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Electronically Filed
Supreme Court
SCEC-XX-XXXXXXX
04-SEP-2026
04:35 PM
Dkt. 67 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---KRISTEN K. SOUZA, also known as KANANI SOUZA,
Plaintiff,
vs.
SCOTT T. NAGO, in his official capacity as Chief Elections Officer, Office of Elections, State of Hawaiʻi; STATE OF HAWAIʻI OFFICE OF ELECTIONS; CHADD KADOTA, in his official capacity as
Acting City Clerk, City and County of Honolulu;
REX QUIDILLA, in his official capacity as the Elections Administrator, City and County of Honolulu; and SHEILA MEDEIROS,
Defendants.
SCEC-XX-XXXXXXX
ORIGINAL PROCEEDING
SEPTEMBER 4, 2026
OPINION OF EDDINS, J.,
IN WHICH McKENNA, ACTING C.J., JOINS
I.
842-842.
The 2026 Republican primary for State Representative,
District 43 tied. Sheila Medeiros and Kanani Souza each
received 842 votes.
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Hawaiʻi law breaks a tie “by lot.” Hawaiʻi Revised Statutes
(HRS) § 11-157 (Supp. 2019).
So on August 15, 2026, the Chief Election Officer settled a
legislative election by choosing between two plastic capsules in
a lau hala basket, each half orange and half clear, the kind
that holds candy in a plastic Easter egg. An election office
administrator had written Medeiros’ and Souza’s names on cards,
folded them several times, and sealed one name inside each
capsule. He shook the closed basket, with enthusiasm. Then
opened it. The Chief Election Officer looked away, reached in,
and drew an egg. See State of Hawaiʻi Office of Elections,
Candidate Drawing, at 7:51 (Aug. 15, 2026),
https://www.youtube.com/watch?v=Uq2-f7YmCts
[https://perma.cc/LTT5-SQJ2].
Medeiros’ egg was picked from the lau hala basket. She won
District 43 outright. No Democrat and no one from any other
party had filed for the seat.
A tie must be real before it can be broken. Two ballots
from outside the district put this one in doubt.
The Office of Elections’ Over/Under Report shows two more
ballots counted in Precinct 43-03 than voters were credited as
casting. Those excess ballots are an overage. The count
exceeds documented usage. HRS § 11-153(a) (Supp. 2021).
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Two District 40 voters were handed District 43 ballots by
mistake and cast them. Their ballots entered the count all the
same, in a race they had no right to decide. Whether either
voted in it, the record does not say.
At 842-842, two ballots are enough to decide the race. Or
to show it was never decided.
Three conclusions follow.
First, the two-ballot overage could affect the result of a
tie. The burden of showing the two ballots were lawfully cast
falls on the election officials, not on Souza. Their own
records place the ballots outside the district. Whether either
counted in this race, those records do not say. At the hearing,
the officials confirmed it: there is no way to know whether the
two ballots were counted, or for whom. Oral Argument at 52:29-40, https://www.courts.state.hi.us/oral-argument-before-thesupreme-court-no-scec-XX-XXXXXXX [https://perma.cc/3B6A-XFT4].
On any view, Souza has shown by a preponderance that the overage
unsettles the outcome. HRS §§ 11-153, 11-172 (Supp. 2021).
Second, the method the Chief Election Officer improvised to
break the tie was a rule. He adopted the egg-in-basket
procedure without the rulemaking HRS Chapter 91 requires. The
rule is invalid, and the selection it produced falls with it.
HRS § 91-1 (Supp. 2017); See Green Party of Haw. v. Nago, 138
Hawaiʻi 228, 378 P.3d 944 (2016).
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Third, because no candidate was validly nominated, the
primary is not pau. The remedy is to let the voters finish it.
II.
Hawaiʻi votes mostly by mail. Since 2020 every registered
voter is sent a ballot. HRS §§ 11-101 (Supp. 2021), 11-102
(Supp. 2022). A voter may still vote in person at a voter
service center or in limited circumstances by electronic
transmission. HRS §§ 11-107 (Supp. 2021), 11-109 (Supp. 2021).
