Waters v. Nago

468 P.3d 60, 148 Haw. 46

• Court: Hawaii Supreme Court
• Decided: January 25, 2019
• Docket: SCEC-18-0000909
• Status: Published

Opinion

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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

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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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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,

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. ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

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

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.

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

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

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

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

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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

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

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

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.”).