At least three state senators are drafting bills that would require automatic recounts in close election races. The bills seek to avoid or more quickly resolve disputes such as the one between Trevor Ozawa and Tommy Waters.

A legal challenge of Ozawa’s 22-vote victory over Waters in the general election has left voters in Honolulu City Council District 4 without a certified representative, and it’s uncertain when the matter will be resolved.

Sen. Gil Keith-Agaran (D, Waihee-Wailuku-Kahului) said he is speaking with colleagues about introducing a bill requiring automatic recounts for elections in which the margin of victory is less than 250 votes or 1 percent of votes, whichever is less.

The measure would be similar to a previous bill he authored, Senate Bill 247 (2017), which was passed by the Senate two sessions ago but failed to get a committee hearing in the House.

While that bill did not specify whether the recount is to be done by hand, Keith-Agaran said this year’s draft might include language requiring a manual recount when appropriate.

Hawaii is not among the 20 states that require a recount in close races, according to the National Conference of State Legislatures. However, state law does allow for legal challenges of results based on a narrow set of criteria.

Specifically, either the candidate, the involved political party or any 30 voters from the district may file a complaint with the Supreme Court within 20 days after the election if they can show cause, such as fraud or other irregularities. That’s the path Waters is taking, as is a separate group of about 40 East Honolulu residents that filed its own challenge.

Sen. Stanley Chang (D, Diamond Head-Kahala- Hawaii Kai) said he is preparing to submit a bill that would require a hand recount in close elections.

Chang said he learned from the recent court documents that only 4.2 percent of a candidate’s box on the ballot needs to be covered by ink to be counted. “So it seems that there are standards where a voter could’ve made it clear what their vote was or was not, and yet the ballot may not be counted as a result,” Chang said. “I think that a hand recount can produce a different count from a machine count.”

Something should be done “to make it clear so that situations like this one don’t occur again in the future,” he said.

Chang added he believes state law already allows for Chief Election Officer Scott Nago to conduct a recount. The section of Hawaii Administrative Rules cited by Chang states, “In lieu of relying on the initial results from an electronic voting system, the chief election officer may count ballots or voter verifiable paper audit trails by hand or with a mechanical tabulation system.”

Sen. Laura Thielen (D, Hawaii Kai-Waimanalo- Kailua) is introducing a bill that would require mandatory recounts in cases where the results show the number of votes separating the winner and the runner-up within 0.5 percentage point of each other, a threshold that is commonly used in other states.

Thielen said her version would apply to not just candidate elections, but ballot questions such as proposed amendments to the Hawaii Constitution and county charters.

“Looking at what’s going on, it seems just really disruptive to have to go to the court, and it’s also inequitable,” Thielen said. Her bill includes a recount provision that would require recounts within nine calendar days. “So you would have some certainty, and people would be able to move on and government would be able to function.”

A district in limbo

Meanwhile, nearly two weeks have passed with representation in limbo for County Council District 4 (Hawaii Kai to Waikiki).

Diamond Head- Kapahulu-St. Louis Heights Neighborhood Board member George West said he hasn’t noticed much of an impact, but he worries about what will happen if the matter isn’t resolved soon.

“We would all be affected if they don’t organize and don’t have a chair,” said West, who stepped down as chairman of the neighborhood board.

The eight certified Council members are scheduled to meet today to select a temporary chairman, vice chairman and floor leader to tie them down until a ninth member can be certified and take a seat in the Council gallery.

Acting Council Chairwoman Kymberly Pine said she will recommend that veteran Councilwoman Ann Kobayashi replace her as acting chairwoman. Kobayashi has reluctantly agreed, and several other Council members said they’re OK with her leading them.

Waikiki community advocate David Moskowitz said he has no problem with the eight Council members selecting temporary leaders but believes the Council shouldn’t meet otherwise until a representative for District 4 is finalized.

Moskowitz cited “taxation without representation” and said he and others are ready to file for an injunction barring the Council from taking any other action.

“The Council shouldn’t continue at all until this matter is settled,” he said. “I think it’s highly inappropriate.”

“There are a lot of people who would be disenfranchised,” Moskowitz added, noting that Waikiki is the state’s economic engine. “If you look at the City Charter, I think it’s pretty clear that we’re supposed to be represented. We’re hoping this thing gets resolved quickly without us having to go through this process, because we really don’t want to.”

The Hawaii Supreme Court will take up oral arguments Tuesday on Waters’ challenge against the state Office of Elections and city Elections Division. But it’s unclear when the court will make a determination. If Waters wins his challenge, the justices could order a recount or an entirely new election, leaving the District 4 seat vacant even longer.

In the meantime four members from Ozawa’s staff have been retained to address constituents’ concerns.

Pine said it makes sense to retain them until the matter is resolved because they have experience and best know their district. “They’re faithful servants and they’re doing a great job,” Pine said.

Kenny Amazaki, chief of staff under Ozawa, said Friday that the staff hasn’t formally been told they’re still getting paid, but they felt it important to continue conducting the people’s business.

“I’m just going to work until we’re told we cannot work, and the rest of the staff feels the same way,” Amazaki said.

While Ozawa is not on the job, he has forwarded some of the calls for assistance made to him by East Honolulu residents, Amazaki said.