SCEC-22-0000682 

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI 

________________________________________________________________ 

JAMES RYAN MALISH and KARL O. DICKS, Plaintiffs, 

vs. 

SCOTT NAGO, acting in official capacity of Chief Election 

Officer, STATE OF HAWAIʻI OFFICE OF ELECTIONS, 

and ELECTIONS COMMISSION, Defendants. 

________________________________________________________________ 

ORIGINAL PROCEEDING 

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT 

(By: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.) 

 Upon consideration of the election complaint filed on 

November 4, 2022, the motion to dismiss filed on November 9, 

2022, and the record, we enter the following findings of fact, 

conclusions of law, and judgment dismissing the complaint. 

FINDINGS OF FACT 

1. The 2022 primary election was held on August 13, 

2022. 

Electronically Filed

Supreme Court

SCEC-22-0000682

23-DEC-2022

11:26 AM

Dkt. 16 FFCL
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2. Plaintiff Karl O. Dicks (Dicks) was an 

unsuccessful Republican candidate for the office of State 

Senator, District 17.

3. Plaintiff James Ryan Malish (Malish) was the only 

nonpartisan candidate in the primary election for the office of 

State Senator, District 9. 

4. Stanley Chang (Chang) and Michael L. Parrish 

(Parrish) were the only Democrat and Republican candidates, 

respectively, in the primary election for the office of State 

Senator, District 9.

5. There were no other candidates in the primary 

election for the office of State Senator, District 9.

6. There were a total 13,766 votes cast for the 

State Senator, District 9, primary election race, the results of 

which were:

Chang 11,550

Parrish 2,183

Malish 33

7. Both Chang and Parrish were on the 2022 general 

election ballot, but Malish was not.

8. Defendant Chief Election Officer Scott Nago 

(Nago) states Malish did not qualify to be a candidate for the 

2022 general election because Malish did not receive at least 

ten per cent of the total votes cast in the primary election for 

the office of State Senator, District 9, or 1,377 votes. 
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9. Nago also states Malish did not receive an amount 

of votes equal to the lowest amount of votes received by a 

partisan candidate who was nominated in the primary election for 

the same office. 

10. On November 4, 2022, or four days before the 

November 8 general election, Malish and Dicks (collectively, 

Plaintiffs), pro se, filed an election complaint asserting that 

the primary election ballot violates article II, section 4 of 

the Hawaiʻi Constitution and Hawaiʻi Revised Statutes (HRS) § 12-

31 (2009) because the ballot requires selection of a political 

preference, and the manner in which the primary election ballot 

displays a nonpartisan candidate could also be construed to 

require declaration of a political preference when selecting a 

nonpartisan ballot. Plaintiffs assert that the manner that 

nonpartisan candidates are displayed on the primary election 

ballot, which includes the designation (N), gives the appearance 

that nonpartisan candidates are a part of a political party 

because Democrat and Republican candidates are visually grouped 

together similarly as nonpartisan candidates and are designated 

as (D) and (R), respectively.

11. Plaintiffs also assert that Malish should have 

been included in the 2022 general election ballot because he was 

unopposed as a nonpartisan candidate. Because Malish was 

excluded from the general election ballot for the State Senator, 
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District 9 race, but Chang and Parrish were included, Plaintiffs 

assert that HRS § 12-41(b) (2009) should not apply and is 

otherwise discriminatory. In support, Plaintiffs assert that 

HRS § 12-41(b) should be read in conjunction with HRS § 12-42(b) 

(2009) to discern the “spirit of statute” such that unopposed 

candidates in a primary election should all move forward to the 

general election, including nonpartisan candidates. 

12. Dicks contends he has an interest in this 

election contest because of his candidacy in the Republican 

primary election for the office of State Senator, District 17, 

and asserts that the primary election ballot is 

unconstitutional. 