In-person voting at a service center is what the Office of
Elections (Office) calls early voting. It is where the
discrepancy in this case arose.
Two offices run the election, the State and the county,
each with its own tasks. The State, through the Chief Election
Officer, prints and counts the ballots. HRS § 11-110(b)(1)(B)
(Supp. 2019). The county clerk registers voters, mails the
ballots, staffs the voter service centers, receives the ballots,
and checks the signature on each returned mail-in ballot. HRS
§ 11-110(b)(1)(A); see HRS §§ 11-106 (Supp. 2021), 11-108 (Supp.
2025).
At a service center, the clerk’s officials confirm the
voter’s eligibility through an application, record that a ballot
was issued, and let the voter cast it. The ballots are then
secured and delivered to the State’s counting center. Hawaiʻi
Administrative Rules (HAR) §§ 3-177-502, 3-177-550. At the
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close of each day the clerk reconciles the service-center
records against one another and shares this reconciliation
report with the Office. HAR § 3-177-769. The reconciliation
report is what flagged the error here.
On August 8, 2026, the voters of State Representative
District 43 went to the polls in the primary. Two candidates
vied for the seat, both Republicans. Sheila Medeiros and Kanani
Souza. No candidate of any other party, and no nonpartisan
candidate, filed for the office.
The race was close enough to trigger a recount. On August
11, 2026, the Office recounted the District 43 ballots. HRS
§ 11-158 (Supp. 2025). The recount showed Souza ahead by one.
Then, on August 14, 2026, the Office published its Final
Summary Report. It announced a tie:
Primary Election 2026 Summary Report Final, State of Hawaiʻi, 1,
3 (Aug. 14, 2026, at 18:33:21 HT),
https://elections.hawaii.gov/wpcontent/results/2026%20Primary/histatewide.pdf
[https://perma.cc/Q27D-SE2F].
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HRS § 11-157 provides that “[i]n case of the failure of an
election by reason of the equality of vote between two or more
candidates, the tie shall be decided by the chief election
officer . . . by lot.”
Acting under that statute, Chief Election Officer Scott
Nago conducted a drawing on August 15, 2026, at the State
Capitol, one of two that day. The Office also had to break a
tie in the Senate District 20 Republican primary, where the
candidates had each received 1,212 votes.
One method decided both ties. The candidates’ names were
sealed in plastic egg capsules, dropped into a lau hala basket,
and one was drawn. In District 43, Medeiros’ name came out.
Nago declared that “the candidate selected through this drawing
will serve as the Representative for this district.” The
drawing was recorded and later posted online. See State of
Hawaiʻi Office of Elections, Candidate Drawing, at 7:51 (Aug. 15,
2026), https://www.youtube.com/watch?v=Uq2-f7YmCts
[https://perma.cc/LTT5-SQJ2].
Nago explained the Office had tried to mimic its partyorder drawing, a procedure it had used since 2020.
Souza sought records. On August 17, 2026, she wrote to
Nago and to the City’s Elections Administrator, Rex Quidilla,
requesting information about the overages and underages reported
for the race, the signature-verification process, ballot
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accounting under HAR § 3-177-453, and the method of the lot.
Neither office gave her a substantive answer before she filed.
On August 20, 2026, Souza received the Office’s Over/Under
Report for Honolulu. It listed every precinct in District 43:
D/P EV Voted Prec. Detail Report Over/Under
43-01 56 56 0
43-02 36 36 0
43-03 54 56 2
43-04 52 52 0
Fifty-four voters were credited with early votes (EV) in
Precinct 43-03. Fifty-six ballots were counted there. An
overage of two. Every other precinct in the district
reconciled.
Souza filed this contest on August 24, 2026. She pleads
five counts: that the overage could affect the outcome (Count
I); that the drawing was not a true “lot” (Count II); that the
tie-break method was an unpromulgated rule (Count III); that the
method denied due process and equal protection as applied (Count
IV); and that HRS § 11-157 facially violates Article III,
Section 4 of the Hawaiʻi Constitution (Count V).
On August 26, 2026, the court joined Medeiros as a
defendant, and she filed a brief.
