Electronically Filed
Supreme Court
SCEC-XX-XXXXXXX
06-SEP-2022
08:43 AM
Dkt. 10 FFCL
SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
JAY DEE PENN, Plaintiff,
vs.
STATE OF HAWAI#I, OFFICE OF ELECTIONS, Defendant.
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT
(By: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.)
On August 26, 2022, Plaintiff Jay Dee Penn, also known
as BJ Penn (Penn), filed an Election Complaint (complaint). On
August 31, 2022, Defendant State of Hawai#i Office of Elections
(Office of Elections) filed a motion to dismiss or, in the
alternative, for summary judgment. Upon consideration of the
complaint and motion to dismiss, and having heard this matter
without oral argument, we enter the following findings of fact,
conclusions of law, and judgment.
FINDINGS OF FACT
1. Penn filed a complaint on August 26, 2022.
2. Penn asserts inaccurate reporting, violations of
House Bill No. 452 in the 2013 Legislative Session (relating to
election fraud), ballot irregularities, inadequate ballot
security, and voter discrimination and suppression, all require
the remedies sought. In asserting as such, Penn “avers a
responsibility to participate in the validation of the primary
election results, in the pursuit of ensuring accuracy and
transparency.”
3. With regard to inaccurate reporting, Penn appears
to assert that the variations between the different statewide
summary reports of election results, which are issued by the
Office of Elections, reflect that the media’s reporting of the
primary election winners is inaccurate.
4. With regard to House Bill No. 452 in the 2013
Legislative Session that amended Hawai#i Revised Statutes (HRS)
§ 19-3 (concerning election frauds), Penn appears to assert that
the media’s alleged inaccurate reporting, together with the
alleged lack of adequate security measures at ballot drop boxes
and counting centers, “possibly discouraged voters from
participating due to the many concerns related to security and
might have even contributed to fraud and inaccurate reporting
related to mail-in ballots.”
5. With regard to ballot irregularities, Penn appears
to assert that “opportunities for election fraud” were
“enhance[d]” because (a) submission of mail-in ballots do not
require proof of identity or residency, (b) the ballot design
does not comply with HRS §§ 12-21 (2009) (concerning official
party ballots) and -31 (2009) (concerning selection of party
ballot and voting in a primary or special primary election), (c)
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there “is no verbiage about the guidelines, rules, and transfer
requirements for mail-in ballots” within the Hawai#i
Administrative Rules (HAR) applicable to the Office of Elections
and thus “no way to ensure” the mail-in ballots were properly
handled, counted, and safely stored without any tampering, and
(d) there is a lack of clearly defined rules to measure and
enforce accountability within the Office of Elections.
6. With regard to inadequate ballot security, Penn,
through witness statements, describes several instances that
allegedly reflect an increased risk or likelihood of security
breaches at ballot counting centers, voter service centers, and
ballot deposit sites.
7. With regard to voter discrimination and
suppression, Penn appears to assert that in-person voters “were
met with various challenges” that mail-in voters were not
subjected to, such as providing a form of identification at the
time of ballot submission. Penn alleges that the in-person
“verification process appeared to many to be discriminatory and
enforced with the intention to discourage residents from
submitting their votes, also known as, voter suppression.” Penn
asserts that the in-person identification verification process
took such a long time that there were long lines at in-person
voting sites that discouraged people from voting and allegedly
“caused some residents to pass out due to the extreme heat.”
8. In closing, Penn asserts his complaint sets forth
“reasons for reversing, correcting, or changing the decisions of
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the voter service center officials or the officials at a counting
center in an election using the electronic voting system”
pursuant to HRS § 11-172 (Supp. 2021) because:
The potential impact of the false messaging, and
the apparent and potential lack of protocols for
security and monitoring at the Ballot Drop Boxes and
at the Counting Center where ballots are tabulated,
enhances the risk for voter fraud and illegal
mishandling of ballots.
9. Penn requests the following relief:
(a) All 2022 Primary Election ballots be
preserved for up to twenty-two months for further review pursuant
to HAR § 3-177-757.
