Waters v. Nago ( 2019 )


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  •    ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
    Electronically Filed
    Supreme Court
    SCEC-XX-XXXXXXX
    25-JAN-2019
    03:52 PM
    IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
    ---o0o---
    SCEC-XX-XXXXXXX
    THOMAS WATERS a/k/a TOMMY WATERS, Plaintiff,
    vs.
    SCOTT NAGO, Chief Election Officer; STATE OF HAWAIʻI OFFICE OF
    ELECTIONS; and GLEN TAKAHASHI, in his official capacity as the
    City Clerk of the City and County of Honolulu, Defendants.
    ------------------------------------------------------
    SCEC-XX-XXXXXXX
    NATALIE IWASA; DAVID ABBOTT; NOA BATLIN; MICAH BATLIN; DENISE
    BOISVERT; JOHN CHOI; RUTH P. CHUN; ANGELA CORREA-PEI; RAFAEL del
    CASTILLO; LEA del CASTILLO; NINA DASWANI; RENE M. GARVIN; JASON
    GODWISE; KENNETH HAMILTON; RICHARD HIRAMOTO; LAURA HIRAMOTO;
    DWIGHT H. IWASA; ORIAN IWASA; DANIEL JACOB; CYNTHIA JARRELL;
    JEANNINE JOHNSON; KIM JORGENSEN; MARSHA JOYNER; JAMES E. KIRK;
    DONALD KOELPER; RICHARD LACEY; TORI MARCHIEL; JAMES MARTINDALE;
    RICKY MARUMOTO; ARNOLD MATSUURA; BONNIE DAVIS OZAKI; NALANI
    PARRY; RICHARD PARRY; BEN ROOSEVELT; MAXINE RUTKOWSKI; SHIRLEY
    MARGARET ROPER; RICK ROPER; CINDY ROTE; EVANGELINE YACUK,
    Petitioners,
    vs.
    SCOTT NAGO, Chief Election Officer; STATE OF HAWAIʻI OFFICE OF
    ELECTIONS; and GLEN TAKAHASHI, in his official capacity as the
    City Clerk of the City and County of Honolulu, Respondents.
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    ORIGINAL PROCEEDING
    JANUARY 25, 2019
    RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
    PER CURIAM
    Two election contests were brought as original actions
    with this court challenging the result of the City and County of
    Honolulu second special election for councilmember for District
    IV held on November 6, 2018.      The critical issue in these cases
    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
    by statute at 6:00 p.m.     However, it is undisputed that the City
    Clerk did not take possession of these absentee mail-in return
    envelopes until after that deadline, retrieving them from the
    mail facility in pickups that occurred at approximately 6:30
    p.m. and 7:30 p.m.    The ballots that were included in these
    envelopes were subsequently commingled with other ballots and
    then counted in determining the outcome of the election.
    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 they
    contained should not have been counted.         These 350 ballots
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    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.
    Thus, having heard this matter with 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 consolidate these original actions for
    disposition, set forth the following findings of fact and
    conclusions of law, and enter judgment.
    FINDINGS OF FACT
    Absentee Ballots in City and County of Honolulu
    Special Elections
    1. Pursuant to the Revised Charter of the City and
    County of Honolulu, nonpartisan special elections for elective
    officers are held in conjunction with the State of Hawai‘i’s (the
    “State”) primary and general elections except as otherwise
    provided.    Revised Charter of the City and County of Honolulu §
    13-116 (2017).
    2. In these joint elections, the City and County of
    Honolulu (the “City”) administers the absentee walk-in
    locations, the mailing and receipt of absentee mail ballots, and
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    the resolution of provisional ballots.         The State of Hawaiʻi
    Office of Elections (“Office of Elections”) supervises the
    overall administration of the election, including managing the
    polling places, selecting the precinct officials, and counting
    the validly cast ballots.
    3. Twenty days prior to an election, the City Clerk
    mails an absentee ballot to each registered voter who has
    requested one, together with a yellow envelope to seal the
    completed ballot (the “secret ballot envelope”) and a larger
    blue business reply mail envelope in which to return the secret
    ballot envelope (the “absentee return envelope”).           A voter
    affirmation statement and a line for the voter’s signature are
    printed on the outside of the absentee return envelope.
    4. A voter may cast an absentee ballot at any time
    prior to the close of polls on election day by mailing a sealed
    absentee return envelope to the City Clerk via the United States
    Postal Service (the “USPS”) or by hand delivering a sealed
    absentee return envelope to any polling place.          Polling places
    include absentee walk-in locations managed by the City Clerk
    that are open prior to election day and in-person election day
    polling places administered by the Office of Elections.
    5. Absentee return envelopes that are returned to in-
    person polling places on election day are collected by Office of
    Elections polling officials, who transfer the sealed absentee
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    return envelopes to the City Clerk following the closing of the
    polls.
    6. The City Clerk “validates” the voter’s signature
    appearing on each absentee return envelope, which under Hawaii
    Administrative Rules (HAR) § 3-174-11 is performed by comparing
    it to the signature on the voter’s absentee ballot request or
    voter registration.     The City Clerk does not open any absentee
    return envelopes.
    7. The City Clerk marks those absentee return
    envelopes that are not validated “invalid” and retains custody
    of them, to be disposed of in a manner prescribed by statute.
    8. The City Clerk transfers the validated absentee
    return envelopes to the Office of Elections for tabulation.
    The November 6, 2018 Second Special Election
    for the District IV City Council Seat
    9. On November 6, 2018, in conjunction with the
    State’s general election, the City held a nonpartisan second
    special election for the seat of the District IV city
    councilmember.
    10. Thomas Waters (also known as Tommy Waters) and
    Trevor Ozawa were the nonpartisan candidates for the District IV
    councilmember seat.
    11. Twenty days prior to the November 6, 2018 second
    special election, City Clerk Glen I. Takahashi (“City Clerk
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    Takahashi” or “City Clerk”) mailed out absentee ballots,
    together with secret ballot envelopes and absentee return
    envelopes, to 172,526 registered voters who had requested
    absentee ballots.
    12. For the 2018 general election, the City Clerk
    deemed a total of 132,016 absentee return envelopes to be
    validly returned during the entirety of the absentee voting
    period, which ran from October 17, 2018, to the close of polls
    on election day.1     The record does not indicate the total number
    of absentee return envelopes received from registered voters in
    District IV during the entirety of the absentee voting period.
    13. Following the close of polls on election day, the
    Office of Elections issued a total of four printouts detailing
    the ongoing tabulation of votes in various races.
    a. The first printout was issued at 6:09 p.m. and
    reported the result of the race for the office of councilmember
    for District IV as follows:
    OZAWA, Trevor            10,597   (46.4%)
    WATERS, Tommy            10,529   (46.1%)
    Blank Votes:        1,686   ( 7.4%)
    Over Votes:            10   ( 0.0%)
    1      There are approximately 734 absentee return envelopes that the
    City Clerk retrieved after November 6, 2018, of which the City Clerk retains
    possession.
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    b. The second printout was issued at 8:08 p.m.
    and reported the result of the race for the office of
    councilmember for District IV as follows:
    WATERS, Tommy         11,616   (46.0%)
    OZAWA, Trevor         11,609   (46.0%)
    Blank Votes:     2,009   ( 8.0%)
    Over Votes:         10   ( 0.0%)
    c. The third printout was issued at 9:36 p.m. and
    reported the result of the race for the office of councilmember
    for District IV as follows:
    WATERS, Tommy         17,795   (46.4%)
    OZAWA, Trevor         17,723   (46.2%)
    Blank Votes:     2,796   ( 7.3%)
    Over Votes:         10   ( 0.0%)
    d. The fourth printout was issued at 11:23 p.m.
    and reported the result of the race for the office of
    councilmember for District IV as follows:
    WATERS, Tommy         17,795   (46.4%)
    OZAWA, Trevor         17,723   (46.2%)
    Blank Votes:     2,796   ( 7.3%)
    Over Votes:         10   ( 0.0%)
    14. The following day, on November 7, 2018, at 4:11
    a.m., the Office of Elections generated a fifth printout for the
    election.    The result of the race for the office of
    councilmember for District IV was reported as follows:
    OZAWA, Trevor         18,357   (46.3%)
    WATERS, Tommy         18,335   (46.3%)
    Blank Votes:     2,908   ( 7.3%)
    Over Votes:         10   ( 0.0%)
    15. Although the fifth printout was entitled “Final
    Summary Report,” a “post-election process” occurred over the
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    next week that resulted in an additional three votes being added
    to the totals from the fifth printout: one vote each for Ozawa
    and Waters and one blank vote.       A second “Final Summary Report”
    was generated on November 15, 2018 and posted on the Office of
    Elections’ website.      The final result of the race for the office
    of councilmember for District IV was reported as follows:
    OZAWA, Trevor         18,358   (46.3%)
    WATERS, Tommy         18,336   (46.3%)
    Blank Votes:     2,909   ( 7.3%)
    Over Votes:         10   ( 0.0%)
    16. According to this Final Summary Report, the
    difference in the number of votes between Waters and Ozawa was
    22 votes.    The report thus indicated that Ozawa had received the
    highest number of votes.
