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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

SCEC-18-0000909

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.

------------------------------------------------------

SCEC-18-0000910

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, 

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, Respondents.

Electronically Filed

Supreme Court

SCEC-18-0000909

25-JAN-2019

03:52 PM
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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 inperson 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 

for District IV as follows:

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. 

and reported the result of the race for the office of 

councilmember for District IV as follows:

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-18-0000909)

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 

election.”

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-18-0000910)

25. On November 26, 2018, 39 voters who reside and are 

registered to vote in Council District IV filed a complaint 

contesting the election results for the District IV 

councilmember race. 

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 

from registered voters in Council District IV.

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

were from voters registered in Council District IV, were 
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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 

Defendants’ response to this court’s December 28, 2018 order 

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 

pickup.

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 mailin 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-18-0000909 and SCEC-18-0000910 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-18-0000909) and Iwasa 

et al. v. Nago et al. (SCEC-18-0000910), 

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 

information of mistakes or errors sufficient to change the 

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 MailUser’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 mailin 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 selfevident 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

plaintiff, pro se

in SCEC-18-0000909

Thomas M. Otake

for plaintiffs

in SCEC-18-0000910

Ernest H. Nomura

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

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson 

 

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.”).