In election challenge, state’s highest court questions Maui County on ballot breakdown
January 20, 2023, 6:00 AM HST
* Updated January 20, 6:20 PM
The Hawai’i Supreme Court on Thursday questioned whether County of Maui officials could explain why certain ballots were deemed deficient during a county election challenge that has kept the council’s Wailuku-Waiheʻe-Waikapū seat vacant.
Justices sought an accounting for 706 ballots that county elections staff decided were questionable and therefore didn’t count them in the recent General Election.
Results of the council’s Wailuku-Waiheʻe-Waikapū residency area race show incumbent Alice Lee had 513 votes over challenger Noelani Ahia. After the Nov. 8 election, Ahia and 30 Maui County voters filed a complaint to contest the outcome, pointing to “irregularities and mistakes” in the processing of hundreds of deficient mail-in ballots. They want the election invalidated and a new one held.
The court will now decide if the existing election will stand or if a new election will be held. Some justices alluded to another scenario: Deficient ballots being cured and counted after the fact.
“The court will take this matter under advisement and will issue a decision expeditiously,” Hawaiʻi Supreme Court Chief Justice Mark E. Recktenwald said at the end of oral arguments Thursday at the Hawaiʻi State Judiciary in Honolulu.
During the afternoon hearing, state justices questioned the county’s reasons for determining deficient ballots.
“Because if we can’t separate it, it’s hard to come to the conclusion that there might not be a group of ballots that are deficient that should have been considered, perhaps, valid — a group that is greater than the 513 margin,” Associate Justice Michael D. Wilson said.
Missing signatures, mismatched signatures and other factors can make a ballot deficient. By state law, the county has a certain period of time to attempt to reach the voter and resolve the issue for the vote to count.
County lawyer Caleb Rowe said 463 ballots had unmatched or mismatched signatures and another 234 were unsigned. Later, when asked about the unsigned ballots, he said he wasn’t sure if some of them were signed but possibly signed outside of the designated signature area.
“If there was a signature somewhere on the envelope, which category where they in?” asked Associate Justice Paula A. Nakayama.
“I would have to check with the staff,” Rowe replied.
Plaintiffs through attorney Lance D. Collins on Thursday said the mail-in voting process of resolving deficient ballots was messy and rushed. They alleged county elections staff were cleaning up the Wailuku voting center instead of working to resolve questionable ballots and that voters should have had more time to cure deficient ballots. Also, they claim they were denied public information on the deficient ballots.
“All of these issues that have been raised in this will be repeated if elections officials are not given guidance on the correct interpretation of these statutes,” Collins said.
However, Rowe, who represents defendant Kathy L. Kaohu, who was county clerk at the time, said that election officials are hardworking, competent, professional and fair.
“While there is a current national trend of candidates challenging the work done by these hardworking elections professionals, and that is distressing, the Maui County Clerk’s Office does welcome the opportunity to demonstrate to the voters of Maui County that their electoral choices are being heard and are being honored,” he said.
County attorneys have said a general rule is that “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,” according to state law.
The absence of a ninth Maui County Council member has delayed some council meetings and decisions. Earlier this month, eight council members were inaugurated and Tasha Kama was elected as chairperson.
* This story was updated from its original version to clarify that Caleb Rowe represented defendant Kathy Kaohu. He did not represent defendants Alice Lee and state Chief Election Officer Scott Nago. Maui Now apologizes for the error.