    Post-Election Communications
    17. On November 16, 2018, Waters sent an e-mail to
    Chief Election Officer Scott T. Nago (“Chief Election Officer
    Nago”) and City Clerk Takahashi requesting a range of
    information regarding, inter alia, the handling of absentee
    ballots and the manner in which ballots were tabulated in the
    November 6, 2018 election.       Among the specific items of
    information Waters requested were an explanation of where and
    how the new ballots counted in the fifth printout were cast; the
    details of when and how mail-in absentee return envelopes were
    received, including the times at which mail-in absentee return
    envelopes were picked up or delivered on election day; an
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    accounting of the absentee ballots that were invalidated within
    District IV; the details of the process employed in validating
    signatures on absentee return envelopes; a list of the devices
    used to cast and tabulate votes, along with the margin of error
    associated with each; a list of “overages and underages” and the
    details of how such discrepancies are addressed in a manner that
    does not impact the final election result; and an explanation of
    how voter intent is determined in a close election without
    resorting to hand counting the ballots.         Waters also offered to
    sit down with Chief Election Officer Nago or City Clerk
    Takahashi to discuss his questions.
    18. On November 21, 2018, Waters received a response
    from Jaime Kataoka of the Office of Elections providing the
    final summary report of the November 6, 2018 election, the
    “Records of Ballots Cast,” the “AB-3: Walk and Mail Voted Ballot
    Summary” for the absentee mail and walk-in polling places, and a
    matrix of the overages and underages for the district/precincts
    associated with the District IV race.
    19. On November 23, 2018, Waters received a letter
    from Rex Quidilla, Elections Administrator for the Office of the
    City Clerk, Elections Division, City and County of Honolulu,
    State of Hawai‘i, indicating that the City Clerk invalidated 616
    mail absentee return envelopes for the 2018 general election and
    providing a breakdown of the reasons for the invalidation.
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    20. The answers from Kataoka and Quidilla are the only
    information that Waters received in response to his inquiry.2
    21. A November 19, 2018 article published in the
    Honolulu Star-Advertiser that was included as an exhibit in a
    filing by Waters included relevant information that was not
    included in Kataoka’s or Quidilla’s answer to Waters’s inquiry.
    Specifically, the article described the transfer from Office of
    Elections personnel to the City Clerk of absentee return
    envelopes that were dropped off at in-person polling places, the
    verification process, and the subsequent transfer of ballots
    back to the Office of Elections for tallying.           The article cites
    Quidilla as the source of the information.
    The Election Contest filed by Waters (SCEC-XX-XXXXXXX)
    22. On November 26, 2018, Waters filed a complaint
    contesting the election results for the District IV
    councilmember race.
    23. Waters asserts two counts for relief:
    2     In a complaint filed by thirty-nine registered voters residing in
    District IV, discussed infra, the voters allege that they also made inquiries
    with the Office of Elections regarding the handling of the ballots that were
    included in the fifth printout and were directed to the Office of the
    Attorney General. The voters indicate that the deputy attorney general to
    whom the calls were referred initially stated that she had no information
    about the ballots included in the fifth printout, the procedures used, or any
    established rules governing the chain of custody of absentee return
    envelopes. The voters allege that one week later, the deputy attorney
    general confirmed that the Office of the Attorney General had no knowledge of
    any written procedures or rules regarding the chain of custody, nor of how
    the ballots were actually transported on the night of the election.
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    a. Count I -- Waters alleges that the 1,2863
    absentee ballots in the District IV election that were counted
    between the fourth printout and the fifth printout were
    miscounted because they were transported to and received by the
    clerk in the State Capitol on November 6, 2018, nearly six hours
    after polls had already closed, in violation of HRS § 15-9
    (2009).   The improper inclusion and counting of the 1,286
    invalid absentee ballots after 100 percent of the
    district/precincts in District IV reported their ballot
    tabulations “directly changed the proper result of the
    election.”
    b. Count II -- Waters alleges that 39,603 ballots
    in the District IV election were miscounted because the
    difference of 22 votes is 0.00055 of 1%, which falls within the
    margin of error for the vote-counting machines used in Hawai‘i
    for the 2018 general election, and that the failure to verify
    the accuracy of the count, including the 2,908 “blank” votes and
    3      In Waters’s complaint, Waters identifies the number of absentee
    ballots that were allegedly received after the close of polls as 1,286
    absentee votes, consisting of 1,173 counted ballots and 113 blank ballots.
    (At various points in the complaint, Waters also makes reference to 1,174
    counted ballots.) These numbers roughly correspond with the difference
    between the number of votes reported by the Office of Elections in the fourth
    and fifth printout or the November 15, 2018 “Final Summary Report.” Quidilla
    initially stated in a filing to this court that there were 1,286 absentee
    return envelopes for District IV received by the City Clerk on election day.
    In a January 14, 2019 declaration, Quidilla clarified that the actual number
    of absentee return envelopes received on election day was 1,201.
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    the 10 ballots which indicated votes for both candidates, and
    the invalidated and spoiled ballots, “constituted an error,
    mistake or irregularity which would change the outcome of the
    election.”
    24. Waters asks the court to (1) invalidate the
    inclusion of 1,174 invalid absentee ballots counted in the fifth
    printout and declare him the prevailing candidate and winner of
    the election for Honolulu City Councilmember for District IV;
    (2) order a hand count and human inspection of the 39,603
    ballots cast in District IV and other invalidated ballots; or
    (3) invalidate the result of the general election for
    councilmember for District IV and require that a new election be
    held.
    The Election Contest Filed by 39 Voters Who Reside and are
    Registered to Vote in District IV (SCEC-XX-XXXXXXX)
    25. On November 26, 2018, 39 voters who reside and are
    registered to vote in Council District IV filed a complaint
    contesting the election results for the District IV
    councilmember race.
    26. The 39 voters assert three counts for relief:
    (1) the “Last Printout Procedure Gives Rise to a Mistake” (Count
    I); (2) the “Margin of Error Constitutes a Mistake” (Count (II);
    and (3) “Discrepancies Constitute Fraud and/or Mistake” (Count
    III).
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    27. The 39 voters allege that Chief Election Officer
    Nago, the Office of Elections, and City Clerk Takahashi
    “miscounted, misapplied, and mishandled more than 22 valid
    ballots cast in the District IV election” and that if the
    ballots had been properly counted and handled as prescribed by
    law, Waters would have been deemed to have received the majority
    of validly cast votes.     They further allege that the difference
    of 22 votes out of more than 39,000 votes is within the margin
    of error for the utilized voting machines that was previously
    identified in a 1999 State of Hawaiʻi Legislative Auditor’s
    Report of an election oversight committee.
    28. The 39 voters ask the court to (1) exclude the
    fifth printout and declare that Waters received the majority of
    valid votes cast in the District IV election; (2) invalidate the
    results of the District IV election due to an inability to
    determine the winner; or (3) require a hand recount in order to
    ensure an accurate count of all votes cast.
    City Clerk Takahashi’s Answer to the Complaints
    29. On December 6, 2018, City Clerk Takahashi filed
    answers to the two complaints.
    30. City Clerk Takahashi denies any improper conduct
    or that any irregularities transpired during the second special
    election.    City Clerk Takahashi contends that all of the
    absentee return envelopes that were received on election day,
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    either by USPS mail or drop-off delivery at a polling place,
    were received and handled in compliance with HRS § 15-9(a), and
    thus were correctly included in the vote count of the ballots
    for Council District IV.
    31. With respect to the allegations in the complaints
    related to the alleged margin of error and discrepancies
    involved in the counting of votes, City Clerk Takahashi explains
    that he is not involved in any way in the tabulation of ballots
    or printouts and has no knowledge as to the truth or falsity of
    the allegations.
    32. Attached to City Clerk Takahashi’s answers are
    declarations by Quidilla and himself setting forth additional
    details regarding the handling, collection, and receipt of
    absentee return envelopes on election day.
    33. Consistent with past practice, representatives of
    the City Clerk met with representatives of the USPS’s Oʻahu
    operations (“USPS O‘ahu”) on September 28, 2018 in preparation
    for the 2018 general election.
    34. During the meeting, the representatives of the
    City Clerk and USPS O‘ahu discussed the USPS’s collection and
    handling of the mail absentee return envelopes in the USPS
    mailing system on election day.       The following procedures were
    agreed to:
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    a. USPS personnel would conduct a “sweep” of its
    Honolulu Airport mail processing plant at 6:00 p.m. on election
    day to collect all mail-in absentee return envelopes within the
    facility.
    b. In addition to the regularly scheduled 9:00
    a.m. mail pickup, the City Clerk would conduct two additional
    pickups to retrieve the mail-in absentee return envelopes
    collected during the 6:00 p.m. “sweep” of the mail processing
    plant.     The first additional pickup time was scheduled for 6:30
    p.m.     A second additional pickup time was scheduled to occur at
    7:30 p.m. if there were any mail-in absentee return envelopes
    collected during the 6:00 p.m. “sweep” of the mail processing
    plant that were not included in the 6:30 p.m. pickup.
