LoPresti v. State ( 2019 )


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  •                                                        Electronically Filed
    Supreme Court
    SCEC-XX-XXXXXXX
    09-JAN-2019
    02:39 PM
    SCEC-XX-XXXXXXX
    IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
    MATTHEW S. LOPRESTI, Plaintiff,
    vs.
    STATE OF HAWAIʻI; SCOTT T. NAGO, as Chief Election Officer
    for the State of Hawaiʻi; and OFFICE OF ELECTIONS,
    State of Hawaiʻi, Defendants.
    ORIGINAL PROCEEDING
    AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
    (By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
    We have considered (1) the election complaint, filed by
    plaintiff Matthew S. LoPresti (“LoPresti”) on November 26, 2018,
    (2) the statement by Sherrie J. Course (“Course”), filed by
    LoPresti on November 29, 2018, (3) the motion to dismiss
    complaint or, in the alternative, motion for summary judgment,
    filed by defendants State of Hawaiʻi, Chief Election Officer
    Scott Nago (“Chief Election Officer Nago”), and the Office of
    Elections (collectively, “the State Defendants”) on December 6,
    2018, (4) the State Defendants’ response to the court’s December
    28, 2018 order, filed on December 31, 2018, (5) LoPresti’s reply
    to the State Defendants’ response, filed on January 4, 2019,
    (6) the respective supporting documents, and (7) the record in
    this matter.   Having heard this matter without oral argument and
    in accordance with HRS § 11-174.5(b) (2009) (requiring the
    supreme court to “give judgment, stating all findings of fact and
    of law”), we set forth the following findings of fact and
    conclusions of law and enter the following judgment.
    FINDINGS OF FACT
    The November 6, 2018 General Election
    1.    LoPresti was the Democratic Party candidate for
    the Office of State Senate, District 19 in the November 6, 2018
    general election.
    2.    State Senate, District 19 consists of district/
    precincts 40-02, 40-03, 40-04, 41-01, 41-02, 41-03, and 41-05.
    3.    Each district/precinct has its own unique ballot
    type containing the contests and questions that the voters in
    those district/precincts are eligible to vote on, based on where
    they live.
    4.    The election results for the race for State
    Senate, District 19 was as follows:
    (R) FEVELLA, Kurt                   6,205   (48.0%)
    (D) LOPRESTI, Matthew S. (Matt)     6,089   (47.1%)
    Blank Votes                     623   ( 4.8%)
    Over Votes                        7   ( 0.1%)
    5.    Kurt Fevella (“Fevella”) received the highest
    number of votes.
    6.    The difference in the votes between LoPresti and
    Fevella was 116 votes.
    2
    The Election Contest
    7.    On November 26, 2018, LoPresti timely filed a
    complaint1 challenging the election results for Office of State
    Senate, District 19.
    8.    LoPresti alleges that irregularities in voting or
    in counting of votes could have caused a difference in the
    election outcome or could have precluded the correct result from
    being ascertained.      LoPresti also alleges that the 116-vote
    difference in the election equaled 0.9% of the total votes cast
    and, therefore, calls into doubt the election results.             LoPresti
    further alleges that irregularities at district/precinct 41-02,
    including potential tampering of the ballots, may have affected
    the election results.
    9.    LoPresti contends that the electronic tabulation
    machines were not working from the start on election day at
    district/precinct 41-02 (and possibly at some of the other six
    polling precincts in the district), that voters were told to take
    the ballots away from the machine and deposit them in another box
    that was not locked and secured, that precinct officials had
    access to the box of ballots throughout the day, that a precinct
    official (Michele Golojuch (“Golojuch”)) who was openly hostile
    to his candidacy was present at district/precinct 41-02, and that
    ballots that needed to be tabulated by machine were
    1
    LoPresti’s complaint was in the form of a 7-page letter addressed to
    this court.
    3
    “intentionally and deliberately physically altered and
    manipulated by poll workers.”    LoPresti maintains that these
    irregularities invited voter tampering and may have influenced
    some voters to vote against him.       LoPresti also maintains that
    the precinct captain for district/precinct 41-02 did not closely
    oversee the process and “admitted to [him] that if she were in
    [his] shoes she would certainly ask for a recount of the
    votes[.]”
    10.   LoPresti also contends that HRS § 11-172 is
    unconstitutional.
