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Waters v. Nago

Supreme Court of Hawaii

December 24, 2014

THOMAS WATERS a/k/a TOMMY WATERS, Plaintiff,
v.
SCOTT NAGO, Chief Election Officer; STATE OF HAWAII OFFICE OF ELECTIONS; and BERNICE K.N. MAU, in her official capacity as the City Clerk of the City and County of Honolulu, Defendants.

ORIGINAL PROCEEDING

Recktenwald, C.J., Pollack, and Wilson, JJ., Intermediate Court of Appeals Chief Judge Nakamura, in place of Nakayama, J., recused, and Intermediate Court of Appeals Associate Judge Foley, in place of McKenna, J., recused.

FINDINGS OF FACT, CONCLUSIONS OF LAW, and JUDGMENT

Upon consideration of (1) the first amended complaint contesting the second special election for councilmember for District IV (Waikiki-East Honolulu), City and County of Honolulu, filed by Plaintiff Thomas Waters, a/k/a Tommy Waters ("Waters"), (2) the answer to the first amended complaint filed by Defendant Bernice K.N. Mau ("Mau"), in her official capacity as the City Clerk of the City and County of Honolulu, (3) the motion to dismiss the first amended complaint or, in the alternative, for summary judgment filed by Defendants Scott Nago ("Nago"), Chief Election Officer, and the Office of Elections for the State of Hawai'i ("Office of Elections"), (4) the answer to the first amended complaint and the joinder to the motion to dismiss the first amended complaint or, in the alternative, for summary judgment filed by Intervenor Trevor R. Ozawa ("Ozawa"), and (5) the opposition to the motion to dismiss the first amended complaint or, in the alternative, for summary judgment, filed by Plaintiff Waters, and in accordance with HRS §§ 11-172 (2009) and 11-174.5(b) (2009), we set forth the following findings of fact and conclusions of law and enter the following judgment.

FINDINGS OF FACT

The November 4, 2014 Second Special Election for the District IV City Council Seat

1. On November 4, 2014, in conjunction with the State of Hawai'i's general election, the City and County of Honolulu held its nonpartisan second special election for city councilmember for District IV.

2. Waters and Ozawa were the nonpartisan candidates for the District IV councilmember seat.

3. On November 5, 2014, at 1:26 a.m., the Office of Elections generated a "Final Summary Report" for the elections. According to Nago and the Office of Elections, the report reflected the results of the November 4, 2014 election subject to any audit of the poll books, record books, and the reconciliation reports compiled by the county clerks. At that time, the results of the District IV race were reported as follows:

Trevor Ozawa: 16, 371 (44.1%)
Tommy Waters: 16, 324 (43.9%)
Blank Votes: 4, 451 (12.0%)
Over Votes: 16 (0.0%)

4. On November 18, 2014, at 5:11 p.m., following a post-election audit and the reconciliation process, the Office of Elections generated a final "Final Summary Report." The results of the District IV race were reported as follows:

Trevor Ozawa: 16, 374 (44.0%)
Tommy Waters: 16, 333 (43.9%)
Blank Votes: 4, 455 (12.0%)
Over Votes: 16 (0.0%)

5. The difference in the two reports was the addition of 16 ballots to the final tally, which included 4 provisional ballots that were approved for counting, 10 absentee mail ballots for which the signatures on the return envelopes had been confirmed, and 2 federal write-in absentee ballots.

6. The difference in the votes between Waters and Ozawa was 41 votes.

Post-Election Communications

7. On November 10, 2014, Waters' counsel, James Kawashima ("Kawashima"), sent a letter to the Office of Elections requesting information about the second special election. He asked the Office of Elections for the margin of error of the voting system used. He also asked the Office of Elections to take the following action: (1) verify and investigate the possible errors with the overages and underages; (2) investigate the 4, 451 blank votes for accuracy and validity; and (3) review the 16 overvotes in accordance with operating procedure. Kawashima asked the Office of Elections to "apply every test or process available to you in making sure the result was accurate and valid."

8. Three days later, on November 13, 2014, Kawashima sent a follow up letter to the Office of Elections. He informed the Office of Elections of the upcoming deadline to take legal action to challenge the election and asked for a status regarding a response to the November 10, 2014 letter. He also informed the Office of Elections that he was ready and available to meet and discuss the issues.

9. On November 14, 2014, Nago sent Kawashima a letter acknowledging the November 10 and 13, 2014 letters. Nago informed Kawashima that the Office of Elections was in the process of completing its post-election processes before it could finalize the election results and that it would forward a copy of the final summary report along with the overages and underages related to the districts/precincts associated with the District IV contest at the conclusion of the process.

10. On November 19, 2014, Nago sent Kawashima a final statewide summary and attached a matrix of the overages and underages for ...


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