Defeated Honolulu City Council candidate Tommy Waters, who lost the 4th District seat to Trevor Ozawa by 41 votes, wants the Hawaii Supreme Court to order either a recount by hand of the 4,455 "blank" votes recorded in the election — or a new election.
Waters argues that enough uncertainty exists with the process that one could reasonably conclude a recount could alter the results. The points are made in a 78-page challenge Waters issued against the state Office of Elections on Monday, the deadline for the former lawmaker to appeal.
Ozawa maintains Waters does not have a legal case and told reporters he expects to be sworn in on Jan. 2 as scheduled.
A final report made Wednesday by state Chief Election Officer Scott Nago stated that Ozawa received 16,374 votes, ahead of the 16,333 votes Waters received. It also listed 4,451 blank votes.
The complaint notes the new summary gives Ozawa three more votes than the 16,371 he was reported having received Nov. 5, just hours after the election ended. The new summary report, meanwhile, gives Waters nine more votes than the 16,324 reported Nov. 5, while the number of blank votes went up by four votes to 4,455.
An Office of Elections official declined comment, citing pending litigation.
Waters’ argument is that it’s reasonable to suspect there exists a margin of error of 0.2 percent or greater.
A 1999 audit of the 1998 general election by an Election Oversight Committee headed by then-state Auditor Marion Higa concluded that 0.2 percent of votes cast using electronic ballot-counting machines could not be determined to be accurate because of a built-in defect.
The total number of votes cast in District 4, including the votes of Ozawa and Waters, blank votes and "over" votes, was 37,178, and 0.2 percent of that is 74.
If 74 of the 4,451 blank votes were actually votes cast for either Ozawa or Waters, it could be enough to tip the election in a different direction, Waters contends.
Waters said the Office of Elections owes it not just to him, but also to Ozawa and the voters, to ensure the accuracy of the results, even if the outcome doesn’t change.
"We’re hoping to be able to do it by Jan. 2," he said, noting that the Office of Elections and City Clerk Bernice Mau have 10 days to respond to the complaint.
In a separate count, Waters’ challenge points to 11 "over" votes and 39 "under" votes. Those 50 ballots, the challenge states, "were intermingled with valid ballots."
Because the election was determined by 41 votes, those 50 questionable votes also could have affected the outcome of the election, Waters argues.
| View Petition to Hawaii State Supreme Court |
"These frauds or mistakes are of such a nature that the correct result of the election cannot be ascertained," the challenge said. As a result, the court should order a new election held by mail-in ballot, the petition states.
Ozawa said at a news conference that he is the councilman-elect of the district and that he intends to take office Jan. 2.
"The people of this district have spoken," he said.
The Office of Elections has its own internal auditing system, he said.
"I have faith in the process of the Office of Elections," Ozawa said. "Especially in a race this close, of course those ballots were looked at."
He added, "Now I have to leave it up to the judicial system and the judicial process, and I have to have faith in that process, which I do."
The burden of proof for challenging an election’s results is extremely high, and "because he lost by a few votes, I don’t know if that meets the burden," he said.
"We would like to put this behind for both ourselves and for our district because this is continuing to delay the election and delaying the result," Ozawa said with his wife and infant daughter beside him. He added that he also does not like that the challenge will cost taxpayers in terms of court fees.
Waters’ case, if successful, would set a bad precedent, he said.
Both Waters and Ozawa are attorneys. They were among four candidates vying for the East Honolulu seat, which was left without an incumbent when Stanley Chang chose to forgo a re-election bid to run for Congress. As the two top vote-getters in August, Ozawa and Waters won the right to advance to a one-on-one face-off.
Waters previously served three terms in the state Legislature, representing Waimanalo and part of Kailua. This is Ozawa’s first attempt at elected office.
In the September 1988 primary, Democrats Romy Cachola and Connie Chun each received 1,795 votes, or 47.6 percent of the vote. Cachola won a subsequent runoff election. That same year, Jim Shon won a House seat in the general election by 48 votes.
