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Electronically Filed
Supreme Court
SCEC-XX-XXXXXXX
04-SEP-2026
04:30 PM
Dkt. 65 FFCL
SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
KRISTEN K. SOUZA, also known as KANANI SOUZA,
Plaintiff,
vs.
SCOTT T. NAGO, in his official capacity as Chief Election 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.
ORIGINAL PROCEEDING
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT,
WITH A SEPARATE OPINION BY EDDINS, J.,
IN WHICH McKENNA, ACTING, C.J., JOINS
(By: Ginoza, J.,
and Intermediate Court of Appeals Associate Judge McCullen,
in place of Devens, C.J., recused, and Intermediate Court of
Appeals Associate Judge Guidry, assigned by reason of vacancy)
As this court has explained, “[t]he 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 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
to have as nearly perfect an election proceeding as can be
provided.” Akizaki v. Fong, 51 Haw. 354, 356, 461 P.2d 221,
222-23 (1969). We acknowledge the immense responsibility placed
upon the State of Hawaiʻi and its counties in executing this
fundamental right. We also acknowledge that human error can
inadvertently result in overages and/or underages in the vote
count.
This primary election challenge arises from a race for
State Representative District 43 between Plaintiff Kristen K.
(Kanani) Souza and Defendant Sheila Medeiros in which each
candidate received 842 votes, but there was a two-ballot
overage.
In accordance with Hawaiʻi Revised Statutes (HRS) §§ 11-173.5 (Supp. 2024) and 11-175 (2009), we enter the following
findings of fact, conclusions of law, and judgment.
FINDINGS OF FACT
1. On August 24, 2026, Souza filed an election contest
against Scott T. Nago, Chief Election Officer, and the State of
Hawaiʻi Office of Elections (together, “Office of Elections”),
and against Chadd Kadota, Acting City Clerk, and Rex Quidilla,
Elections Administrator, City and County of Honolulu. Nago,
Kadota, and Quidilla are sued in their official capacities. We
will detail the claims below.
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2. On August 26, 2026, this court joined Medeiros as a
defendant. Medeiros answered seeking to uphold the drawing.
3. On August 31, 2026, the Office of Elections filed a
motion to dismiss or for summary judgment, supported by Nago’s
declaration and three exhibits. Kadota and Quidilla filed their
answer on this same date, supported by Quidilla’s declaration
and an exhibit.
4. On September 2, 2026, this court held an evidentiary
hearing. Nago, Kadota, and Quidilla testified. Oral argument
followed. The evidentiary hearing was re-opened after oral
argument for further testimony by Nago.
The Election Results and Tie-Breaker Drawing
5. At the close of the candidate filing deadline for
State Representative District 43, the Republican candidates were
Souza and Medeiros. There were no candidates running from any
of the other parties, nor any non-partisan candidates.
6. The Final Summary Report for the August 8, 2026
primary election, issued on August 14, 2026, shows that Souza
and Medeiros each received 842 votes in the Republican contest
for State Representative District 43.
7. On August 15, 2026, Nago held a tie breaker under HRS
§ 11-157 (Supp. 2019), at the State Capitol. This proceeding
was open to the public and was conducted by Nago and a second
election official. The candidates attended. They watched as
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their names, printed on small pieces of paper, were placed in
separate ball-shaped containers. Next, the balls were placed in
a larger container made of dried woven lau hala. 1 An election
official sealed the lau hala container and then shook it. After
some shaking by the election official, the container was opened
and placed in front of Nago who proceeded to select and open a
ball that contained the name of Medeiros. Thereafter, the
Office of Elections declared that Medeiros will be selected as
the State Representative for District 43.
8. The Office of Elections’ Over/Under Report, created on
August 20, 2026, and authenticated by Nago, shows a discrepancy
among District 43’s four precincts: a two-ballot overage in
Precinct 43-03, and no offsetting underage in any of District
43’s four precincts.
9. No party has at any time alleged that this discrepancy
was due to fraud.