On August 31, 2026, the Office moved to dismiss the
contest, or alternatively, for summary judgment. The motion
relies on a declaration from Nago. He conceded the two-ballot
overage. He could not account for it. He offered only that it
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“could be the result of the accidental issuance of two DP 43-03
ballots to voters in a different precinct.”
The county could account for it. That same day, its
elections administrator, Rex Quidilla, filed a declaration
attaching the daily reconciliation report for the Kapolei Hale
service center. The report traced the overage to its source.
Two District 40 voters were issued District 43 ballots and cast
them. Whether either ballot carried a vote in the race, and for
whom, the record does not reveal.
We heard the contest in the summary manner the statute
prescribes. See HRS § 11-173.5(b) (2009 & Supp. 2024). Nago,
Kadota, and Quidilla testified.
HRS § 11-173.5(b) directs the court, within days, to give
judgment fully stating all findings of fact and conclusions of
law. It sets no form. Stating the law in full is the work of
an opinion. And the work this court should do in a
consequential case. See Iwasa v. Nago, ____ P.3d ____, No.
SCEC-XX-XXXXXXX, 2026 WL 2547017 (Haw. Aug. 28, 2026). The
findings run through this opinion and the conclusions with them.
The contest here raises questions this court has not had to
answer. Who must account for an overage that could decide a
tied race. Whether a tie-break built without rulemaking can
stand. The offices that run our elections, and the voters who
rely on them, deserve the law reasoned through in full.
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III.
A challenger, the party contesting the election result, may
set that result aside two ways. First, by showing an
irregularity that could change who won. Second, by showing that
the correct result “cannot be ascertained because of a mistake
or fraud on the part of the precinct officials.” Waters v.
Nago, 148 Hawaiʻi 46, 60, 468 P.3d 60, 74 (2019) (per curiam)
(emphasis added).
Here, two ballots were counted in District 43 that were
cast by District 40 voters. The officials’ own records
establish it. Those two ballots answer both tests. In a tie,
two ballots that do not belong could change who won. And
because the record cannot say how those voters voted, the
correct result cannot be determined.
A. A Tie Leaves No Margin For Error
The first test is met. The Legislature made an overage a
ground for contest. A challenge “may be brought under part XI,
if the overage or underage in any precinct could affect the
outcome of an election.” HRS § 11-153. Part XI supplies the
standard, and it isn’t limited to overages. A result may be set
aside whenever an irregularity “could cause a difference in the
election results.” HRS § 11-172; see Dicks v. Office of
Elections, 155 Hawaiʻi 102, 106, 557 P.3d 831, 835 (2024) (per
curiam). We have read “a difference in the election results” to
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mean “a difference sufficient to overturn the nomination of any
particular candidate.” Elkins v. Ariyoshi, 56 Haw. 47, 49, 527
P.2d 236, 237 (1974) (per curiam).
The challenger has the burden; she must provide information
to demonstrate an irregularity sufficient to change the election
result. Waters, 148 Hawaiʻi at 60, 468 P.3d at 74.
The State turns this against Souza. She cannot say how the
two District 40 voters marked their ballots, the argument goes,
so she cannot prove the overage changed who won. But that
standard is set against the margin. A challenger who trails
must produce enough improper votes to overcome the lead. At a
tie, there is no lead. Souza doesn’t need to show which way the
two ballots broke – only that there were two unaccounted for
ballots in a tie race.
Nago concedes as much. He agrees the two ballot overages
could have caused a difference in the race. Oral Argument at
24:41-25:00, 26:30-40, https://www.courts.state.hi.us/oralargument-before-the-supreme-court-no-scec-XX-XXXXXXX
[https://perma.cc/3B6A-XFT4].
The margin is the filter.
Ordinarily it screens out claims too small to matter. When
an election challenger trails by more votes than her proof could
ever overcome, the contest never clears the threshold. Even if
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she proved every allegation, the outcome would hold. See
Elkins, 56 Haw. at 49, 527 P.2d at 237.
Here, zero is the margin. When two candidates tie, any one
ballot counted that should not have been, or not counted that
should have been, is enough to foil the result.
The two ballots in District 43 are more than enough. There
is no math to do. A tie has no margin to argue about.
