Electronically Filed Supreme Court SCEC-XX-XXXXXXX 06-SEP-2022 08:18 AM Dkt. 14 FFCL SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
CARLOTTA OQUENDO, 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 25, 2022 Plaintiff Carlotta Oquendo, also
known as Cherie Kuualoha Oquendo (Oquendo), filed a letter which
we construe as an election complaint. On August 30, 2022
Defendant State of Hawai#i Office of Elections (Office of
Elections) filed a motion to dismiss. Upon consideration of the
complaint and motion to dismiss, and having heard this matter
without oral argument, we enter the following findings of fact,
conclusions of law, and judgment.
FINDINGS OF FACT
1. Oquendo was one of three Primary Election
Republican Party candidates in the House District 45 race.
2. The 2022 Primary Election was on August 13, 2022.
3. Following a mandatory recount, the election result
for this race was, as follows: Wilbur, Tiana 403 Oquendo, Cherie Kuualoha 395 Aldeguer, Maysana A. 347 Blank votes 165
4. The election result was later updated by a final
printout published on August 25, 2022, with the following result
that included the last ballots validated by the City Clerk for
the City and County of Honolulu:
Wilbur, Tiana (Wilbur) 411 Oquendo, Cherie Kuualoha 406 Aldeguer, Maysana A. 353 Blank votes 169 Over votes 1
5. On the same day, August 25, 2022, Oquendo filed 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 manual
recount of the 2022 Republican Party House District 45 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
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.
2 6. Oquendo asserts a lack of transparency during the
mandatory recount process, lack of resolution on certain election
integrity inquiries, and the final ballot counts support the
requested relief.
7. With regard to Oquendo’s assertion that there was
a lack of transparency during the mandatory recount process,
Oquendo recounts observations and interactions with the Office of
Elections during the mandatory recount process, including the
lack of responses from the Office of Elections during the
mandatory recount process.
8. With regard to the concern about the lack of
resolution on certain election integrity inquiries, Oquendo
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
General Election; and (d) various aspects with elections by mail.
9. With regard to the assertion that a final ballot
count supports the requested relief, Oquendo asserts a manual
recount could alter the outcome because the difference between
Oquendo and Wilbur is only five votes. She also points to a
credit data file from the City and County of Honolulu Elections
Office that states there were 34,559 ballots received on August
14, 2022, that “could have met the deadline for receipt by 7
3 p.m., Aug[ust] 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. The Office of Elections asserts that the complaint
should be dismissed with prejudice because it’s untimely and
fails to state a claim upon which relief may be granted.
CONCLUSIONS OF LAW
1. HRS § 11-173.5(a) (2009 & Supp. 2021) provides in
pertinent part that “a complaint for a contest for cause that
arises from a mandatory recount pursuant to section 11-158 shall
be filed no later than 4:30 p.m. on the third calendar day
following the public announcement of the results of the mandatory
recount pursuant to section 11-158(c).”
2. The mandatory recount in this race resulted in a
difference of eight votes between Wilbur and Oquendo.
3. However, Oquendo’s complaint clearly refers to a
five vote difference between Wilbur and Oquendo, which is the
result shown by the August 25, 2022 final printout.
4. As such, Oquendo’s complaint does not “arise[]
from a mandatory recount pursuant to [HRS] section 11-158[,]”
and, thus, the time limit in which to file a primary election
complaint from a mandatory recount does not apply to Oquendo’s
complaint. See HRS § 11-173.5(a).
5. Oquendo filed the complaint on August 25, 2022, or
before the August 26, 2022 deadline for other primary election
complaints. See HRS § 11-173.5(a) (requiring the complaint to be
4 filed no later than 4:30 p.m. on the thirteenth day after a
primary election).
6. Oquendo’s complaint is thus timely.
7. 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).
8. 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).
9. 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.
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Electronically Filed Supreme Court SCEC-XX-XXXXXXX 06-SEP-2022 08:18 AM Dkt. 14 FFCL SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
CARLOTTA OQUENDO, 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 25, 2022 Plaintiff Carlotta Oquendo, also
known as Cherie Kuualoha Oquendo (Oquendo), filed a letter which
we construe as an election complaint. On August 30, 2022
Defendant State of Hawai#i Office of Elections (Office of
Elections) filed a motion to dismiss. Upon consideration of the
complaint and motion to dismiss, and having heard this matter
without oral argument, we enter the following findings of fact,
conclusions of law, and judgment.