13. Plaintiffs request that this court order a 

special election to be held with a constitutionally compliant 

ballot, without discrimination of any kind, and include all 

qualified candidates on the 2022 primary election ballot. 

Plaintiffs cite to Waters v. Nago, 148 Hawaiʻi 46, 468 P.3d 60 

(2019), as support for the relief they seek. 

14. Plaintiffs also request a “Declaratory Judgment 

of Facts” pursuant to Hawaiʻi Rules of Civil Procedure (HRCP) 

Rule 57, judicial notice of adjudicative facts pursuant to 

Hawaiʻi Rules of Evidence (HRE) Rule 201, questions for admission 

to be answered pursuant to HRCP Rule 36, and oral argument 

pursuant to Hawaiʻi Rules of Appellate Procedure Rule 36(c). 
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15. In connection with their request for a 

declaratory judgment, Plaintiffs seek a declaration that the 

voting instructions on the 2022 primary election ballot violate 

article II, section 4 of the Hawaiʻi Constitution and HRS § 12-31

(2009). The disputed instruction says: “You MUST select ONE 

political preference from the box above for your votes to 

count.” 

16. On November 9, 2022, Defendants Nago, State of 

Hawaiʻi Office of Elections, and the Elections Commission 

(collectively, Defendants) filed a motion to dismiss the 

complaint, asserting: (1) This court lacks jurisdiction over 

Plaintiffs’ primary election contest; (2) Dicks lacks standing 

to contest the results of Malish’s primary election; (3) the 

assertion that the primary election ballot design is 

unconstitutional should be dismissed; and (4) Malish was 

properly omitted from the 2022 general election ballot.

17. Defendants assert that HRS § 11-172 (Supp. 2021) 

confers standing upon a candidate to timely contest the 

candidate’s own race - HRS § 11-172 does not confer standing on 

a candidate to contest all concurrent and future federal, State, 

and county races.

18. On November 14, 2022, this court filed an order 

dismissing the election complaint in part, or to the extent that 

relief is sought under HRS § 11-173.5 (2009 & Supp. 2021). The 
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order said that this court will instead construe the complaint 

as a general election contest. 

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. 

 2. “With 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.” HRS § 11-172. 

 3. In Hawaiʻi state courts, “standing is solely an 

issue of justiciability, arising out of prudential concerns of 

judicial self-governance[,]” and not an issue of subject matter 

jurisdiction. Tax Found. of Hawaiʻi v. State, 144 Hawaiʻi 175, 

190-92, 439 P.3d 127, 142-44 (2019). 

Our guideposts for the application of the rules

of judicial self-governance founded in concern about

the proper — and properly limited — role of courts in

a democratic society reflect the precepts enunciated

by the Supreme Court. . . . [W]hen asked to decide

whether a litigant is asserting legally recognized

interests, personal and peculiar to him, we have

spoken of standing[.]

Id. at 190-91, 439 P.3d at 142-43 (quoting Trs. of Off. of 

Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 171, 737 P.2d 446, 

456 (1987)) (emphases omitted). 
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 4. In Thirty Voters of Kauai County v. Doi, this 

court held that “the electorate as a whole has sufficient 

interest in the outcome of these proceedings to confer standing 

upon it as a party plaintiff.” 61 Haw. 179, 181, 599 P.2d 286, 

288 (1979). The plaintiffs in Doi sought to set aside the 

results of a specific question posed to voters in the ballot of 

the November 7, 1978 election. Id. at 179-84, 599 P.2d at 287-

90. The plaintiffs did not seek to set aside the results of an 

entire election. See id. 

 5. In this election contest, Dicks does not have 

standing to contest Malish’s absence from the general election 

ballot. See Doi, 61 Haw. at 181, 599 P.2d at 288. 

6. Dicks and Malish do not have standing to contest 

the results of all election races in the 2022 general election 

in order for a special election to be held. See Doi, 61 Haw. at 

181, 599 P.2d at 288. 