10. Quidilla’s declaration attested the City identified
the source of the two-ballot overage through its daily voter
service center reconciliation. Quidilla confirmed that two
voters registered in Precinct 40-03 were mistakenly issued
ballots for Precinct 43-03 at the Kapolei Hale Voter Service
1 “Lau hala” is the Hawaiian language term for “a pandanus leaf, especially as used in plaiting,” Mary Kawena Pukui, New Pocket Hawaiian Dictionary 77 (1992), and here it is a reference to a type of woven basket made from the pandanus leaf.
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Center on August 8, 2026, and the two-ballot overage represents
two physical in-person ballots cast using the wrong districtprecinct ballot. Quidilla attested that the two ballots were
scanned at the voter service center, secured in the scanner’s
box, and transferred to the State for tabulation, and that the
City’s records do not reveal how either voter marked the
District 43 contest.
11. At the evidentiary hearing on this matter, Nago
testified that it was not possible for the Office of Elections
to ascertain the correct result for the District 43 election
by removing the two invalid ballots from the vote count. He
acknowledged, however, that the two-ballot overage could have
caused a difference in the race.
12. Kadota and Quidilla also testified that based on their
knowledge it was not possible for the Office of Elections to
ascertain the correct vote count given the two-ballot overage.
In short, based on their testimony, there is no way to ascertain
what the vote count would have been if the two ineligible
ballots had not been counted. Quidilla testified that there was
no means by which to retrieve the two ineligible ballots that
had been deposited into the ballot box.
13. Nago testified that he developed and adopted the tiebreaker method prior to determining there was a tie in two
Republican primary races, and that the method was not tested to
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determine whether it favored certain outcomes. Souza first
learned of the process on August 15, 2026, while it was
underway.
CONCLUSIONS OF LAW
1. Election contests are governed by part XI of
chapter 11 of the HRS. See HRS § 11-171 (2009).
With respect to any election, any candidate . . . may file
a complaint in the supreme court. The complaint shall set
forth any cause or causes, such as but not limited to,
provable fraud, overages, or underages, that could cause a
difference in the election results. The complaint shall
also set forth any reasons for reversing, correcting, or
changing the decisions of the voter service center
officials or the officials at a counting center in an
election using the electronic voting system.
HRS § 11-172 (Supp. 2021) (emphasis added).
2. The legislature has expressly established that
overages and underages are valid grounds for an election
contest. HRS § 11-172.
3. HRS § 11-153, “More or fewer ballots than recorded,”
provides:
(a) If there are more ballots than documented usage
indicates, this shall be an overage and if fewer ballots,
it shall be an underage. The election officials or
counting center employees responsible for the tabulation of
ballots shall make a note of this fact on a form to be
provided by the chief election officer. The form recording
the overage or underage shall be sent directly to the chief
election officer or the clerk in county elections separate
and apart from the other election records.
(b) If the electronic voting system is being used in
an election, the overage or underage shall be recorded
after the tabulation of the ballots. . . .
(c) The chief election officer or the clerk shall
make a list of all precincts in which an overage or
underage occurred and the amount of the overage or
underage. This list shall be filed and kept as a public
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record in the office of the chief election officer or the
clerk in county elections.
An election contest may be brought under part XI, if
the overage or underage in any precinct could affect the
outcome of an election.
HRS § 11-153 (Supp. 2021) (emphasis added).
4. To prevail on an election challenge, the plaintiff
must establish “either 1) errors, mistakes or irregularities
that could change the outcome of the election” or “2) that the
correct result cannot be ascertained because of a mistake or
fraud on the part of the precinct officials.” See Waters v.
Nago, 148 Hawaiʻi 46, 60, 468 P.3d 60, 74 (2019) (citations
omitted).
