Hawaii Supreme Court grapples with election tiebreaker

Justices questioned whether Hawaii election officials lawfully used a random drawing to resolve an exact tie and whether voters should get another chance to decide.HONOLULU (CN) — The Hawaii Supreme Court pressed Hawaii’s elections chief Wednesday over whether a literal drawing of names from a basket can decide who represents a Leeward Oahu district in the state Legislature after a primary election ended in an exact tie.State Representative Kanani Souza and challenger Sheila Medeiros each finished the Aug. 8 Republican primary for House District 43, covering Kapolei and Makakilo, with 842 votes. Because no Democrat ran for the seat, whoever wins the race wins the seat outright.Hawaii law requires the chief election officer to break legislative ties “by lot.” Each candidate’s name was printed on a slip of paper, sealed inside a small plastic capsule, placed in a woven lauhala box and shaken before an elections official pulled one without looking — Medeiros’ name was drawn, handing her the seat.Souza sued, challenging both the vote count and the tiebreaker’s legality.Two District 40 voters were mistakenly given District 43 ballots, an error discovered through the county’s daily reconciliation process. Because the ballots were commingled with the rest of the District 43 ballots, officials cannot determine which ones belonged to the two voters or how they voted.Justice Todd Eddins pressed Chief Election Officer Scott Nago on whether the office could simply remove the two ballots.“No,” Nago said. “Because of security secrecy reasons. We cannot tie a ballot back to a voter.”The timing drew scrutiny too: the primary was held Aug. 8, followed by a District 43 recount on Aug. 11. The deadline for curing ballots, fixing problems like a mismatched signature so they could still count, was Aug. 14 at 4:30 p.m., when the final summary report showing the 842-842 tie was issued.The tiebreaker was held the next day. Yet the overage and underage report documenting the discrepancy wasn’t completed until Aug. 20, five days after the tiebreaker.Eddins asked Nago why the office didn’t seek the county’s reconciliation data before holding the tiebreaker.“Our philosophy in elections is to have a finality,” Nago said. “That’s why we wanted to put it as soon as possible.”Deputy Attorney General Kendall Moser said Souza still bears the burden of proving the irregularity affected the outcome, though he acknowledged that there’s no way to know how the two voters cast their ballots.Souza’s attorney, Thomas Otake, argued the court shouldn’t require his client to prove something election officials themselves cannot determine, and that the court has both constitutional and statutory authority to remedy irregularities that could affect an outcome.The court also questioned the legality of the lauhala-box drawing itself. Nago testified the method was never tested to see whether it favored one outcome over another.Justice Lisa Ginoza asked whether the office had considered formal rulemaking for the procedure. Nago said it hadn’t, raising the possibility the method could be invalid if the court finds it should have gone through Hawaii’s administrative rulemaking process instead.Moser argued the statute gives the chief election officer authority to resolve a tie by lot without prescribing a particular method, though he conceded “it seems that it would be advisable to develop administrative rules to address a situation like this in the future.”But if the court finds the procedure invalid, the justices faced a harder question: how do you resolve an 842-842 tie?Moser maintained the office followed the statute and that Medeiros was properly declared the winner, asking the court to uphold that determination rather than order another election.The justices pushed back, noting that position assumes the tiebreaker was valid. Moser pointed to the constitutional framework under which a candidate unopposed in the general election is deemed elected at the primary.Otake proposed a different fix: rather than declaring Souza the winner or invalidating the primary, let Souza and Medeiros face each other in another election but the justices got caught up in the logistics of a runoff or special logistics.Nago testified general-election ballots needed to be printed by Sept. 11, meaning any new contest would have to come together quickly to make the November ballot. That was complicated by the fact that Hawaii doesn’t register voters by party, so a new contest added to the general-election ballot would go to every District 43 voter, not just the Republicans who took part in the primary.Medeiros, representing herself, didn’t ask the court to overturn the certified results. She said she attended the Aug. 15 drawing, was shown the procedure beforehand and didn’t object at the time.“I respectfully request that the certified results remain in place unless the court determines that the law requires otherwise,” Medeiros told the court.The court did not say when it would rule.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads