Electronically Filed
Supreme Court
SCEC-XX-XXXXXXX
14-DEC-2020
02:57 PM
Dkt. 47 FFCL
SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
KEONI SOUZA, Plaintiff,
vs.
STATE OF HAWAI#I; DAVID Y. IGE, in his official capacity
as Governor of the State of Hawai#i; SCOTT T. NAGO, in his
official capacity as Chief Election Officer for the State of
Hawai#i; STATE OF HAWAI#I OFFICE OF ELECTIONS;
GLEN I. TAKAHASHI, in his official capacity as City Clerk
of the City and County of Honolulu; JON HENRICKS, in his official
capacity as the County Clerk of the County of Hawai#i;
KATHY KAOHU, in her official capacity as County Clerk of the
County of Maui (and for election purposes, the County of
Kalawao); and JADE K. FOUNTAIN-TANIGAWA, in her official capacity
as County Clerk of the County of Kaua#i, Defendants.
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
(By: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ.,
and Circuit Judge Ayabe, assigned by reason of vacancy)
Upon consideration of (1) the election complaint, filed
by plaintiff Keoni Souza (“Souza”) on November 23, 2020, (2) the
motion to dismiss complaint, filed by defendants David Y. Ige, in
his official capacity as Governor of the State of Hawai#i, Chief
Election Officer Scott Nago (“Chief Election Officer Nago”), and
the State of Hawai#i Office of Elections (collectively, “the
State Defendants”) on December 3, 2020, and Souza’s memorandum in
opposition to the motion to dismiss, (3) the joinders filed by
the County Clerks of each County (collectively, “the County
Defendants”); (4) the respective supporting documents, and
(5) the record in this matter, we set forth the following
findings of fact and conclusions of law and enter judgment in
accordance with HRS § 11-174.5(b).
FINDINGS OF FACT
1. Souza was a candidate in the Office of Hawaiian
Affairs (“OHA”) At-Large Trustee election in the November 3, 2020
General Election.
2. The Summary Report printed on November 19, 2020 at
10:21 a.m. reported the results of the OHA At-Large Trustee
election as follows:
AKINA, Keli#i 197,829 34.1%
SOUZA, Keoni 196,206 33.8%
Blank Votes: 185,571 32.0%
Over Votes: 178 0.0%
3. Keli#i Akina (“Akina”) received the highest number
of votes.
4. The difference in the votes between Akina and
Souza was 1,623 votes.
5. On November 23, 2020, Souza timely filed a
complaint challenging the results of the OHA At-Large Trustee
election.
6. Souza asserts five counts for relief, alleging
that Act 135, as codified at HRS § 11-158, is arbitrary, that a
recount is warranted by the fact that the number of blank votes
exceeds the margin of victory in the OHA At-Large Trustee
election, that the high number of blank votes resulted from a
failure to educate the public regarding voter registration and
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information, and that a separate ballot for OHA elections was not
provided.
7. Souza asks this court to provide the following
relief:
(A) “[O]rder a hand recount to determine if he
can overcome the margin of error of the voting machine(s) and to
decipher voter intent in each blank ballot, overvote, and
undervote;”
(B) “[O]rder Scott Nago, Chief Elections Officer,
to submit a reply to Candidate Souza’s inquiry letter so we have
adequate information to understand how the voting process and
voting machines could have affected the vote count for the OHA
Trustee At-Large contest;” or, in the alternative,
(C) “[I]nvalidate the OHA Trustee At-Large
election results and hold a special election for the OHA Trustee
At-Large seat if this Court deems the aforementioned errors too
grave to overcome.”
8. The State Defendants moved to dismiss the
complaint on the ground that the complaint is not a typical
election contest that falls within this court’s original
jurisdiction to determine the results of an election and fails to
state a claim upon which relief may be granted inasmuch as Souza
has not demonstrated how any of his assertions would change the
election results, and he cannot prove any set of facts that would
entitle him to relief.
9. Attached to the motion to dismiss are declarations
from Chief Election Officer Nago and Kristen Uyeda, the Ballot
Operations Election Section Head for the Office of Elections.
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10. The County Defendants filed joinders to the motion
to dismiss.
CONCLUSIONS OF LAW
1. An election contest is instituted by filing a
complaint in the supreme court “set[ting] forth any cause or
causes, such as but not limited to, provable fraud, overages, or
underages, that could cause a difference in the election
results.” HRS § 11-172.