    11.   LoPresti acknowledges that he was not present at
    any of the precincts on the day of the general election and that
    the concerns he raises in the complaint arise from conversations
    with the precinct captain or chair, Office of Election officials,
    and a voter who voted at district/precinct 41-02.
    12.   LoPresti seeks the following relief:
    •      an order requiring a hand recount and entering judgment
    invalidating the election results for the Office of
    State Senate, District 19 on the ground that a correct
    result cannot be ascertained because of a mistake or
    fraud on the part of the precinct officials;
    •      if the recount shows that LoPresti received the highest
    number of votes, then judgment be entered electing him
    the winner;
    •      an order compelling witnesses and taking the necessary
    steps to fully determine what occurred on the general
    election day at the polling precincts in the State
    Senate District 19 race; and
    •      an order requiring the State Defendants to disclose the
    margin of error for their voting and tabulating
    systems.
    4
    Statement of Sherrie J. Course
    13.   On November 29, 2018, LoPresti submitted a
    statement that purports to be from Course, who was a voter at
    district/precinct 41-02.
    14.   According to the statement, Course was the first
    voter to attempt to scan her ballot at district/precinct 41-02 on
    the day of the general election.       Course states that the scanner
    did not work and after several attempts to scan her ballot, the
    precinct worker “removed a piece of equipment from the left side
    of the ballot box underneath the scanner” to insert the ballots
    through the slot.    Course states that, “[h]aving seen inside the
    box, [she] could tell that this slot was in the correct spot to
    allow the ballots to drop into the receptacle below, so [she]
    went ahead and slipped [her] paper ballot through the slot[.]”
    When Course re-entered the polling place to get a slip of paper
    to take back to work, she noticed additional voters waiting to
    drop their ballots through the slot into the ballot box.      Course
    states that she wondered whether the ballots in the bin would be
    properly counted.    After learning that LoPresti lost the election
    for Senate District 19, Course contacted her friend who voted at
    the same precinct at approximately 8:00 a.m. or 8:30 a.m. and
    learned that the scanner had not been fixed.      Course states that
    with her consent, her friend provided her telephone number to
    LoPresti, who contacted her to see if she would be willing to
    provide a statement regarding her experiences.
    5
    The Motion to Dismiss or, in the Alternative,
    Motion for Summary Judgment
    15.   On December 6, 2018, the State Defendants moved to
    dismiss the complaint or, in the alternative, for summary
    judgment.    They contend that the complaint fails to state a claim
    for relief because LoPresti fails to present any evidence of
    “errors, mistakes or irregularities,” or any other such basis,
    such as “provable fraud, overages, or underages, that could cause
    a difference in the election results” as mandated by HRS § 11-
    172.   In addition, they contend that the remedies requested by
    LoPresti are improper and cannot be awarded by this court in a
    general election contest.
    16.   The State Defendants argue that LoPresti’s
    allegations of possible election fraud and voter tampering are
    conclusory and speculative as LoPresti does not present actual
    information of mistakes or errors that would have resulted in a
    change of 59 votes in his favor.       They contend that LoPresti’s
    suspicion of ballot tampering at district/precinct 41-02 or other
    precincts are insufficient to warrant relief.       The State
    Defendants explain that there is a system in place in the event
    there is an equipment failure in the handling and processing of
    cast ballots on election day and that the procedures were
    followed during the period of time the eScan machine did not work
    properly at district/precinct 41-02 –- during that time, voters
    cast their ballots in the secured Emergency Ballot bin or on the
    6
    direct recording voting machine and when the eScan machine was
    replaced, the voters continued using the scanner.   The State
    Defendants further explain that at the end of the night, the
    Emergency Ballot bin was opened and the ballots that were placed
    inside were removed and scanned; those ballots that were folded
    in the ballot box were flattened by the workers for scanning.
    17.   The State Defendants also argue that LoPresti
    fails to prove that HRS § 11-172 is invalid and unconstitutional
    beyond a reasonable doubt.
    18.   Attached to the motion to dismiss or, in the
    alternative, for summary judgment, are declarations from Chief
    Election Officer Nago, Joann Anoc (“Anoc”), the precinct chair
    for district/precinct 41-02 at Ilima Intermediate School for the
    2018 elections, and Rich Geppert (“Geppert”), one of the
    professional services managers for Hart Intercivic, Inc.
