In the latest step to resolve a contested Honolulu City Council race between incumbent Trevor Ozawa and former state Rep. Tommy Waters, the Hawaii Supreme Court has scheduled oral arguments for Tuesday afternoon.

Waters appeared to be winning the tight race on election night Nov. 6, but Ozawa came back from 72 votes down to win by 22 votes after election officials counted mail ballots that came in as the polls closed.

Waters has challenged the result in a case before the Hawaii Supreme Court. At stake is representation of a sprawling district stretching from Waikiki to Hawaii Kai.

The issue before the court appears to be whether 350 ballots that were purportedly at the U.S. Postal Service’s Honolulu airport facility when the polls closed should have been counted.

City Council District IV seat. Tommy Waters (left) and Honolulu Mayor Kirk Caldwell in Honolulu, Hawaii. on Tuesday, Nov. 6, 2018. (Photo by Ronen Zilberman

Tommy Waters, left, was all smiles on election night, when he was joined by Honolulu Mayor Kirk Caldwell. But late mail ballots turned the contest against Waters.

Ronen Zilberman/Civil Beat

Hawaii law says that, to be counted, mail-in ballots must be picked up by the clerk issuing the ballots “not later than the closing of the polls on any election day.” In this case, the polls closed at 6 p.m., and the City Council ballots were issued by the Honolulu city clerk. So a key issue involves when City Clerk Glen Takahashi or his staff picked up the ballots.

Earlier this week, the Supreme Court asked Takahashi for a “detailed explanation of the factual circumstances and procedures that were actually followed by the United States Postal Service and the City Clerk regarding the handling and collection of the absentee mail-in ballots.”

Among other things, the court wanted to know the times of collection and pickup of the ballots and whether any ballots “received, collected or ‘swept’” by the postal service after 6 p.m. were still counted.

In his response, Takahashi described a procedure in which postal workers conducted a sweep of the airport post office at 6 p.m. to collect ballots, after which city clerk personnel 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.

Trevor Ozawa, center, and former Congressman Charles Djou, right, and speak with Reggie Castanares of the Plumbers and Fitters Union on election night as returns rolled in.

Natanya Friedheim/Civil Beat

But in a court filing submitted Thursday, Thomas Otake, an attorney working for voters seeking to overturn the election, said that was improper and cast the matter as simple.

Although courts often defer to agencies in charge of executing laws, particularly as it relates to internal procedures, Otake argued this was not a case where the court should allow the agency such discretion. The statute unambiguously sets a 6 p.m. deadline for the clerk to pick up ballots, Otake argued, and the clerk missed the deadline.

“In attempting to craft new lines of distinction for validly cast ballots, the City Respondent has intruded into the province of Hawaii’s legislature,” Otake said. He asked the court to either toss the late mail-in ballots from the airport post office and declare Waters the winner or to invalidate the election.

Ernest Nomura, a Honolulu deputy corporation counsel representing Takahashi, referred requests for comment to the Mayor’s Office, which declined to comment. Ozawa and Otake did not return calls for comment.

In a previous pleading, Waters had raised questions about a “margin of error” for voting machines used in the election. But the latest flurry of pleadings submitted to the court before Tuesday’s oral argument focus on the minutiae of the interactions at the post office, so it appears those will be the focus of the oral arguments.

Ozawa appeared poised to become the chairman of the City Council earlier this month, but because the state Office of Elections has declined to certify the election until the court rules, he could not be sworn in for a new term. On Monday, the council elected Ann Kobayashi as acting chair while it awaits a ruling on the Ozawa-Waters race.

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