Details over how the U.S. Postal Service and the Honolulu City Clerk’s office handled late-arriving mail ballots Nov. 6 may be a deciding factor in how the state Supreme Court rules in a challenge of Councilman Trevor Ozawa’s apparent victory over challenger Tommy Waters.

On Tuesday, justices grilled Honolulu Deputy Corporation Counsel Ernest Nomura, who represented the city clerk in this case, over the partnership between the USPS and the clerk’s office in collecting ballots.

Specifically, the court wanted to know who or what exactly was the clerk’s designee for collecting the ballots on election night, and the city responded that the ballots just need to be in the postal system.

Thomas Otake, an attorney for a group of 39 East Honolulu voters challenging the unofficial results that showed Ozawa winning by 22 votes, argued that mail ballots had to be in the possession of the city clerk by the time the polls closed at 6 p.m.

Waters, who is representing himself in the case, and Otake argued that about 350 votes in the council race should not be counted because they were received after 6 p.m.

During last year’s campaign season, then-Councilman Trevor Ozawa, standing, debated issues with challenger Tommy Waters, center. Natanya Friedheim/ Civil Beat

City Clerk Glen Takahashi detailed the process in a response to the court. USPS personnel conducted a sweep of the airport post office at 6 p.m. to collect ballots. Personnel in the city clerk’s office then picked up the ballots in two batches at a designated post office window, at 6:30 p.m. and at 7:30 p.m. Takahashi said the procedure was consistent with what the clerk and postal service have done in previous elections.

On Tuesday, Otake and the justices questioned why there were two additional pick-up times if a final sweep is supposed to occur at 6 p.m.

Associate Justice Paula Nakayama questioned Nomura over why the 6:30 p.m. batch had 1,093 ballots and the 7:30 p.m. pickup had 1,247 ballots. After the justices asked Nomura several times to explain how there were more ballots in the second batch when all of them should have been collected in the 6 p.m. sweep, he said that he did not have an answer.

Donna Leong, the city’s top attorney, first represented the clerk’s office in this case. Nomura had to take over for Leong, who took leave after receiving a target letter from federal prosecutors over her involvement in the $250,000 settlement for former Honolulu Police Chief Louis Kealoha.

It may be awhile before the USPS can provide clarity in this case. Ozawa’s attorneys said that the USPS couldn’t be contacted to file clarifications with the court because of the shutdown of the federal government.

It’s uncertain when the Supreme Court will rule on the challenge. Meanwhile, the case has left Honolulu City Council District 4, which stretches from Waikiki to Hawaii Kai, without a representative.

Ozawa was blocked from being sworn in for a new term Jan. 2, when it was expected he’d have enough votes to be elected council chair.

Ozawa said after Tuesday’s hearing that he had to sign termination papers Jan. 2 and has been working for the district voluntarily since then.

The council on Monday elected Councilwoman Ann Kobayashi to serve as interim chair. Resolution 18-294, which passed with all eight of the currently seated council members, says that the council wants to postpone electing a permanent chair until a council member for District 4 is chosen.

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