    (“Hart”), the vendor of the electronic voting machines used in
    the 2018 elections.
    19.   In his declaration, Geppert states that the voting
    system used in the 2018 election has been used by the Office of
    Elections since 2008.   Geppert explains that the Hart voting
    system is comprised of three main components to record votes --
    (1) eSlate - “a direct recording electronic voting unit that
    provides accessible voting to individuals with disabilities” and
    “includes a verifiable ballot option, whereby a paper record of
    each vote cast is printed and retained by the device[;]” (2)
    7
    eScan - “a digital ballot imaging precinct counter, in which a
    voter inserts his or her ballot to be counted and deposited into
    the precinct counter[;]” and (3) Ballot Now - “utilizes high-
    speed scanners to scan absentee ballots to be counted.”      In
    calculating ballots, Ballot Now uses commercial full-sheet
    scanning technology to record a full digital image of the voted
    ballot.    Typical resolution of the full-sheet scan is 200 dots
    per inch (dpi), which provides a high-quality digital image of
    the voted ballot that is saved on the Ballot Now system and is
    used for all subsequent election activities.    The software counts
    the number of pixels inside each option box in the digital image.
    According to Geppert, the Ballot Now digital scanning system “has
    been validated in multiple studies of real election data[,]” “has
    been certified for use both federally and at the state level in
    numerous states[,]” and “has been used in hundreds, if not
    thousands, of elections and has accurately processed millions of
    votes.”
    20.   In his declaration, Chief Election Officer Nago
    explains that ballots are strictly controlled through a detailed
    process that involves securing the ballots at the polling place
    as well as when the ballots are transported from the polling
    place.    The ballots are secured in ballot transportation
    containers with uniquely numbered wire hasp seals and the use of
    Ballot/Seal Control Forms to track the ballots from the packing
    through the distribution and collection, along with the
    8
    requirement that ballots are handled in the presence of not less
    than two officials assigned in accordance with HRS §§ 11-71, 11-
    72, or 16-45.
    21.   Chief Election Officer Nago explains that the
    voting system that was used during the 2018 general election was
    “inspected and tested by official observers in preparation for
    use for the general election at absentee walk sites, polling
    places, and absentee mail voting.”    Chief Election Officer Nago
    notes that these official observers were present at the State
    Capitol to observe the counting of ballots.
    22.   Chief Election Officer Nago explains that a series
    of result reports are issued on election night after the polls
    close as supplies and equipment are transferred to the counting
    center.   There are 4 scheduled releases of result reports
    targeted to be released (1) upon the close of polls, (2) at 8:30
    p.m., (3) at 10:00 p.m., and (4) at 11:30 p.m. followed by an
    election night final report to be released once all ballots have
    been counted.    Chief Election Officer Nago states that on the
    night of the general election, the manual audit team, pursuant to
    HAR § 3-172-102(a), audited the computer-generated results
    related to ballots voted at the polls in a different precinct, so
    as to ensure the accuracy and integrity of the voting and vote
    counting system; the official observers did not request an
    expanded audit and Chief Election Officer Nago did not see any
    9
    basis to question the accuracy and integrity of the voting and
    vote counting system.
    23.   Chief Election Officer Nago states that post-
    election audits showed no errors in the counting of votes by the
    voting and vote counting system.      He states that the distribution
    of overages and underages among the district/precincts associated
    with State Senate, District 19 (e.g., 40-02, 40-03, 40-04, 41-01,
    41-02, 41-03, and 41-05) “shows no pattern of fraud or mistake
    from which it could be concluded that the correct result of the
    election had not been ascertained.”     Chief Election Officer Nago
    states that there is no evidence that the vote counting system
    “has misreported or produced inaccurate results and that
    [LoPresti] would prevail if the ballots were counted again” and
    that he is “not aware of any issues or problems with the accuracy
    of the vote counting system, the handling of ballots, or any
    other matters that would impact the integrity of the general
    election results of State Senate, District 19.”
    24.   Anoc was the precinct chair for district/precinct
    41-02 for the 2018 general election and previously served as
    precinct chair for the 2018 primary election, the 2006, 2008, and
    2016 primary and general elections, the 2010 general election,
    and the 2012 primary election.   Anoc indicated that for the 2018
    election cycle, she attended a precinct chair training and was
    provided a detailed manual.