    35. Neither City Clerk Takahashi’s nor Quidilla’s
    declaration provided actual details of what occurred at the USPS
    Honolulu Airport mail processing plant on the day of the
    election, and there is no evidence in the record regarding the
    procedures actually employed by the USPS on election day.
    36. Following the close of polls on the day of the
    November 6, 2018 general election, Office of Elections personnel
    completed the transfer of the absentee return envelopes that
    were dropped off by hand at in-person polling places to the City
    Clerk at approximately 9:00 p.m.
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    37. Upon receiving the absentee return envelopes from
    the Office of Elections, the City Clerk’s staff transported the
    envelopes to the City Clerk’s Elections Division facility
    located near the Daniel K. Inouye International Airport for
    signature validation.
    38. The City Clerk received a total of 8,120 absentee
    return envelopes on the day of the election, 1,201 of which were
    from registered voters in Council District IV.
    39. The City Clerk validated 8,088 of the absentee
    return envelopes received on election day, of which 1,189 were
    from registered voters in Council District IV.
    40. The City Clerk invalidated a total of 620 absentee
    return envelopes received throughout the absentee voting period,
    of which 91 were for Council District IV.         The ballots were
    invalidated for the following reasons:
    a. 433 absentee return envelopes, of which 64
    were from voters registered in Council District IV, were
    invalidated because the signature on the voter’s affirmation
    statement was deemed not to correspond with the voter’s
    signature on the absentee ballot request or voter registration
    affidavit.
    b. 140 absentee return envelopes, of which 17
    were from voters registered in Council District IV, were
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    invalidated because no signature appeared on the voter
    affirmation statement.
    c. 43 absentee return envelopes, of which 9 were
    from voters registered in Council District IV, were invalidated
    because the voter was found to have already voted or voted at
    the wrong precinct, to have cancelled the ballot, to be
    deceased, or to have relocated to the Mainland.
    d. 4 absentee return envelopes, of which 1 was
    from a voter registered in Council District IV, were invalidated
    because the voter had cast an electronic ballot without
    providing the required privacy waiver or affirmation documents.
    41. After the signatures on the absentee return
    envelopes were validated, the City Clerk contacted the Office of
    Elections to arrange for the pickup of the envelopes.            The
    Office of Elections picked up the sealed absentee return
    envelopes at approximately 12:30 a.m. on November 7, 2018, and
    transported the envelopes to the State Capitol for opening and
    ballot tabulation.
    The Motions to Dismiss or, in the Alternative,
    Motions for Summary Judgment
    42. On December 6, 2018, Chief Election Officer Nago
    and the Office of Elections (collectively, the “State
    Defendants”) filed motions in both cases to dismiss the election
    complaints or, in the alternative, for summary judgment.            They
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    ask the court to declare that Ozawa was elected as councilmember
    for District IV.
    43. In the motions, the State Defendants contend that
    the complaints lack any allegations that demonstrate errors,
    mistakes, or irregularities that would change the outcome of the
    election.
    44. The State Defendants contend that both the
    absentee return envelopes that were dropped off at polling
    places and the mail-in absentee return envelopes were received
    by the close of the polls, verified, and securely transported to
    the counting center at the State Capitol to be opened and
    counted with the remaining ballots.        This handling is in
    compliance with all applicable election laws, the State
    Defendants argue.
    45. The State Defendants assert that, although the
    difference in the votes cast for Ozawa and Waters is small,
    there is no statutory provision for an automatic recount of the
    ballots.    They argue that the election challengers did not
    provide specific information regarding any margin of error for
    the voting machines, and they thus failed to provide actual
    information of mistakes or errors sufficient to change the
    result of the election as required by law.
    46. Lastly, the State Defendants contend that any
    suggestion that a “large shift towards Ozawa” in the fifth
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    printout indicates fraud or mistake is purely speculative and
    thus legally insufficient.
    47. Attached to the motions to dismiss or, in the
    alternative, motions for summary judgment, are declarations from
    Chief Election Officer Nago and Rich Geppert, one of the
    professional services managers for Hart InterCivic, Inc.
    (“Hart”), the vendor of the electronic voting machines used in
    the 2018 elections.        The declarations provide details regarding
    the handling, tabulation, and reporting of votes in the 2018
    general election.
    48. The voting system that was used during the 2018
    general election was inspected and tested by official observers
    in preparation for use in the general election, and official
    observers were present at the State Capitol to observe the
    counting of ballots.
    49. There are four scheduled times on election night
    at which the Office of Elections releases reports of the
    election tallies as they then stand: (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.    The Office of Elections then releases a final election
    night report once all ballots have been counted.              It is not
    uncommon for the final report of the night to come in the early
    morning hours following the day of the election.
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    50. In the November 6, 2018 race for councilmember for
    District IV, the 4:11 a.m. fifth printout that was released on
    November 7, 2018, included the absentee ballots provided to the
    counting center by the City Clerk as well as so-called
    “defective ballots” that had been duplicated for counting.4
    51. On the night of the general election, a manual
    audit team audited the computer-generated tally of ballots voted
    at the polls as well as mail-in absentee ballots to confirm the
    accuracy of the vote counting system.
    52. The audit team did not request an expanded audit.
    53. Should a recount be required, the Office of
    Elections states that it is required to follow the same set of
    rules in counting the ballots as was used on election day.
    54. In sum, Chief Election Officer Nago was not aware
    of any issues or problems with the accuracy of the voting and
    vote counting system, the handling of ballots, or any other
    matters that would impact the integrity of the general election
    results in Council District IV.
    55. On December 14, 2018, City Clerk Takahashi filed
    joinders to the motions to dismiss or, in the alternative,
    4      A “defective ballot” is “any ballot delivered to the counting
    center that cannot be processed and read by a central counter or precinct
    counter.” When this occurs, a “duplicate ballot” is created, which is “a
    ballot used solely for the purpose of creating a facsimile of a defective
    ballot that is reproduced for counting and tabulation.” HAR § 3-172-1.
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    motions for summary judgment with respect to claims and issues
    related to the collection, receipt, and handling of the mail-in
    absentee return envelopes and the functions of the City Clerk in
    the election process.
    Ozawa’s Answers to the Complaints
    56. On December 17, 2018, Ozawa, who had been granted
    permission to intervene in these election contests, filed
    answers to the respective election complaints.
    57. Ozawa argues that City Clerk Takahashi and the
    Office of Elections have averred and explained that all ballots
    that were counted as part of the fifth printout were received
    before the closing of the polls.         Ozawa further argues that
    there is no evidence of provable fraud and that simply alleging
    that the purported margin of error exceeds the margin by which
    the vote was decided is legally insufficient because there is no
    evidence that any miscalculated votes were cast for Waters.
    Ozawa thus maintains that neither Waters nor the 39 voters have
    met their burden to prevail in their respective election
    challenges.
    58. On December 17, 2018, Ozawa also filed substantive
    joinders to the State Defendants’ motions to dismiss or, in the
    alternative, motions for summary judgment.
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    The December 28, 2018 Order
    59. On December 28, 2018, this court issued an order
    directing Chief Election Officer Nago, the Office of Elections,
    and City Clerk Takahashi to provide information setting forth
    the margin of error for the electronic vote counting machines
    that were used in the November 6, 2018 election and information
    setting forth how the intent of the voter is ensured in a close
    election without a hand recount, which was previously requested
    by Waters shortly after the election and before he filed his
    complaint.
    60. On December 31, 2018, the State Defendants filed a
    response to the court’s December 28, 2018 order.5            Included with
    the response are declarations from Chief Election Officer Nago
    and from David Magedson, a program manager for Hart.             The
    declarations set forth information regarding the electronic
    voting systems used in the November 6, 2018 election.
    5     On December 31, 2018, City Clerk Takahashi filed his response to
    the court’s December 28, 2018 order. City Clerk Takahashi explains that he
    is not involved in the tabulation of ballots or review of “marginal marks” on
    ballots and, therefore, he does not have any information to provide the court
    and the parties in response to the court’s request for information. City
    Clerk Takahashi notes that he relies on Chief Election Officer Nago and the
    Office of Election’s response to the court’s request for information. The
    same day, Ozawa also filed a response to the court’s December 28, 2018 order
    in which he reiterates his contention that the election challengers’
    complaints fail to meet their burden of demonstrating fraud or mistake that
    would alter the result of the election or make it impossible to determine an
    accurate result.
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    61. Since 2008, Hawai‘i has utilized the Hart voting
    system, which is composed of three main components: (1) eSlate,
    an electronic voting unit on which a voter may directly cast a
    vote; (2) eScan, a digital ballot imaging precinct counter that
    allows a voter to cast a vote by inserting a paper ballot into
    the machine; and (3) Ballot Now, which is software that utilizes
    high-speed scanners to scan and tally absentee ballots.
    62. The Hart voting system is certified to federal
    standards, which relate to the initial testing of the machines.
    See Federal Election Commission, I Voting System Standards:
    Performance Standards § 3.2.1 - Accuracy Requirements (2002).
