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 Thursday, city officials also argued that Waters has not been able to provide any evidence that “provable fraud” occurred in the race for Council District 4 (East Honolulu).

Waters lost the seat to incumbent Trevor Ozawa by 22 votes. Waters was ahead as of midnight on Election Day, but the final vote report released early the next morning — which included late absentee mail ballots — showed Ozawa ahead.

Ozawa has been unable to take his seat on the Council with the race still up in the air. He was set to become Council chairman Jan. 2. Instead the Council has been at a standstill while the election issue is resolved. Council members have scheduled a meeting for Monday to see whether they can pick at least a temporary chairman — with or without Ozawa as the ninth member.

The next step is up to the Supreme Court, which could side with Ozawa and certify his victory, or side with Waters and continue to question the results.

Waters wants the court to demand either a recount of the results or to have the votes thrown out altogether and require a do-over election.

The city, however, says 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). This is an unjust result.”

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

According to Thursday’s filing by the city, 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., the same time precincts closed, 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.

Hawaii Revised Statutes states that mailed absentee ballots “shall be mailed and must be received by the clerk issuing the absentee ballot not later than the closing of the polls on any election day.”

Waters contends that language specifically calls for election officials, not USPS, to have the ballots in hand by 6 p.m.

But city and state election officials say ballots accepted by the USPS at 6 p.m. should be counted.

Under the arrangement with USPS, the city said, postal workers at 6 p.m. “sweep” their facilities for the specially marked mail-in ballot envelopes. As in previous elections, city election officers said, their staff on Nov. 6 collected those envelopes from the airport post office at 6:30 and 7:30 p.m. and delivered them to the city’s nearby Koapaka processing facility where signatures were verified. The ballots were then 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.

“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.