    10
    25.   According to Anoc’s declaration, on the day of the
    general election, prior to the opening of the polls, her precinct
    performed the open polls procedure, but the eScan equipment was
    not able to scan the ballot of the first voter and, therefore,
    that ballot had to be deposited in the Emergency Ballot Bin.2
    Anoc called the control center and reported the problem and,
    after trying to resolve the problem over the phone, a
    troubleshooter was dispatched to the polling place.
    26.   Anoc stated that in the interim, while waiting for
    a troubleshooter, voters were informed that they could wait for
    the eScan to be repaired, vote on the eSlate (e.g., the direct
    recording electronic voting machine), or deposit their ballot in
    the Emergency Ballot Bin.       When the Emergency Ballot Bin reached
    capacity, the eScan ballot box seal was cut and the ballot box
    unlocked with a precinct official; the Emergency Ballot Bin was
    then removed carefully to ensure that no ballot fell out.             Anoc
    prepared a transport container and transferred the ballots from
    the Emergency Ballot Bin and packed them into the container.
    Anoc explained that she placed the transport container with the
    unscanned ballots into the bottom of the eScan ballot box to be
    scanned at the end of the night and returned the Emergency Ballot
    Bin into the ballot box, locked the ballot box door, and secured
    2
    The Emergency Ballot Bin is a separate bin in the ballot box and
    voted ballots can only be deposited through the designated slot. The slot is
    secured and if the eScan is inoperable, the voters may deposit their ballot in
    the Emergency Ballot bin.
    11
    the ballot box with a pull tight seal.   According to Anoc, the
    eScan equipment was replaced at approximately 9:20 a.m.
    27.    Anoc stated that at the end of the day, after the
    last voter had voted at her precinct, close polls procedures were
    performed.   The eScan ballot box seal was cut, the ballot box was
    unlocked, and the ballots were carefully removed to ensure that
    no ballot fell out.    Precinct officials scanned the ballots from
    the Emergency Ballot Bin and the ballots that had been removed
    from the Emergency Ballot Bin and packed in the transport
    container when the eScan equipment was inoperable.   For those
    ballots that were folded, the precinct officials unfolded the
    ballot to smooth it out before it was scanned.
    28.    The precinct officials then performed the close
    polls procedures on the eScan unit.   The precinct officials
    removed the scanned ballots from the ballot box and packed them
    into voted ballot containers, which were sealed with a wire
    hasped seal.    The seal numbers were recorded on the Ballot Seal
    Control Form and the voted ballot containers and various election
    supplies were picked up by the Delivery Collection Team to
    transport back to the counting center at the State Capitol.
    29.    Anoc explained that she was responsible for ten
    other precinct officials, including Golojuch, who was a voter
    assistance official.   Anoc did not observe any inappropriate
    conduct by Golojuch or any other precinct official at any time.
    12
    Anoc explained that, after the election, she was contacted by the
    Office of Elections due to an inquiry by LoPresti and agreed to
    speak with him.    Anoc stated that she explained to LoPresti
    everything that had occurred in the precinct on election day but
    never expressed that any inappropriate conduct occurred or that
    any precinct official altered the contents of any ballot before
    it was scanned.    Anoc further stated that at no time did she
    advise LoPresti to ask for a recount; rather, she told him “it
    was up to him.”    Anoc contended that she was not aware of any
    issues or problems associated with district/precinct 41-02 that
    would have impacted the security of the ballots.
    The December 28, 2018 Order
    30.     On December 28, 2018, this court issued an order
    directing the State Defendants to provide the following
    information:
    1.    Information setting forth the margin of
    error for the electronic vote counting machines, when
    applying the tabulation procedures established by or
    in accordance to chapter 3-172 of the Hawaii
    Administrative Rules, that were used in the November
    6, 2018 general election.
    2.   Information setting forth how the intent
    of the voter is ensured in a close election without a
    hand count, such as when a ballot contains marginal
    marks.
    The State Defendants’ Response to December 28, 2018 Order
    31.     On December 31, 2018, the State Defendants filed a
    response to the court’s December 28, 2018 order.
    32.     The State Defendants’ response includes a
    13
    declaration from Chief Election Officer Nago and a declaration
    from David Magedson (“Magedson”), a program manager for Hart.
