Lopresti v. State, 010919 HIISC, SCEC-18-0000908

Docket Nº:SCEC-18-0000908
Party Name:MATTHEW S. LOPRESTI, Plaintiff, v. STATE OF HAWAI'I; SCOTT T. NAGO, as Chief Election Officer for the State of Hawai'i; and OFFICE OF ELECTIONS, State of Hawai'i, Defendants.
Judge Panel:Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.
Case Date:January 09, 2019
 
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MATTHEW S. LOPRESTI, Plaintiff,

v.

STATE OF HAWAI'I; SCOTT T. NAGO, as Chief Election Officer for the State of Hawai'i; and OFFICE OF ELECTIONS, State of Hawai'i, Defendants.

No. SCEC-18-0000908

Supreme Court of Hawaii

January 9, 2019

ORIGINAL PROCEEDING

Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

We have considered (1) the election complaint, filed by plaintiff Matthew S. LoPresti ("LoPresti") on November 26, 2018, (2) the statement by Sherrie J. Course ("Course"), filed by LoPresti on November 29, 2018, (3) the motion to dismiss complaint or, in the alternative, motion for summary judgment, filed by defendants State of Hawai'i, Chief Election Officer Scott Nago ("Chief Election Officer Nago"), and the Office of Elections (collectively, "the State Defendants") on December 6, 2018, (4) the State Defendants' response to the court's December 28, 2018 order, filed on December 31, 2018, (5) LoPresti's reply to the State Defendants' response, filed on January 4, 2019, (6) the respective supporting documents, and (7) the record in this matter. Having heard this matter without oral argument and in accordance with HRS § 11-174.5 (b) (2009) (requiring the supreme court to "give judgment, stating all findings of fact and of law"), we set forth the following findings of fact and conclusions of law and enter the following judgment.

FINDINGS OF FACT

The November 6, 2018 General Election

1. LoPresti was the Democratic Party candidate for the Office of State Senate, District 19 in the November 6, 2018 general election.

2. State Senate, District 19 consists of district/ precincts 40-02, 40-03, 40-04, 41-01, 41-02, 41-03, and 41-05.

3. Each district/precinct has its own unique ballot type containing the contests and questions that the voters in those district/precincts are eligible to vote on, based on where they live.

4. The election results for the race for State Senate, District 19 was as follows: (R) FEVELLA, Kurt 6, 205 (48.0%)

(D) LOPRESTI, Matthew S. (Matt) 6, 089 (47.1%)

Blank Votes 623 (4.8%)

Over Votes 7 (0.1%)

5. Kurt Fevella ("Fevella") received the highest number of votes.

6. The difference in the votes between LoPresti and Fevella was 116 votes.

The Election Contest

7. On November 26, 2018, LoPresti timely filed a complaint1 challenging the election results for Office of State Senate, District 19.

8. LoPresti alleges that irregularities in voting or in counting of votes could have caused a difference in the election outcome or could have precluded the correct result from being ascertained. LoPresti also alleges that the 116-vote difference in the election equaled 0.9% of the total votes cast and, therefore, calls into doubt the election results. LoPresti further alleges that irregularities at district/precinct 41-02, including potential tampering of the ballots, may have affected the election results.

9. LoPresti contends that the electronic tabulation machines were not working from the start on election day at district/precinct 41-02 (and possibly at some of the other six polling precincts in the district), that voters were told to take the ballots away from the machine and deposit them in another box that was not locked and secured, that precinct officials had access to the box of ballots throughout the day, that a precinct official (Michele Golojuch ("Golojuch")) who was openly hostile to his candidacy was present at district/precinct 41-02, and that ballots that needed to be tabulated by machine were "intentionally and deliberately physically altered and manipulated by poll workers." LoPresti maintains that these irregularities invited voter tampering and may have influenced some voters to vote against him. LoPresti also maintains that the precinct captain for district/precinct 41-02 did not closely oversee the process and "admitted to [him] that if she were in [his] shoes she would certainly ask for a recount of the votes[.]"

10. LoPresti also contends that HRS § 11-172 is unconstitutional.

11. LoPresti acknowledges that he was not present at any of the precincts on the day of the general election and that the concerns he raises in the complaint arise from conversations with the precinct captain or chair, Office of Election officials, and a voter who voted at district/precinct 41-02.

12. LoPresti seeks the following relief: • an order requiring a hand recount and entering judgment invalidating the election results for the Office of State Senate, District 19 on the ground that a correct result cannot be ascertained because of a mistake or fraud on the part of the precinct officials;

• if the recount shows that LoPresti received the highest number of votes, then judgment be entered electing him the winner;

• an order compelling witnesses and taking the necessary steps to fully determine what occurred on the general election day at the polling precincts in the State Senate District 19 race; and

• an order requiring the State Defendants to disclose the margin of error for their voting and tabulating systems.

Statement of Sherrie J. Course

13. On November 29, 2018, LoPresti submitted a statement that purports to be from Course, who was a voter at district/precinct 41-02.

14. According to the statement, Course was the first voter to attempt to scan her ballot at district/precinct 41-02 on the day of the general election. Course states that the scanner did not work and after several attempts to scan her ballot, the precinct worker "removed a piece of equipment from the left side of the ballot box underneath the scanner" to insert the ballots through the slot. Course states that, "[h]aving seen inside the box, [she] could tell that this slot was in the correct spot to allow the ballots to drop into the receptacle below, so [she] went ahead and slipped [her] paper ballot through the slot [ .]" When Course re-entered the polling place to get a slip of paper to take back to work, she noticed additional voters waiting to drop their ballots through the slot into the ballot box. Course states that she wondered whether the ballots in the bin would be properly counted. After learning that LoPresti lost the election for Senate District 19, Course contacted her friend who voted at the same precinct at approximately 8:00 a.m. or 8:30 a.m. and learned that the scanner had not been fixed. Course states that with her consent, her friend provided her telephone number to LoPresti, who contacted her to see if she would be willing to provide a statement regarding her experiences.

The Motion to Dismiss or, in the Alternative, Motion for Summary Judgment

15. On December 6, 2018, the State Defendants moved to dismiss the complaint or, in the alternative, for summary judgment. They contend that the complaint fails to state a claim for relief because LoPresti fails to present any evidence of "errors, mistakes or irregularities," or any other such basis, such as "provable fraud, overages, or underages, that could cause a difference in the election results" as mandated by HRS § 11-172. In addition, they contend that the remedies requested by LoPresti are improper and cannot be awarded by this court in a general election contest.

16. The State Defendants argue that LoPresti's allegations of possible election fraud and voter tampering are conclusory and speculative as LoPresti does not present actual...

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