Honolulu City Councilman Trevor Ozawa may miss being sworn in to another term on Wednesday along with his colleagues if the Hawaii Supreme Court is still undecided on a legal challenge to his election win.

As of Monday, Ozawa and Sen. Kurt Fevella were still waiting on the high court to rule on challenges to the Nov. 6 election results filed by their opponents — Matt LoPresti in the Senate and Tommy Waters, who faced Ozawa in a race for City Council District 4.

Fevella assumed his job as state senator the day after the general election. The court’s decision will impact whether or not he is sworn in along with the other senators Jan. 16, the Legislature’s opening day.

On Monday, state elections officials submitted answers to the court’s questions about the voting process, including the significance of the margin of error in election results.

Budget Chair Council member Trevor Ozawa makes point Bill 35 about putting a cap on ride share services in Honolulu.
Trevor Ozawa may not be sworn in Wednesday if the Supreme Court does not rule in his favor in a case challenging his election. Cory Lum/Civil Beat

Challengers to the election, including Natalie Iwasa who led a citizens’ group seeking to overturn the election of Ozawa, had alleged in part that a possible margin of error in voting machines could have affected election outcomes. The elections office denies any exist.

The Supreme Court had ordered the Office of Elections to produce information on the margin of error as well as information regarding how a voter’s intent is preserved in a close race when their ballots might contain “marginal marks” — anything that wasn’t clearly filling in the appropriate box next to a candidate’s name.

Scott Nago, the state elections chief, wrote Monday in a response to the court order that he does not believe there is a margin of error related to marks made on ballots.

He also said that instructions are set in state law on how a ballot should be properly marked.

“Voters are instructed to make a ‘proper mark’ and it would be improper for a voter to disregard the instructions and attempt to test the system by making a ‘marginal mark’ that they hope is sufficient to be read by the system,” Nago wrote in the declaration.

He said that the margin of error mentioned in the plaintiff’s complaints could refer instead to an error rate, which relates to initial testing of voting machines and not errors made during an actual election.

Jan Kagehiro, a spokeswoman for the Hawaii State Judiciary, said the court had no comment on the Office of Elections’ response.

Hawaii Chief Election Officer Scott Nago, pictured in 2014, wrote in response to a state Supreme Court order that Hawaii’s voting machines have no margin of error. Nathan Eagle/Civil Beat

The elections office has said that the results for both elections are currently uncertified pending the Supreme Court’s judgment in both cases.

“Ultimately, it’s with the courts,” said Nedielyn Bueno, a spokeswoman for the Office of Elections.

Hart Intercivic Services, a Texas-based company that provides Hawaii with voting machines, did not respond to a request for comment. Company representatives had earlier filed declarations saying the machines were working properly.

Iwasa, who was one of 39 East Honolulu voters who filed a challenge to Ozawa’s victory, could not be reached for comment Monday.

Waters also did not respond to several voice messages.

It’s still not clear how Waters, Iwasa or LoPresti learned about possible errors in the voting machines.

On Monday, in an emailed statement to Civil Beat, LoPresti declined to say how he first learned about the possible problem.

Fevella, LoPresti’s opponent, won by 116 votes, or 0.9 percent of the total vote in Senate District 19.

Ozawa won by just 22 votes in the November election, a victory of just .06 percent of the total. (Correction: An earlier version of this article had an incorrect percentage of the vote margin.)

Hawaii’s voter law does not require automatic recounts in tight races. That provision was removed in 1973 after lawmakers decided that only the courts could rule in contested cases.

Twenty other states and the District of Columbia have mandatory recount laws if results fall within a certain percentage of the total vote.

“Other states have an automatic recount system in place. It harms no one to be more cautious and I think the state could and should do more to promote and protect open and transparent elections,” LoPresti wrote in his statement.

The state argued in court filings earlier this month that LoPresti, Waters and Iwasa failed to prove that there were any voting irregularities or that any vote tampering had occurred in the elections.

The state also argued that LoPresti could not prove beyond a reasonable doubt that Hawaii’s voter law is unconstitutional. He argued in his original complaint that the law should be deemed unconstitutional if the court did not order a recount.

“If elections are not practically able to be challenged (as under our current system), then the people are in fact deprived of free and fair

Rep Matthew LoPresti at the Capitol. portrait for Anita’s story. 10 jan 2017
Former Rep. Matt LoPresti challenged the election results for Senate District 19 that saw Sen. Kurt Fevella win by just 116 votes, or 0.9 percent of total votes in the district. Cory Lum/Civil Beat

elections, one of their most fundamental rights,” LoPresti said.

Ozawa, who recently served as chair of the Budget Committee, was scheduled to be sworn in by Chief Justice Mark Recktenwald at noon Wednesday in council chambers at Honolulu Hale. But that can’t happen until the 2018 election results are certified.

His colleagues on the council were expected to vote him in as council chair Wednesday as well.

Media inquiries to Honolulu City Council acting chair Kymberly Marcos Pine were not returned Monday afternoon.

Councilwoman Carol Fukunaga and Councilman Brandon Elefante, who were re-elected Nov. 6, will be sworn in to new four-year terms Wednesday. New Councilwoman-elect Heidi Tsuneyoshi will also be sworn in.

Under an organizational resolution scheduled for action Wednesday, Pine would continue as vice chair and Fukunaga would continue as floor leader.

Chad Blair contributed to this report.

Read Nago’s response to the court order below.

Declaration of Scott Nago (Text)

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