(b) Delaying the certification of the 2022
Primary Election until a “statewide audit and recount take[s]
place”; and
(c) Requiring the Office of Elections to be “held
accountable” and “adhere[] to clearly defined protocols and
guidelines to ensure all necessary measures in support of
enhancing election integrity are in place before the General
Election on Saturday, November 8, 2022.”
10. The Office of Elections asserts the complaint
should be dismissed with prejudice or, alternatively, that
summary judgment be granted in its favor.
CONCLUSIONS OF LAW
1. When reviewing a request to dismiss a complaint,
the court’s review “is based on the contents of the complaint,
the allegations of which [the court] accept[s] as true and
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construe[s] in the light most favorable to the plaintiff.
Dismissal is improper unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Casumpang v. ILWU, Local 142, 94
Hawai#i 330, 337, 13 P.3d 1235, 1242 (2000) (quotation marks and
citation omitted).
2. When considering a request to dismiss a complaint,
the court need not accept conclusory or formulaic recitations on
the legal effects of the events alleged. Kealoha v. Machado, 131
Hawai#i 62, 74, 315 P.3d 213, 225 (2013).
3. A complaint challenging the results of a primary
election fails to state a claim unless the plaintiff demonstrates
errors, mistakes, or irregularities that would change the outcome
of the election. See HRS § 11-172; Funakoshi v. King, 65 Haw.
312, 317, 651 P.2d 912, 915 (1982).
4. Plaintiffs challenging a primary election must
show that they have actual information of mistakes or errors
sufficient to change the election result. Funakoshi, 65 Haw. at
316-17, 651 P.2d at 915.
5. HRS § 11-172 provides in relevant part: “With
respect to any election, any candidate, or qualified political
party directly interested, or any thirty voters of any election
district, may file a complaint in the supreme court. The
complaint shall set 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.”
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6. In order for a primary election complaint to be
legally sufficient, it must “show[] that the specific acts and
conduct . . . complain[ed of] would have had the effect of
changing the results of the primary election[.]” Elkins v.
Ariyoshi, 56 Haw. 47, 49, 527 P.2d 236, 237 (1974); see
Funakoshi, 65 Haw. at 314, 651 P.2d at 915 (“‘[D]ifference in the
election results’ in HRS § 11-172 . . . mean[s] ‘a difference
sufficient to overturn the nomination of any particular candidate
or candidates in the primary.’” (Quoting Elkins, 56 Haw. at 49,
527 P.2d at 237)).
7. HRS § 11-173.5 (2009 & Supp. 2021) sets forth,
among other matters, time requirements for primary election
contests to be filed in the supreme court, as well as the remedy
allowed to be provided in primary election contests.
8. Having the court decide which candidate was
nominated or elected is the only remedy that can be given in a
primary election contest. Funakoshi, 65 Haw. at 315-16, 651 P.2d
at 914. In other words, the “only statutory relief to which
plaintiff is entitled under HRS § 11–173.5(b) would be to have
this Court declare the name of the candidate to be nominated or
elected.” Id. at 315, 651 P.2d at 914.
9. A complaint challenging the results of a primary
election fails to state a claim unless the plaintiff demonstrates
errors, mistakes, or irregularities that would change the outcome
of the election. See HRS § 11-172; Funakoshi, 65 Haw. at 317,
651 P.2d at 915.
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10. Taking Penn’s allegations as true and viewing them
in the light most favorable to him, requiring (a) all 2022
Primary Election ballots to be preserved for up to twenty-two
months for further review, (b) a delay of the 2022 Primary
Election certification until a “statewide audit and recount”
occurs, and (c) the Office of Elections to be held accountable
and adhere to clearly defined protocols and guidelines to ensure
all necessary measures in support of enhancing election integrity
are in place before the General Election on Saturday, November 8,
2022, are not remedies authorized by HRS § 11-173.5(b) (“[t]he
judgment shall decide what candidate was nominated or elected”).
See Funakoshi, 65 Haw. at 315-16, 651 P.2d at 914.
11. Penn’s complaint thus fails to state a claim upon
which relief can be granted.
JUDGMENT
Based upon the foregoing findings of fact and
conclusions of law, judgment is entered dismissing the complaint.
DATED: Honolulu, Hawai#i, September 6, 2022.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Todd W. Eddins
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