Hawaii Republicans lose challenge of 2022 election audit process

A judge tossed a lawsuit claiming the elections were compromised by the use of digitized images of ballots in the post-election audit.

by Candace Cheung, Courthouse News Service, February 13, 2023

HONOLULU (CN) — Republicans nationwide continue to question election integrity — despite no evidence of widespread voter fraud — but a Oahu Circuit Court judge put a stop to one such complaint at a hearing Friday afternoon in Hawaii.

The Hawaii Republican Party had accused the state’s election office of violating election statutes during the post-election ballot auditing process for the 2022 general elections, where Democrats won a majority of the races including for governor.  

The complaint, first filed two weeks after the election, named the State of Hawaii Office of Elections and Chief Elections Officer Scott Nago in his official capacity as defendants and asked for a proper election audit to be completed.

The GOP's suit relies on an assortment of witness statements and affidavits from election observers who claimed to have seen election officials using digitized images of ballots to tally votes rather than the paper ballots as required by state law.

Defendants argued the Republican Party did not have any concrete evidence to any kind of wrongdoing and said the party's assertions were without any evidence and called them “pure speculation.”

Hawaii Republicans sought a court declaration that Nago and the Elections Office improperly conducted the election audit and therefore improperly certified the election.

Oahu Circuit Court Judge Gary Chang was not convinced by the GOP's arguments and dismissed the case, finding Republicans were unable to show sufficient evidence that the elections were somehow compromised or that the party had been injured by the auditing process.

The Republicans' attorney William Dean, who himself characterized the party’s claims of damages to be "extemporaneous", attempted to maintain at Friday’s hearing that Republicans are not necessarily challenging the results of the election and are merely trying to exercise their right to ensure election safety.

Much of the hearing for dismissal involved dissent around the language of an election statute that governs electronic voting requirements. Dean argued the language of the statute specifically indicates paper ballots be used in the auditing process.

Arguing for Nago and the elections office, attorney Reese Nakamura emphasized that although images of the ballots were used, they were not indicative of any election security risks.

“The digital images are the paper ballots. There is not difference between the two, it is the same content, the same document. There is no reason to doubt the content.”

Nakamura also explained the use of the digital images, as opposed to the paper ballots themselves, is meant to promote organization and efficiency during the audit and that the tabulation of votes was still done by hand.

But in an interview, Liz Howard, senior counsel for the Brennan Center for Justice said in light of increased interest in post-election procedures, "from an election security standpoint, it is preferable to conduct an audit using a hand count of the actual paper ballot.”

Dean also offered up the point that pending bills introduced in the Hawaii Legislature proposing a change in the language of the statute could render the GOP's complaint moot if passed.

Since the Hawaii’s primary and general elections, courts have rejected a myriad other lawsuits that challenged the legitimacy of the elections, primarily from individual voters and losing candidates who could not provide evidence of election misconduct.