    The error rate in the federal standards refers to a misreading
    of ballot positions that is not attributable to an error on the
    part of the voter, and it thus addresses only situations in
    which a ballot has been properly marked.
    63. The Ballot Now system records a digital image of a
    voted ballot with a resolution of approximately 200 dots per
    inch, which is saved on the Ballot Now system and used for all
    subsequent election activities.       The software counts the number
    of marked pixels inside each option box in the digital image to
    determine whether a vote has been cast for that option.            If more
    than 4.2% of the pixels are marked, the option box will
    generally be recorded as having been marked.
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    64. Thus, when a voter makes a “marginal mark” or a
    mark that does not fully comply with ballot instructions, the
    vote will generally be counted if 4.2% or more of the pixels
    within the option box are marked.
    65. When an option box is marked so that the number of
    pixels marked falls within approximately seven pixels of 4.2%,
    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 around 0.046% of
    option boxes fall into the pixel range where this variance can
    occur.6
    66. On January 4, 2019, Waters filed a reply to the
    State Defendants’ response to the December 28, 2018 order.
    67. Waters argues that Chief Election Officer Nago and
    the Office of Elections’ responses are misleading and reveal
    that the Hart system does not ensure the intent of the voter is
    honored in a close election without a hand count because it
    disregards ballots that are not “properly marked” regardless of
    6      Ballot Now can also apply an algorithm (the Ballot Now Overvote
    Reduction Algorithm, or “BNORA”) to decrease this variance rate by
    eliminating false overvotes caused by pen rests, dirt, or other small marks
    on the ballot. The precinct counters used in polling places and at absentee
    walk-in locations do not use BNORA. Instead, as the voter is present in
    those locations, the precinct counters are equipped to return the ballot to
    the voter if the precinct counter detects an overvote (i.e., more voting
    positions have been marked in a contest than permitted) or a blank vote for a
    contest (i.e., no voting position in the contest has been marked).
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    the evidence of voter intent.       Waters states that the manner in
    which marginal marks are counted is problematic because the
    system’s cutoff of 4.2% of pixels marked is an arbitrary
    standard.
    68. In his reply, Waters also argues that absentee
    ballots that were not received by the City Clerk or the Office
    of Elections by the close of the polls at 6:00 p.m. were wrongly
    counted in the election results.         Waters contends that, pursuant
    to HRS § 15-9(a), absentee ballots must be received by the City
    Clerk by the close of the polls, which is 6:00 p.m.           He
    maintains that, contrary to statute, the ballots were received
    by the City Clerk during the 6:30 p.m. and 7:30 p.m. pickups at
    the airport.    Waters contends that these ballots must be
    invalidated, thereby altering the result of the election and
    making him the victor.
    The 39 Voters’ Opposition to the Motion to Dismiss or,
    in the Alternative, Motion for Summary Judgment
    69. On January 4, 2019, the 39 voters filed a
    memorandum in opposition to the motion to dismiss or, in the
    alternative, motion for summary judgment.
    70. The 39 voters argue that they have carried their
    burden of demonstrating fraud or mistake that could alter the
    election result.    They contend that HRS § 15-9 obligated the
    City Clerk to invalidate the absentee return envelopes that were
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    collected from the USPS after the closing of the polls.            The 39
    voters argue that the invalidation of these ballots would
    ultimately change the outcome of the election in Council
    District IV.
    71. The 39 voters also argue that the State
    Defendants’ response to this court’s December 28, 2018 order
    raises questions about the actual margin of error because blind
    acceptance of the manufacturer’s stated error rate ignores
    documented instances in other states in which the Hart system
    has produced more inaccurate results.        The State Defendants have
    a duty to protect voter rights and ensure accurate results, the
    39 voters contend, and this includes investigating the accuracy
    of the manufacturer’s assurances.
    72. The 39 voters further contend that the State
    Defendants’ response to this court’s December 28, 2018 order
    demonstrates that the State applies an inconsistent standard in
    determining voter intent.      In the absence of any explanation of
    how the cutoff of 4.2% of pixels was determined, the voters
    argue, the number must be regarded as an arbitrary figure.             The
    voters assert that this standard, in conjunction with the
    variance that occurs when a marginal marking falls within seven
    pixels of the threshold, demonstrates that no meaningful
    distinction exists between those marginal votes that are counted
    and those that are not.
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    The January 8, 2019 Order
    73. On January 8, 2019, this court issued an order
    directing the State Defendants and City Clerk Takahashi to
    provide a detailed explanation of the factual circumstances and
    procedures that were actually followed by the USPS and the City
    Clerk regarding the handling and collection of the mail-in
    absentee return envelopes retrieved from the USPS on election
    day.    The order requested, among other information, the time(s)
    of the collection and pickup of the absentee ballots; a
    description of the procedures that were actually used to ensure
    that any mail-in absentee return envelopes received, collected,
    or “swept” by the USPS after 6:00 p.m. on election day were set
    aside and not counted; and an accounting of whether any mail-in
    absentee return envelopes received, collected, or “swept” by the
    USPS after 6:00 p.m. were included in the election results.
    74. On January 10, 2019, the City Clerk filed a
    response to the court’s January 8, 2019 order.
    75. City Clerk Takahashi submits that the Office of
    the City Clerk complied with applicable statutes and
    administrative rules governing the collection of mail-in
    absentee return envelopes related to Council District IV and
    other contests that occurred on November 6, 2018.
    76. There were three scheduled pickup times on
    election day at which City Clerk personnel retrieved mail-in
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    absentee return envelopes from the USPS airport facility:(1) a
    9:00 a.m. pickup; (2) a 6:30 p.m. pickup; and (3) a 7:30 p.m.
    pickup.
    77. The 9:00 a.m. pickup time was a pre-established
    time for City Clerk personnel to pick up mail-in absentee return
    envelopes from the USPS airport facility.         City Clerk personnel
    picked up mail-in absentee return envelopes from the facility at
    this time on a daily basis (excluding Sundays) from October 17,
    2018 through November 6, 2018.
    78. The 6:30 p.m. pickup and 7:30 p.m. pickup were
    additional pickup times scheduled only for election day.
    79. On November 6, 2018, City Clerk personnel picked
    up mail-in absentee return envelopes at the USPS airport
    facility at approximately 9:00 a.m. and 6:30 p.m.
    80. City Clerk personnel received a call from USPS
    personnel at approximately 7:00 p.m. on November 6, 2018, during
    which USPS personnel informed City Clerk personnel that
    additional mail-in absentee return envelopes were ready for
    pickup.
    81. At approximately 7:30 p.m., City Clerk personnel
    picked up additional mail-in absentee return envelopes from the
    USPS airport facility.
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    82. The following chart summarizes the number of mail-
    in absentee return envelopes picked up by City Clerk personnel
    on election day at 6:30 p.m. and 7:30 p.m.:
    Island-wide       District IV only
    USPS Airport 6:30 p.m.
    pickup                                    1,093                 165
    USPS Airport 7:30 p.m.
    pickup                                    1,247                 185
    Total                                     2,340                 350
    83. At approximately 12:00 a.m. on November 7, 2018,
    the City Clerk contacted the Office of Elections to arrange for
    the pickup of the mail-in absentee return envelopes that were
    picked up from the USPS at 6:30 p.m. and 7:30 p.m., as well as
    the absentee envelopes that were dropped off at polling places.
    84. In his declaration, City Clerk Takahashi explains
    that he relies on the processes and procedures used by the USPS
    in implementing the agreement between the City Clerk and the
    USPS covering the USPS’s receipt, collection, and/or “sweeping”
    of its facilities and system as of 6:00 p.m. on November 6,
    2018.   He states that the practical administrative reality of
    the receipt, collection, and pickup of mail-in absentee return
    envelopes in the election process requires the City Clerk to
    work cooperatively and in conjunction with the USPS, as occurred
    in this election cycle and past election cycles.
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    85. Mail-in absentee return envelopes that were not
    included in the 9:00 a.m., 6:30 p.m., or 7:30 p.m. pickups on
    November 6, 2018, have been retrieved by City Clerk personnel
    and set aside by the City Clerk, but they have not been provided
    to the Office of Elections.      As of the filing of City Clerk
    Takahashi’s declaration, there were 734 mail-in absentee return
    envelopes that the City Clerk retrieved after November 6, 2018.
    86. City Clerk Takahashi contacted the USPS Honolulu
    District to request that one of its officers submit a
    declaration to provide information relative to the USPS’s
    handling of mail-in absentee return envelopes for the November
    6, 2018 election.    He was informed that the USPS would not be
    able to submit a declaration in response to the court’s January
    8, 2019 order given the court’s timeframe and deadline.            The
    USPS did not give City Clerk Takahashi any indication that such
    a declaration could be made.      There is thus no evidence in the
    record of what actually occurred at the USPS airport facility on
    November 6, 2018.
    87. On January 9, 2019, the State Defendants filed
    their response to the court’s January 8, 2019 order.            The State
    Defendants explained that they are not involved in the handling
    and collection of the mail-in absentee ballots from the USPS on
    the day of the general election and have no information to
    provide this court and the parties in response to the January 8,
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    2019 order.    They state that they rely on City Clerk Takahashi’s
    response.
