Tommy Waters is seeking a recount of ballots cast in the Honolulu City Council District 4 election that ended with Trevor Ozawa beating him by 41 votes.

Ozawa is set to assume office Jan. 2, but Waters says there are enough questionable ballots to merit a recount.

“We just want to make sure that there was a fair and accurate accounting for both my opponent and I,” Waters said Monday. “And that is why we are filing the petition.”

Trevor Ozawa, left, led Tommy Waters by 41 votes in final returns.

Courtesy of the candidates

The attorney and former state representative filed the petition with the Hawaii Supreme Court on Monday afternoon.

Waters argues that the voting results suggest that as many as 128 ballots may have been miscounted out of the 37,178 cast. He’s asking for a manual recount of a portion of the votes, including 4,455 blank ballots, in which people didn’t cast a vote for either District 4 candidate.

A 1999 state auditor’s report indicates that Hawaii voting machines have a margin of error of .02 percent, said Waters. This suggests that 78 of the blank votes could have been incorrectly counted, he said.

The court petition also alleges that the Office of Elections mishandled 11 overages — when there are more ballots cast than issued, suggesting possible “ballot stuffing,” and 39 underages — when there are fewer ballots cast than issued, suggesting ballots were potentially destroyed, according to the petition.

“This mishandling of the overages and underages could have caused a difference in the election outcome in the District 4 election,” the petition states.

It also complains that it was difficult to get information from the Office of Elections after the vote count. Waters’ attorney, James Kawashima, wrote to the elections office three times before receiving a reply, according to the petition.

Kawashima sought information about the election system’s margin of error, requested the “overage” and “underage” votes be verified and asked that the blank votes be reviewed for accuracy.

Documents attached to the petition indicate that Scott Nago, the chief election officer, responded four days after Kawashima’s first inquiry, on Nov. 14, noting that the office was still in the process of finalizing the results. He said he would forward a final summary report of the results to Kawashima when complete.

In the Nov. 4 tally of results, Ozawa led Waters by 47 votes. However, on Nov. 19, the Office of Elections issued a revised tally, in which Ozawa beat Waters by 41 votes.

Waters’ petition argues that this recalculation is evidence of “misconduct or at the very least negligence” on the part of the elections office

Rex Quidilla, a spokesman for the elections office, told Civil Beat that he couldn’t comment on the petition, citing “pending litigation.”

The petition requests that the ballots be reviewed to determine any abnormalities or a new general election be held if a review of the ballots indicates that an accurate vote tally can’t be ascertained.  

Ozawa declined to comment on the petition when contacted by Civil Beat, but issued a statement Monday afternoon saying Waters had a legal right to issue a challenge and that he looked forward to representing residents of East Honolulu.

“Even though it was a close race, the people of District 4 did speak and I am grateful to them for electing me and I am excited for the opportunity to serve my community,” he said in the statement. “Tommy Waters is exercising his legal right as a candidate, and as an attorney, I recognize that the law provides for a process for his challenge to be acknowledged and reviewed. While I await the final determination from the Supreme Court, I look forward to serving the people of District 4 on the Honolulu City Council.”

Ozawa’s triumph over the better-known Waters was something of an upset.

Ozawa, 31, hasn’t held elective office before, whereas Waters, 49, served in the state House from 2002 to 2008. Waters also had the support of unions representing the police, firefighters, plumbers, longshoremen and hotel workers, as well as the Sierra Club and Mayor Kirk Caldwell.

Waters narrowly led Ozawa in election returns throughout most of Election Night before Ozawa squeaked past him.

You can read the petition below: