Guess what? After much deliberation, the state elections office may stick with plastic eggs and lauhala baskets to decide tiebreaker contests. 

After holding a public hearing Monday and allowing for written testimony submitted by no later than Wednesday, the Hawaiʻi Office of Elections late Thursday finalized its recommendation for a new rule on how to settle these types of tied elections.

The action was ordered Sept. 4 by the Hawaiʻi Supreme Court, part of a ruling that rejected the tie-breaking process used by the Elections Office to settle the House District 43 race, which ended in a tie following the Aug. 9 primary.

But the rules now submitted to Gov. Josh Green for his consideration are identical to what the public was asked to comment upon. In announcing its decision, the Elections Office did not say anything about the public comments other than noting that the office followed the required hearing.

In theory, that means the same lauhala basket and plastic capsules — the latter compared to Easter eggs — used previously to decide the House race as well as a tied Senate race could be used again.

Chief Elections Office Scott Nago has defended the process and says it has been used to select the order of political parties on ballots.

The proposed rules allow for using a container, the names of candidates written on folded paper and placed in capsules, the shaking or rotating of the container and the person doing the drawing averting their eyes.

Republican Rep. Kanani Souza and opponent Sheila Medeiros tied in House District 43 after an automatic recount. The same thing happened in the race between GOP Sen. Kurt Fevella and Bob McDermott in Senate District 20.

After Souza took her case to court, the Supreme Court ordered the Office of Elections to promulgate new rules after the justices invalidated the tiebreaker, which Souza and Fevella both lost.

During a public meeting held at the Office of Elections in Pearl City on the proposed rules Monday, in-person testifiers included the two candidates who lost the Aug. 15 tiebreaker.

Souza said she was “adamantly” opposed to the proposed rules, warning that the Elections Office was trying to formalize the much ridiculed lauhala-and-capsules procedure.

Souza, who lost her tiebreaker to Medeiros, complained that the rules were “vague” and did not, for example, address the dimensions of the lauhala basket and whether the capsules could properly shift before they were drawn to reveal the winners. She voiced hope the Legislature would rectify the problem in the coming session that begins in January.

Fevella, who lost his tiebreaker McDermott, said he was “110% against the proposed rules. He said he lost his race in his community “by a basket, not an opponent.”

Fevella said a special election was the only way to resolve tied races. Like several others that testified in person and online, he said Chief Elections Officer Scott Nago should be fired.

Ralph Cushnie, one of the Hawaiʻi Elections Commission officials that oversees Nago and his office, pointed out in remote testimony that Nago did not consult the Elections Commission before selecting the lauhala and capsules.

Tamara McKay, another commissioner, echoed that point, noting that advising the chief elections officer is part of the commissions duties. McKay also said that the public should have been involved in the discussion, and that the Hawaiʻi Constitution requires that members of the Legislature be “elected” rather than “selected.”

Written testifiers included Teri Kia Savaiinaea, who also objected to the state settling elections by lot, as is currently required by law.

“Our elections belong to the people. The voters should decide who represents them, not chance,” she wrote.

If approved by Green, the new rules could come into effect 10 days after Friday’s filing and possibly be applied to settle any tied election on Nov. 3 — following curing of ballot signatures and automatic recounts.