaintiff demonstrates
errors, mistakes, or irregularities that would change the outcome
of the election. See HRS § 11-172; 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).
4. A plaintiff challenging a primary election must
show actual information of mistakes or errors that would have
changed the election result. Tataii, 119 Hawai#i at 339, 198
P.3d at 126; Funakoshi, 65 Haw. at 316-17, 651 P.2d at 915.
5. For a complaint to be legally sufficient, it must
“show[] that the specific acts and conduct . . . complain[ed of]
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would have had the effect of changing the results of the primary
election.” Elkins, 56 Haw. at 49, 527 P.2d at 237.
6. An election contest cannot be based upon mere
belief or indefinite information. Tataii, 119 Hawai#i at 339,
198 P.3d at 126; Akaka, 84 Hawai#i at 388, 935 P.2d at 103. For
example, it is not sufficient that a plaintiff points to a
“poorly run and inadequately supervised election process” that
shows “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).
7. The remedy provided by HRS § 11-173.5(b) of having
the court decide which candidate was nominated or elected is the
only remedy that can be given in primary election contests.
Funakoshi, 65 Haw. at 316, 651 P.2d at 914; see HRS § 11-
173.5(b).
8. When reviewing a request to dismiss a complaint,
the court must accept plaintiff’s allegations as true and view
them in the light most favorable to the plaintiff; 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).
9. The court’s consideration of matters outside the
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pleadings converts a motion to dismiss into one for summary
judgment. Foytik v. Chandler, 88 Hawai#i 307, 313, 966 P.2d 619,
625 (1998). Summary judgment is appropriate where there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Estate of Doe v. Paul
Revere Ins. Group, 86 Hawai#i 262, 269-270, 948 P.2d 1103, 1110-
1111 (1997).
10. Taking Lam’s allegations as true and viewing them
in the light most favorable to him, this court does not have
jurisdiction to grant Lam the relief he seeks because ordering a
manual recount of the ballots cast in the Republican Primary
Election for the Senate District 24 seat, and granting certain
requests “to restore public confidence and assurances regarding
the integrity of Hawaii elections and reduce vulnerability to
election and voter fraud,” are not authorized by HRS § 11-
173.5(b). See Funakoshi, 65 Haw. at 316, 651 P.2d at 914.
JUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, judgment is entered dismissing the complaint.
DATED: Honolulu, Hawai#I, August 29, 2022.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Todd W. Eddins
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