The Honolulu Elections Division is standing by its policy of accepting mail-in ballots from the U.S. Postal Service after 6 p.m. on Election Day, despite a challenge by defeated City Council candidate Tommy Waters that argues those votes should not be counted.

In a court filing today, city officials also argue that Waters has not been able to provide any evidence that “provable fraud” occurred.

Waters’ appeal seeks to disenfranchise “the thousands of voters who deposited absentee envelopes with USPS that were not physically and literally taken into custody and possession by the city clerk by 6 p.m. (on Election Day),” the city said. “This is an unjust result.”

Waters’ challenge is before the Hawaii Supreme Court, and election officials were ordered to provide more specific details about the procedure by noon today.

Waters lost the Council District 4 (East Honolulu) seat to incumbent Trevor Ozawa by 22 votes. Waters was ahead as of midnight, but the final vote report released early the next morning — which included late absentee mail ballots — showed Ozawa pulling ahead.

The state Office of Elections is in charge of the overall elections process and does all the vote counting. The counties, including the City and County of Honolulu, are responsible for collecting all absentee votes and turning them over to the state for counting.

According to the city’s filing today, there were 1,201 absentee mail-in votes from Council District 4 added to the final results, putting Ozawa over the top. Of those, 350 were collected by the USPS at 6 p.m. and subsequently retrieved by the city for counting by the state later that night. The rest were absentee mail-in ballots that voters dropped off at polling places.

State law requires ballots to be accepted through 6 p.m. City and state election officials say ballots accepted by the USPS at 6 p.m. should be counted. Waters contends that election officials, not USPS, should have them in hand by 6 p.m.

Under the arrangement with USPS, the city said, postal workers at 6 p.m. “sweep” their facilities and system for the specially marked mail-in ballot envelopes. As in previous elections, city election officers said, their staff Nov. 6 collected those envelopes from the airport post office at 6:30 and 7:30 p.m. and delivered them to its city’s nearby Koapaka processing facility where the outer envelopes were removed and signatures on the back of the inner envelope were verified. At that point the unopened inner envelopes were delivered to the state Capitol where they were opened and counted by state election workers.

“The practical administrative reality of the receipt, collection and pickup of mail absentee return envelopes in the election process requires the city clerk to to work cooperatively and in conjunction with the USPS in precisely the manner in which both the city clerk and USPS did in this election cycle and in previous election cycles,” the filing made by city Corporation Counsel Donna Leong said today.

“To hold otherwise would lead to an unjust result,” the filing said. “If, for example, city clerk personnel were to have an accident on the way to pick up mail absentee return envelopes at 5:30 p.m., but arrive after 6 p.m., thousands of voters’ votes would be invalidated.”

The city also pointed out that since Election Day the city clerk’s office has received an additional 734 ballots islandwide that remain sealed and not sent to the Office of Elections for counting. It’s unclear how many of those are from Council District 4 voters.

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