Revote possible in contested Honolulu City Council race

If the Hawaii Supreme Court chooses to side with City Council candidate Tommy Waters’ challenge of his 22-vote loss to Trevor Ozawa in November, voters of the East Honolulu district might need to vote again.

State Deputy Attorney General Valri Kunimoto told the Hawaii Supreme Court on Tuesday that there’s no way the state Office of Elections can separate the 350 Council District 4 absentee mail-in ballots that were gathered by the United Postal Service at 6 p.m. and then handed over to the Honolulu city clerk’s office later, indicating a recount of just those votes could not be done.

Kunimoto said the 350 ballots were commingled with other ballots, including those dropped off at polling places. “They can’t be separated out because they were all commingled together, put through the scanners, and we … wouldn’t know how they voted and so we wouldn’t be able to ascertain … what the correct result would be if they extracted the 350.”

So if the court were to rule in favor of Waters, who is seeking either a recount or a revote, it’s likely the only remedy available to them would be an invalidation of the votes and a new election.

A group of 39 East Honolulu residents, many of them Waters supporters, filed their own challenge to the results. The court consolidated that case with Waters’ challenge for purposes of Tuesday’s oral arguments.

East Honolulu residents have been without a Council representative since Jan. 2, when Ozawa’s old term ended. The previous week, the Supreme Court took the unprecedented step of ordering that the state and city election offices provide more information to Waters and 39 East Honolulu residents.

The 350 late votes were the subject of several of the questions the justices raised with attorneys for the two elections offices. Waters argues that those votes — part of the last batch of ballots counted during the wee hours of the morning after Election Day that put Ozawa ahead — should be invalidated.

After more than two hours of oral arguments by attorneys from the five parties involved in the case, Chief Justice Mark Recktenwald closed the proceeding and said the justices would take the arguments under advisement. Neither he nor the other justices gave any indication when they would decide the case.

The justices spent much of the proceeding grilling attorneys of state and city election officials over how it determines which late-­arriving votes they count, the frustration in their voices telling.

Deputy Corporation Counsel Ernest Nomura, representing City Clerk Glen Takahashi, said ballots that are actually mailed must be received by “the close of the polls on Election Day” in the clerk’s P.O. box at the airport branch post office, a practice that has been used in the past.

Asked by Justice Sabrina McKenna how the city determined it was OK to collect ballot envelopes after 6, Nomura replied there is no rule or law “that says you need to do X, Y and Z in order to have a valid, designated representative to receive these pieces of mail that is in the federal postal system. That is the practical reality.”

McKenna, however, said “not once in the city submissions did you ever indicate, there was never an argument actually made, that the United States Postal Service is a designated representative of the city clerk.”

Justice Richard Pollack asked whether votes collected two days later should be counted. Nomura said, “Certainly, under statute, in terms of the receipt of absentee ballots in absentee envelopes, they need to be received by the close of the polls on Election Day.”

Asked if that meant by 6 p.m. Election Day, Nomura said, “I’m not saying that it’s 6 o’clock because (it is) no later than the closing of the polls.” He pointed out that those standing in line at polling booths at 6 p.m. are allowed to cast their ballots.

McKenna cut him off. “Why do your instructions say it has be received by 6 o’clock? It’s very clear,” she said. “Your website says it has to be received by 6 o’clock.”

Nomura reiterated it’s because people are in line at the polls after 6 p.m.

Justice Paula Nakayama chimed in. “When does the city clerk have to have it, if you’re not saying it’s not 6 o’clock, which everybody else is arguing, the polls close at 6 p.m. You’re saying it’s not 6 p.m. now?”

Nomura said he wasn’t suggesting the USPS is a polling place.

Recktenwald then cut off Nomura. “You’re suggesting that other polling places might not have closed until later than 6 o’clock, but where on the record is that established and what was that time? It’s a new argument that you’re making. Everyone else seems to have accepted that 6 o’clock was the time that you were working under.”

Thomas Otake, an attorney for the East Honolulu group, said the 350 envelopes placed in the hands of city clerks’ employees after 6 p.m. were counted by state workers in violation of Hawaii Administrative Rules.

“We have to have rules, or else where does it end? What about the 700 ballots that came in the next day to the post office? Why don’t we count those?” he said.

Waters, an attorney, represented himself before the justices. He argued that besides the 350 late-arriving ballots, a discrepancy in votes tabulated show an additional 97 other votes should be invalidated. “There’s a lot of weird things going on with this,” he said.

Kunimoto said the petitioners failed to show fraud or mistakes in the process, including with the 350 ballots under scrutiny. The law provides that “the clerk may delegate to a designated representative or an election official.”