    33.   In his declaration, Chief Election Officer Nago
    states that, consistent with the Help America Vote Act of 2002,
    the State of Hawaiʻi’s election statutes and administrative rules
    “provide for a uniform standard as to what constitutes a vote and
    what will be counted as a vote.”     He explains that the
    legislature authorized the Chief Election Officer to adopt a
    voting and vote counting system and to define what constitutes a
    proper mark for voting purposes of using the system, as has been
    done by administrative rules.   He then describes a proper voting
    mark, a marginal voting mark, and an improper voting mark.
    34.   Chief Election Officer Nago states that on the
    night of the general election, the manual audit team audited the
    computer-generated results related to ballots voted at the polls.
    He explained that the audit is a hand count of the voted ballots
    which involved reviewing the physical ballots from the polling
    places associated with the selected district/precincts and
    confirming that the manual audit results for a selected contest
    on the ballot matched the computer-generated results for the
    selected contest.   If discrepancies are found in the audit, the
    Chief Election Officer may authorize an expanded audit to
    determine the extent of misreporting within the system.     For the
    2018 general election, the manual audit team did not request an
    14
    expanded audit and Chief Election Officer Nago stated that he
    similarly saw no basis to question the accuracy and integrity of
    the voting and vote counting system.
    35.   Chief Election Officer Nago also states that
    official observers audited the computer-generated results related
    to absentee mail ballots.   If discrepancies were found, the Chief
    Election Officer may authorize an expanded audit to determine the
    extent of misreporting within the system.   For the 2018 general
    election, the official observers did not request an expanded
    audit, and Chief Election Officer Nago stated that he similarly
    saw no basis to question the accuracy and integrity of the voting
    and vote counting system.
    36.   Chief Election Officer Nago also explains that,
    going into the election, the State adopted a voting and vote
    counting system and, with that, a fixed objective standard as to
    how ballots would be counted based on a properly functioning
    voting and vote counting system that would be subject to
    inspection, audit, and testing by qualified observers before and
    after an election.   He states that “[a]s we cannot change the
    rules after an election, any audit of results is focused on
    confirming how a properly functioning voting and vote counting
    system would count ballots.”   Thus, Chief Election Officer
    contends that objective evidence that the system was not
    operating properly would need to be presented, in order to
    15
    require additional auditing to occur.   He states that “[u]nder no
    circumstances, is a different set of rules or a different
    standard used after an election to count ballots that were
    originally intended to be counted with a particular voting and
    vote counting system.   At all times, one strives to replicate the
    counting by the original voting system.”
    37.   Chief Election Officer Nago also explains his
    understanding of the technical nature of the voting system’s
    handling of marginal marks and the concept of error.
    38.   Chief Election Officer Nago states that the
    machines are tested, voters are instructed in the manner in which
    to properly mark their ballots, and there are audits.   As such,
    Chief Election Officer has no reason to believe there is a
    “margin of error” as it relates to marks made in the uniform
    manner established by the Office of Elections.   He notes that any
    references to “margin of error” may be a mistaken reference to
    the “error rate” that is used as part of the certification of the
    voting system under federal standards and relates to the initial
    testing of the machines.   In this context, “error rate” does not
    involve errors “attributable to an act of the voter” but instead
    relates to an error occurring despite all ballots being properly
    marked.   Under Voting Systems Standards, “the system shall
    achieve a target error rate of no more than one in 10,000,000
    ballot positions, with a maximum acceptable error rate in the
    16
    test process of one in 500,000 ballot positions.”   According to
    Chief Election Officer Nago, the federal standards state that
    “[t]his rate is set at a sufficiently stringent level such that
    the likelihood of voting system errors affecting the outcome of
    an election is exceptionally remote even in the closest of
    elections.”   He explains that based on the tests and audits of
    the system, he has no reason to believe that any error rate
    occurred with this election.
    39.   Chief Election Officer Nago states that the term
    “margin of error” may be a misnomer to describe the possible
    consequence of voters who make “marginal marks” that are close to
    the threshold that the voting system would record as a vote.     He
    explains that “marginal marks” are not “proper marks” and are
    made contrary to the instructions on the ballot and, therefore,
    he does not consider them to constitute a “margin of error.”