5. The process and remedy for an election contest
challenging a primary election result is set forth in HRS § 11-173.5(b) (2009) which provides:
(b) In primary and special primary election contests,
and county election contests held concurrently with a
regularly scheduled primary or special primary election,
the court shall hear the contest in a summary manner and at
the hearing the court shall cause the evidence to be
reduced to writing and shall not later than 4:30 p.m. on
the fourth day after the return give judgment fully stating
all findings of fact and of law. The judgment shall decide
what candidate was nominated or elected, as the case may
be, in the manner presented by the petition, and a
certified copy of the judgment shall forthwith be served on
the chief election officer or the county clerk, as the case
may be, who shall place the name of the candidate declared
to be nominated on the ballot for the forthcoming general,
special general, or runoff election. The judgment shall be
conclusive of the right of the candidate so declared to be
nominated; provided that this subsection shall not operate
to amend or repeal section 12-41.
HRS § 11-173.5(b) (emphasis added).
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Count I, Overages
6. In Count I, Souza alleges that the two-ballot overage
reported by the Office of Elections was a mistake or
irregularity that could cause a difference in the election
results because it exceeds the zero-vote margin in the tied
race.
7. An overage occurs where more ballots were counted than
election officials documented as having been used by voters; an
underage is the reverse. See HRS § 11-153(a).
8. The Over/Under Report shows a two-ballot overage in
District 43 with no offsetting underage in any of its precincts.
Nago confirmed the report’s authenticity. Based on this, we
conclude that the Office of Elections’ Report on the twoballot overage is prima facie evidence that the Office of
Elections counted two ballots in the official results for
Precinct 43-03 from voters who were not accounted for in that
precinct. See HRS §§ 11-96 (2009), 2 11-153.
9. A two-ballot overage exceeds the zero-vote margin
between the candidates. In this circumstance, Souza
established an overage that could cause a difference in the
election result. HRS § 11-172.
2 The legislative history for HRS § 11-96 confirms that the term “precinct officials” was meant to include an “election official” or “election clerk.” H. Stand. Comm. Rep. No. 572, in 1973 House Journal, at 1012.
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10. The evidence from Quidilla, Kadota, and Nago
supports that the two-ballot overage could cause a difference
in the election results. Quidilla testified that two voters
registered in Precinct 40-03 were mistakenly issued ballots
for Precinct 43-03, and in his declaration attested that
those ballots were scanned at the voter service center and
transferred to the State for tabulation and inclusion in the
official results. Kadota testified that, to his knowledge,
the Office of Elections could not ascertain the correct vote
count because of the two-ballot overage. Nago acknowledged
that there was no way for him to ascertain the correct result
for the District 43 election by removing the two invalid
ballots from the vote count, and further that the two-ballot
overage could have caused a difference in the race.
11. Although these two voters may not have voted in the
Republican primary at all, it is equally possible that they
cast invalid votes in the Republican primary for District 43
State Representative.
12. Souza was required to show that an error by election
officials could cause a difference in the election results,
and she did. See HRS § 11-172.
13. We rule in favor of Souza and against Defendants on
Count I.
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Count III
14. HRS § 11-157 (Supp. 2025) states,
In 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 or clerk in
the case of county elections by lot.
(Emphasis added.)
15. Nago implemented a tie-breaking method based on a
similar method used to determine the order of political parties
listed on a ballot. This tie-breaking method was applied here.
16. This tie-breaking method was tantamount to a “rule”
under the Hawaiʻi Administrative Procedure Act (HAPA), HRS § 91-1
(Supp. 2017); see Green Party of Haw. v. Nago, 138 Hawaiʻi 228,
237, 239, 378 P.3d 944, 953, 955 (2016), and the Office of
Elections erred by using it without complying with HAPA’s
rulemaking requirements.
17. Had the Office of Elections complied with HAPA’s
rulemaking requirements, it would have been required to hold a
public hearing, and the public would have had the right to
“submit data, views, or arguments, orally or in writing.”
Hawaiʻi Administrative Rules (HAR) § 3-177-4 (eff. 2020).
Moreover, the candidates and public would have been on notice as
to the tie-breaking method to be used.