This is what separates Souza’s case from the two overage
decisions the State relies on. Each challenger there was behind
with ground to make up. In the 2014 Waters contest, the
challenger trailed by forty-one votes. He pointed to eleven
overages and thirty-nine underages, but never showed they were
invalid votes or added to his count. Waters v. Nago, No. SCECXX-XXXXXXX, 2014 WL 7334915, at *1–2, *7 (Haw. Dec. 24, 2014).
In Cushnie, the contestants trailed by 108 votes and identified
twenty-five overage mail ballots, too few to alter the result.
Cushnie v. Nago, No. SCEC-XX-XXXXXXX, 2024 WL 5183213, at *2, *7
(Haw. Dec. 20, 2024). Neither court confronted the question
that this case forces: whether an overage that clears the
margin, and is shown to be invalid, can change who won.
With no margin, nothing keeps the two ballots from view.
Their validity is no longer a side question. It’s the case.
Someone must show they were lawfully cast. That someone is not
Souza.
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B. The Burden Is On the Office of Elections
The two ballots came from District 40. Whether the ballots
changed the result depends on how those voters voted. No record
shows it.
The missing fact is not Souza’s to supply. How two voters
she cannot name marked ballots she never saw is something she
has no way to run down. She asked the offices for their
records. What they gave her came after the drawing had already
picked a winner, and it did not show how the two voted. The
proof sits with the officials who hold the count.
The State’s own filing makes the point. Asked to account
for the overage, the Chief Election Officer deferred to the
county clerk. He could say only that the two ballots might have
come from voters in another precinct. He could not confirm the
two ballots were valid, and under oath agreed that the overage
could have affected the outcome. Oral Argument at 24:41-25:00,
26:30-40, https://www.courts.state.hi.us/oral-argument-beforethe-supreme-court-no-scec-XX-XXXXXXX [https://perma.cc/3B6AXFT4]. He also testified that it was impossible to know who
those two voters were, or how they voted. Id. at 52:29-40.
Souza, with no access to the records, cannot prove the ballots
valid when the Office itself couldn’t.
The ordinary standard points the same way. Souza pleads no
fraud, so preponderance is enough. See Kekona v. Abastillas,
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113 Hawaiʻi 174, 180, 150 P.3d 823, 829 (2006). The report shows
an overage in a tied race, traced to two ballots cast from
outside the district. That makes it more likely than not the
result is unreliable. The Office offers nothing to the
contrary. Souza has carried her burden.
The rules of evidence confirm what the burden already
settles. A statute that makes a fact “prima facie evidence of
another fact” establishes a presumption. Hawaiʻi Rules of
Evidence (HRE) Rule 305. HRS § 11-96 (2009) is such a statute.
It makes the records election officials create by law prima
facie evidence of the facts set out in them. The Over/Under
Report is one of those records. Its numbers are the precinct
officials’ own – voters checked in and ballots issued, set
against the ballots counted. The officials must compile it, HRS
§ 11-153(a), and reconcile it before certifying any result, HRS
§ 11-155 (Supp. 2022).
The presumption HRS § 11-96 raises is not the minor kind,
the sort that just shifts the burden of producing evidence. It
rests on public policy. Under HRE Rule 304(a), a presumption
that implements a public policy “imposes on the party against
whom it is directed the burden of proof.”
The public policy is written across the election code.
Officials must record every overage and underage. HRS § 11-153.
Before certifying a result, they must reconcile those figures
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and attach to the certificate a list of every precinct where a
discrepancy occurred. HRS § 11-155. The Legislature made those
discrepancies a ground for contest. HRS §§ 11-153, 11-172.
The reconciliation requirement was enacted for a stated
purpose. The Legislature meant to formalize the procedures
“that must be followed in determining the accuracy of elections
results” and to “alleviate any public concerns about the process
of certifying election results.” S. Stand. Comm. Rep. No. 1546,
in 1997 Senate Journal, at 1478.
A framework built to reassure the public that counted
ballots were cast by eligible voters is a public policy HRE Rule
304 intends.
