A lawsuit filed Friday with the Hawaii Supreme Court by more than 30 Maui County voters, including a candidate for office, is asking for a new election for the Wailuku-Waihee-Waikapu seat on the County Council, alleging that “irregularities and mistakes” meant that more than 800 voters weren’t given proper notice that their ballots weren’t being counted.

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The Maui County Clerk deemed the return envelopes of 812 ballots that were received on Election Day “deficient” — meaning that the envelopes that the ballots go in had issues like missing signatures or signatures that didn’t match those on file, according to the lawsuit.

Under state law, voters then have up to five business days after the election to fix any of those issues so their ballots can be counted.

But in the aftermath of the Nov. 8 election, Maui County’s top election official didn’t mail notices telling voters of the signature issues until four days after the election, according to the lawsuit.

Dozens of Maui County voters are challenging the outcome of the race for the Wailuku-Waihee-Waikapu seat on the council. Marina Riker/Civil Beat/2022

At the same time, one of the Maui County Council races was so close that the hundreds of uncounted ballots could have swayed the outcome, the lawsuit alleges. In the Wailuku-Waihee-Waikapu race, in which longtime council member Alice Lee sought to defend her seat against challenger Noelani Ahia, election results show Lee led by 513 votes.

“Defendants’ errors, mistakes, and mishandling in failing to reasonably notify 812 voters of their allegedly deficient ballots changed the outcome of the Wailuku election or makes it impossible to ascertain the correct result of the election,” the lawsuit says.

Ahia is one of the voters asking the Hawaii Supreme Court to void the Nov. 8 election results and order a new one. The voters are being represented by Maui attorney Lance Collins and attorney Bianca Isaki of Honolulu.

Neither Maui’s Office of the County Clerk nor the state Office of Elections could be reached for comment Saturday morning.

Lee, who is also named in the complaint because she was a candidate in the race the lawsuit seeks to invalidate, said Saturday that the lawsuit has “no merit.” She declined to give further details, citing the pending litigation.

The lawsuit alleges that Maui County Clerk Kathy Kaohu violated her duty to “reasonably notify” voters that she wasn’t counting their ballots and didn’t follow the process outlined to decide that certain return envelopes weren’t valid. It also alleges that the county clerk violated state law by using different processes to notify voters before and after Nov. 8.

According to the lawsuit, before Nov. 8, the clerk’s office would let voters know within one or two days of casting their ballots if their return envelopes had issues that would prevent them from being counted. But for the 812 ballots cast on Election Day that had problems, the county clerk didn’t send out notices until four days later on Saturday, Nov. 12, the lawsuit says.

Because it can take up to two days for Maui County residents to receive mail, voters with allegedly deficient envelopes didn’t begin receiving the notices until Tuesday, Nov. 15, according to the lawsuit. That was the day before the deadline to fix them.

“As Hawaii moves from in-person voting to mail-in voting, it is vitally important that all election officials act with earnest diligence in ensuring that every lawfully cast ballot is counted,” Collins, the voters’ attorney, said in a statement.

The lawsuit also alleges that the county clerk didn’t follow open records laws when denying a public records request made by Ahia for the list of voters whose ballots weren’t being counted. According to the complaint, Ahia would have “made efforts to ensure voters were notified and provided with instructions on how to cure their return identification envelopes.”

By the last day to address the issues, only 106 ballots had been “cured,” according to the lawsuit.

The defendants have 10 days to respond to the lawsuit.

Read the complaint below:

Civil Beat’s coverage of Maui County is supported in part by grants from the Nuestro Futuro Foundation and the Fred Baldwin Memorial Foundation.

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