Democracy has its twists and turns. Few cases illustrate the possible complications of elections more clearly than razor-thin contests, such as the Trevor Ozawa race against City Council challenger Tommy Waters.
Some states have sought to simplify the decisionmaking process in picking the final winner in close, contested races. They have set a threshold that would trigger an automatic vote recount.
In contrast, the Hawaii Constitution allows an election challenge through the courts, as defined in statute. Essentially, that law requires that the state Supreme Court be given evidence that there is some cause to order a recount.
The time has come to reconsider whether the bar for holding a recount is set too high in this state.
Regardless of how the Ozawa- Waters case is resolved, it already has disrupted the business of the 2019 Honolulu City Council, which convened Wednesday without swearing in Ozawa because his election has not been certified.
And the East Oahu politician has actively sought to take over chairmanship of the powerful lawmaking body, so the resolution is quite consequential.
Ozawa emerged from the Nov. 6 general election as the winner of his race, by a 22-vote margin. It was a dramatic photo-finish, with the tide turning to incumbent Ozawa only in the final, overnight tally.
Adding to that drama is the fact that the entire race was a rematch of the 2014 election, which Ozawa also won by a hair. That time the state courts did not find cause for a recount.
This go-around, the court did not immediately dismiss the legal challenge. Waters’ complaint touched on concerns such as the procedures for verifying results through a hand count and for determining a voter’s intent. The state Supreme Court ordered, then received, more information about such procedures — and on Wednesday gave Waters an extension until Friday afternoon to file a response.
Cases such as this one have spurred legislators to seek a change in Hawaii laws on recounts, but none has succeeded. In the most recent failure, Senate Bill 247 passed the Senate in 2017 and carried over to the 2018 session but died in the House. It proposed that a recount would be automatic in very close elections.
Specifically, the chief elections officer or county clerk would conduct a recount if the vote difference between the apparent winner and the closest opponent is less than 250 votes, or less than 1 percent of the total votes cast in the contest, whichever number is smaller.
There wasn’t a flood of testimony on the bill. Primarily the response came from Scott Nago, chief elections officer for the state Office of Elections. He did not take a position on it but asserted that the bill should set a timetable enabling a potentially revised general-election ballot to be printed, in cases of a primary-election recount that changed the outcome.
In addition, Nago rightly argued in written testimony that the law would have to clarify whether races other the one in dispute could be certified before the recount, or if those vote tallies would need to be updated as well.
Nago rightly added that the law should affirm the original results of those other races, even if the recount of the disputed election pushes the other contests into recount territory.
It’s not surprising that the House opted out of considering this bill further in an election year. But the Ozawa-Waters standoff demonstrates how much potential for disruption a close election presents, especially when the resolution of a recount is so discretionary.
Critics of the automatic recount say that the court-mediated solution is sufficient. But its supporters counter, correctly, that not all candidates have equal access to judicial relief because of its cost.
Clearly the various statutory complications would need to be worked out. In the interest of an optimal election process, however, it’s time to reintroduce SB 247 for debate.
Correction: An earlier version of this editorial stated incorrectly that the measure died in the Senate.