It follows that the election officials bear the burden of
proof. Under HRE Rule 304(b), the court “assume[s] the
existence of the presumed fact unless and until evidence is
introduced sufficient to convince the trier of fact of the
nonexistence of the presumed fact.”
The presumed fact here is the overage. Two more ballots
than voters credited with casting them. The report is prima
facie proof of a result-changing overage, and nothing in the
record rebuts it. In a tie, an overage of two can change the
outcome, and the presumption carries that far. To rebut it, the
officials must come forward with evidence that the overage could
not have affected the result. They have not. And they conceded
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they cannot. Oral Argument at 52:29-40,
https://www.courts.state.hi.us/oral-argument-before-the-supremecourt-no-scec-XX-XXXXXXX [https://perma.cc/3B6A-XFT4].
The Office answers with a presumption of its own. Under
HRE Rule 304(c)(2), “official duty has been regularly
performed.” Take the presumption at full strength. That clerk
reconciled the service-center records as the rules require, and
the reconciliation caught the error.
This presumption still does not help. It speaks to how the
officials did their work. Whether two District 40 ballots can
stand in a District 43 tie is another question, and regular
performance does not answer it. Here, the safeguard that guards
the count is the one that exposed the error. Their diligence is
Souza’s proof.
The burden is the Office’s. Under the ordinary standard
and the statute’s presumption alike. The Office has not carried
it.
C. The Result Cannot Be Known
The second test is met too. An overage is not always an
invalid vote. That is why, in Waters, the officials’
explanation carried. Waters, 2014 WL 7334915, at *5, *8. The
State reads that decision for a broader rule: that overages and
underages “occur[] in the ordinary course of an election” and,
without more, prove nothing. Id. at *7.
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That reading claims too much. Waters did not hold overages
are always harmless. The record explained them. Nago came
forward with evidence that no irregularity had occurred: the
distribution across District IV showed no pattern of fraud; a
manual audit confirmed the accuracy of the computer results;
every precinct on the Over/Under Report lay within the contested
council race, so a ballot issued for the wrong precinct would
still have been validly cast; and the underages produced no
counted ballot at all — a voter issued a ballot may walk away
without voting. Id. at *2, *5, *7.
The record here explains the overage too. The explanation
is two District 40 ballots in a District 43 tie.
Whether the two ballots here are benign or fatal turns on
how they arrived. A service-center voter is verified through an
application, issued a ballot, and casts it into the count. An
overage means one more ballot was counted than the records show
issued. Sometimes that gap is inconsequential. A voter signs
in, votes, and is counted, but the official never records the
signature; the ballot is valid, and only the paperwork lagged.
Or a voter is handed a ballot for the wrong precinct in the same
district; the vote still counts in the race it belongs to, the
overage offset by an underage next door. The race is
unaffected.
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This overage is the other kind. District 43 is a single
representative district. The two ballots were cast by voters
registered in District 40, handed District 43 ballots by
mistake. A voter from another district has no vote to cast in
this race. These two votes do not belong.
The record forecloses the benign reading. Had the two been
District 43 voters misrouted within the district, their home
precinct would show the offsetting underage. It does not. The
underage sits in Precinct 40-03. Another district. Nago’s
declaration suggests the overage “could be the result of the
accidental issuance of two DP 43-03 ballots to voters in a
different precinct.” The two ballots do not net out within
District 43. The shortfall shows up a few districts away.
The cause is known. Not the effect. Whether either ballot
carried a vote in the Republican race, and for whom, the record
doesn’t say. At a tie, that’s enough. Two ballots that do not
belong, in a race decided by none, put the true result beyond
reach.
Not every overage unsettles an election. This one does.
When officials themselves drop two out-of-district ballots into
a tied race, and no one can say how those voters voted, the
correct result cannot be ascertained. That’s what happened
here. Service-center staff handed District 43 ballots to
District 40 voters. The fault is the officials’, not the
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voters’. That is the mistake Waters requires, and it leaves the
true result beyond recovery. The second test is met.
The two tests converge. Whether the overage could change a
tied result, or the result can no longer be known, the answer
runs one way. Two ballots from outside the district decide it,
and nothing shows those ballots belonged in the race.
Souza wins on Count I.
IV.