7. We instead read the election complaint as 

requesting a special election be held with a satisfactory ballot 

and in connection with the office that Malish sought in the 2022 

primary election. 

8. In a general election contest, this court’s 

“judgment may invalidate the general . . . election on the 

grounds that a correct result cannot be ascertained because of a 

mistake or fraud on the part of the voter service center 
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officials; or decide that a certain candidate, or certain 

candidates, received a majority or plurality of votes cast and 

were elected.” HRS § 11-174.5(b) (2009 & Supp. 2021). 

 9. “A complaint challenging the results of [a 

general] election pursuant to HRS § 11-172 fails to state a 

claim unless the plaintiffs demonstrate errors that would change 

the outcome of the election” -- e.g., errors, mistakes, or 

irregularities that would change the outcome of the election. 

Tataii v. Cronin, 119 Hawaiʻi 337, 339, 198 P.3d 124, 126 (2008) 

(brackets in original) (quoting Akaka v. Yoshina, 84 Hawaiʻi 383, 

387, 935 P.2d 98, 102 (1997)). 

[T]he [plaintiff] must show that he or she has 

actual information of mistakes or errors sufficient 

to change the result. The [plaintiff] has the burden 

of demonstrating that the specific acts and conduct 

of which [he or she] complain[s] would have had the

effect of changing the results. In the absence of

facts showing that irregularities 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. 

. . . .

It is not sufficient that the [plaintiff] 

points to a poorly run and inadequately supervised 

election process that evinces room for abuse or 

possibilities of fraud. An election contest cannot

be based upon mere belief or indefinite information. 

Tataii, 119 Hawaiʻi at 339-40, 198 P.3d at 126-27 (quoting Akaka, 

84 Hawaiʻi at 387-88, 935 P.2d at 102-03). 

10. In Waters, this court invalidated the results of 

a City and County of Honolulu second special election between 
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Thomas Waters and Trevor Ozawa for the District IV city 

councilmember seat. Pursuant to HRS § 11-174.5(b), this court 

found and concluded there were 350 absentee ballots that were 

“invalidly received” and “potentially altered the election 

results” for this seat because “the difference in the number of 

votes between Waters and Ozawa was 22 votes,” and the City Clerk 

had counted 350 ballots for Council District IV that were 

received by the City Clerk after the 6:00 p.m. deadline 

established by the then-existing version of HRS § 15-9(a).1 

Waters, 148 Hawaiʻi at 65-66, 468 P.3d at 79-80. Because a 

recount excluding the invalid 350 votes was not possible, this 

court held that “a correct result without the inclusion of the 

350 ballots cannot be ascertained” and, thus, the second special 

election for this seat “must be invalidated.” Id. at 65, 468 

P.3d at 79; see HRS § 11-174.5(b). 

11. Before reaching this result, this court said: 

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 1,286[] 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.

1 HRS § 15-9 has since been amended, but at the time was 

interpreted by this court to require all absentee mail-in return envelopes to 

be “received by the City Clerk or an authorized representative by 6:00 p.m. 

on election day.” Waters, 148 Hawaiʻi at 62, 468 P.3d at 76.
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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 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.[] Akaka, 84 Hawaiʻi at 388, 935 P.2d at 

103 (quoting Funakoshi, 65 Haw. at 316–17, 651 P.2d 

at 915).

Waters, 148 Hawaiʻi at 60-61, 468 P.3d at 74-75. 

12. When reviewing a motion to dismiss a complaint, 

the court must accept the plaintiff’s allegations as true and 

view them in a light most favorable to the plaintiff. Bank of 

Am., N.A. v. Reyes-Toledo, 143 Hawaiʻi 249, 257, 428 P.3d 761, 

769 (2018). Dismissal is proper only if it appears beyond doubt 

that the plaintiff can prove no set of facts in support of their 

claim that would entitle them to relief. Id. 

 13. Conclusory assertions concerning the legal 

effects of the events alleged will not be accepted. ReyesToledo, 143 Hawaiʻi at 262, 428 P.3d at 774. 

