Special election to be held for Honolulu City Council seat

The Hawaii Supreme Court late Friday invalidated Trevor Ozawa’s 22-vote victory over Tommy Waters for the Honolulu City Council District 4 seat, triggering a “do-over” special election to be held in the next four months.

Waters challenged the election results for the East Honolulu seat, arguing that election officials made enough errors to call the close tally into question. The Council has been operating with only eight members since Jan. 2, the day Ozawa was supposed to be sworn in a second time.

On Friday night it was unclear whether the special election would be limited to Ozawa and Waters or opened up to others living in District 4, which runs from Hawaii Kai to Waikiki. The ruling invalidated the Nov. 6 second special election that had voters decide only between Ozawa and Waters, who had finished first and second in the runoff first primary election, held in August. The ruling offers no remedy on how election officials will proceed, but cites in a footnote that state law requires a new election be held in 120 days. The City Charter speaks to special elections only in the case of a sudden vacancy and what to do if an unexpired term is less or more than one year.

Who wins the upcoming election could have huge implications at Honolulu Hale. Ozawa was part of a five-­member faction that has been more critical of Mayor Kirk Caldwell’s policies. Council members had been scheduled to vote Jan. 2 on a resolution installing Ozawa as their chairman.

If Waters, a political ally of Caldwell’s since they were both in the state House of Representatives in the early 2000s, wins the special election, it would likely swing the balance of power toward a leadership team more friendly to the mayor during the last two years of his term.

The five-member court agreed with Waters’ argument that election officials erred, focusing on 350 absentee mail-in ballot envelopes that election officials picked up from the U.S. Post Office’s airport after 6 p.m. Nov. 6, Election Day.

“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.,” the 55-page order said.

“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.

Under state law the invalidation of election results requires the governor to call a new election that is to be held no later than 120 days after the judgment is filed.

Absentee votes and special elections are the purview of the city clerk’s office’s Elections Division.

City Clerk Glen Takahashi confirmed that a special election needs to be held but declined to answer other questions. He said details of that election need to be worked out with the advice of city attorneys, including when and how the election will be conducted.

“We still gotta talk to (city attorneys) about that,” he said. “They invalidated the election, so in order to fill the seat, we’re going to have to run another election. That much I know is clear.”

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

Ozawa, in a statement, said he was “very disappointed” in the ruling and “will be going over my options for next steps moving forward.”

Ozawa criticized Waters for filing the lawsuit, which “has caused the residents of District IV to have no representation on the council, and my only regret is the amount of wasted taxpayers’ money and time that Mr. Waters’ lawsuit will result in should a new election be held. I am confident the voters of District IV will not forget this if they are forced to go to the polls again.”

Waters said he was pleased that justices understood his argument. “It wasn’t about me versus Trevor,” he said. “It really was about the electoral process. We’ve had questions for four years that went unanswered.”

After losing to Ozawa by 41 votes in their first battle in November 2014, Waters petitioned against those results. The Hawaii Supreme Court denied that request.

This time the court said that “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 court that there’s no way the state Office of Elections can separate the 350 Council District 4 absentee mail-in ballots from other votes.

The court, in its ruling, said, “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. Therefore, the only alternative is to invalidate the result of the Honolulu City Council District IV special election.”

As midnight approached on Election Night, a fourth printout out by the state Office of Elections showed Waters ahead by 72 votes. It wasn’t until 4:11 a.m. the following day that a fifth printout showed Ozawa pulling ahead.

During oral arguments, justices grilled attorneys for the state and city election officers, with much of the focus on the 350 District 4 absentee mail-in ballots that were gathered by the U.S. Postal Service at 6 p.m. and then handed over to the Honolulu city clerk’s office later.

Attorneys for the election officials said they considered the USPS a designated representative for the election. The justices expressed bafflement with the government attorneys when they argued that because polling places actually close after 6 p.m. on Election Day for those still in line waiting to vote, they did not believe that 6 p.m. was a firm deadline for collecting absentee votes from the post office.

The sentiment of the justices was made clear in the ruling.

“While the City Clerk may have been trying to maximize the receipt of absentee votes by counting all mail-in absentee ballots that were in the USPS facility prior to the closing of polls, any implemented process was required to comply” with state law, the court said.

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