    88. On January 9, 2019, Ozawa filed his response to
    the court’s January 8, 2019 order.
    89. Ozawa argues that he was duly elected as
    councilmember for District IV pursuant to the procedures set
    forth by statute and administrative rules.         Ozawa contends that,
    under HAR § 3-174-2(a), the City Clerk was authorized to
    designate the USPS as the City Clerk’s representative, thus
    allowing the USPS to legally receive absentee ballots on the
    City Clerk’s behalf.     Any ballots the USPS received prior to the
    close of polls were thus validly counted, Ozawa contends.
    90. Ozawa maintains that there is no evidence that the
    USPS received any ballots after 6:00 p.m. and that City Clerk
    Takahashi has averred that the USPS collects only absentee
    ballots that are at the mail processing plant at 6:00 p.m.
    91. Ozawa thus argues that there is no evidence that
    any absentee return envelopes that were not validly received
    within the time limit provided in HRS § 15-9(a) were included in
    the election results.
    92. On January 10, 2019, the 39 voters filed a reply
    to the respective responses filed by Chief Election Officer Nago
    and the Office of Elections, Ozawa, and City Clerk Takahashi
    with respect to the court’s January 8, 2019 order.
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    93. The 39 voters contend that City Clerk Takahashi
    did not provide a detailed explanation as to what occurred at
    the USPS facility with respect to the 6:00 p.m. “sweep.”            They
    argue that City Clerk Takahashi admits that 350 mail-in absentee
    return envelopes were picked up from the USPS after 6:00 p.m. on
    election day, which does not satisfy a plain reading of HRS §
    15-9(a).   Thus, the 39 voters maintain that only those ballots
    that were retrieved by City Clerk Takahashi, the Office of
    Elections, or the polling places by 6:00 p.m. may be properly
    counted.
    94. On January 11, 2019, Waters filed a reply to the
    responses that were filed with respect to the court’s January 8,
    2019 order.
    95. Waters contends that the City Clerk’s responses
    demonstrate mistakes on the part of election officials.            Waters
    specifically argues that the responses fail to detail the
    procedures actually followed on November 6, 2018, to ensure that
    the USPS’s handling and collection of mail-in absentee return
    envelopes were in accordance with HRS § 15-9(a) and the
    agreement between the City Clerk and the USPS.
    96. Waters further argues that HRS § 15-9(a)(1) does
    not permit the City Clerk to designate a representative to
    receive mail-in absentee return envelopes, as is permitted under
    HRS § 15-9(a)(2) and (3).
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    97. Waters thus argues that City Clerk Takahashi
    acknowledges that 350 ballots were received by the City Clerk
    after 6:00 p.m.    The counting of these ballots was in violation
    of HRS § 15-9(a)(1), Waters concludes.
    The January 11, 2019 Order
    98. On January 11, 2019, the court issued an order
    (a) consolidating SCEC-XX-XXXXXXX and SCEC-XX-XXXXXXX for oral
    argument, (b) scheduling oral argument for January 15, 2019, at
    2:00 p.m., and (c) providing the parties an opportunity to file
    any further declarations and/or memoranda no later than 4:30
    p.m. on January 14, 2019.
    99. City Clerk Takahashi filed a declaration on
    January 14, 2019, stating that he has no reason to believe and
    has been presented with no evidence that the USPS did not comply
    with the arrangement agreed to at the September 28, 2018
    meeting.   Like his previous submission, City Clerk Takahashi
    does not provide details that the arrangement was actually
    followed on election day.
    100. Ozawa also filed a response on January 14, 2019.
    Ozawa maintains that for the City Clerk to carry out his duties,
    it is reasonably necessary that he be able to delegate the duty
    to receive absentee ballots by the close of polls.
    Specifically, Ozawa argues that the City Clerk can delegate to
    the USPS his duty to receive by 6:00 p.m. on election day the
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    mail-in absentee return envelopes.        Ozawa does not provide any
    evidence that such a delegation of duty occurred for the
    November 6, 2018 election.
    Oral Argument
    101. Oral argument was held on January 15, 2019.           See
    Oral Argument, Waters v. Nago et al. (SCEC-XX-XXXXXXX) and Iwasa
    et al. v. Nago et al. (SCEC-XX-XXXXXXX),
    http://oaoa.hawaii.gov/jud/oa/19/SCEC_18_909_910.mp3.
    102. Counsel for the City Clerk acknowledged that the
    City Clerk did not “actually have in [his] hands as of 6:00
    p.m.” the mail absentee envelopes that were purportedly in the
    USPS system at 6:00 p.m.      See Oral Argument at 47:33-47:41.
    103. When asked about the City Clerk’s delegation of
    authority under HAR § 3-174-2, counsel for the City Clerk stated
    that “there’s no administrative rule or statutory guidance in
    terms of actual delegation.”      See Oral Argument at 41:39-41:55.
    Counsel then explained that he “think[s] the designated
    representative is what the City characterizes the USPS as[.]”
    See Oral Argument at 42:07-42:13.
    104. Counsel for the City Clerk indicated that the
    absentee return envelopes provide the City Clerk’s post office
    box as the return address, which is located at the USPS airport
    facility.   See Oral Argument at 42:56-43:22.         Counsel then
    clarified that the absentee return envelopes are gathered by the
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    USPS from throughout the airport facility for pickup by the City
    Clerk and are physically “probably in USPS bins” prior to being
    collected.   See Oral Argument at 43:58-44:07.
    105. Later, counsel for the City Clerk stated that he
    is not making any suggestion that the USPS is the City Clerk’s
    agent and explained that, within the statutory scheme, the USPS
    is a designated representative.       See Oral Argument at 47:57-
    48:28.
    106. When asked whether the USPS knew that they were
    the designee under HRS § 15-9, counsel for the City Clerk stated
    that he “believed” that that was the function of the meeting
    that was held between representatives of the City Clerk and USPS
    O‘ahu representatives.     See Oral Argument at 53:26-54:30.
    107. Counsel for the City Clerk reiterated the
    arrangement with the USPS and explained that it was agreed that,
    at 6:00 p.m., the USPS would “sweep” its facility of all the
    “blue envelopes” (i.e., mail-in absentee return envelopes) to
    ensure that, as of that time, the City had as many blue
    envelopes as possible.     See Oral Argument at 55:48-56:00.          When
    asked about the definition of “sweep,” counsel stated that it is
    a characterization of the efforts of the USPS to make sure that
    their entire facility gathers up the blue envelopes in their
    system as of 6:00 p.m.     See Oral Argument at 56:02-56:54.
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    108. Counsel for the City Clerk was asked about the
    difference in the number of envelopes between the 6:30 p.m. and
    the 7:30 p.m. pickup following the “sweep” by the USPS, the
    latter of which included a greater number of absentee return
    envelopes despite being intended to retrieve only those absentee
    return envelopes that were missed during the previous pickup.
    Counsel stated that “that is what the record reflects,” that he
    “ha[s] no explanation for it,” and that “that is just the
    universe of facts that we have to deal with.”          See Oral Argument
    at 57:57-59:22.
    109. Counsel for the State Defendants explained that
    the Office of Elections relies on the City Clerk’s handling of
    the absentee ballots.     Counsel noted the September 28, 2018
    meeting between representatives of the City Clerk and the USPS
    representatives and described their relationship as “at least an
    agency relationship.”     Counsel explained that she did not know
    if the relationship was “a designated one” or whether the agency
    agreement had to be in writing.       See Oral Argument at 1:21:53-
    1:24:07.
    110. Counsel for the State Defendants explained that
    the 350 ballots that were picked up from the USPS at the 6:30
    p.m. pickup and the 7:30 p.m. pickup were “commingled together,
    put through the scanner” with the absentee ballots that were
    dropped off at the polling places as well as the facsimile
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    ballots that were created from the defective ballots and,
    therefore, cannot now be separated.        Counsel explained that the
    Office of Elections would not be able to ascertain what the
    correct result would be if the 350 ballots were declared
    invalid.    See Oral Argument at 1:31:48-1:32:28.
    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 (2009).
    2. A complaint challenging the results of an election
    pursuant to HRS § 11-172 fails to state a claim unless the
    plaintiff alleges either 1) errors, mistakes or irregularities
    that could change the outcome of the election, see Tataii v.
    Cronin, 119 Hawai‘i 337, 339, 
    198 P.3d 124
    , 126 (2008) (citing
    Akaka v. Yoshina, 84 Hawai‘i 383, 387, 
    935 P.2d 98
    , 102 (1997));
    Funakoshi v. King, 
    65 Haw. 312
    , 317, 
    651 P.2d 912
    , 915 (1982),
    or 2) that the correct result cannot be ascertained because of a
    mistake or fraud on the part of the precinct officials.            HRS §
    11–174.5(b) (2009); Akaka, 84 Hawai‘i at 
    387, 935 P.2d at 102
    .