Count I shows there was no reliable tie to break. Count
III shows that even if the tie were reliable, the Office of
Elections broke it by a method the law did not permit. We reach
the claim because it stands on its own, whatever the two ballots
showed. And it will recur. A tie is a freak event. The 2026
primary produced two.
A. What the Chief Election Officer Improvised Was a Rule
HRS § 11-157 commands that a tie “be decided . . . by lot.”
It does not say how the lot is conducted. Into that silence the
Chief Election Officer supplied a method: names sealed in
plastic Easter-egg capsules, orange on half and clear on the
other, dropped into a lau hala basket, shaken, and drawn.
The procedure was modeled on the drawing the Office uses to
set the order of political parties on the ballot. The Chief
Election Officer described it as an established practice. He
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explained that the Office “know[s] that works and we’ve done it
before.”
The Hawaiʻi Administrative Procedures Act (HAPA) defines a
“rule” as an “agency statement of general or particular
applicability and future effect that implements, interprets, or
prescribes law or policy, or describes the organization,
procedure, or practice requirements of any agency.” HRS § 91-1.
The method fits. It is a statement of general
applicability and future effect, and it prescribes the procedure
the agency follows to carry out a statutory command. See Green
Party of Haw., 138 Hawaiʻi at 237, 378 P.3d at 953. It has
future effect because it is the procedure the agency used before
and will use again, for the next tie and the one after, until it
is changed.
B. A Rule Applied Once Is Still a Rule
The State’s answer is that a single drawing between two
named candidates is an adjudication, not a rule. It operated on
Medeiros and Souza in their individual capacities, resolved a
concrete dispute, and touched no one else.
The line between rulemaking and adjudication turns on what
the agency’s statement does, not on how many times it has run.
Rulemaking “affects the rights of individuals in the abstract”;
adjudication “operates concretely upon individuals in their
individual capacity.” In re Surface Water Use Permit
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Applications, 154 Hawaiʻi 309, 356, 550 P.3d 1167, 1214 (2024)
(cleaned up). Rulemaking is legislative and looks forward.
Adjudication resolves “past and present rights and liabilities”
on “sharply controverted” facts. Id. (cleaned up).
Measured that way, the tie-break method is a rule. There
were no facts to adjudicate. The votes were equal. Nothing
about Medeiros or Souza as individuals mattered to how the tie
should be resolved.
The Chief Election Officer settled how any tie gets broken
with a general rule that governs every future candidate whose
race ends in a deadlock. Applying that rule to these two
candidates was the rule at work, one instance of it.
The record puts the point beyond argument. The Chief
Election Officer testified that he built and adopted the method
before he knew either race had tied. Oral Argument at 16:19-42,
https://www.courts.state.hi.us/oral-argument-before-the-supremecourt-no-scec-XX-XXXXXXX [https://perma.cc/3B6A-XFT4]. A
procedure fixed in advance, for whatever tie may come, is the
very thing HAPA calls a rule. He then ran the drawing twice
that afternoon, breaking the Senate District 20 tie minutes
before the District 43 tie, the same way. A method the Office
reaches for whenever a tie appears is a rule at work.
The distinction the State urges would undercut HAPA. Every
unpromulgated rule is enforced, at some point, against specific
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parties. If applying a rule to the parties before the agency
were enough to convert the rule into an adjudication, no
unpromulgated rule could ever be challenged.
Green Party forecloses that move. There, the practice of
directing wrong-precinct voters came to the court in a single
election. Yet this court looked past that single episode to the
practice behind it and held the practice a rule. 138 Hawaiʻi at
237–38, 378 P.3d at 953–54. So must we here.
C. The Rule Is Invalid, and the Selection Falls With It
A rule adopted without the notice, public hearing, and
opportunity to be heard that Chapter 91 requires is invalid.
Id. at 237, 378 P.3d at 953; see HAR § 3-177-4 (public hearing
on proposed rules).
The tie-break method was adopted without any of that. It
is therefore invalid. Thus, the selection of Medeiros, the
method’s product, is void.
