Hawai'i Supreme Court Hears Oral Arguments in Waters vs Ozawa Election Challenge

Jan 18, 2019

(L-R) Justice Richard Pollack, Justice Paula Nakayama, Chief Justice Mark Recktenwald, Justice Sabrina McKenna, Justice Michael Wilson
Credit Wayne Yoshioka

The Hawai’i Supreme Court heard oral arguments today on the District IV general election challenge in which Councilmember Trevor Ozawa had a 22-vote margin of victory over challenger Tommy Waters.  Attorney Thomas Otake, who represents 39 East O’ahu voters and Tommy Waters, an attorney who represented himself, argued that late votes were counted and mistakes were made.  Here’s an excerpt with Attorney Otake followed by Attorney Waters.

Attorney Thomas Otake, representing 39 East Honolulu voters
Credit Wayne Yoshioka

(Thomas Otake) “What we learned was that 350 votes were picked up by the Clerk’s Office from the United States Postal Service at 6:30 and again at 7:30.  HRS 15.9 clearly states, ‘The return envelope shall be mailed and must be received by the clerk issuing the ballot not later than the close of the polls on any election day.’  If the Office of Elections or City Clerk can determine which of the ballots are the 350 votes, then this Court should order it to be invalidated and do a hand re-count and report back to you so that under HRS11-174.5 this Court can either, then, order a new election or declare a winner.”

Attorney Thomas Waters, representing himself, Pro Se
Credit Wayne Yoshioka

(Thomas Waters)  “You know, I’m both the attorney and the petitioner. So that’s kinda weird.  I’m both the attorney and the politician, so bear with me here.   This is the mistake right here.  There’s a difference between the two of 1,286, when really, they invalidated – according to them – 91 ballots but the difference is actually 97, when they should have only counted the valid ones.  That’s a mistake of 97 ballots.  That’s the mistake.”

But attorneys representing the City Clerk’s Office and the State Office of Elections argued that absentee ballots were delivered to the United States Post Office – the USPS -- which swept the Airport facility at 6 P-M for envelopes when the polls were closed.  Here’s City Deputy Corporation Counsel Ernest Nomura and State Deputy Attorney General Valri Kunimoto.

Deputy Corporation Counsel Ernest Nomura, representing the City Clerk of the City and County of Honolulu
Credit Wayne Yoshioka

(Ernest Nomura)  “I think the designated representative is what the city characterized as the USPS as because, as far as the city is concerned – the City Clerk is concerned – we don’t know what is inside those envelopes. We only collect envelopes, we verify signatures, we do not tabulate the ballots, and we do not release the printouts.”

Deputy Attorneys General Valri Kunimoto, representing the State Office of Elections
Credit Wayne Yoshioka

(Valri Kunimoto)  “They can’t be separated out because they were all co-mingled together; put through the scanners and we wouldn’t know how they voted.  So, we wouldn’t be able to ascertain what the correct result would be if they extracted the 350.”

The State Supreme Court took the oral arguments under advisement and did not issue an immediate decision or ruling.