    3. In order for a complaint to be legally sufficient
    in the first circumstance, the complaint must include actual
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    information “show[ing] that the specific acts and conduct of
    which they complain would have had the effect of changing the
    results of the [] election.”         Elkins v. Ariyoshi, 
    56 Haw. 47
    ,
    49, 
    527 P.2d 236
    , 237 (1974); Akaka, 84 Hawai‘i at 
    388, 935 P.2d at 103
    (holding that, 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’” (quoting 
    Funakoshi, 65 Haw. at 316
    –17, 651 P.2d at
    915)).     “An election contest cannot be based upon mere belief or
    indefinite information.”         Tataii, 119 Hawai‘i at 
    340, 198 P.3d at 127
    .     Further, if the specific irregularities complained of do
    not “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.”
    Akaka, 84 Hawai‘i at 
    388, 935 P.2d at 103
    (citing 
    Elkins, 56 Haw. at 49
    , 527 P.2d at 237).
    4. Similarly, a complaint alleging that fraud or
    mistake by election officials has made it impossible to
    ascertain the correct result must include specific facts that if
    true would prevent an accurate determination of the election
    outcome.     Id.; Akizaki v. Fong, 
    51 Haw. 354
    , 
    461 P.2d 221
    (1969).
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    5. Under either standard, “[i]t is not sufficient that
    the petitioner points to a ‘poorly run and inadequately
    supervised election process’ that evinces ‘room for abuse’ or
    ‘possibilities of fraud.’”      Akaka, 84 Hawai‘i at 
    388, 935 P.2d at 103
    (quoting 
    Elkins, 56 Haw. at 48
    , 527 P.2d at 237).
    6. In Count I of his complaint, Waters alleges that
    the absentee ballots in the District IV election counted between
    the fourth printout and the fifth printout were miscounted
    because they were not delivered to the State Capitol for
    counting before the polls closed on election day.           Waters claims
    that as many as 1,2867 absentee return envelopes were not
    received by the City Clerk or the Office of Elections by the
    close of the polls at 6:00 p.m. on November 6, 2018.            Waters
    contends that the counting of these ballots violates HRS § 15-
    9(a), and they therefore cannot be considered.
    7. The 39 voters allege in Count I of their complaint
    that the City Clerk “miscounted, misapplied, and mishandled” the
    ballots included in the fifth printout by “failing to follow
    requirements set forth within the governing statutes and
    administrative rules.”     In subsequent filings, the voters
    clarified their argument, contending that the City Clerk had
    7    See supra, note 3.
    39
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    violated HRS § 15-9(a) by collecting mail-in absentee return
    envelopes after the closing of the polls.
    8. Because Waters and the 39 voters allege a
    particular error that would invalidate a number of votes greater
    than the 22-vote margin by which the election was decided, they
    have alleged a specific mistake “sufficient to change the
    result,” as is required to state a claim for relief under our
    precedents.8    Akaka, 84 Hawai‘i at 
    388, 935 P.2d at 103
    (quoting
    
    Funakoshi, 65 Haw. at 316
    –17, 651 P.2d at 915).
    9. The court’s consideration of matters outside the
    pleadings converts a motion to dismiss into one for summary
    judgment.    Buscher v. Boning, 114 Hawai‘i 202, 212, 
    159 P.3d 814
    ,
    824 (2007).
    8     The court notes that the response that Waters and the 39 voters
    received from the State Defendants and the City Clerk in answer to their
    inquiries shortly after the election put them at a disadvantage in meeting
    their burdens in this election contest. Less than one day after the November
    15, 2018 “Final Summary Report” was generated, Waters sent questions to the
    Office of Elections and the City Clerk about the election. Notwithstanding
    Waters’s status as a candidate with a clear interest in the outcome of the
    race, the Office of Elections and the City Clerk did not respond to all of
    the questions, particularly with respect to the pickup or delivery times of
    the mail-in absentee return envelopes on election day, the margin of error
    for the voting machines, and the manner in which a voter’s intent is ensured
    in a close election without a manual hand count. Similarly, the 39 voters
    allege that their inquiries were directed to a deputy attorney general who
    was unable to provide any of their requested information. Further, some of
    the information that Waters and the 39 voters sought and were not provided
    appears to have been readily available, as it appeared in a newspaper article
    shortly thereafter. We note that timely and complete responses to valid
    election day inquiries help to ensure a meaningful and transparent election
    process.
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    10. Summary judgment is appropriate when 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 & Cty.
    of Honolulu, 115 Hawai‘i 1, 6, 
    165 P.3d 247
    , 252 (2007).
    11. The fundamental starting point for statutory
    interpretation is the language of the statute itself.             Where the
    statutory language is plain and unambiguous, this court’s sole
    duty is to give effect to the statute’s plain and obvious
    meaning, which is obtained primarily from the language contained
    in the statute itself.     Statutory language must be read in the
    context of the entire statute and construed in a manner
    consistent with its purpose.      See Castro v. Melchor, 142 Hawai‘i
    1, 11, 
    414 P.3d 53
    , 63 (2018).
    12. HRS § 15-9, which governs the return and receipt
    of absentee return envelopes, provides as follows:
    (a)   The return envelope shall be:
    (1)   Mailed and must be received by the clerk
    issuing the absentee ballot not later
    than the closing of the polls on any
    election day;
    (2)   Delivered other than by mail to the clerk
    issuing the absentee ballot, or another
    election official designated by the clerk
    to act on the clerk’s behalf, not later
    than the closing of polls on any election
    day; or
    (3)   Delivered other than by mail to any
    polling place within the county in which
    the voter is registered and deposited by
    a precinct official in the ballot box
    before the closing of the polls on any
    election day.
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    (b)   Upon receipt of the return envelope from any person
    voting under this chapter, the clerk may prepare the
    ballots for counting pursuant to this section and
    section 15-10.
    (c)   Prior to opening the return and ballot envelopes and
    counting the ballots, the return envelopes shall be
    checked for the following:
    (1)   Signature on the affirmation statement;
    (2)   Whether the signature corresponds with
    the absentee request or register as
    prescribed in the rules adopted by the
    chief election officer; and
    (3)   Whether the person is a registered voter
    and has complied with the requirements of
    sections 11-15 and 11-16.
    (d)   If any of the above requirements is not met or
    if the return or ballot envelope appears to be
    tampered with, the clerk or the absentee ballot
    team official shall mark across the face of the
    envelope “invalid” and it shall be kept in the
    custody of the clerk and disposed of as
    prescribed for ballots in section 11-154.
    (e)   If an absentee polling place is established at
    the clerk’s office prior to election day, the
    officials of the absentee polling place shall
    check the return or ballot envelopes for the
    above requirements prior to depositing them in
    the correct absentee ballot box.
    (Emphases added); see also HRS § 15-5(b) (2009 & Supp. 2017)
    (addressing the delivery of absentee ballots by electronic
    transmission to voters and providing that “[t]he voter may
    return the voted ballots and executed forms by electronic
    transmission or mail; provided that they are received by the
    issuing clerk no later than the close of polls on election
    day”).
    13. HRS § 15-9 requires all absentee return envelopes
    to be returned no later than the closing of polls on any
    42
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    election day.    By the closing of polls, all absentee return
    envelopes must be either (1) mailed and received by the clerk
    issuing the absentee ballot; (2) delivered other than by mail to
    the clerk issuing the absentee ballot or another election
    official designated by the clerk to act on the clerk’s behalf;
    or (3) delivered other than by mail to any polling place within
    the county in which the voter is registered.
    14. Absentee ballots that are received before the
    closing of the polls on any election day in compliance with HRS
    § 15-9(a) and that satisfy the affirmation and verification
    requirements will be counted in determining the result of the
    election.    HRS § 15-10 (2009); see also, e.g., HAR §§ 3-174-11
    (procedure for validating signatures on voter affirmation
    statements); 3-174-12 (procedure for processing damaged,
    duplicate, or unidentifiable absentee return envelopes); 3-174-
    13 (procedure for receiving absentee return envelopes at the
    precincts); 3-174-14 (procedures for processing absentee mail-in
    return envelopes after the polls close); 3-174-15 (procedure for
    transfer of absentee return envelopes to counting center); 3-
    174-16 (procedure upon receiving absentee ballots at the
    counting center); 3-174-17 (procedure for processing absentee
    ballots at the counting center for electronic voting system
    ballots).
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    15. For absentee return envelopes that are returned by
    mail on election day, HRS § 15-9(a)(1) requires that the return
    envelope be “received by the clerk issuing the absentee ballot
    not later than the closing of the polls on any election day.”
    16. HRS § 11-131 (2009) provides that the closing time
    for the polls on election day is 6:00 p.m., subject to an
    exception for in-person voters who are in line at the close of
    voting.9
    17. HAR § 3-174-2(a), which was promulgated to
    implement HRS § 15-9 and other election related statutes,
    provides that “[w]henever a duty is to be performed by the
    clerk, the clerk may delegate it to a designated representative
    or the election officials of the absentee polling place.”