Our remedial authority is broad. Where an agency
prejudices substantial rights by failing to follow the law that
governs its rules, the court fashions relief that remedies the
prejudice. See Nakamine v. Bd. of Trs., Emps.’ Ret. Sys., 65
Haw. 251, 255, 649 P.2d 1162, 1165 (1982); accord Martell v.
Emp. Ret. Sys., 158 Hawaiʻi 139, 146, 588 P.3d 1152, 1159 (2026).
The relief here is to set aside the drawing and the
selection it produced.
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Counts I and III arrive at the same place by different
roads. Count I shows the count that produced the tie was never
reliable. Count III shows the tie, even if reliable, was broken
unlawfully. Either way, District 43 has no validly nominated
candidate.
Souza pleads three further counts we do not reach – Count
II (whether the drawing was not a true “lot”) and Counts IV and
V (constitutional).
V.
The statute directs us to enter judgment deciding “what
candidate was nominated or elected.” HRS § 11-173.5(b). On
this record there is only one answer, and it is not the name of
a candidate.
A. No Candidate Was Nominated
The power to decide who was nominated includes the power to
decide that no one was. This court said so long ago.
Construing this same statute, the court observed that “[w]hile
it is not expressly so provided . . . the power to decide which
candidate was nominated implies a power to determine that no
candidate was selected.” Elkins, 56 Haw. at 49 n.3, 527 P.2d at
238 n.3.
That is the judgment this record requires. The overage
leaves the correct result in doubt, and the tie-break that stood
in for a result was unlawful. Neither Medeiros nor Souza can be
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declared the nominee, because the primary produced no reliable
result.
B. Funakoshi Does Not Stand in the Way
The State invokes Funakoshi v. King. We address it
directly.
Funakoshi read HRS § 11-173.5(b) to withhold from this
court the power to invalidate a primary and order a new one.
Reasoning from the contrast with the general-election statute,
HRS § 11-174.5 (2009 & Supp. 2021), which expressly allows
invalidation and a new election, the court concluded that “[b]y
the omission of language providing for the invalidation of an
election and the allowance of a new election in HRS § 11-173.5(b), the legislature clearly intended that the only
remedy . . . was the statutory remedy of having this Court
decide which candidate was nominated or elected.” Funakoshi v.
King, 65 Haw. 312, 316, 651 P.2d 912, 914 (1982) (per curiam).
Funakoshi does not touch this case. For three reasons.
First, Funakoshi decided what may be done with a completed
primary. Its challenger had lost a race that produced a winner;
unable to overcome the margin, she asked the court to set that
result aside and place four candidates on the general-election
ballot. Id. at 314, 317, 651 P.2d at 913, 915. The question
was whether the court could nullify a valid result and start
over. That is the power § 11-173.5(b) withholds, and it is not
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the power at issue here. This primary produced no result to
nullify. We are not asked to undo a nomination, but to
recognize that none was made.
Second, the distinction tracks the statute’s own design.
HRS § 11-173.5(b) presupposes a nominee. It directs the Chief
Election Officer to place that nominee’s name “on the ballot for
the forthcoming general . . . election.” Where the primary
yields no nominee, that command cannot be carried out, and the
primary is, in the statute’s own terms, unfinished. Completing
an unfinished primary is a different act from invalidating a
finished one, something Funakoshi forbade.
Also, the means of completion lie in a provision Funakoshi
never considered. HRS § 11-175 (2009) empowers this court to
“do whatsoever else may be necessary fully to determine the
proceedings, and enforce its decrees therein.” This includes
the power to order a new election. The State conceded so at
oral argument. Oral Argument at 1:50:30-33,
https://www.courts.state.hi.us/oral-argument-before-the-supremecourt-no-scec-XX-XXXXXXX [https://perma.cc/3B6A-XFT4]. Read
with § 11-173.5(b), and consistent with Elkins, that authority
lets the court return a primary that yielded no nominee to the
voters.
Third, Funakoshi never addressed the situation Elkins
anticipated. And it had no reason to, because a winner was
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ready to be declared. Elkins reserved the case where “cause
exists for invalidating the election process.” 56 Haw. at 49,
527 P.2d at 238.
This is that case. Between them, the two decisions sort
every contest. Funakoshi governs where a winner can be
declared. Elkins where the process has failed and no winner can
be.
