The Hawaii Supreme Court has rejected Tommy Waters’ challenge of the election results in the Honolulu City Council District 4 race, in which Trevor Ozawa won by just 41 votes.

Waters had argued there were enough questionable ballots cast in the November election to merit a recount.

But in an unanimous judgement handed down Wednesday, justices ruled that Waters failed to show sufficient evidence that the state Office of Elections, led by Scott Nago, mishandled results.

Trevor Ozawa and Tommy Waters

Trevor Ozawa, left, defeated Tommy Waters by 41 votes.

Courtesy of the candidates

Waters “has not shown in his pleadings submitted to this court actual information of errors, mistakes, or irregularities sufficient to change the outcome of the election,” justices wrote.

Ozawa is set to take office Jan. 2.

Waters had maintained that as many as 124 ballots may have been miscounted out of the 37,178 cast. He cited a state auditor’s report that indicated Hawaii voting machines have a margin of error of .02 percent, suggesting that 74 out of the 4,455 blank votes cast could have been miscounted.

He also questioned the election office’s handling of “overages,” when more ballots are cast than issued, and “underages,” when there are fewer votes cast than issued. Both can be indicative of voting fraud. There were a total of 50 “underage” and “overage” votes.

Waters requested a recount of the blank votes or a new special election for mail-in ballots.

The Office of Elections countered that Waters’ claim that 74 blank votes were miscounted was “hypothetical and purely speculative” because he was relying on a 1998 audit of a different election that utilized a different voting system. Since 2008, the office says it has been utilizing a new electronic voting system.

The court agreed, noting that the audit of the 1998 election “involved a different voting system and a different vendor.”

Elections officials also disputed Waters’ claim that the “underage” and “overage” votes suggested fraud or mistakes by precinct officials, noting that such votes can occur in the normal course of elections. For example, an “underage” can occur when a voter is issued a ballot and later decides to leave the polling place because of a long line.

The court ruled that Waters hadn’t shown sufficient evidence that the “underage” and “overage” votes may have been fraudulent.

“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,'” the court justices wrote, citing case law.

Ozawa praised the court decision, saying that it confirmed that “there was no merit” to the case.

“The decision finally removes the cloud from this race,” he said. “I look forward to being inaugurated on Jan. 2.”

Waters could not be reached for comment.

The race for the District 4 seat, representing parts of east Honolulu including Hawaii Kai, Aina Haina, Kaimuki and Kahala, was one of the most competitive this election cycle.

Waters’ defeat was seen as somewhat of an upset given his past political experience in the Hawaii Legislature and cascade of endorsements from unions, as well as groups like the Sierra Club. This is the first time that Ozawa, an attorney, will be serving in elected office.

You can read the full court ruling below: 


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