    9      During oral argument, counsel for the City Clerk and the State
    Defendants argued that, because HRS § 11-131 permits any voter who is waiting
    in line when the polls close to vote “irrespective of the closing hour of
    voting,” the actual closing of at least some polling places occurs after 6:00
    p.m. Counsel for the City Clerk appeared to suggest that, under HRS § 15-
    9(a)(1), the City Clerk may validly receive mail-in absentee ballots after
    6:00 p.m. so long as in-person voting had not concluded at all polling
    places. As an initial matter, the record contains no evidence by which this
    court could determine the actual closing of polls according to this argued
    interpretation. And were we to adopt such a reading of the statute, it would
    follow that any voters whose absentee mail-in ballots were “received” after
    6:00 p.m. but before the conclusion of in-person voting would have been
    improperly disenfranchised if their votes were not included in the pick-ups
    following the 6:00 p.m. sweep. In any event, we hold that HRS § 11-131
    unambiguously establishes 6:00 p.m. as “the prescribed hour for closing the
    polls” and it is this time that constitutes “the closing of the polls” for
    purposes of the HRS § 15-9(a)(1) deadline.
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    18. Thus, HRS § 15-9(a) requires that all absentee
    mail-in return envelopes must be received by the City Clerk or
    an authorized representative by 6:00 p.m. on election day.10
    19. There were 2,340 mail-in absentee return envelopes
    that were collected by USPS personnel at the Honolulu Airport
    mail processing plant on November 6, 2018, that were picked-up
    by the City Clerk’s representative at 6:30 p.m. and 7:30 p.m.
    350 of these were from voters registered in Council District IV.
    The City Clerk argues that these envelopes were the result of a
    “sweep” of the Honolulu Airport mail processing plant performed
    by USPS personnel at 6:00 p.m. in accordance with an “agreement”
    entered into at a September 28, 2018 meeting between
    representatives of the City Clerk and USPS O‘ahu.
    20. The record indicates that an agreement was made
    during the September 28, 2018 meeting between representatives of
    the City Clerk and USPS O‘ahu.       According to the agreement, USPS
    personnel would conduct a “sweep” of its Honolulu Airport mail
    10     Waters and the 39 voters point out that, unlike HRS § 15-9(a)(2),
    HRS § 15-9(a)(1) does not include language indicating mail-in absentee
    ballots may be received by “another election official designated by the clerk
    to act on the clerk’s behalf.” Therefore, the election challengers argue,
    HAR § 3-174-2(a) does not permit the City Clerk to delegate this duty to
    receive mail-in absentee return envelopes to anyone unaffiliated with the
    Office of the City Clerk. Because we hold infra that no evidence was offered
    demonstrating that the City Clerk’s designated representative was present at
    the Honolulu Airport mail processing plant at 6:00 p.m. on November 6, 2018,
    we need not now decide the extent to which the City Clerk’s HRS § 15-9(a)(1)
    duties are delegable to individuals other than City Clerk personnel.
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    processing plant at 6:00 p.m. on election day.11           Despite
    requests by Waters and this court, no evidence was provided as
    to what actually occurred on November 6, 2018 at the USPS
    Airport mail processing plant at 6:00 p.m. (or any time
    thereafter) with respect to the mail-in absentee return
    envelopes.
    21. There is no dispute that at 6:00 p.m. the City
    Clerk’s office did not have physical possession or control of
    the 350 mail-in absentee return envelopes for District IV that
    were purportedly “swept” by the USPS at its Airport facility and
    picked-up by the City Clerk’s office at 6:30 p.m. and 7:30 p.m.
    on November 6, 2018.      While counsel for the City Clerk at oral
    argument indicated that the City Clerk has a post office box at
    the airport facility where mail-in absentee return envelopes are
    sent, it was acknowledged that the envelopes were distributed
    throughout the facility, were not placed in an actual physical
    enclosure designated for the City Clerk’s exclusive use, and
    remained within the control of USPS personnel.           We thus hold
    that the facts of this case are legally insufficient to
    11    Neither the City Clerk nor the State Defendants provided an
    explanation in their filings as to what “sweep” means, the parameters of the
    “sweep,” or the length of time required to conduct a “sweep.” As 
    discussed supra
    , counsel for the City Clerk stated only during oral argument that a
    “sweep” is a characterization of the USPS’s efforts to gather up all absentee
    return envelopes in their facility as of 6:00 p.m.
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    establish the receipt of the challenged envelopes by the City
    Clerk at 6:00 p.m.      Cf. Stewarts’ Pharmacies, Ltd. v. Fase, 
    43 Haw. 131
    , 145–46 (1959) (“When we apply the intended and correct
    meaning of the word ‘receipt’ as used in the act, it is
    conclusive to our minds that the tax of the retailer, referred
    to, is paid when the articles are in his possession and when the
    merchant has unlimited control and dominion over the [items].”
    (quoting Bacon & Sons v. Martin, 
    305 U.S. 380
    , 381 (1939)).
    22. A pivotal question, therefore, is whether the City
    Clerk delegated his duty to “receive” the mail-in absentee
    return envelopes to a designated representative and, more
    specifically, whether such a duty was delegated to the USPS or
    another party present at the facility.12
    23. Initially, it is noted that in the introduction to
    the “State and Local Election Mail-User’s Guide” published by
    the USPS and included with Ozawa’s Response to this court’s
    January 11, 2019 order, the USPS states that the guide contains
    “information election officials must consider before they”
    utilize the mail.13     Significantly, the Mail-User’s Guide
    12     This court makes no determination as to whether the USPS may be a
    designated representative for purposes of HRS § 15-9(a)(1) and HAR § 3-174-
    2(a).
    13    United States Postal Service, State and Local Election Mail-
    User’s Guide 15 (March 2018), http://about.usps.com/publications/pub632.pdf
    47
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    specifies that, if election officials wish to arrange to pick up
    mail-in absentee ballots at a postal service facility, they
    should “[l]et [their] Postal Service Election Mail coordinator
    know [their] cut-off time for receiving returned ballots” and
    “[a]rrange the latest time when an election official may pick up
    last-minute returns.”      (Emphasis added.)      The USPS thus appears
    to regard itself as neither an election official nor a
    representative thereof in the state and local elections in which
    the USPS provides assistance.
    24. The September 28, 2018 meeting between
    representatives of the City Clerk14 and USPS O‘ahu at which the
    USPS agreed to conduct a “sweep” of its Honolulu Airport mail
    processing plant at 6:00 p.m. on election day did not establish
    a delegation of the City Clerk’s duty to receive mail-in
    absentee return envelopes.15       No party has provided a declaration
    14     It is noted that the City Clerk’s declarations regarding the
    meeting do not indicate that any representative of the Chief Election Officer
    was in attendance, and the Chief Election Officer stated in response to this
    court’s January 8, 2019 order that he had no information to provide regarding
    the handling and collection of mail-in absentee ballots. While the City
    Clerk is responsible for many aspects of a county-wide election, the ultimate
    responsibility to supervise a county election held in conjunction with a
    state election remains in the Chief Election Officer. See HRS § 11-2(a)
    (2009) (tasking the Chief Election Officer with supervision of all state
    elections); HRS § 11-91.5(e) (2009 & Supp. 2015) (“The chief election officer
    shall adopt rules pursuant to chapter 91 to provide for uniformity in the
    conduct of federal, state, and county elections by mail.”).
    15     As stated, HRS § 15-9(a)(1) requires that absentee ballots
    delivered by mail must be received by the City Clerk by the close of polls on
    election day in order to be valid. If the USPS as a whole had been
    designated as the City Clerk’s representative as argued by counsel for the
    (continued . . .)
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    or document indicating that an individual, group, or entity had
    been designated as the City Clerk’s representative at the
    Honolulu Airport mail processing facility on election day.
    Prior to oral argument, neither the City Clerk nor the Chief
    Election Officer argued in any filing to this court that a
    designation had been made, nor did they identify any procedure
    by which such a designation would have occurred.16
    25. The record is thus devoid of any evidence that the
    City Clerk effectively delegated his authority to receive mail-
    in absentee return envelopes at 6:00 p.m. on election day to the
    USPS or any other designated representative.
    26. What the record demonstrates instead is that,
    after the 9:00 a.m. mail pickup at the USPS Honolulu Airport
    location on November 6, 2018, City Clerk personnel conducted two
    (. . . continued)
    City Clerk, then arguably all ballots “received” by the USPS mail carriers or
    placed within USPS mail receptacles before 6:00 p.m. on election day should
    have been counted, effectively creating a “mail box rule” for mail-in
    absentee ballots. At oral argument, counsel for the City Clerk contended
    that only those mail-in absentee return envelopes located within the USPS
    airport facility should be considered as timely received. But it is self-
    evident that the inanimate building cannot be designated as the City Clerk’s
    representative. The law does not permit the City Clerk to enfranchise
    certain voters not meeting statutory requirements while disenfranchising
    others.
    16    During oral argument, counsel for the City Clerk stated that
    “there’s no administrative rule or statutory guidance in terms of actual
    delegation.” Counsel then asserted, for the first time, that he “think[s]
    the designated representative is what the City characterizes the USPS as[.]”
    Counsel was unable to affirm whether the USPS knew of its purported status as
    the City Clerk’s designated representative under HRS § 15-9(a)(1).
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    additional pickups--a 6:30 p.m. pickup and a 7:30 p.m. pickup.
    These additional pickups resulted in a total of 2,340 additional
    mail-in absentee return envelopes, including 350 from voters
    registered in Council District IV–-(a) 1,093 envelopes from the
    6:30 p.m. pickup, of which 165 were from voters registered in
    Council District IV; and (b) 1,247 envelopes from the 7:30 p.m.
    pickup, of which 185 were from voters registered in Council
    District IV.17    The 350 mail-in absentee return envelopes from
    voters registered in Council District IV were not received by
    the City Clerk or a designated representative prior to the close
    of polls.
    27. 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 HRS § 15-9(a)(1).      Based on the record in this matter, it
    cannot be said that there was compliance with the requirement in
    17     In the declarations of the Elections Administrator for the City
    and County of Honolulu that were included with the City Clerk’s December 6,
    2018 answers to the complaints, it was stated that the 7:30 p.m. pickup was
    scheduled “if there were any mail absentee return envelopes collected during
    the 6:00 p.m. sweep of the mail processing plant that were not picked up at
    the 6:30 p.m. pickup time.” During oral argument, counsel for the City Clerk
    acknowledged that questions regarding the handling of mail-in absentee return
    envelopes were raised by the fact that more envelopes were picked up in the
    7:30 pickup than in the 6:30 p.m. pickup. Counsel stated that there was no
    readily available explanation for the unexpectedly high number of envelopes
    that had ostensibly been missed in the 6:30 p.m. pickup.
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    HRS § 15-9(a)(1) that absentee return envelopes be received by
    the clerk not later than 6:00 p.m.—the closing of the polls.
    28. Additionally, under HRS § 15-9(d), the Office of
    the City Clerk has a specific duty to mark and segregate any
    ballots that do not meet the requirements of HRS § 15-9, which
    includes those absentee ballots that were not received prior to
    the closing of the polls.      Because the City Clerk was unable to
    make any direct representation regarding the procedures actually
    employed at the USPS Airport mail processing plant, the City
    Clerk is unable to provide adequate assurances that the
    requirements of HRS § 15-9(d) were fulfilled.
    29. “The right of the people to shape the way in which
    they are governed through free and fair elections is the basis
    of our democratic society.”      See City & Cty. of Honolulu v.
    State, 143 Hawai‘i 455, 455, 
    431 P.3d 1228
    , 1230 (2018).
    “Implicit in that right is . . . the right to have as nearly
    perfect an election proceeding as can be provided,” which
    requires that objective standards be applied as to which votes
    are properly counted toward the result.         
    Akizaki, 51 Haw. at 356
    , 461 P.2d at 223; see also 
    id. at 358,
    461 P.2d at 224
    (holding that the Hawai‘i Constitution provides for the “neutral
    and disinterested” resolution of election contests).            Based on
    the record in this matter and the applicable law, the inclusion
    51
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    of the 350 mail-in absentee return envelopes that were
    considered for validation18 and the subsequent counting of the
    ballots from the validated envelopes in the vote tally for the
    election for District IV was improper.19
    30. The counting of these 350 invalidly received
    absentee ballots potentially altered the election results for
    Council District IV and, inasmuch as they have been inseparably
    commingled with the other ballots, a recount that would exclude
    the invalid votes is not possible.20        Consequently, a correct
    18    During oral argument, counsel for the City Clerk was able to
    offer few specifics regarding the signature validation process conducted
    pursuant to HRS § 15-9(c)(2) and HAR § 3-174-11. Counsel was not aware of
    any process by which voters are ever informed when their votes are
    invalidated because the signatures on their respective affirmation statements
    have been deemed not to correspond with those on their absentee ballot
    requests or voter registrations. Further, counsel indicated that voter
    signatures from other sources are consulted for comparison, including
    drivers’ records from the “DMV”--a procedure that would appear to be
    unauthorized under the plain terms of HRS § 15-9(c)(2) and HAR § 3-174-11.
    We note that 64 votes from voters registered in Council District IV were
    invalidated on signature grounds in this race.
    19    During oral argument, counsel for the State Defendants argued
    that the close-of-polls deadline for receiving mail-in absentee ballot set by
    HRS § 15-9(a)(1) is directory rather than mandatory, relying on Lane v. Fern,
    
    20 Haw. 290
    , 299–300 (Haw. Terr. 1910). To the extent Lane, which
    interpreted a long-since repealed statute concerning the hours during which
    in-person polling places must remain open, stands for the proposition that
    this court should assume statutory time-limits on the casting of votes to be
    non-binding, we hold that it is fundamentally incompatible with our more
    recent precedent and must be regarded as overruled. See 
    Akizaki, 51 Haw. at 360
    , 461 P.2d at 225 (holding that mail-in absentee votes that were not
    postmarked by then-existing statutory deadline were not validly cast).
    20     While an accurate recount could not have been conducted in this
    case in light of election officials’ inability to separate the comingled
    ballots, it is noted that there does not appear to be established procedures
    for conducting a recount in Hawai‘i’s statutes or administrative rules. Cf.
    Florida Admin. Code § 1S-2.031 (setting forth detailed recounting
    procedures).
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    result without the inclusion of the 350 ballots cannot be
    ascertained.
    31. 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.21    See 
    Akizaki, 51 Haw. at 360
    , 461 P.2d at 225
    (“Our judgment is . . . that the election was invalid for the
    reason that a correct result cannot be ascertained because of
    the mistake . . . on the part of the election officials in
    opening the late-post-marked envelopes and commingling those
    ballots with ballots validly cast.         Therefore . . . in order to
    protect the right of the people . . . to choose their
    representatives, we invalidate the election . . . .”); HRS § 11-
    174.5(b) (2009) (stating that this court is authorized to
    21     In a previous case addressing a county clerk’s failure to allow
    the plaintiffs to view a minor change in the format of a ballot question made
    to assure the layout complied with a relevant county charter provision, this
    court stated that, “as a general rule, an election will not be invalidated
    for failure of the election officials to comply strictly with an election
    statute where there has been substantial compliance and there is no showing
    of fraud.” Thirty Voters of Kauai Cty. v. Doi, 
    61 Haw. 179
    , 184, 
    599 P.2d 286
    , 290 (1979). In that case, we held the format change only modified the
    manner in which the voter would express approval or disapproval of the ballot
    question and could not “be deemed to have been substantive.” 
    Id. By pointed
    contrast, this case involves the very question of whether the absentee votes
    were validly cast. We hold that the counting of 350 mail-in absentee ballots
    that were not received by the City Clerk prior to the close of polls
    substantially complied with neither HRS § 15-9(a)(1) nor HRS § 15-9(d), which
    specifically provides that such ballots shall be marked “invalid” and
    disposed of in the manner prescribed by statute. Cf. 
    Akizaki, 51 Haw. at 360
    , 461 P.2d at 225.
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    “invalidate the special . . . election on the grounds that a
    correct result cannot be ascertained”).
    32. In light of the court’s decision, the court need
    not reach a decision on the merits of the election challengers’
    remaining claims of mistake or fraud.
    JUDGMENT
    Based upon the foregoing findings of fact and
    conclusions of law, the election complaints are granted in part
    in favor of Waters and the 39 voters and the motions to dismiss
    or, in the alternative, motions for summary judgment filed by
    Chief Election Officer Nago and the Office of Elections are
    denied.     Judgment is entered in favor of Waters and the 39
    voters as to Count I of their respective complaints and against
    Chief Election Officer Nago, the Office of Elections, and City
    Clerk Takahashi.    The second special election for councilmember
    for District IV, City and County of Honolulu is invalidated.
    Waters’s and the 39 voters’ complaints are denied in all other
    respects.
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    A certified copy of this judgment shall be filed with
    the Governor of the State of Hawai‘i in accordance with HRS § 11-
    174.5(b).22
    Thomas Waters                             /s/ Mark E. Recktenwald
    plaintiff, pro se
    in SCEC-XX-XXXXXXX                        /s/ Paula A. Nakayama
    Thomas M. Otake                           /s/ Sabrina S. McKenna
    for plaintiffs
    in SCEC-XX-XXXXXXX                        /s/ Richard W. Pollack
    Ernest H. Nomura                          /s/ Michael D. Wilson
    Duane W. H. Pang
    for defendant
    Glen Takahashi, City Clerk of
    the City & County of Honolulu
    Valri Lei Kunimoto
    Patricia Ohara
    for defendants
    Scott T. Nago, Chief Election
    Officer and State of Hawai‘i
    Office of Elections
    Abigail M. Holden
    Joachim P. Cox
    Robert K. Fricke
    for intervenor
    Trevor Ozawa
    22     HRS § 11-174.5(b) provides in relevant part as follows: “If the
    judgment should be that the . . . special . . . election was invalid, a
    certified copy thereof shall be filed with the governor, and the governor
    shall duly call a new election to be held not later than one hundred twenty
    days after the judgment is filed.”).
    55