Democratic State Rep. Romy Cachola, the subject of an election lawsuit challenging the validity of his August primary win, is pushing back against accusations he unlawfully coerced voters in his district to vote for him, calling the allegations “specious and defamatory” in a motion filed with the Hawaii Supreme Court Wednesday morning.
Cachola’s arguments for dismissal largely mirror those of co-defendant Scott Nago, Hawaii’s chief elections officer, who responded in his own filing a day earlier that without access to sealed declarations by two unnamed plaintiffs purporting to witness unlawful activity, the claims are unfounded.
“The amended complaint is filled with allegations that cannot be tested because they are supported by declarations of a John and Jane Doe which were not made available to defendant, or are purely speculative, or are completely lacking in any basis in law or fact,” Cachola’s reply argues.
Plaintiffs’ attorney Aaron Wills told Civil Beat last week when the suit was filed that the sealed declarations and anonymity of the plaintiffs — whom are referred as “Jane and John Doe Voters 1-47” — are meant to shield them from retribution in the tight-knit Kalihi community.
Wills said Wednesday that the plaintiffs, for now, prefer to have those declarations sealed.
“There is a case, and the specifics are known to the Supreme Court Justices for review of all the allegations,” Wills said by email. “We have strong reasons to ask for the declarations and voters list to be sealed, and I cannot unilaterally unseal without the voters permission.”
Cachola, who has held his District 30 seat since 2012, batted away the contention that since his election headquarters was located in the same building and same address as his wife’s Kalihi medical clinic, he is a “business associate” of Cachola Clinic that makes his alleged access to patients’ health records a violation of HIPAA, or the Health Insurance Portability and Accountability Act of 1996.
The suit alleges Cachola used the protected medical records of the clinic’s patients for the unlawful purpose of political campaigning.
Michael Green, Cachola’s attorney, is also asking the court to impose sanctions against the plaintiffs for bringing a “baseless and defamatory filing.”
The lawyer attached a brief declaration from a Honolulu resident to refute suggestions in the complaint Cachola engaged in voter fraud by relying on mail-in ballots submitted on behalf of deceased voters.
The individual, Jefferson S. Roldan, Jr., indicated he had asked Cachola if it “was okay to vote my (deceased) father’s absentee ballot in support of him, as my father was a lifetime supporter of Cachola.”
“Cachola advised me not to do so,” the declaration stated.
On Tuesday, Hawaii’s Chief Election Officer Scott Nago had also asked the Hawaii Supreme Court to dismiss allegations that he failed to prevent vote tampering in the August primary.
The lawsuit against Cachola and Nago was filed Aug. 20 by several dozen unnamed voters of District 30. It accuses Cachola of voter fraud and the illegal handling of absentee ballots, among other things, in his narrow win over challenger Sonny Ganaden based on the large number of last-minute votes cast by mail-in ballot.
Nago was sued in his official capacity for alleged failure to prevent vote tampering and violation of the federal Help America Vote Act of 2002 for providing no avenue for Hawaii citizens to file a voter fraud complaint with the Office of Elections.
Nago’s motion to dismiss, filed Monday, argues that the anonymous plaintiffs failed to offer any proof of irregularities that would have caused a different result in the Aug. 11 primary. He also defended the integrity of the absentee mail-in vote process, pointing to the procedures the state has set up to guard against double voting, as the complaint suggests could have occurred.
“Plaintiffs fail to provide any evidence proving voter fraud or other error or misconduct that would cause a difference in the election results,” his filing states.
Nago argues it is impossible for absentee voters to have their votes count twice as the mail-in ballots are sealed, tracked and handled in the presence of at least two officials. He also laid out the process that he said makes it difficult for someone who has mailed in their ballot to vote again in person at an actual polling location.
Ultimately, Cachola edged out Ganaden by 51 votes, 920 to 869. Cachola had trailed Ganaden by 10 votes in earlier results but a “suspicious and irregular submission of last minute mail in drop off ballots swung the election in Cachola’s favor,” according to the lawsuit.
The suit — which seeks a recount, removal of Cachola’s name from the general election ballot and investigations by the FBI, Office of Elections and state Attorney General’s Office — claims that Cachola coerced and intimidated voters in his district to vote for him through mail-in ballots by targeting patients of his wife’s medical practice in Kalihi, home to many first-generation Filipino immigrants who rely on the clinic for medical treatment.
The complaint indicates that two of the plaintiffs submitted sealed declarations to the court alleging to have seen Cachola improperly handle the absentee ballot of another person or witnessed a person voting twice. Nago argues that without being able to review this evidence, he can’t respond to the allegations.
He also argues that the requested remedies go far beyond the jurisdiction of the court since in an elections challenge, the Hawaii Supreme Court is only authorized to decide which candidate was elected or nominated.
But in order to do that, argued Wills in a response filed late Tuesday afternoon, the court needs a more complete record on which to base its conclusions. He asked the court to compel the Office of Elections to turn over records from the 2018 primary election so it has more information to reach a decision.
The attorney said the court has “discretion within the law” to order the appropriate state or county agency to investigate the allegations outlined in the complaint.
“There is no plausible way the voters, or their counsel, given the brief time to file a complaint, could or should investigate a state agency’s actions in an election contest,” Wills’ filing stated. “These are the duties of the state of Hawaii and its various agencies.”
Nago is represented by Attorney General Russell Suzuki and deputy attorneys general Patricia Ohara and Valri Lei Kunimoto.
Under Hawaii statute governing the time frame for an elections lawsuit, the court has four days to issue a ruling after the defendants’ responses are filed with the court.
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Read Romy Cachola’s Motion to Dismiss:
Read Scott Nago’s Motion to Dismiss:
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