18. The State asks us to dismiss this case based on
laches. “The general rule is that if there has been opportunity
to correct any irregularities in the election process or in the
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ballot prior to the election itself, plaintiffs will not, in the
absence of fraud or major misconduct, be heard to complain of
them afterward.” Lewis v. Cayetano, 72 Haw. 499, 502-03, 823
P.2d 738, 741 (1992) (citation omitted).
19. Laches does not apply. Souza did not sit on her
rights; Souza learned of the process as it was underway and
filed this contest nine days later. See Lewis, 72 Haw. at 502-03, 823 P.2d at 741.
20. We hold that Nago’s failure to comply with the
rulemaking process required by HAPA was error.
21. We rule in favor of Souza and against Defendants as to
Count III.
Counts II, IV, and V of the Complaint Are Moot
22. Counts II, IV, and V challenged the tie-breaker method
as noncompliant with the lot requirement in HRS § 11-157, and as
constitutionally infirm on various grounds. Having ruled in
favor of Souza on Counts I and III, Counts II, IV, and V are
moot.
Remedy
23. The legislature intended the sections in part XI of
chapter 11 of the HRS to be construed harmoniously with each
other. See HRS § 11-171 (“This part shall apply whenever a
contested election is subject to determination by a court of
competent jurisdiction in the manner provided by law.”). Unable
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to envision every possible scenario, the legislature empowered
this court to “do whatsoever else may be necessary fully to
determine the proceedings, and enforce its decrees therein” so
that, as here, this court may address any unique and unforeseen
circumstances that could arise. HRS § 11-175. Read with HRS
§ 11-173.5(b), and consistent with Elkins v. Ariyoshi, 56 Haw.
47, 49 n.3, 527 P.2d 236, 238 n.3 (1974) (per curiam), that
authority allows this court to return to the voters a primary
that yielded no nominee. Cf. Funakoshi v. King, 65 Haw. 312,
316, 651 P.2d 912, 914 (1982) (per curiam) (refusing to
invalidate an election and allow a new one where the plaintiff
failed to show that the irregularities complained of could have
caused a difference in the election results).
24. Only two candidates appeared on the Republican Primary
Ballot for District 43: Medeiros and Souza. These same two
candidates are entitled to a new election. Because there were
no candidates running from any of the other parties, nor any
non-partisan candidates, the winner of the Republican party
primary between Medeiros and Souza would be declared elected
pursuant to article III, section 4 of the Hawaiʻi Constitution.
JUDGMENT
Based on the foregoing, judgment is entered in favor of
Souza and against Defendants as to Counts I and III of the
Complaint. Counts II, IV, and V are dismissed as moot. In
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accordance with HRS § 11-173.5, we determine that neither
candidate was nominated nor elected.
The motions filed at Dockets 40, 59, and 63 are denied.
In accordance with the power of this court under HRS § 11-175 to do whatsoever else may be necessary to enforce its decree
and to fully determine the proceeding, it is ordered:
A. Nago shall conduct an election between Medeiros and
Souza, to be held concurrently with the 2026 general election.
The ballot for State Representative District 43 shall plainly
identify for that race: “Republican Party Voters Only.” In
accordance with article II, section 4 of the Hawaiʻi
Constitution, no voter shall be required to declare a party
preference as a condition of voting in District 43.
B. Pursuant to article III, section 4 of the Hawaiʻi
Constitution, Nago shall declare the winner of the election
between Medeiros and Souza as being elected to the office of
State Representative District 43.
C. Nago is ordered to expeditiously promulgate rules to
implement the tie-breaker statute, HRS § 11-157. Nago shall
initiate the process to implement rules with due regard to
giving public notice of the proposed rules, and in compliance
with the procedures required by law. See, e.g., HAR § 3-177-1
(eff. 2020), et seq.
D. This judgment is effective forthwith.
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E. The court retains jurisdiction over this matter in the
event it may be necessary for the court to take further postjudgment action to enforce its decree and fully determine the
proceeding.
DATED: Honolulu, Hawaiʻi, September 4, 2026.
/s/ Lisa M. Ginoza
/s/ Sonja M.P. McCullen
/s/ Kimberly T. Guidry
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