Court spurns effort to upset Council election

Honolulu City Council candidate Tommy Waters’ challenge to the 41-vote victory by his opponent, Trevor Ozawa, in the November election was rejected Wednesday by the Hawaii Supreme Court, paving the way for Ozawa to be sworn in at Honolulu Hale next week.

Ozawa’s win in the Council 4th District was among the closest elections in Hawaii political history.

But in seeking either a recount by hand of the 4,455 "blank" votes recorded in the election or a new election, Waters needed to show "actual information of mistakes or errors sufficient to change the election result," according to the unanimous, 18-page decision. Ultimately, the justices said, Waters failed to do that.

Waters, in a text message response to the Honolulu Star-Advertiser, said he was doing last-minute holiday shopping and had not yet read the decision.

"My family, friends, supporters and I are disappointed," he said. "We worked really hard and came up a few votes short."

Waters, who spent six years in the state House of Representatives, including time as House Judiciary Committee chairman, said he intends to "stay active and engaged in the community" and may consider seeking political office in the future.

He congratulated Ozawa, a fellow attorney and a Kamehameha Schools alumnus.

"He worked hard, and I am happy for him and his family," Waters said.

Ozawa, successful in his first bid for elected office, applauded the court’s decision at a press conference in front of City Hall Wednesday afternoon.

"They validate the election results and confirmed that the process was upheld appropriately and properly," he said. "There were no errors, no omissions, no inaccuracies."

The court’s decision allows the people of the 4th District, which runs from Diamond Head to Hawaii Kai, to "move on."

Waters argued two points in his complaint.

The first alleged that Chief Election Officer Scott Nago, the state Office of Elections and then-City Clerk Bernice Mau "miscounted" 74 votes initially deemed to be blank votes, but later determined to be for either him or Ozawa. The second point alleged that the same elections officials mishandled "overages and underages" — too many boxes checked or no box checked, intermingling 50 such ballots with valid ballots.

Waters relied on a 1998 audit of Hawaii’s electronic voting system by an Election Oversight Committee that 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. If enough of the 0.2 percent of 37,178 votes cast in the 4th District, or 74 votes, turned out to have been cast for Waters, it could be enough to tip the election in his favor, Waters contended.

But both Mau and Nago, in written responses to Waters’ allegations, said it was improper for him to rely on the 1998 audit since it involved a different election using a different type of voting machine from those used in 2014.

Nago also said that there was nothing unusual about the handling of overages and underages in November’s election, and that manual audits of two 4th District precincts confirmed that.

"Waters has not presented specific evidence or actual information of mistakes or errors to dispute this conclusion such that it would change the election result," the court wrote.

Waters said he was frustrated by elections officials when he sought to obtain documents and other information to "satisfy himself" that no fraud, irregularities or mistakes had been made that could have affected the election’s outcome.

But the court said Waters "does not explain how the sought-after documents or information demonstrates fraud, irregularities or mistakes sufficient to change the election results, instead premising his argument on the absence of information that he was provided."