The Hawaii Supreme Court this afternoon invalidated Trevor Ozawa’s 22-vote victory over Tommy Waters for the City Council District 4 seat.

“Because the correct results of the November, 6, 2018 special election for the city councilmember seat for District IV cannot be determined, the special election must be invalidated” the court said in a 55-page opinion signed by all five justices.

“The second special election for councilmember for District IV, City and County of Honolulu, is invalidated.”

City Clerk Glen Takahashi, in an email to Council members, said “while we are still reviewing, we will be required to re-run the election for Council district IV.”

The re-vote will likely need to occur within 120 days.

The court said “the critical issue … concerns the collection of 350 absentee mail-in return envelopes by the City Clerk at the Honolulu Airport post office on election day of November 6, 2018. Under our election law, these envelopes were required to be ‘received’ by the City Clerk no later than the close of the polls on election day, which was set in statute at 6 p.m.”

As a result, the ruling said, “We conclude that the 350 absentee mail-in return envelopes were ‘received’ by the City Clerk after the deadline established by state law, and accordingly, the ballots contained should not have been counted.”

During oral arguments last week, 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 from other votes.

“These 350 ballots exceed the 22-vote margin by which the election was decided and, because they have become commingled with other ballots that were validly cast, it is now impossible to exclude the late-received ballots and determine the correct election result,” the court said. “Therefore, the only alternative is to invalidate the result of the Honolulu City Council District IV special election.”

During oral arguments last week, justices grilled attorneys for the state and city elections officers, with much of the focus on 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.

Attorneys for the elections officials said they considered the USPS a designated representative for the election.

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.”

Council Chairwoman Ann Kobayashi said she and colleagues will pick a temporary District 4 Council member so that East Honolulu residents will have representation before the special election.

Historically, interim members picked by the Council are not running for the permanent position and that will be the case in this circumstance as well, she said.

The selection will likely be determined by a vote of the eight Council members the week of Feb. 4, she said.

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