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Thomas Otake, the attorney who represented 39 voters from Honolulu City Council District 4 in a petition to contest the 2018 general election said, “My clients are interested in a fair election. Whatever the result is, we just want it to be accurate.” Read more

Thomas Otake, the attorney who represented 39 voters from Honolulu City Council District 4 in a petition to contest the 2018 general election said, “My clients are interested in a fair election. Whatever the result is, we just want it to be accurate.”

That was the premise of our case. After the Nov. 6 election, we reached out to the state Office of Elections and the Honolulu City Clerk as concerned community members. Given how close the race was, coupled with very odd information about the final printout, our ultimate goal was to make sure that our public officials carried out a fair election. We especially had concerns about the margin of error for voting machines and procedures used in handling and counting late ballots. In response to our inquiries, our public officials refused to provide information and referred us to the state attorney general and the Hawaii Supreme Court.

Hawaii Administrative Rules give the chief election officer (CEO) the ability to do a hand recount. Given the margin of 0.055 percent, Hawaii’s closest general election in over 20 years, we felt it was a reasonable request. We even asked former Councilmember Trevor Ozawa to join us; neither the CEO nor Ozawa did. (Separately, candidate Tommy Waters also asked for a recount.) Had a hand recount been done, it’s likely we wouldn’t have filed a petition.

We petitioned the court and raised concerns about the error of the machines and processes following the last printout. Elections officials recognized a potential error rate of the counting machines of at least 0.046 percent. They explained some ballots can go through the machine and be read one way and put through the same machine again and read another. The error rate was even higher in other states using the exact same machines, including a 2018 Texas race where the machine changed the candidate the vote was tallied for. With a 22-vote difference of 39,613 votes cast, we asked for a hand recount.

As more information came through the state and county filings, it became clear that the City Clerk did not follow the plainly- worded law when handling mailed absentee ballots, and the Office of Elections had provided no oversight.

HRS Sec. 15-9(a) requires that mailed absentee ballots must “be received by the clerk issuing the absentee ballot not later than the closing of the polls.”

HRS Sec. 11-131 additionally says that the polls close at 6 p.m. The City Clerk is thus not allowed to count ballots received after 6 p.m. on election day. This is also printed on our ballots.

The City Clerk admitted that 350 ballots were collected after 6 p.m. from the U.S. Postal Service, 165 at 6:30 p.m. and 185 at 7:30 p.m. These were all over the facility, even in trucks en route to the airport. Although those late ballots were counted, 734 ballots received later that evening and the days to follow were not.

Since all ballots were mixed together, a recount was impossible. The court relied on its own past precedent in Arakaki v. Hawaii to invalidate the results, and the Office of Elections and City Clerk called for a new election.

This petition was not about the candidates. The complaints filed with the Hawaii Supreme Court were ultimately about errors in the process.

As Chief Justice Richardson wrote in Arakaki v. Hawaii: “the right to vote is perhaps the most basic and fundamental of all the rights guaranteed by our democratic form of government. Implicit in that right is the right to have one’s vote count and the right to have as nearly perfect an election proceeding as can be provided. The result we reach must be consistent with these principles.”