***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** Electronically Filed Supreme Court SCEC-18-0000909 25-JAN-2019 03:52 PM 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. ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** ORIGINAL PROCEEDING JANUARY 25, 2019 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ. PER CURIAM Two election contests were brought as original actions with this court challenging the result of the City and County of Honolulu second special election for councilmember for District IV held on November 6, 2018. The critical issue in these cases concerns the collection of 350 absentee mail-in return envelopes by the City Clerk at the Honolulu Airport post office on election day of November 6, 2018. Under our election law, these envelopes were required to be “received” by the City Clerk no later than the close of the polls on election day, which was set by statute at 6:00 p.m. However, it is undisputed that the City Clerk did not take possession of these absentee mail-in return envelopes until after that deadline, retrieving them from the mail facility in pickups that occurred at approximately 6:30 p.m. and 7:30 p.m. The ballots that were included in these envelopes were subsequently commingled with other ballots and then counted in determining the outcome of the election. We conclude that the 350 absentee mail-in return envelopes were “received” by the City Clerk after the deadline established by state law, and accordingly, the ballots they contained should not have been counted. These 350 ballots 2 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** 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 3 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** the resolution of provisional ballots. The State of Hawaiʻi Office of Elections (“Office of Elections”) supervises the overall administration of the election, including managing the polling places, selecting the precinct officials, and counting the validly cast ballots. 3. Twenty days prior to an election, the City Clerk mails an absentee ballot to each registered voter who has requested one, together with a yellow envelope to seal the completed ballot (the “secret ballot envelope”) and a larger blue business reply mail envelope in which to return the secret ballot envelope (the “absentee return envelope”). A voter affirmation statement and a line for the voter’s signature are printed on the outside of the absentee return envelope. 4. A voter may cast an absentee ballot at any time prior to the close of polls on election day by mailing a sealed absentee return envelope to the City Clerk via the United States Postal Service (the “USPS”) or by hand delivering a sealed absentee return envelope to any polling place. Polling places include absentee walk-in locations managed by the City Clerk that are open prior to election day and in-person election day polling places administered by the Office of Elections. 5. Absentee return envelopes that are returned to in- person polling places on election day are collected by Office of Elections polling officials, who transfer the sealed absentee 4 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** 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 5 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** 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. 6 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** 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 7 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** 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 8 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** 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. 9 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** 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. 10