Cushnie v. State of Hawai'i – Chief Election Officer

Electronically Filed
Supreme Court
SCEC-XX-XXXXXXX
06-SEP-2022
10:41 AM
Dkt. 16 FFCL
SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
RALPH CUSHNIE, Plaintiff,
vs.
STATE OF HAWAI#I - CHIEF ELECTION OFFICER, Defendant.
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT
(By: Nakayama, Acting C.J., McKenna, Wilson, and Eddins, JJ., and
Circuit Judge Johnson, in place of Recktenwald, C.J., recused)
On August 26, 2022, Plaintiff Ralph Cushnie (Cushnie),
and a group of 30 voters in District 17 on the island of Kaua#i,
submitted a letter that we construe as an election contest
complaint (complaint). On August 31, 2022, Defendant State of
Hawai#i - Chief Election Officer (Defendant) filed a motion to
dismiss Cushnie’s complaint. On September 2, 2022, Cushnie filed
a letter in rebuttal to the motion to dismiss (rebuttal). Upon
consideration of the complaint, motion to dismiss, and rebuttal,
and having heard this matter without oral argument, we enter the
following findings of fact, conclusions of law, and judgment.
FINDINGS OF FACT
1. Cushnie filed the complaint on August 26, 2022.
2. Cushnie asserts that two audits were performed for
the 2022 Primary Election that did not satisfy the requirements
of Hawai#i Revised Statutes (HRS) § 16-42 (2009) because, in the
first audit, the ballots were not chosen randomly, and, in the
second audit, ballot images were incorrectly compared to
electronic tallies when HRS § 16-42 requires paper ballots to be
compared to electronic tallies.
3. Cushnie requests that the certification of the
2022 Primary Election be halted until a manual recount of the
paper ballots of one randomly selected district in each county is
performed by election officials and official volunteer observers.
4. In addition to HRS § 16-42, Cushnie cites HRS
§§ 11-172 (Supp. 2021) and 11-174.5 (2009 & Supp. 2021) in
support of his assertions and requested relief.
5. Cushnie emphasizes the following language in HRS
§ 11-174.5: “The judgment may invalidate the general, special
general, special, or runoff election on the grounds that a
correct result cannot be ascertained because of a mistake or
fraud on the part of the voter service center officials[.]”
6. Defendant asserts that the complaint should be
dismissed with prejudice, or, alternatively, that summary
judgment be entered in its favor.
7. Cushnie filed a rebuttal on September 2, 2022,
maintaining that an audit in compliance with HRS § 16-42 has not
been completed.
2
CONCLUSIONS OF LAW
1. When reviewing a request to dismiss a complaint,
the court’s review “is based on the contents of the complaint,
the allegations of which [the court] accept[s] as true and
construe[s] in the light most favorable to the plaintiff.
Dismissal is improper unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Casumpang v. ILWU, Local 142, 94
Hawai#i 330, 337, 13 P.3d 1235, 1242 (2000) (quotation marks and
citation omitted).
2. When considering a request to dismiss a complaint,
the court need not accept conclusory or formulaic recitations on
the legal effects of the events alleged. Kealoha v. Machado, 131
Hawai#i 62, 74, 315 P.3d 213, 225 (2013).
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; Funakoshi v. King, 65 Haw.
312, 317, 651 P.2d 912, 915 (1982).
4. Plaintiffs challenging a primary election must
show that they have actual information of mistakes or errors
sufficient to change the election result. Funakoshi, 65 Haw. at
316-17, 651 P.2d at 915.
5. HRS § 11-172 provides in relevant part: “With
respect to any election, any candidate, or qualified political
party directly interested, or any thirty voters of any election
3
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.”
6. In order for a primary election complaint to be
legally sufficient, it must “show[] that the specific acts and
conduct . . . complain[ed of] would have had the effect of
changing the results of the primary election[.]” Elkins v.
Ariyoshi, 56 Haw. 47, 49, 527 P.2d 236, 237 (1974); see
Funakoshi, 65 Haw. at 314, 651 P.2d at 913 (“‘[D]ifference in the
election results’ in HRS § 11-172 . . . mean[s] ‘a difference
sufficient to overturn the nomination of any particular candidate
or candidates in the primary.’” (Quoting Elkins, 56 Haw. at 49,
527 P.2d at 237)).
7. HRS § 11-173.5 (2009 & Supp. 2021) sets forth,
among other matters, the time requirements for primary election
contests to be filed in the supreme court, as well as the remedy
allowed to be provided in primary election contests.
8. Having the court decide which candidate was
nominated or elected is the only remedy that can be given in a
primary election contest. Funakoshi, 65 Haw. at 315-16, 651 P.2d
at 914. In other words, the “only statutory relief to which
plaintiff is entitled under HRS § 11–173.5(b) would be to have
this Court declare the name of the candidate to be nominated or
elected.” Id. at 315, 651 P.2d at 914.
9. HRS § 11-174.5 sets forth, among other matters,
4
the remedies allowed to be provided in general election contests,
which includes “invalidat[ing] the general . . . election on the
grounds that a correct result cannot be ascertained because of a
mistake or fraud on the part of the voter service center
officials[.]”
10. HRS § 11-174.5 does not apply here because the
2022 General Election has not happened yet, and thus there are no
general election results to invalidate. See Funakoshi, 65 Haw.
at 315, 651 P.2d at 914 (“HRS § 11-173.5(b) does not provide for
a judgment that would invalidate the primary election and allow a
new election. The legislature only provided for this
extraordinary remedy in its statutory provisions pertaining to
general . . . elections.”).
11. Taking Cushnie’s allegations as true and viewing
the allegations in a light most favorable to him, Cushnie’s
requested relief of seeking an order halting the certification of
the 2022 Primary Election results until a manual recount is
performed is not a remedy authorized by HRS § 11-173.5(b) (“[t]he
judgment shall decide what candidate was nominated or elected”).
See Funakoshi, 65 Haw. at 315-16, 651 P.2d at 914.
12. The complaint thus fails to state a claim upon
which relief may be granted.
5
JUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, judgment is entered dismissing the complaint.
DATED: Honolulu, Hawai#i, September 6, 2022.
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Todd W. Eddins
/s/ Ronald G. Johnson
6