2. “A complaint challenging the results of [a
general] election pursuant to HRS § 11-172 fails to state a claim
unless the plaintiff[] demonstrate[s] errors, mistakes or
irregularities that would change the outcome of the election” –-
e.g., errors, mistakes, or irregularities that would change the
outcome of the election. 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)). See also Funakoshi v. King,
65 Haw. 312, 317, 651 P.2d 912, 915 (1982) (“‘Difference in the
election results’ . . . mean[s] a difference sufficient to
overturn the nomination of any particular candidate[.]”).
3. In order for a complaint to be legally sufficient,
it must “show[] that the specific acts and conduct . . .
complained of would have had the effect of changing the results
of the . . . election.” Elkins v. Ariyoshi, 56 Hawai#i 47, 49,
527 P.2d 236, 237 (1974); Akaka, 84 Hawai#i at 388, 935 P.2d at
103 (in order for an election challenge to have merit, “the
petitioner must ‘show that he [or she] ha[s] actual information
of mistakes or errors sufficient to change the result[;]’” an
election contest cannot be based upon mere belief or indefinite
information). It is not sufficient that a plaintiff point to a
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“poorly run and inadequately supervised election process” that
evinces “‘room for abuse’” or “‘possibilities of fraud.’”
Elkins, 56 Haw. At 48, 527 P.2d at 237.
4. “In the absence of facts showing that
irregularities exceed the reported margin between the candidates,
the complaint is legally insufficient because, even if its truth
were assumed, the result of the election would not be affected.”
Tataii, 119 Hawai#i at 339-40, 198 P.3d at 126-27.
5. “An election contest cannot be based upon mere
belief or indefinite information.” Id.
6. When reviewing a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted, the
court must accept the plaintiff’s allegations as true and view
them in the light most favorable to him or her; dismissal is
proper only if it appears beyond doubt that the plaintiff can
prove no set of facts in support of his or her claim that would
entitle him or her to relief. AFL Hotel & Restaurant Workers
Health & Welfare Trust Fund v. Bosque, 110 Hawai#i 318, 321, 132
P.3d 1229, 1232 (2006).
7. Conclusory allegations and unwarranted inferences
are not sufficient to defeat a motion to dismiss. Kealoha v.
Machado, 131 Hawai#i 62, 74, 315 P.3d 213, 225 (2013).
8. Souza does not provide “specific facts” or “actual
information” of mistakes, errors, or irregularities sufficient to
change the result of the OHA At-Large Trustee election or exceed
the reported margin of votes between himself and Akina. Souza
impliedly concedes that he does not have “specific facts” or
“actual information” by acknowledging that a hand recount would
allow for the determination as to whether “he can overcome the
margin of error of the voting machine(s)” and that information
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from Chief Election Officer Nago regarding the voting process and
voting machines “could have affected the vote count for the OHA
Trustee At-Large contest.” In his declaration, Chief Election
Officer Nago detailed the voting machines and voting systems that
were used in the 2020 election, the procedures for counting the
ballots, and the overages and underages. None of this
information demonstrate that the voting systems were not accurate
or reliable, or that they did not work properly in counting the
votes on election day such as to demonstrate mistakes, errors, or
irregularities sufficient to change the result of the OHA At-
Large Trustee election or exceed the reported margin of votes.
Souza has not presented specific evidence to dispute this
conclusion such that it would change the election result.
9. Additionally, assertions that the large amount of
blank votes suggest that Chief Election Officer Nago did not
fulfill his statutory responsibilities for public education or
that the OHA At-Large Trustee race was required to be on a
separate ballot do not constitute “actual information” that, even
taken as true, the election results for the OHA At-Large Trustee
election would change. See Brown v. Iaukea, 18 Haw. 131, 133
(1906) (sufficient evidence requires something more than a “mere
fishing expedition undertaken in the hope that in an examination
of all the ballots enough might be discovered to change the
result”); Akaka, 84 Hawai#i at 388, 935 P.2d at 103 (an election
challenge cannot be based on “mere belief or indefinite
information”). See generally Kealoha, 131 Hawai#i at 74, 315
P.3d at 225 (conclusory allegations and unwarranted inferences
are not sufficient to defeat a motion to dismiss).
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10. Souza also fails to demonstrate beyond a
reasonable doubt that Act 135 (as codified under HRS § 11-158) is
arbitrary or flawed such that the results of the OHA At-Large
Trustee election would be different. See Gaylord, 78 Hawai#i at
137, 890 P.2d at 1177 (“[E]very enactment of the legislature is
presumptively constitutional, and a party challenging the statute
has the burden of showing unconstitutionality beyond a reasonable
doubt.”).
JUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, judgment is entered granting the motion to
dismiss and dismissing the complaint.
DATED: Honolulu, Hawai#i, December 14, 2020.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Bert I. Ayabe
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