Electronically Filed

Supreme Court
SCEC-18-0000909
SCEC-18-0000909 28-DEC-2018
03:59 PM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

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.

ORIGINAL PROCEEDING

ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

Upon consideration of (1) the complaint contesting the

second special election for councilmember for District IV City
and County of Honolulu, filed by petitioner Thomas Waters, a/k/a
Tommy Waters (“Waters”) on November 26, 2018, (2) the motion to
dismiss the complaint or, in the alternative, motion for summary
judgment, filed by respondents Chief Election Officer Scott Nago
and the State of Hawaiʻi Office of Elections on December 6, 2018,
(3) the answer to the complaint, filed by respondent City Clerk
of the City and County of Honolulu Glen Takahashi (“City Clerk”)
on December 6, 2018, (4) the answer to the complaint filed by
Intervenor Trevor R. Ozawa (“Ozawa”) on December 17, 2018,
(5) the joinders to the motion to dismiss or, in the
alternative, motion for summary judgment, filed by the City
Clerk and Ozawa on December 14, 2018 and December 17, 2018,
respectively, (6) the respective supporting documents, and
(7) the record,1 it appears that the respondents have not
disclosed the margin of error for the electronic vote counting
machines, when applying the tabulation procedures established by
or in accordance to chapter 3-172 of the Hawaii Administrative
Rules, that were used in the November 6, 2018 general election
and, more specifically, in the second special election for
councilmember for District IV, and the procedures employed to
determine the intent of the voter in a close election without a
hand counting (such as when the ballot contains marginal marks).
Accordingly,
IT IS HEREBY ORDERED that, within three (3) days from
the date of this order, the defendants shall provide to Waters,
with a copy to this court, the following:
1. Information setting forth the margin of error for
the electronic vote counting machines, when applying the
tabulation procedures established by or in accordance to chapter
3-172 of the Hawaii Administrative Rules, that were used in the
November 6, 2018 general election.
2. Information setting forth how the intent of the
voter is ensured in a close election without a hand count, such
as when a ballot contains marginal marks.
DATED: Honolulu, Hawaiʻi, December 28, 2018.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson

1
We note that the election contest for councilmember for District IV
may not be certified until the disposition of this election contest. See HRS
§ 11-156 (“If there is an election contest [the certificate of election]
shall be delivered only after a final determination in the contest has been
made and the time for an appeal has expired.”).