    40.   In his declaration, Magedson explains that the
    Hart voting system is comprised of three main components to
    record votes -- (1) eSlate; (2) eScan; and (3) Ballot Now.    He
    explains how Ballot Now scans images (e.g., pixel of darkness
    analysis by the system), how the system operates in regard to
    marginal marks, the Ballot Now Overvote Reduction Algorithm to
    eliminate false overvotes caused by pen rests, dirt, or other
    small marks on the ballot, how votes are counted, and the
    instructions to the voters that appear on the ballot, and
    17
    attaches a copy of a document explaining the manner in which
    Ballot Now records votes.
    9.    As indicated in the document, if more than
    4.2% of the pixels are marked, the option box will be
    recorded as having been marked. Additionally, when an
    option box is marked so that the number of counted
    pixels is extremely close to our threshold(+/- 7
    pixels), it is possible for an option box to be read
    as marked in one scan, but read as unmarked in a
    second scan (or vice-versa). Studies of past election
    data have shown that only around .046% of option boxes
    fall into the pixel range where variance can occur. .
    . .
    41.   Magedeson states that, as he understands the term
    “margin of error,” there is “no ‘margin of error[]’ for properly
    marked ballots” but notes that the election industry is a highly
    technical industry and uses the term “error rate” in its
    certification of systems.     Magedson also explains that the Ballot
    Now system has been validated in multiple studies of real
    election data and has been certified for use both federally and
    at the state level in numerous states in compliance with 52
    U.S.C. § 21081(a)(5) (which addresses error rate standards of the
    voting system) and Section 3.2.1 of the 2002 Voting System
    Standards (entitled “Accuracy Requirements”) and that the system
    is tested by official observers prior to the election and that
    there is an auditing process that, in the absence of any
    discovery that there was a problem, “there is no basis to believe
    there was an error with the machines.”
    18
    LoPresti’s Reply to the State Defendants’ Response
    42.   On January 4, 2019, LoPresti filed a reply to the
    State Defendants’ response to the December 28, 2018 order.
    43.   LoPresti contends that the current law, its
    enforcement, and/or its interpretation is unconstitutional based
    on the “unattainable” standard required to obtain a recount.
    LoPresti maintains that the ability to successfully challenge
    close or questionable election results is a necessary condition
    for voters to realize the right to a free and fair election,
    which must include “the opportunity for recounting ballots and/or
    . . . investigations into potential wrongdoing.”
    CONCLUSIONS OF LAW
    1.    An election contest is instituted by filing a
    complaint in the supreme court “set[ting] forth any cause or
    causes, such as but not limited to, provable fraud, overages, or
    underages, that could cause a difference in the election
    results.”    HRS § 11-172.
    2.    A complaint challenging the results of a general
    election pursuant to HRS § 11-172 fails to state a claim unless
    the plaintiff[] demonstrate[s] errors, mistakes or irregularities
    that could change the outcome of the election.     See Tataii v.
    Cronin, 119 Hawaiʻi 337, 339, 
    198 P.3d 124
    , 126 (2008) (citing
    Akaka v. Yoshina, 84 Hawaiʻi 383, 387, 
    935 P.2d 98
    , 102 (1997)).
    See also Funakoshi v. King, 
    65 Haw. 312
    , 317, 
    651 P.2d 912
    , 915
    19
    (1982) (“‘Difference in the election results’ . . . mean[s] a
    difference sufficient to overturn the nomination of any
    particular candidate[.]”).
    3.     In order for a complaint to be legally sufficient,
    the complaint must “show[] that the specific acts and conduct . .
    . complained of would have had the effect of changing the results
    of the primary election.”    Elkins v. Ariyoshi, 56 Hawaiʻi 47, 49,
    
    527 P.2d 236
    , 237 (1974); Akaka, 84 Hawaiʻi at 
    388, 935 P.2d at 103
    (in order for an election challenge to have merit, “the
    petitioner must ‘show that he [or she] ha[s] actual information
    of mistakes or errors sufficient to change the result[;]’” an
    election contest cannot be based upon mere belief or indefinite
    information).    It is not sufficient that a plaintiff point to a
    “poorly run and inadequately supervised election process” that
    evinces “‘room for abuse’” or “‘possibilities of fraud.’”
    
    Elkins, 56 Haw. at 48
    , 527 P.2d at 237.
    4.    “In the absence of facts showing that
    irregularities exceed the reported margin between the candidates,
    the complaint is legally insufficient because, even if its truth
    were assumed, the result of the election would not be affected.”