14. Malish has not alleged specific facts, or actual 

information of mistakes or errors, sufficient to change the 

result of the 2022 general election for the State Senator, 
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District 9 office. See Waters, 148 Hawaiʻi at 60-61, 468 P.3d at 

74-75. In other words, even if Malish’s assertion that his name 

should have been on the 2022 general election ballot are taken 

as true and viewed in a light most favorable to Malish, Malish 

has not alleged a specific error “sufficient to change the 

result” of the 2022 general election for the office of State 

Senator, District 9. See id.; Tataii, 119 Hawaiʻi at 340, 198 

P.3d at 127 (“An election contest cannot be based upon mere 

belief or indefinite information.” (Quoting Akaka, 84 Hawaiʻi at 

387-88, 935 P.2d at 102-03)). 

15. Nor does Malish assert that a certain candidate 

received a majority of the votes cast in the 2022 general 

election for the State Senator, District 9 office, and was 

elected. See HRS § 11-174.5(b). 

16. Accordingly, it appears beyond doubt that Malish 

can prove no set of facts in support of Malish’s claim that 

would entitle Malish to relief. See Reyes-Toledo, 143 Hawaiʻi at 

257, 428 P.3d at 769. 

 17. In addition to Malish’s assertion, the election 

complaint asserts that the 2022 primary election ballot is 

unconstitutional and violates HRS § 12-31 because the 

instructions on the 2022 primary election ballot states that the 

voter must select a political preference for the vote to count. 

Plaintiffs seek a declaratory judgment pursuant to HRCP Rule 57, 
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and also cite to HRS § 602-5 (2016) as providing this court with 

jurisdiction “to rule on these matters of statutes, laws, 

constitutionality and compliance with thereof.” 

18. In Lewis v. Cayetano, 72 Haw. 499, 502, 823 P.2d 

738, 740 (1992), which concerned two unsuccessful County of 

Kauaʻi proposals, the plaintiffs asserted, among other things, 

that the County Clerk erred by including the overvotes in 

tallying the total number of votes cast on the question. This 

court held that, even though the doctrine of laches did not bar 

this issue, we “nevertheless decline[d] to determine the merits 

of the issue” because “[e]ven if we accept plaintiffs’ 

contention, the election results would not have changed” and the 

plaintiffs “would not be entitled to relief.” Id. at 503, 823 

P.2d at 741. 

19. Similarly, here, even if we were to accept 

Plaintiffs’ contention, Plaintiffs have not shown how the 2022 

general election results would change nor the relief that 

Plaintiffs would be entitled to. See Lewis, 72 Haw. at 503, 823 

P.2d at 741; see also Tataii, 119 Hawaiʻi at 340, 198 P.3d at 127 

(“An election contest cannot be based upon mere belief or 

indefinite information.” (Quoting Akaka, 84 Hawaiʻi at 387-88, 

935 P.2d at 102-03)). 

20. Plaintiffs’ motion for a declaratory judgment 

addressing the constitutionality and validity of the voting 
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instructions printed on the 2022 primary election ballot is thus 

denied because the motion does not state a claim on which relief 

can be granted in an election contest. See Lewis, 72 Haw. at 

503, 823 P.2d at 741. 

21. Because we are dismissing the election complaint 

for failure to state a claim on which relief may be granted, we 

deny Plaintiffs’ requests for oral argument, judicial notice of 

adjudicative facts, and questions for admission to be answered. 

JUDGMENT 

 Based on the above findings of fact and conclusions of 

law, judgment is entered granting the motion to dismiss and 

dismissing the complaint. 

DATED: Honolulu, Hawaii, December 23, 2022. 

/s/ Mark E. Recktenwald 

 /s/ Paula A. Nakayama 

 /s/ Sabrina S. McKenna 

/s/ Michael D. Wilson 

/s/ Todd W. Eddins