There's finally clarity in the race for Honolulu City Council's District IV election this November — candidates Trevor Ozawa and Tara Malia Gregory will face off in the general election.
On Friday, the Hawaiʻi Supreme Court ruled that the council's Chair Tommy Waters cannot run for a third consecutive term to represent the district covering East Oʻahu, from Waikīkī to Hawaiʻi Kai.
That's always been the case under the Honolulu City Charter, and the high court confirmed it also applied to Waters, following a two-month legal challenge focused on his eligibility in the race.
Waters unsuccessfully argued that his first term after the 2018 elections was shortened by a few months because of a special election he ran against Ozawa and therefore didn’t qualify as a term. The Hawaiʻi Supreme Court invalidated the close November race that year, leading to the head-to-head special election.
“Determining whether Waters or Ozawa was elected to that term was delayed due to the challenges to the November 2018 election. But it was the same four-year term to which Waters was ultimately elected,” said the court’s ruling. “The term limit provision … is not based on the amount of time 'served' or when a councilmember is sworn into office.”
It added that allowing Waters to continue in the race could have allowed him to serve for nearly 12 consecutive years, and the council agreed that would violate the intent of the city charter, which only allows council members to serve for two consecutive four-year terms.
Waters, who has been the council's chair since 2020, said in a statement, “While I am profoundly disappointed by today’s decision, I am grateful to the Hawaiʻi Supreme Court and its justices for acting expeditiously and providing much-needed certainty to the voters of District IV. While the outcome is difficult, our system of democracy depends on respect for the rule of law and for the judicial process that brought us here.”
Gregory in the general election
The decision was a sigh of relief for Gregory, who arguably had the most to lose in the case.
Among eligible candidates, she received the second-most votes in the primary election. Ozawa won the most votes but didn’t get more than 50% of them, meaning he and Gregory would go head-to-head in the general election.
However, if Waters was ruled eligible for the race, that likely would have meant he would replace Gregory in the November race.
“I would say I'm a pretty non-stressful human. I live at peace for the most part, but this past week, I was really under the gun,” she said.
Gregory participated in the case as an interested party, and said she had asked the Honolulu clerk’s office about Waters’ eligibility, a request she argued was ignored.
She said that was an important part of the case.
“I will say it was really the (Hawaiʻi) Office of Elections that had that responsibility, and they did not do their job when it came to getting back to a candidate and letting them know their position on the interpretation of the law,” Gregory said.
Both Honolulu Acting City Clerk Chadd Kadota and state Chief Elections Officer Scott Nago were defendants in the case.
The Court's decision
Ozawa praised the high court’s decision, and in particular the timing of it, well before the general election.
“This district has been in limbo for months, and voters deserved a clear answer about who could be on the ballot, and now they have one,” he said, adding that “It came in time for election officials to get the ballots out … with only the two names that are allowed to be on the ballot.”
The high court's opinion proved to be a tough decision to make.
Three justices — Lisa Ginoza, Peter Cahill and Peter Kubota — argued against Waters’ eligibility, and two argued in his favor.
In the dissenting opinion, Justices Sabrina McKenna and Michael Soong said the majority’s argument was problematic for several reasons. One was that the 2018 election and the following run-off election were not for the same term, meaning Waters' first term was not a four-year term.
“The majority's ruling that Waters’ term started on January 2, 2019, despite there having been no District IV Councilmember on that date, is very difficult to understand,” the dissenting opinion said.
The opinions were also split on the definition of a “vacancy” in the seat, which has allowed previous council members to serve longer than two consecutive terms.
The majority argued that there was no vacancy in the District IV seat, while McKenna, who authored the dissenting opinion, said: “The majority rules that (a vacancy) does not apply when a councilmember’s office becomes vacant due to the need to conduct a special election after a successful challenge of November election results. Respectfully, I believe the majority is simply wrong. There was a vacancy.”
Avoiding similar problems next time
Both Gregory and Ozawa said the situation has highlighted changes needed to avoid similar problems in future elections.
Ozawa said questions about Waters’ eligibility were brought up to the city well before ballots were delivered, but there’s not much that can be done once the clerk determines it doesn’t warrant a disqualification — as it happened in this case.”
“There's no further avenues,” Ozawa said. “A real eligibility question can sit unresolved while ballots go out and people vote, and then get answered afterward. And that's how you end up with thousands of voters feeling like their ballots didn't count, and none of them did anything wrong. What I'd like to see is actually a clear, fast path to get eligibility questions decided before ballots are printed.”
Ozawa and Gregory have suggested that litigating the matter during the election cycle was intentional, and that Waters thought it would be helpful for his chances to run for a third term.
She and Ozawa said the case ultimately hurt voter confidence in the state where turnout is already low. The votes for about 8,700 District IV residents who cast their ballots for Waters did not count.
There were voters, such as the 40 in the case who argued against Waters’ disqualification, who wanted Waters to remain on the ballot.
Gregory said that city legislation can help prevent similar problems in the future, and would have liked to see Waters — or another councilmember — introduce a measure if there were questions about his own eligibility.
“I don't know what it's going to look like exactly. I'm obviously not an attorney or a Supreme Court justice, but I'm a common sense person who would say, ‘Then let the law say it so we don't have to do this back and forth,’” Gregory said. “I think this has really done a doozy on people's trust, and now trusting even the charter itself.”
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