    Tataii, 119 Hawaiʻi at 
    339-40, 198 P.3d at 126-27
    .
    5.     “An election contest cannot be based upon mere
    belief or indefinite information.”    
    Id. 20 6.
       When reviewing a motion to dismiss a complaint for
    failure to state a claim upon which relief can be granted, the
    court must accept the plaintiff’s allegations as true and view
    them in the light most favorable to him or her; dismissal is
    proper only if it appears beyond doubt that the plaintiff can
    prove no set of facts in support of his or her claim that would
    entitle him or her to relief.     AFL Hotel & Restaurant Workers
    Health & Welfare Trust Fund v. Bosque, 110 Hawaiʻi 318, 321, 
    132 P.3d 1229
    , 1232 (2006).
    7.    Conclusory allegations and unwarranted inferences
    are not sufficient to defeat a motion to dismiss.     Kealoha v.
    Machado, 131 Hawaiʻi 62, 74, 
    315 P.3d 213
    , 225 (2013).
    8.    The court’s consideration of matters outside the
    pleadings converts a motion to dismiss into one for summary
    judgment.    Buscher v. Boning, 114 Hawaiʻi 202, 212, 
    159 P.3d 814
    ,
    824 (2007).
    9.    Summary judgment is appropriate where there is no
    genuine issue as to any material fact and the moving party is
    entitled to a judgment as a matter of law.     Silva v. City and
    County of Honolulu, 115 Hawaiʻi 1, 6, 
    165 P.2d 247
    , 252 (2007).
    10.   LoPresti does not provide “specific facts” or
    “actual information” of mistakes, errors, irregularities, error
    rates, or variances that could change the result of the general
    election or the reported differential in votes between himself
    21
    and Fevella.    LoPresti’s unsubstantiated contention that the
    temporary inability of the eScan equipment to scan ballots and
    the subsequent deposit of ballots in the Emergency Ballot Bin
    while the eScan equipment was replaced “possibl[y]” invited vote
    tampering does not demonstrate actual fraud or mistakes by
    precinct officials that could change the reported difference in
    the votes between LoPresti and Fevella.    Both Nago and Anoc
    detailed the procedures in place when a voting machine
    malfunctions and the procedures that were followed at
    district/precinct 41-02 when the eScan machine needed to be
    replaced in the early hours of the commencement of the general
    election and in scanning those ballots that were placed in the
    Emergency Ballot during that time.    Neither Nago nor Anoc
    concluded that the process that was followed negatively impacted
    the security of the ballots or altered the election result.
    LoPresti has not presented specific evidence to dispute this
    conclusion such that it would change the election result.
    11.    In addition, LoPresti’s contention that a recount
    must be done for all “close” races does not prove that HRS § 11-
    172 is unconstitutional beyond a reasonable doubt.
    12.    LoPresti has not shown in his submissions to this
    court actual information of errors, mistakes, irregularities,
    error rates, or variances sufficient to change the outcome of the
    election or change the reported margin of votes between himself
    and Fevella.
    22
    JUDGMENT
    Based upon the foregoing findings of fact and
    conclusions of law, there is no genuine issue of material fact
    and judgment is entered in favor of the State Defendants and
    against LoPresti.     Kurt Fevella received the highest number of
    the votes cast in the November 6, 2018 general election and has
    been elected to the Office of State Senate, District 19 pursuant
    to HRS § 11-155 (2009).3
    A copy of this judgment shall be served on Chief
    Election Officer Nago who shall act in accordance with the
    requirements set forth in HRS § 11-174.5(b) (“If the court shall
    decide which candidate or candidates have been elected, a copy of
    the judgment shall be served on the chief election officer or
    county clerk, who shall sign and deliver to the candidate or
    candidates certificates of election, and the same shall be
    conclusive of the right of the candidate or candidates to the
    offices.”).
    DATED: Honolulu, Hawaiʻi, January 9, 2019.
    /s/ Mark E. Recktenwald
    /s/ Paula A. Nakayama
    /s/ Sabrina S. McKenna
    /s/ Richard W. Pollack
    /s/ Michael D. Wilson
    3
    HRS § 11-155 provides, in relevant part, that “[t]he number of
    candidates to be elected receiving the highest number of votes in any election
    district shall be declared to be elected.”
    23