FINDINGS OF FACT
1. Oquendo was one of three Primary Election
Republican Party candidates in the House District 45 race.
2. The 2022 Primary Election was on August 13, 2022.
3. Following a mandatory recount, the election result
for this race was, as follows: Wilbur, Tiana 403 Oquendo, Cherie Kuualoha 395 Aldeguer, Maysana A. 347 Blank votes 165
4. The election result was later updated by a final
printout published on August 25, 2022, with the following result
that included the last ballots validated by the City Clerk for
the City and County of Honolulu:
Wilbur, Tiana (Wilbur) 411 Oquendo, Cherie Kuualoha 406 Aldeguer, Maysana A. 353 Blank votes 169 Over votes 1
5. On the same day, August 25, 2022, Oquendo filed 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 manual
recount of the 2022 Republican Party House District 45 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
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.
2 6. Oquendo asserts a lack of transparency during the
mandatory recount process, lack of resolution on certain election
integrity inquiries, and the final ballot counts support the
requested relief.
7. With regard to Oquendo’s assertion that there was
a lack of transparency during the mandatory recount process,
Oquendo recounts observations and interactions with the Office of
Elections during the mandatory recount process, including the
lack of responses from the Office of Elections during the
mandatory recount process.
8. With regard to the concern about the lack of
resolution on certain election integrity inquiries, Oquendo
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
General Election; and (d) various aspects with elections by mail.
9. With regard to the assertion that a final ballot
count supports the requested relief, Oquendo asserts a manual
recount could alter the outcome because the difference between
Oquendo and Wilbur is only five votes. She also points to a
credit data file from the City and County of Honolulu Elections
Office that states there were 34,559 ballots received on August
14, 2022, that “could have met the deadline for receipt by 7
3 p.m., Aug[ust] 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. The Office of Elections asserts that the complaint
should be dismissed with prejudice because it’s untimely and
fails to state a claim upon which relief may be granted.
CONCLUSIONS OF LAW
1. HRS § 11-173.5(a) (2009 & Supp. 2021) provides in
pertinent part that “a complaint for a contest for cause that
arises from a mandatory recount pursuant to section 11-158 shall
be filed no later than 4:30 p.m. on the third calendar day
following the public announcement of the results of the mandatory
recount pursuant to section 11-158(c).”
2. The mandatory recount in this race resulted in a
difference of eight votes between Wilbur and Oquendo.
3. However, Oquendo’s complaint clearly refers to a
five vote difference between Wilbur and Oquendo, which is the
result shown by the August 25, 2022 final printout.
4. As such, Oquendo’s complaint does not “arise[]
from a mandatory recount pursuant to [HRS] section 11-158[,]”
and, thus, the time limit in which to file a primary election
complaint from a mandatory recount does not apply to Oquendo’s
complaint. See HRS § 11-173.5(a).
5. Oquendo filed the complaint on August 25, 2022, or
before the August 26, 2022 deadline for other primary election
complaints. See HRS § 11-173.5(a) (requiring the complaint to be
4 filed no later than 4:30 p.m. on the thirteenth day after a
primary election).
6. Oquendo’s complaint is thus timely.
7. 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).
8. 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).
9. 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 (Supp. 2021); Funakoshi v.
King, 65 Haw. 312, 317, 651 P.2d 912, 915 (1982).
10. A plaintiff challenging a primary election must
show that he or she has actual information of mistakes or errors
sufficient to change the election result. Funakoshi, 65 Haw. at
316-17, 651 P.2d at 915.
11. HRS § 11-172 provides in relevant part: “With
5 respect to any election, any candidate, or qualified political
party directly interested, or 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.”
12. 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 915 (“‘[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)).
13. HRS § 11-173.5 sets forth, among other matters,
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.
14. 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 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
6 the candidate to be nominated or elected.” Id. at 315, 651 P.2d
at 914.
15. 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, 65 Haw. at 317,
651 P.2d at 915.
16. Taking Oquendo’s allegations as true and viewing
them in the light most favorable to Oquendo, ordering a manual
recount of the ballots cast in the Republican Primary Election
for the House District 45 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 315-16, 651 P.2d at 914.
17. Oquendo’s complaint thus fails to state a claim
upon which relief may be granted.
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/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Todd W. Eddins