C. The Voters Will Finish the Primary at the General Election
The primary remains unfinished. It’s not for the court to
declare the winner. That’s up to the people. Some rights sit
above the rest. Like the right to vote.
The right to vote is perhaps the most basic and fundamental
of all the rights guaranteed by our democratic form of
government. Implicit in that right is the right to have
one’s vote count and the right to have as nearly perfect an
election proceeding as can be provided. The result we
reach must be consistent with these principles.
Akizaki v. Fong, 51 Haw. 354, 356, 461 P.2d 221, 223-24 (1969).
Two commitments live inside Chief Justice Richardson’s
passage. Every vote, once cast, must be counted. And the
election that gathers them must come as near to perfect as it
can.
This record honors neither commitment. Two ballots from
outside the district entered a tied race, and no one can say for
whom. The tie was then broken by a method the law does not
allow. When the count cannot say who the voters chose, the most
basic right our government secures is promised in name and
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defeated in fact. Our duty is to uphold the promise. The
choice belongs to the voters.
The primary must be completed by a vote. That leaves the
question of how.
The court orders an election – a separate vote to complete
the nomination the 2026 District 43 primary left unfinished.
The power to order it is HRS § 11-175. This court may “do
whatsoever else may be necessary fully to determine the
proceedings, and enforce its decrees therein.” The Legislature
could not foresee every way an election might go wrong. That is
why it wrote a power broad enough to meet the unexpected.
That reading of HRS § 11-175 fits HRS § 11-173.5(b). It
aligns with Elkins. The court is empowered to do what is
necessary when a primary returns no nominee. Even the State
concedes it: HRS § 11-175 lets this court put the choice to the
voters. Oral Argument at 1:50:30-33,
https://www.courts.state.hi.us/oral-argument-before-the-supremecourt-no-scec-XX-XXXXXXX [https://perma.cc/3B6A-XFT4].
An overage does not call this power into play in every
election. This one does, because the margin is zero and cannot
absorb even one extra ballot. Two ballots whose votes no one
can trace, in a race that ended in a tie. The statute lets the
court answer with an election.
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The winner of this election is District 43’s unopposed
Republican nominee. The one-party field does not change the
result. It makes getting there straightforward. “If a
candidate nominated for a seat at a primary election is
unopposed for that seat at the general election, the candidate
shall be deemed elected at the primary election.” Haw. Const.
art. III, § 4.
Only Republicans filed. Whoever wins this election is
unopposed. They win. The seat is filled in one step, by the
voters, once the primary the officials left unfinished is
finished. Section 4 sets the term to begin at the general
election following the primary; here the primary is completed on
general election day, so the term begins then.
The District 43 winner is deemed elected under Article III,
Section 4. That authority comes from HRS § 11-175, which
empowers this court to take necessary measures to determine the
proceedings, and enforce the court’s decrees.
VI.
The voters of District 43 cast 842 ballots for each
candidate. The margin is zero. The count that produced that
tie cannot account for two ballots. One would have been enough.
The law’s answer to a deadlock like this one is to return the
question to the voters, not to resolve it from a lau hala
basket.
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On this record no candidate was validly nominated in the
2026 primary for State Representative, District 43. The tiebreak drawing and the selection of Sheila Medeiros fall. The
choice returns to the voters.
The court, under HRS § 11-175, completes the 2026 District
43 Republican primary on the November 3, 2026, general election
ballot, in a contest between Medeiros and Souza for the seat.
The winner is deemed elected under Article III, Section 4, and
takes office on general election day.
The right to vote means little if the result cannot be
trusted. Here it could not. So the voters will settle it.
Thomas M. Otake /s/ Sabrina S. McKenna for plaintiff
/s/ Todd W. Eddins
Kendall J. Moser
(Skyler G. Cruz and Aaron H.
Schulaner on the briefs)
for Defendants Scott T. Nago
and State of Hawaiʻi Office of
Elections
Duane W.H. Pang
for Defendants Chadd Kadota and
Rex Quidilla
Sheila Medeiros
Defendant, Self-Represented
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